Articles Posted in Federal Sentencing

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In U.S. v. Cruz, the defendant and her brother obtained credit cards numbers which they purchased from a waiter working at a Flanigan’s restaurant in Hialeah, Florida. Using a credit card skimming device, the waiter sold the skimmed numbers to a codefendant who was married to Cruz. Cruz’s sister also a codefendant worked at a Target. At one point after a complaint by a customer about an authorized purchase of $200 on the credit card, Target security began to focus on the sister. While working the register they observed her and became suspicious because she was continuously selling to the same man buying stacks of gift cards and other merchandise. She sold 65 gift cards and 50 “other” other transactions involving the same two customers. After she was interview by Metro-Dade Police, she admitted selling to her brother who came into the store to use credit cards she knew to be fraudulent and did not belong to him.

They were convicted of aggravated identity theft. The identity statute, 18 U.S.C. §1028(a)(1) mandates a 2 year additional consecutive sentence for a defendant convicted of a predicate crime if during (or in relation to) the commission of the predicate crimes, “the offender knowingly transfers, possess, or uses, without legal authority, a means of identification of another person.” The 11th Circuit found that the defendant’s underlying offense of using an unauthorized access devise (section 1029) was a predicate offense for purposes of §1028A and were subject to the 2 year consecutive sentence in addition to the guidelines sentence. In calculating the guidelines sentence, the district court gave them a two- point increase for the use of a device-making equipment under U.S.S.G. §2B1.1(b)(10)(A)(i).

The defendants argued this was double counting and found support in the commentary of U.S.S.G. §2B1.6 which limits the application of §2B1.1(b)(10) to avoid double counting. That section states that the guidelines sentence for an aggravated identity theft conviction under §1028 is the statutory term of imprisonment. The commentary prohibited applying any specific offense characteristics for “the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense” because the sentence under 2B1.6 accounts for this relevant conduct. The defendant interpreted this commentary to prohibit a guidelines enhancement for relevant conduct that includes the use of a device-making equipment. The 11th Circuit did not agree and found that §2B1.6 allows for an enhancement for the use of device-making equipment. The court interpreted the commentary of §2B1.6 to prohibit the enhancement where the relevant conduct pertains to the transfer, possession or use of a means of identification. Here, the defendants’ enhancements were premised on relevant conduct related to the device-making equipment. The court found the commentary did not prohibit this relevant conduct from serving as the basis for the increase. The evidence supported the enhancement given the sister’s knowledge her codefendant brother bought merchandise using credit cards that did not belong to him. There was also circumstantial evidence that the sister knew about the skimmer because she lived at the same address where it was found.

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In U.S.v. Kuhlman, the defendant was a doctor of chiropractic medicine who owned and operated clinics in the Atlanta area. For five years he submitted $2,944,883 in fraudulent billings to Medicare for fictitious medical services. He did this by submitting HCFA forms to insurance companies indicating that medical procedures were performed by doctors in his clinic though the procedures were never provided. His sentencing guidelines range was 57 to 71 months imprisonment. As part of the plea agreement, the government recommended a variance sentence of 36 months. A few days prior to sentencing, the defendant paid the entire restitution amount of $2,944,883 in full, which impressed the sentencing judge enough to comment that Kuhlman was the first defendant the judge could recall who made such a large restitution payment prior to sentencing. The district court decided to continue the sentencing hearing for six months to allow the defendant extra time to pay off his fine and have the defendant perform public service. The district court expressed a desire to see how the defendant would handle the postponement time before sentencing, believing it would provide a more complete picture of the defendant. The defendant did not disappoint the judge. He logged 391 hours of community service, an average of two hours per day. He visited various medical nursing and chiropractic schools to give presentations on Medicare fraud. He provided 18 days of free chiropractic services at homeless shelters across Atlanta and painted a gym at an elementary school. At the second sentencing hearing the sentencing court imposed a sentence of probation, citing his community service work during the continuance, his restitution, and the rising cost of incarceration. The sentence was a downward variance of 20 levels.

