Federal Sentencing

Published on: January 4, 2013

The crime of intentional flight from a police car is a violent felony under the ACCA enhancement clause

Happy New Year everybody. Sandra Day O’Connor, retired Supreme Court Justice participated on the panel for U.S. v. Petite, the first criminal decision for 2013 from the Eleventh Circuit. Judge Marcus wrote the opinion. In U.S. v. Petite the defendant was indicted in a federal court in Florida with federal crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). At sentencing the pre-sentence report qualified him for an enhancement under the Armed Career Criminal Act (A.C.C.A) 18 U.S.C. 924(e) because he had three predicate prior felony convictions that were used to apply the enhanced sentence under the guidelines, giving him a range of 188-235 months. The one predicate conviction Petite challenged was a conviction for intentional vehicle flight from a police car in violation of Florida statutes. The Eleventh Circuit upheld the district court’s decision finding the prior conviction is a violent felony under the ACCA based on the Supreme Court’s decision in Sykes v. U.S. which held that a similar conviction under the Indiana vehicle flight offense was a violent felony for ACCA purposes dictated the outcome of this case.

The ACCA provides for a fifteen year minimum enhancement for a violation of the felon in possession statute if the person has three prior felony convictions for a crime of violence or serious drug offense. The provision has three basic categories of qualifying offenses. The first two categories involve specific enumerated offenses, and the vehicle flight conviction did not fall under the first two categories. The third category, the one at issue here, is the residual clause. It consists of those crimes not otherwise enumerated in the statute, which “involve conduct that presents a serious potential risk of physical injury to another.” 924(e)(2)(B)(ii).

Under Supreme Court precedent, court applying the ACCA residual clause to determine whether a prior conviction is a crime of violence must use what the court calls the “categorical approach,” whereby the court must look to the fact of conviction and the statutory definition of the prior offense, and not consider the particular facts disclosed by the record of the conviction. In other words the court must consider whether the elements of the offense are of a type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of the particular offense. Using this approach, the Eleventh Circuit rejected Petite’s attempt to distinguish Sykes by distinguishing the facts surrounding Sykes’ conviction from the detailed facts surrounding his vehicle flight.

Published on: December 24, 2012

A sentencing enhancement for a prior battery under Florida law stands despite a Supreme Court decision finding the Florida statute is not a crime of violence, but not without a dissent

by The Swartz Law Firm

When Rozier was sentenced in 2001 Rozier distributing crack cocaine, the sentencing court in the southern district of Florida enhanced the sentencing guideline applying the career offender provision because it found he had two prior felony convictions for a violent crime. One of the two predicate prior was a Florida felony for battery on a law enforcement officer in violation of Fla. Stat. §784.07(2)(b). Rozier appealed the enhancement on the grounds that the felony was not a crime of violence under §4B1.2(a) of the guidelines. The Eleventh Circuit affirmed the sentence in U.S. v. Rozier (Rozier I) reasoning that the crime of battery qualified as a crime of violence under the residual clause of guideline §4B1.2(a)(2) because in committing the unlawful touching “the offender creates the potential for violence to the officer, a violent response on the officer’s part and the risk of harm to bystanders.”

Following the decision in Rozier I, the Supreme Court decided Johnson v. U.S., 130 S.Ct. 1265 (2010), that Florida’s battery offense is not a “violent felony” under the Armed Career Criminal Act (ACCA) elements clause of 18 U.S.C. 924. In U.S. v Rozier, the defendant filed a 2255 motion to set aside his sentence relying on the Johnson case and the district court in Ft. Lauderdale denied the motion and issued a certificate of appealability on the issue of whether Johnson should be given retroactive application so that Rozier’s career offender status should be eliminated and he should be resentenced. But the Eleventh Circuit phrased the issue in this case as follows: “Whether the Supreme Court’s Johnson decision is a change in the controlling law that was applicable at the time of Rozier’s sentencing and at the time we affirmed his sentence.”

The Eleventh Circuit ruled that Johnson was not a change in the law. While the Johnson decision did find that the Florida felony of battery is not a violent felony under the elements clause of the ACCA, the Supreme Court did not reach the issue of whether the crime of battery is a crime of violence under the residual clause of the statute. Because there was no change in the controlling law since the Eleventh Circuit affirmed Rozier’s conviction in the first appeal, 2255 relief cannot be given. Even applying a modified categorical approach, which permits the court to determine which statutory phrase was the basis for the conviction by consulting the trial record, charging documents, plea agreements, transcripts of plea agreements, etc., there was a factual basis for the sentencing court to find that Rozier’s battery conviction was a crime of violence. The original panel affirmed the finding the prior conviction fit within the residual clause, and the Eleventh Circuit would not reverse the original panel’s decision based on Johnson.

