Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

The New Jersey Law Journal contains an article concerning the continuing struggles of federal district courts to come to terms with the discretion which the Supreme Court granted to them in sentencing in U.S. v. Booker, 543 U.S. 220 (2005). The article notes that the courts continue to follow the Guidelines, but that there has been a trend away from strict adherence to the Guidelines.

Statistics show that in 2009, slightly more than one half--56.8 percent--of federal sentences were within the sentencing ranges recommended by the Guidelines--down from 61.7 percent in 2006. However, the percentage of sentences within the recommended Guidelines range varies from district to district--from a low of 27.8 percent for the District of Arizona and 30.8 percent for the District of Vermont to a high of 80.7 percent for the Southern District of Mississippi and 92.3 percent for the District for the Northern Mariana Islands. Nationwide, courts varied downward from the recommended Guidelines ranges in 41.2 percent of cases. Statistics also show that courts were most likely to adhere to advisory Guidelines ranges in drug and burglary cases, and least likely in kidnapping or bribery cases.

The article quotes Professor Douglas Berman of Ohio State University and the author of the influential Sentencing Law and Policy blog, who notes that the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.

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Supreme Court Justice John Paul Stevens, who notified President Barack Obama last week that he will be stepping down from the Court when its current term is over in June or July, has written nearly 400 opinions over his nearly 35 year tenure on the Court. Justice Stevens has weighed in on many occasions on criminal law issues over the past three and a half decades. Contrary to the label commonly applied to Justice Stevens as a "liberal," like all Supreme Court Justices, he has sided with the government in criminal cases more often than not. However, Justice Stevens has been the originator of many opinions which have upheld and furthered the rights of the individual in criminal cases, some of the more notable of which are outlined below.

On sentencing issues, Justice Stevens authored the opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), the forerunner of the Court's landmark decisions in Blakely v. Washington, 542 U.S. 295 (2004) andUnited States v. Booker, 543 U.S. 220 (2005), in which the Court first famously held, in regard to New Jersey's "hate crimes" statute, that "[t]he Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt."

Justice Stevens has been an ardent opponent of capital punishment throughout most of his term on the Court and has been the author of numerous opinions limiting the application of the death penalty. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that execution of "mentally retarded" offenders constituted cruel and unusual punishment, and in Thompson v. Oklahoma, 487 U.S. 815 (1988), ruled that juveniles under the age of 16 cannot possess the requisite culpability for imposition of the death penalty. And in Beck v. Alabama, 447 U.S. 625 (1980) the court mandated that, in capital cases, the jury must be instructed on, and permitted to consider, a verdict of guilt on a lesser included offense.

 In other cases, Justice Steven held in Johnson v. California, 545 U.S. 162 (2005), that a State could not impose the burden on a defendant claiming a racially discriminatory striking of a juror pursuant to Batson v. Kentucky, 476 U.S. 79, to show that the striking was "more likely than not" the product of purposeful discrimination. He also held, in Hubbard v. U.S., 514 U.S. 695 (1995), that a federal court is not a department or agency of the United States for the purposes of making false statements in a matter within the jurisdiction of the United States pursuant to 18 U.S.C. § 1001.

 The Blog wishes Justice Stevens a happy retirement and looks forward to the appointment of his successor.

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Last month, the U.S. Sentencing Commission issued its 2010 Proposed Amendments to the U.S. Sentencing Guidelines, which may be viewed here, which contain much of interest for both corporate and individual defendants.

In regard to corporations or “organizational" defendants, the Commission has proposed several changes to Chapter Eight of the Guidelines. The Proposed Amendments amend Guideline Section §8B2.1, governing compliance and ethics programs for corporations, by adding language in the Application Notes regarding personnel who must be aware of an organization’s document retention policies and conform to such policies and setting forth “reasonable steps that an organization should take after detection of criminal conduct.” The steps are:

First, the organization should respond appropriately to the criminal conduct. In the event the criminal conduct has an identifiable victim or victims the organization should take reasonable steps to provide restitution and otherwise remedy the harm resulting from the criminal conduct. Other appropriate responses may include self-reporting, cooperation with authorities, and other forms of remediation. Second, to prevent further similar criminal conduct, the organization should assess the compliance and ethics program and make modifications necessary to ensure the program is more effective. The organization may take the additional step of retaining an independent monitor to ensure adequate assessment and implementation of the modifications.