The 11th Circuit found the sentence was substantively unreasonable because “he stole $3 million and did not receive so much as a slap on the wrist-it was more like a soft pat.” The time served sentence from a downward variance from 57 months failed to achieve an important goal of sentencing in a white collar crime prosecution, the need for general deterrence. The court gave its reason why deterrence was so important in health care fraud cases. It explained that insurance companies rely on the honesty and the integrity of medical practitioners in billing for their services. For that reason, deterrence is an important factor in the “sentencing calculus” because health care fraud is so rampant that the government lacks the resources to reach it all. The court found that one of the government’s primary objectives in obtaining a conviction in a health fraud prosecution is to send a message. While the court did not imply that probation could never be an option in a white-collar fraud case, in view of the totality of the circumstances, the nature of the offense and the extent of the variance, it was an unreasonable sentence here. Though the district court cited several §3553(a) factors at the sentencing hearing, the sentence did not reflect the seriousness of the crime, it did not promote respect for the law, provide just punishment or adequately deter other similarly inclined health care providers. Furthermore, 11th Circuit made a point of stating that the sentencing guidelines do not give a special sentencing discount for economic or social status as sentences given to the defendant are unavailable to defendants of lesser means.

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In U.S. v. Gandy the defendant was convicted of possession of a firearm and sentenced to 180 months. His sentence had been enhanced under the Armed Career Criminal Act (ACCA) because he had been convicted of at least three prior violent felonies. In challenging the sentence he argued that the government failed to meet its burden of establishing that his convictions labeled aggravated assault on a law enforcement officer and the burglary of a structure were qualifying offenses using documents approved by the Supreme Court in Shepard v. U.S. He argued that the information and certified judgment of conviction cited only a sentence enhancement provision of the Florida Statutes and did not cite the substantive provision of the aggravated assault statute, the government has not sufficiently proven that his conviction was for that particular crime. The 11th Circuit disagreed and found the district court correctly concluded that the omission of an express citation to the Fla. Stat. § 784.021 (the substantive provision creating the crime of aggravated assault) was not fatal because the information and certified judgment establish that the defendant had pleaded guilty to aggravated assault on a law enforcement officer, the violent felony under ACCA. The certified judgment indicated that the defendant had pleaded nolo contendere to aggravate assault of a law enforcement officer which is the same offense that was charged in the information, making it clear he was convicted for aggravated assault. Furthermore, the court found the defendant had another conviction for simple vehicle flight that was a predicate conviction under the ACCA. The 11th Circuit recently held in U.S. v. Petite that a simple vehicle flight conviction under Florida state law qualifies as a violent felony under the residual clause of the ACCA (§924(e)).

The only argument that was not addressed in Petite, which the defendant raised here, was the unconstitutionally of the residual clause of the ACCA. The 11th Circuit rejected the vagueness argument on the grounds that the Supreme Court already determined that the residual clause, although at times is “difficult for the courts to implement, falls within congressional power to enact and constitutes an intelligible principle that provides guidance that allows a person to conform his or her conduct to the law.” (Though Judge Scalia’s dissent suggested the statute is unconstitutional.) The 11th Circuit cited six other circuits that have upheld the constitutionality of the ACCA residual clause and no circuit has gone the other way.

The defendant also challenged his sentence on the grounds that the magistrate judge who accepted the plea erred in advising him that the maximum penalty would be 10 years in prison. The 11th Circuit rejected the claim because the district court noted that he entered the plea with the incorrect understanding, the district court explained that it was an error and correctly advised him of the mandatory minimum sentence of 15 years. He gave the defendant a chance to back out of the plea and he said he did not wish to withdraw the plea.

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In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) (“safety valve”) provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon “in connection with the offense.” Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.

In this case of first impression in the 11th Circuit the court focused on the interpretation of the language “in connection with the offense.” No definition or explanation was provided in the guidelines or the statutes. The court rejected the government’s argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if “a weapon was possessed” and not “if a weapon was possessed in connection with the offense.” A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a “difficult task” to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a “connection” with the drug offense depended on whether the firearm “facilitated or had the potential to facilitate” the drug offense. Under the facts of Carrillo’s case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction “greased the wheels” for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.