Published on: November 30, 2012

The district court should have delayed the levy of a restitution lien by the United States on the defendant’s property where a party claims an interest in the property

by The Swartz Law Firm

In U.S. v. Duran, the Eleventh Circuit ruled that a party claiming an interest in property subject to a government’s restitution lien has the right to have a federal court adjudicate on their claim under 28 U.S.C. § 3203. In this case, Duran was convicted in federal court in Miami of Medicare fraud and sentenced to 50 years in prison. In addition to his jail sentence the district court entered a restitution judgment against Duran in favor of the United States in the amount of $87 million dollars. The United States applied for a writ of execution against an apartment Duran owned to collect the judgment and the clerk issued a writ of execution. The writ ordered the U.S. Marshal to satisfy the judgment by levying on and selling the apartment. One month later, the Defendant’s ex-wife moved to dissolve the writ of execution, arguing she is an “innocent owner” of the apartment and requesting a hearing on the issue of her legitimate ownership of the apartment, the concerns over notice and due process, and her complete independence from the defendant, her former spouse. She alleged that she and Duran divorced in June of 2010 and as part of the divorce settlement he agreed to transfer his interest in the apartment to the ex-wife. In July of 2010 he executed a deed that conveyed his interest in the apartment to his ex-wife, and she retained counsel to properly record the deed in New York. Unfortunately for her, the attorney never completed the recording process and her deed was not recorded.

The United States opposed the Carmen’s motion to dissolve the writ of execution and the district court denied the motion on the ground that it lacked jurisdiction to make findings with respect to Duran’s divorce dispute and corresponding property disputes. While the government agreed she was one-half owner of the property when the government recorded its lien, it argued that its lien took priority over her unrecorded claim to sole ownership of the property. The ex-wife countered that she was the sole owner and the government could not levy on the property. She claimed she was unaware that her attorney failed to record the deed.

The Eleventh Circuit affirmed that the Fair Debt Collection Practices Act provides the civil procedure for the government to satisfy a restitution judgment in a criminal case, and the Act gives the government authority to levy on property owned by the debtor, including property jointly owned by another person. The government may levy on property co-owned by the debtor and another person to the extent allowed by the law of the state where the property is located. Furthermore the government must give notice of its application for a writ of execution to any persons who have an interest in the property. The district court must determine ownership interest of the debtor (the defendant) and any persons who move to dissolve the writ (the ex-wife). The Eleventh Circuit concluded that the district court erred when it refused to adjudicate the ex-wife’s motion to dissolve or stay the writ of execution.

Published on: August 2, 2012

District Court has authority to reduce a sentence under the FSA Amendments to the crack cocaine sentencing guidelines for this pre-FSA sentence

by The Swartz Law Firm

In U.S. v. Liberse, the defendant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine in 2006. At the time of his offense, his guideline range was 121 to 151 bases on the quantity of crack cocaine. Though the mandatory minimum was 120 months, his sentence of 121 months was one month above the statutory mandatory minimum. The mandatory minimum did not affect the sentence because it was less than the guideline range. The government later filed a motion to reduce his sentence pursuant to Rule 35(b) for his substantial assistance in the prosecution of another case. The district court reduced his sentence below the statutory minimum to 97 months.

In 2010, the Fair Sentencing Act (FSA) increased the drug amounts that trigger the mandatory minimum sentences (from 5 grams to 28 grams with respect to the 5 year minimum and from 50 grams to 280 grams with respect to the 10 year minimum sentence.) After enactment of the FSA, the Sentencing Commission promulgated Amendment 750 which revised the crack cocaine quantity table of 2D1.1(c) and Amendment 759 made it retroactive.