Section 8D1.4, governing conditions for probation for corporations or organizations, is also amended to provide, as conditions of probation, that an organization develop and submit a compliance and ethics program and retain an independent monitor. The amendment further provides that organizations must disclose any material adverse changes in its business or financial condition or prosepects, and any new criminal prosecutions, civil litigation, administrative proceedings, investigations or formal inquiries commenced against the organization.

Last September, the Commission had stated that one of its policy priorities would be to study alternatives to incarceration. Accordingly, the Proposed Amendments increase “Zone B” and “Zone C” of the Guidelines’ Sentencing Table by one level. Defendants with Guidelines calculations falling within Zone B are eligible, instead of a sentence of imprisonment, to have imposed “a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment…” pursuant to Section §5C1.1(b)(3).

The Commission has sought comments on its Proposed Amendments. It has also sought comments on potential revisions to certain specific offender characteristics as a basis for downward departure in sentence pursuant to the policy statements in Chapter 5 of the Guidelines, including age; mental and emotional condition; physical condition; military, civic, charitable, or public service, employment-related contributions and record of prior good works; and lack of guidance as a youth. The Commission has stated that it has considered eliminating these statements pursuant to the Supreme Court’s decision in Booker, which mandated that sentencing courts consider a defendant’s “history and characteristics” pursuant to Section 3553(a) in fashioning a reasonable sentence. Under the “old” Guidelines system, such factors were either prohibited or discouraged grounds for a downward departure in sentence.

The Proposed Amendments also take into account the Supreme Court’s landmark holding in United States v. Booker, 543 U.S. 220 (2005) that the Guidelines are advisory, rather than mandatory, by amending the instructions on applying the Guidelines in Section 1B1.1 to provide that, after a sentencing court has determined the proper sentencing range under the Guidelines and considered the factors in 18 U.S.C. § 3553(a), “[t]he court shall then determine the sentence (i.e., a sentence within the guideline range, a departure, or a variance), considering the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.”

The Proposed Amendments expand courts’ authority to impose probation as an alternative to incarceration in certain drug cases in a new proposed Guideline Section 5C1.3 provided that the defendant participates in a substance abuse treatment program and meets certain additional criteria. The Amendments furthermore suggest changes to determining a defendant’s criminal history in terms of the recency of prior offenses. Finally, the Proposed Amendments also recommend so-called “hate crimes” enhancements under Section 3A1.1 which provide for an increase of 3 or more levels to a defendant’s offense level where “the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person…”
 

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            Resuming Federal Criminal Defense Blog’s pledge to keep readers informed regarding substantial decisions in the Eleventh Circuit Court of Appeals (and the Court certainly keeps us busy), we take this opportunity to catch up. Following is a summary of substantial decisions from the end of March through April 8.

“Violent Felonies” Under the Armed Career Criminal Act, 18 U.S.C. § 924: In U.S. v. Townsley, No. 08-13517, 2009 WL 929986, (11th Cir., Apr. 08, 2009) (per curiam; unpublished), the Court reversed the defendant’s conviction, holding that the district court erred in counting the defendant’s three previous convictions for carrying a concealed firearm, in violation of Fla. Stat. § 790.01(2), as “violent felonies” pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), following its decision U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008), id. at *3.

Sentence Not “Too Lenient”: The Court affirmed the defendant’s sentence for pedophilia in the published opinion U.S. v. Irey, No. 08-10997, 2009 WL 806860, (11th Cir., Mar. 30, 2009), rejecting the government’s argument that the defendant’s sentence was “too lenient” and therefore unreasonable, id. at *4. Reaffirming earlier holdings that an appellate court must not substitute its judgment for that of the sentencing court, id. at *2 (citing U.S. v. Melvin, 187 F.3d 1316, 1323 (11th Cir.1999); Williams v. U.S., 503 U.S. 193, 204, 112 S.Ct. 1112 (1992)), the opinion, authored by Chief Circuit Judge Edmondson, contains potentially useful language for the practitioner regarding the gravity of punishment and a defendant’s characteristics:

       We appreciate that some people may feel that no sentence would be too harsh for this crime. But that is not the law. And courts never should see the imprisonment in this country of a person for 17-1/2 years as light punishment: although even longer terms of imprisonment can be lawfully imposed in cases, this many years is a substantial portion of a human life-and no serious person should regard it as a trifle.