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The defendant in U.S. v. Hoffman was sentenced to life for his conviction of conspiracy to distribute of 50 or more grams of methamphetamines in violation of 21 U.S.C. §§ 841(a)(1), 846, and with possession with intent to distribute methamphetamines. Prior to trial on these federal crimes the government filed a notice pursuant to 21 U.S.C. §851 that it intended to seek enhance punishment base on a prior Florida state drug convictions for conspiracy to traffic in cocaine and possession of cocaine. His priors were committed at 17, and at the time, he was sentenced as a youthful offender. The prior Florida felony drug convictions increased the minimum from 10 years to life imprisonment and at sentencing the district court imposed a life sentence. On appeal, the defendant challenged the life sentence under the Eighth Amendment arguing the sentence was cruel and unusual punishment because the basis for the punishment were the two conviction for offenses committed while the defendant was a juvenile.

Defendant relied on the Supreme Court decision in Roper v. Simmons where the court held that the 8th and 14th amendments forbid imposing the death penalty on offenders who were under the age of 18 when their crimes were committed. The 11th Circuit found Roper did not apply and distinguished it on these grounds:

1. Roper involved a death sentence and not a life imprisonment.

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In U.S. v. Colon, the defendant, Christina Colon, pleaded guilty to the federal crime of distribution of crack cocaine and possession of a firearm in furtherance of a drug trafficking offense. The Pre-sentence Report calculated her range at 46- 57 months and the district court varied down to 36 months. Pursuant to the firearm count the court imposed a mandatory minimum term of 5 years to run consecutively to the drug count, for a total of 96 months. Following the sentence, the Sentencing Commission issued Amendment 706, which reduced the base offense levels for crack cocaine offense. Colon filed a motion pursuant to 18 U.S.C. § 3582 to reduce her sentence. The district court found she was eligible and reduced her sentence under the drug count from 36 to 27 months leaving her with a total sentence of 87 months. Colon filed a second motion to reduce her sentence after enactment of the Fair Sentencing Act and the subsequent guidelines amendments. Amendment 750 issued by the Sentencing Commission, retroactively reduced the base offense levels for crack cocaine offenses. The Commission also issued Amendment 759 which restricted a district court’s discretion to make the reduction below the minimum of the amended guideline range, unless the original sentence imposed had been below the guideline range because of a reduction based on the defendant’s substantial assistance.

Under the new amendments the range, Colon’s range would be 30 to 37 months. The district court did not reduce her sentence because her current sentence was 27 months and below the new guideline range. The district court found the new amendment prevented the court from reducing the range because the original variance was not based on substantial assistance.

Colon claims the district court erred in applying Amendment 759 because the Sentencing Commission’s amendment of that policy statement exceeded its authority under the Sentencing Reform Act. The 11th Circuit rejected Colon’s challenge that Amendment 759 violated the ex-post Facto Clause. The court found the Amendment did not increase the punishment assigned by law when the act to be punished occurred. Colon’s guideline range after those amendments was the same as it would have been without them.

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In U.S. v. McGuire, the defendant challenged the sufficiency of the evidence to support his conviction of attempting to damage, destroy, disable, set fire to, or wreck an aircraft in the special aircraft jurisdiction of the United States in violation of 18 U.S. C. §32(a)(1). After McGuire shot of several rounds of a gun near his driveway, neighbors called police, who responded with officers on the ground and a police helicopter. As the helicopter shined its spotlight in McGuire’s direction, McGuire raised his arm and fired one round in the sky. A deputy saw him fire in the direction of the spotlight as the helicopter orbited and another witness said he fired in the general direction of the helicopter. McGuire said he went outside to fire into the sky randomly without meaning to hit the helicopter and not knowing it was in the sky, but witnesses contradicted his testimony by attesting to the noise and vibrant light the helicopter produced. McGuire argued the the deputy’s testimony was inherently incredible and that a reasonable person would believe it beyond a reasonable doubt because McGuire stood still without moving to follow the helicopter’s path or tacking it as he fired. The 11th Circuit found McGuire’s argument is simply disputing the inference a jury can draw from the evidence, and the inferences have to be drawn in favor of the jury verdict.