Liberse filed a motion pursuant to 18 U.S.C. §3582(c)(2) to reduce his sentence because under this Amendment Liberse’s guideline range was lowered to 70 to 87 months and The district court denied the motion for the reason that Liberse was subject to the same 120 month mandatory minimum sentence that was in effect before the FSA and the district judge in this federal court in Ft. Lauderdale, Florida, believed the Commission did not have authority to alter a statutory mandatory penalty. The 11th Circuit court overturned the decision finding that the revised crack cocaine quantity table lowered his base offense level to the point where his new guideline range would be 70 to 87 months. The open question that was not decided by Dorsey v. U.S. (applying the FSA to offenses that took place before the Act but sentenced after the enactment) is whether the reduced mandatory minimum quantities under the FSA apply to a Liberse whose offense and sentence took place before enactment. It was not decided by this decision and 11th Circuit will allow the district court to decide if the FSA mandatory minimum quantities apply to Liberse’s case. Either way his sentence will be reduced. It could be reduced by one month if the district court finds the FSA does not apply to reduce the mandatory minimum for Liberse (the mandatory minimum of 120 months is still less than his original guideline range of 121 months). Or it could find the FSA does apply and reduce the sentence to the new guideline range of 70 to 87 months. Also, because Liberse received a Rule 35(b) sentence reduction to his original sentence for substantial assistance, the sentencing court can reduce his sentence, pursuant to Amendment 759, which provides for a reduction that is “comparably less than the amended guideline range” if the term of imprisonment imposed was less than the normal guideline range because of the defendant’s substantial assistance. For this reason the district court did have the authority to reduce the sentence.

Published on: July 21, 2012

The district court’s estimate of drug quantity for a previous delivery was upheld because the decision was based on a reasonable interpretation of the facts

by The Swartz Law Firm

In U.S. v. Almedina the defendant was arrested after receiving a package containing 458 grams of heroin that was delivered to him by ICE agents in a controlled delivery. The package had been imported to Miami from Colombia. Almedina cooperated with agents in his federal criminal case and explained that he was promised $1,000 from a Salgado to pick up the package and deliver it to Salgado. He also told the agents that he accepted a package from Colombia the month before for Salgado and was paid about the same. Salgado was arrested on federal criminal drug charges. He admitted being paid to accept the package and for some people from South America. He confirmed receipt of a package the month before and was paid a little less. At Almedina’s sentencing, the PSI included the earlier package, and the government estimated the earlier package weighed about the same as the seized package based on the amount both persons were paid. The sentencing court accepted the approximate quantity of the previous delivery and combined with the seized quantity put Almedina at an offense level 30, which applied to 700 to 999 grams of heroin.

Almedina argued on appeal that the district court improperly speculated the quantity. He argued it was speculation to presume the first package contained heroin just because the second contained heroin. It is plausible, he argued, that the first package contained no contraband and was just a dry run. Almedina reasoned that it is unlikely that drug dealers would send that amount of contraband to an unknown person without first determining that person was reliable. And even if the first contained contraband there is no evidence as to the type or amount. The government’s argued the district court was correct because it is unlikely the drug importers would have paid them for an empty package.

The district court’s estimate that the first package contained at least at least 215 grams of heroin was fair and reasonable. The 11th Circuit cited a long standing principle that when a fact pattern gives rise to two reasonable and different constructions, the fact finder’s choice between them cannot be clearly erroneous. Further, it cited the principle that in approximating the quantity of drugs, the district court may rely on evidence showing the average frequency and amount of a defendant’s drug sale over a given period of time. That determination must be based on fair accurate and conservative estimates of the quantity of drugs attributable to the defendant, and cannot be based on merely speculative calculations.

Published on: July 11, 2012

An upward departure sentence from a range of 78-98 months to 210 months was upheld as a reasonable

by The Swartz Law Firm

In U.S. v. Glover, the defendant pled guilty to two bank robbery counts. In exchange for his plea the remaining counts were dismissed and the government agreed to recommend a sentence at the low end of the sentencing guideline range. At sentencing the district court determined the range to be 78-98 months. Though the government stuck to its agreement to recommend the low end, the district judge sentenced the defendant to 210 months in prison. The 11th Circuit applies a deferential abuse of discretion standard to this sentence. The court held that a district court making an upward departure must have a justification compelling enough to support the degree of the variance and complete enough to allow meaningful appellate review. The 11th Circuit will vacate the sentence only if “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”

The 11th Circuit reviewed facts of the case and reasons given by the federal criminal court for imposing the sentence. Early went on a bank robbery “spree” robbing 3 banks in 11 days, each time threatening the teller with a fake bomb. He was arrested on his 4th attempt. He has spent nearly his entire adult life in prison for a long list of offenses. Many offenses were committed while he was on probation. The bank robberies were committed while he was on bond pending sentencing in an unrelated case. The district court rejected the government’s recommendation for a low end sentence stating the guidelines did not adequately account for Early’s criminal history and that the range did not adequately account for the number of bank robberies he had committed. The range for one was 57-71 and only increased to 79-97 as a result of three robberies. The district court also found the use of fake bombs was extremely serious because it created terror in the tellers, customers and induced the use of bomb squads and caused commerce to shut down. Finally, the sentencing court found that Early by his own conduct demonstrated that the public needs to be protected from him and the only way he is deterred is when he is in custody.