      Furthermore, when the defendant is 50 at the time the sentence is imposed, the consequences must be seen as severe. Moreover, upon Defendant’s release from imprisonment, he will not be free in the way that most Americans are free. He will be subject to rigorous conditions of supervised release by federal authorities. Given the terms of his sentence, never will Defendant be a truly free man again.

Id. at *4.

Presentence Reports: The Court in U.S. v. Martinez, No. 08-14926, 2009 WL 839093 (11th Cir., Apr. 01, 2009) (per curiam; unpublished) observed that Federal Rule of Criminal Procedure 32(i)(1)(A) requires a district court to verify at sentencing “that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report,” id. at *2 (quoting Fed.R.Crim.P. 32(i)(1)(A)), while Rule 32(i)(4)(A)(ii) requires the district court to “address the defendant personally… in order to permit the defendant to speak or present any information to mitigate the sentence,” id. (quoting Fed.R.Crim.P. 32(i)(4)(A)(ii)). The Court held that the drafters of Rule 32 “did not intend to impose a requirement that the district court personally address the defendant when inquiring whether he and his attorney have read and discussed the PSI.” Id. (citing U.S. v. Aleman, 832 F.2d 142, 144 (11th Cir. 1987)). The Court also rejected the defendant’s argument that the district court failed to properly address his statement at sentencing that he wished to “go to trial.” Id. at *4.

Government’s Breach of Plea Agreements: “‘Efforts by the Government to provide relevant factual information or to correct misstatements are not tantamount to taking a position on the sentence and will not violate [a] plea agreement.’” U.S. v. Matisas Mesa, No. 08-14134, 08-14130, 2009 WL 868012, *2 (11th Cir., Apr. 02, 2009) (quoting U.S. v. Block, 660 F.2d 1086, 1090-91 (5th Cir. Unit B Nov. 1981)). “‘A prosecutor has a duty to insure that the court has complete and accurate information concerning the defendant...’” Id. (quoting Block, at 1091). Thus, the government’s informing the sentencing court of the defendants’ inconsistent statements in Matisas Mesa, which resulted in the court’s denial of safety-valve treatment pursuant to U.S.S.G. § 5C1.2(a)(5), was held by the Court not to violate the defendants’ plea agreement in which the government agreed to recommend safety-valve treatment. Id.

Booker is a Two-Way Street: In U.S. v. Beasley, No. 08-14977, 2009 WL 905103 (11th Cir., 2009) (per curiam; unpublished), the Eleventh Circuit held that, even if the sentencing court did not use evidence of three uncharged bank robberies in which the defendant was implicated as “relevant conduct” to enhance his sentence pursuant to U.S.S.G. § 1B1.3, “§ 1B1.3 did not limit the court's discretion to consider the robberies under [18 U.S.C.] § 3661 and [18 U.S.C. §] 3553(a),” id. at *2, in departing upward from the Guidelines range, id. at *2.

Hearsay (Not): In U.S. v. Jiminez, No. 08-14192, 2009 WL 921437, (11th Cir., Apr. 07, 2009), the Eleventh Circuit affirmed the defendant’s conviction on various charges concerning manufacture and distribution of marijuana plants, holding in the process that the district court’s admission of testimony by a police detective regarding a statement by a non-testifying witness that the defendant was involved in a marijuana growing operation was not inadmissible hearsay, finding that the statement was not hearsay since it was not admitted to prove the truth of the matter asserted, but only the fact that it was made, pursuant to Federal Rule of Evidence 801(c), id. at *5.

 “National Standard of Care” and “Red Flags” in Prescription Prosecution: When a doctor is prosecuted under the Controlled Substances Act (“CSA”), 21 U.S.C. § 841 for prescribing drugs to patients, he or she must show that they acted in good faith and for a legitimate medical purpose. See U.S. v. Johnston, No. 08-14594, 2009 WL 806740, *4 (11th Cir., Mar. 30, 2009) (per curiam; unpublished) (citing U.S. v. Merrill, 513 F.3d 1293, 1301-02 (11th Cir. 2008)). In Johnston, the district court instructed the jury that it should apply a “national” standard of care in determining whether there was a legitimate medical purpose for the defendant physician’s prescriptions. Id.  The defendant argued on appeal that Florida’s standard of care should govern. Id. The Eleventh Circuit held that the defendant had invited the error by previously arguing that jury must find that she acted “outside the course/scope of professional practice, not in accordance with a standard of medical practice generally recognized and acted in the U.S.” id., in order to convict her, id. (Emphasis in original). The Court affirmed the defendant’s conviction, also holding that admission of testimony from witnesses for the government regarding “red flags” for detecting drug abuse in patients was not plain error and was admissible pursuant to Fed.R.Evid. (“Rule”) 702. Id. at *6.