The 11th Circuit also upheld district court’s finding that the offense of attempting to damage destroy, disable, or wreck an aircraft is a crime of violence for the purpose of 18 U.S.C. 924(c)(1)(A), which imposes a consecutive sentence for anyone using a firearm in connection with a crime with a crime of violence. The court used the “categorical approach” because § 924 defines a criminal offense as “an offense” that “has as an element the use, attempted use or threatened use of physical force against the person or property of another” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used.” The categorical approach must reference the elements of the offense and not the actual facts of McGuire’s conduct, and for this reason, even though firing a gun at a helicopter is unmistakably violent, the categorical approach requires the court to determine whether the crime, in general, plausibly covers any non-violent conduct. “Only if the plausible applications of the statute of conviction all require the use or threatened use of force can McGuire be held guilty of a crime of violence.”

The 11th circuit found that a federal jurisdictional element of the statute requires that the aircraft be “in flight” which is defined as encompassing the time the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave.” In other words the conviction was for attempting to damage or disable an aircraft that was either flying or ready to take off or arriving at its destination. In that context the offense was offense necessarily involved the attempted or threatened destruction of sensitive property or lives and was a crime of violence.

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The issue here is whether the unauthorized transfer of an individual’s identifying information to another party involves the actual use of that information for a fraudulent purpose such that the individual whose identifying information was transferred is as victim under U.S.S.G 2B1.1(b)(2)(B). This sentencing guideline provides for a 4 level enhancement if the offense involved at least 50 but less than 250 victims. The defendant in U.S. v. Hall pleaded guilty to bank fraud conspiracy, identity theft and access device fraud and wrongfully obtaining and transferring individually identifiable health information for personal gain. The district court applied a four level enhancement because the offense involved more than 50 but less than 250 victims. Hall challenged the enhancement arguing that the unlawful transfer or sale of identifying information does not equate to the actual use of identifying information for a fraudulent purpose. The conspirators actually used 12 of the 141 individuals to obtain fraudulent credit cards the so Hall claimed there were less than 50 victims and the 11th Circuit agreed.

Hall worked as an office assistant in a Coral Springs doctor’s office where she had access to patients’ dates of birth, social security numbers and other protected information. She received $200 for each individual’s information she provided to the coconspirators. She received only $200 though sent the codefendants 65 to 141. Her conspirators used 12 of the patients’ personal information to obtain fraudulent credit cards. The government’s position was that all 141 patients whose information was transferred were victims.

The 11th Circuit found that while the 12 individuals were victims, the remaining individuals whose information was merely transferred were not victims under the Application notes which define victims as “any person who sustained any part of an actual loss…who sustained bodily injury as a result of the offense.” Under this enhancement, whether an individual was a victim depends on whether their identification was used. The conspiracy’s purpose was to obtain cash advances and purchase using fraudulent credit cards. Hall’s mere transfer of the personal identifying information, without more action, did not involve using the information to procure fraudulent credit cards and cash and the personal information was not used until the coconspirators secured the credit cards.

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First, you need the background facts of McIntosh’s first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh’s sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh’s second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

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Sandra Day O’Connor sat on this panel also. The opinion was written by Judge Pryor. In U.S. v. Garcia-Sandobal, the defendant, citizen of Honduras, entered the United States illegally and committed a variety of crimes. After he was deported in 1998, he reentered illegally, and committed more crimes, including a conviction for disorderly intoxication for which he was sentenced to 50 days in jail. In 2010 he was indicted in federal court located in Florida with the federal crime of being found in the United States after having been previously removed under 8 U.S.C. section 1326.

Section 1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant was removed following a conviction of an aggravated battery. The indictment alleged Garcia’s three prior aggravated felonies imposed before his removal including 1996 convictions for battery on a law enforcement officer and obstructing an officer with violence. At Garcia’s guilty plea he announced that he was preserving the right to challenge the classification of the prior sentences as aggravated convictions. As expected, the pre-sentence investigation report recommended a 16 point enhancement base on the 1996 conviction for obstructing an officer with violence.


Garcia’s claim that the federal district court erred when it accepted his guilty plea was waived by his guilty plea.

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