The 11th Circuit found the sentence imposed was not substantively unreasonable. It was still well below the maximum 900 months he could have received under the statute. Many of the §3553(a) factors support an upward departure: Early has shown an inability to conform his conduct to the requirements of the law, when he is out of prison he commits more crimes, he shows disrespect for the law, he is a recidivist, society needs protection from him, and there is a need to promote respect for the law. Absent a clear error of judgment, the 11th Circuit will not substitute its judgment for that of the district court in weighing the relevant sentencing factors. The district court did not abuse its discretion in fashioning a sentence that was warranted in view of all the relevant sentencing factors.

Published on: July 11, 2012

Amendment 750 to the crack cocaine guidelines did not apply to a defendant whose original guidelines sentence was the statutory minimum sentence

by The Swartz Law Firm

In U.S. v. Glover the defendant moved to reduce his sentence under 18 U.S.C. §3582(c)(2) based on a retroactive amendment to the sentencing guidelines that lowered base offense levels for certain crack cocaine crimes. Glover pled guilty to 50 grams or more of crack cocaine violation 18 U.S.C. §841, but his relevant conduct involved two kilograms of crack cocaine. With his criminal history category of II, his guideline range would normally have been 188 to 235 months, except that he faced a mandatory life sentence under the sentencing enhancement provision of 21 U.S.C. §841(b)(1)(A) because he had at least two prior convictions for felony drug offenses. For this reason the statutory mandatory life sentence became his guideline sentence. The PSI recommended life and the sentencing judge adopted this recommendation. However, the government filed a §5K1.1 motion based on his substantial assistance to the government and the district court departed downward from the life sentence reducing his sentence to 208 months.

Amendment 750 lowered the crack cocaine penalties. The Sentencing Commission also made the amendment retroactive. In Glover’s case, the two kilogram quantity dropped from level 38 to 34. This would have given Glover an offense level 31 and a range of 121 to 151 for his criminal history category of II. Like many federal criminal lawyers in Miami that have applied for sentence reductions under this amendment, so did Glover. Unfortunately for Glover, the 11th Circuit held that §3582 does not allow for a reduction in his case. While the amendment normally applies where a sentencing range has been subsequently lowered by the Commission, the original guidelines were dictated by the statutory minimum. The amendment only applies if the amended guideline range is not affected by the operation of another other statute or guidelines. Here, Glover’s original guideline sentence was the statutory minimum of life, according to section 841(b)(1)(A). The statutory minimum was not affected by the Amendment.

The 11th Circuit held that the statute does not permit the defendant to receive a lower sentence than any sentence he would have receive if the amendment had been in effect at the time of his sentencing. The goal is to treat a defendant sentenced before the amendment the same as those sentenced after the amendment. Therefore, because the original sentence was based on a mandatory minimum sentence, the court lacks jurisdiction to consider a 3582(c)(2) motion even when an amendment would lower an otherwise applicable guidelines sentence.

Published on: July 2, 2012

Conviction for inducing a girl under 18 years of age into prostitution does not require proof the defendant knew she was underage

by The Swartz Law Firm

In U.S. v. Daniels the 11th Circuit took up the issue of whether a conviction under 18 U.S.C. 2422(b) requires the government to prove that the defendant knew the victim was a minor. The statute makes it a crime for someone to use any interstate of foreign commerce to knowingly induce, entice, or coerce any individual who has not reached the age of 18 to engage in prostitution or any illegal sexual activity. Daniel was charge with persuading, inducing, enticing, or coercing a girl under the age of 18 to engage in prostitution in violation of section 2422(b) and with knowingly transporting the girl across state lines to engage in prostitution. Daniels, a pimp, drove to Miami with a woman named Head, to engage in prostitution. After arriving in Miami they met a girl (A.W.) on the street who was then 14 years old. They convince her to work as a prostitute for Daniels. Head explained the details of working for Daniels what to charge for certain services how to act with a trick. There was no mention about her age. When trouble began between the two prostitutes, Daniels decided to sell A.W. to another pimp for $200. He took her to a bus station in Miami where she boarded a bus bound for Memphis, Tennessee, where she worked truck stops for the pimp who bought her.