Fear, Loathing and Interstate Extortion: A feud between German immigrants resulted in charges of conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and the Travel Act, 18 U.S.C. § 1952, in U.S. v. Bornscheuer, NO. 07-10009, 06-14607, 2009 WL 814587 (11th Cir., Mar. 31, 2009). The Eleventh Circuit affirmed the defendants’ convictions, simultaneously reaffirming its holding in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986) that a component of extortion for the purposes of the Hobbs Act is the victim’s fearful state of mind, and that “fear” is “‘a state of anxious concern, alarm or apprehension of harm and it includes fear of economic loss as well as fear of physical violence.’” Id. at *6 (quoting Grassi, at 1577).

404(b): In the process of affirming the defendant’s conviction and sentence for possession of a firearm by a convicted felon and possession with intent to distribute crack cocaine and marijuana in  U.S. v. Mobley, No. 08-14449, 2009 WL 914121 (11th Cir., Apr. 07, 2009) (per curiam; unpublished), the Court held that the district court did not abuse its discretion in admitting the defendant’s six-and nine-year-old drug convictions under Federal Rule of Evidence 404(b), since the convictions “were probative of his knowledge of possession, and intent to distribute, crack cocaine and marijuana,” id. at *4.

Criminal History: Prior convictions will be counted separately for the purposes of determining a defendant’s criminal history pursuant to U.S.S.G. § 4A1.2 if the convictions were separated by an intervening arrest. See U.S. v. Mann, No. 08-13716, 2009 WL 931685, *1 (11th Cir., Apr. 08, 2009) (quoting U.S. v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003)).

Stop, Frisk, Arrest, Convict, Affirm: Where police received a 911 call for assistance and the defendant appeared from behind a house that was not his and attempted to run away when the officers sought to question him as to whether he was armed, finding that a reasonable officer would have believed that the defendant was armed dangerous and would be justified in frisking the defendant, affirming the defendant’s conviction for being a felon in possession of a firearm and the district court’s denial of his motion to suppress. See U.S. v. Hudnell, No. 08-13499, 2009 WL 903467, *2 (11th Cir., Apr. 06, 2009)).

Collateral Estoppel of Habeas Petition: The defendant in U.S. v. Greenwood, No. 07-11592, 2009 WL 839115, (11th Cir., Apr. 01, 2009) filed several habeas petitions seeking to have the Bureau of Prisons recalculate his sentence to account for his “good time” credits, id. at *1. The Eleventh Circuit held that the defendant’s petition was procedurally barred by collateral estoppel because the issue of his good time credits had been resolved in previous petitions. Id. at *3 (citing Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir. 1990)).

Affirmances of Reductions to Crack Cocaine Sentences, or Denials of Motions to Reduce: U.S. v. Jackson, No. 08-11295, 2009 WL 826833 (11th Cir., Mar. 31, 2009) (per curiam; unpublished); U.S. v. Jiles, No. 08-15792, 2009 WL 839089 (11th Cir., Apr. 01, 2009) (per curiam; unpublished); U.S. v. Blythe, No. 08-12469, 2009 WL 865079 (11th Cir., Apr. 02, 2009) (per curiam; unpublished); U.S. v. Hardy, No. 08-13769, 2009 WL 905101 (11th Cir., Apr. 06, 2009) (per curiam; unpublished); U.S. v. Cantrell, No. 08-12837, 2009 WL 913895, (11th Cir., Apr. 07, 2009) (per curiam; unpublished); U.S. v. Williams, No. 08-14512, 2009 WL 928931 (11th Cir., Apr. 08, 2009) (per curiam; unpublished).

Evidence Sufficient to Support Convictions: U.S. v. Jenkins, No. 08-13877, 2009 WL 865214 (11th Cir., Apr. 02, 2009) (attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470); U.S. v. Schmitz, NO. 08-13648, 2009 WL 903458 (11th Cir., Apr. 06, 2009) (use of an interstate facility to attempt to entice a juvenile to engage in a sexual act, in violation of 18 U.S.C. § 2422(b)); U.S. v. Ferroni-Carli, No. 07-15831, 2009 WL 913538 (11th Cir., Apr. 07, 2009) (falsely pretending or assuming to be a duly accredited foreign diplomat, in violation of 18 U.S.C. § 915); U.S. v. Blango, No. 08-10137, 2009 WL 921275 (11th Cir., Apr. 07, 2009) (armed bank robbery and using a firearm during a crime of violence).

Sentences Affirmed under Booker: U.S. v. Williams, No. 08-10185, 2009 WL 817498 (11th Cir., Mar. 31) (per curiam; unpublished); U.S. v. Centella, No. 08-15016, 2009 WL 903436, (11th Cir., Apr. 06, 2009) (per curiam; unpublished).

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Our apologies for playing catch-up, but our summary of the primary, meaningful criminal opinions by the Eleventh Circuit will continue this week. Following is a summary of the decisions for the week of March 17, 2009.

In Salazar v. U.S., No. 07-13715, 2009 WL 684772 (11th Cir., Mar. 17, 2009), the Eleventh Circuit reversed the district court’s denial of the defendant’s motion pursuant to 28 U.S.C. § 2255 to vacate his sentence for possessing with the intent to distribute crack cocaine based upon ineffective assistance of counsel, where defendant’s counsel failed to call as witnesses at trial two persons who could have corroborated that the defendant denied possessing any cocaine at the time of his arrest, id. at *2.

The Court affirmed the district court’s denial of a reduction under the safety-valve provision pursuant to U.S.S.G. § 5C1.2 for a defendant convicted of conspiracy to manufacture and possess with intent to distribute marijuana plants in U.S. v. Cruz, No. 08-11625, 2009 WL 684789 (11th Cir., Mar. 17, 2009), observing that the defendant’s refusal to testify at sentencing left the district court with little ability to access his credibility and the defendant had failed to carry his burden, id. at *2.

In U.S. v. Valdex, No. 07-14721, 2009 WL 684751 (11th Cir., Mar. 17, 2009), the Court held that the defendant in a prosecution for health care fraud “invited” any error in calculating the amount of loss under U.S.S.G. § 2B1.1 by urging the trial court to adopt the amount of loss contained in the presentence report, id. at 1. It also held that the trial court did not clearly err in applying a sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(9)(C) where the defendant “recruited beneficiaries and sought out doctors so as to aid in hiding the illegality of his Medicare claims, and converted [a corporation] into a pharmacy through which he continued to defraud Medicare…” Id. The Court also held that the defendant’s sentence was within the Sentencing Guidelines range and therefore substantively reasonable, pursuant to U.S. v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and that “relevant uncharged or acquitted conduct may be taken into account in sentencing, as long as such conduct is proven by a preponderance of the evidence and the court clearly applied the Guidelines as advisory.” Id. (citing U.S. v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006)).

The Court affirmed the defendant’s above-Guidelines sentence for travel with intent to engage in a sexual act with a juvenile in U.S. v. Smith, No. 08-11665, 2009 WL 693342 (11th Cir., March 18, 2009), noting that the district court could upwardly depart in sentencing the defendant based upon violations of the defendant’s supervised release, pursuant to U.S.S.G. § 7B1.4, comment. (n.3), id. at *2.

            In U.S. v. Whitehead, No. 08-13201, 2009 WL 691184 (11th Cir., Mar. 18, 2009), the Court affirmed the denial of the motion for a sentencing reduction, brought pursuant to 18 U.S.C. § 3582(c)(2) of the defendant, who was convicted of various drug and crack cocaine offenses, holding that the Sentencing Commission’s Amendment 706 to U.S.S.G. § 2D1.1(c) in November 2007, which provided a two-level reduction in base offense levels for certain crack-cocaine offenses, did not affect the guideline ranges of defendants who were sentenced as career offenders under U.S.S.G. § 4B1.1, id. at *3 (citing U.S. v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008)). The Court also held that the defendant was ineligible for the reduction despite the fact that he had been granted a downward departure pursuant to U.S.S.G. § 4A1.3, observing that “[t]he critical fact… is that the district court used the offense level from the career offender guideline to calculate [the defendant’s] applicable guideline range,” rather than § 2D1.1. Id. at *4.

The Court affirmed the district court’s denial of a motion for reduction pursuant to § 3582(c)(2) by a defendant convicted of  conspiracy to possess with the intent to distribute cocaine and cocaine base in U.S. v. Val Saint, No. 08-12726, 2009 WL 693341 (11th Cir., Mar. 18, 2009), noting that Amendment 711 reversed Amendment 706 on the issue of converting base offense level into a base offense level for marijuana, holding that the defendant’s base offense level would have remained the same, id. at *2.