Sending A.W. to another pimp was enough proof Daniels induced her.

Daniels’ federal criminal defense attorney argued the evidence was insufficient to convict of a violation of 18 U.S.C. § 2422 because no reasonable jury could have found that he persuaded induced enticed or coerced A.W. to engage in prostitution because she was already a prostitute in Miami. The fact that she was already working as a prostitute when she came to work for him is not sufficient evidence to conclude that he persuaded her to be a prostitute. The 11th Circuit found that Daniel’s actions in arranging to sell her to another pimp and putting her on a bus so she could reach him falls within the definition of induce.

Published on: June 29, 2012

Reverse sting drug conspiracy conviction upheld but conviction for possession of an obliterated serial number firearm reversed for lack of proof the defendant knew it was obliterated

by The Swartz Law Firm

In U.S. v. Haile defendants Haile and Beckford were convicted of conspiracy to distribute more than five kilograms of cocaine, possession of five firearms, including a machine gun, in furtherance of a drug-trafficking offense, possession of an unregistered machine gun, and with possession of a firearm with obliterated serial number. The charges arose out of a reverse-sting operation where a Drug Enforcement Agent posing as a marijuana supplier met with Beckford who the undercover agent believed was looking to purchase marijuana. They discussed delivering 1,000 pounds to Beckford. The agent introduced Beckford to another undercover agent posing as a gun seller, and they discussed exchanging guns for marijuana. After the marijuana was delivered, the defendants were arrested. Haile had a Glock pistol. Beckford had cash, a loaded handgun, two rifles with obliterated serial numbers, and an M-11 machine gun.

The defendants’ lawyers challenged the conviction for knowing possession of a firearm in furtherance of a drug trafficking crime, claiming the indictment conflated the two elements of 18 U.S.C. § 924(c) that trigger the statute’s application. This is a penalty that federal criminal defense lawyers in Miami and across the county commonly face. The enhance penalty of statute is triggered two ways: (1) during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or (2) who in furtherance of any such crime, possesses a firearm. Both of these clauses were written in the indictment and defendants claimed that by conflating the elements it violated their 6th Amendment right to be informed of the nature of the accusations against them. The 11th Circuit rejected this claim, finding the indictment referred to the correct statute and place the defendants on notice of the two elements that trigger the enhancement.

Jury instruction for machine gun possession was correct.

Published on: June 24, 2012

Grouping separately upheld for illegal reentry conviction and possession of a firearm by an illegal alien conviction

by The Swartz Law Firm

In U.S. v. Jimenez, the 11th Circuit addressed a federal sentencing guidelines issue involving grouping counts. The district court grouped Jimenez’s conviction for illegal reentry after deportation and his conviction for firearm possession by an illegal alien, giving him more jail time. The 11th Circuit denied Jimenez’s challenge and held that the district court was correct in not grouping these two counts. Jimenez, a citizen of Mexico, was convicted of reentering the U.S. after having been deported. He was arrested after a Gwinnett County, Georgia police officer found him in a parked car in possession of a firearm. He was charged and convicted of possessing a firearm as an illegal alien. He was also charged with reentry after deportation. Prior to his deportation he had a felony drug conviction that resulted in a substantial 16 level increase in his offense level. The Presentence Investigation Report calculated Jimenez’s offense level separately for each count of conviction and then determined the combined offense level under USSG §3D1.4 resulted in a higher offense level giving him a guideline range of 57 to 71 months. Jimenez objected, arguing that his guidelines range should have been calculated by grouping the two counts of conviction together. This would avoid the 2-level increase giving him a guideline range of 46 to 57 months.

The 11th Circuit held the district court correctly calculated the sentence of grouping the counts separately. Under section 3D1.2, the counts are grouped together if they “involve substantially the same harm.” The counts must show any of the following:

1. They involve the same victim and the same act or transaction 2. They involve the same victim and two or more acts or transaction that are connected by a common criminal objective or par of a common scheme or plan 3. One of the counts embodies conduct that is treated as a specific offense characteristic in the guidelines applicable to another of the counts 4. The offense level for each count is determined largely on the basis of the total amount of harm or loss.