In U.S. v. Traywick, NO. 08-14092, 2009 WL 693339 (11th Cir. Mar. 18, 2009), the Court affirmed the defendant’s sentence for crack cocaine offenses pursuant to its holding in U.S. v. Melvin, No. 08-13497, 2009 WL 236053 (11th Cir. Feb. 3, 2009) that, regardless of U.S. v. Booker, 543 U.S. 220 (2005), U.S.S.G. § 1B1.10(b)(2)(A) and policy statements prevent a court from reducing a defendant’s term of imprisonment under § 3582(c)(2) to a term that is less than the minimum of the amended guidelines range determined under U.S.S.G. § 1B1.10(b)(1), id. at *2 (citing Melvin, at *5, *7, *9-*10). The Court also held that § 3582 does not include a notice or hearing provision. Id. The Court further held that the Supreme Court’s holding in Kimbrough v. U.S., 128 S.Ct. 558 (2007) that courts can deviate from the 100-to-1 equivalency ratio of cocaine base to powder cocaine in U.S.S.G. § 1B1.13 and Amendment 503 did not amount to an amendment of the Guidelines and was therefore inapplicable to a § 3582(c)(2) motion. Id.

The Court also followed its holding in Melvin in U.S. v. St. George, No. 08-12226, 2009 WL 707858 (11th Cir., Mar. 19, 2009), and further reemphasized that, in re-sentencing a defendant under § 3582(c)(2), a district court must leave intact all guideline application decisions made during the initial sentencing, does not have authority to revisit factual matters such as drug quantity, and cannot apply Booker, id. at *2 (citing U.S. v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); U.S. v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997)). And in U.S. v. Roberts,
NO. 08-13753, 2009 WL 714329 (11th Cir., Mar. 19, 2009) it again affirmed that Booker does not apply to resentencings under § 3582(c)(2) pursuant to § 1B1.10(b)(1), id. at *1.

The denial of the defendant’s proposed minor role reduction under U.S.S.G. § 3B1.2 was affirmed in U.S. v. Bataz Martinez, No. 04-15405, 2009 WL 707772 (11th Cir., Mar. 19, 2009), a drug prosecution, “because [the defendant] failed to demonstrate that he was less culpable than most of the other participants in the offense,” id. at *2. The defendant’s sentence was also affirmed under Booker based upon the defendant’s failure to point to any evidence of a reasonable probability that he would have received a lesser sentence had he been sentenced under advisory guidelines. Id. at *3.

In U.S. v. Massengill, No. 08-15207, 2009 WL 714259 (11th Cir., March 19, 2009), the Court denied the defendant’s attorney’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and remanded to the district court to amend its written judgment were the judgment failed to include any reasons for the court’s upward departure from the guidelines range, agreeing with the Second Circuit in U.S. v. Hall, 499 F.3d 152 (2d Cir. 2007) that the “better course” where a court omits the reasons for a departure in a written order is to affirm the substance of the judgment and remand to the district court for the sole purpose of amending the written judgment to comply with 18 U.S.C. § 3553(c)(2), which requires a written statement of reasons for the sentence in the written order of judgment, id. at *4 (citing Hall, at 153).

 In U.S. v. Villegas-Tello, No. 08-13325, 2009 WL 714214 (11th Cir., Mar. 19, 2009), the Court held that Immigration and Customs Enforcement agents possessed probable cause to arrest the defendant for marijuana offenses based upon the totality of the circumstances, and that follow-up questions by arresting officials for the sake of clarification do not violate Miranda v. Arizona, 384 U.S. 436 (1966), id. at *4 (citing U.S. v. Rhodes, 779 F.2d 1019, 1032 (4th Cir. 1985); U.S. v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997); Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir.1990); Butzin v. Wood, 886 F.2d 1016, 1017-18 (8th Cir. 1989)). The Court also affirmed the denial of one of the defendants’ motion in limine pursuant to Bruton v. United States, 391 U.S. 123 (1968), holding that an alleged statement by a co-defendant was not incriminating on its face to the defendant; that sufficient evidence supported the defendants’ convictions; and that because one of the defendants performed the same or similar role within the conspiracy as his codefendants, he was not less culpable than most other participants in his relative conduct, he was not entitled to a minor role reduction under § 3B1.2. Id. at *5, *6, *7 (citing U.S. v. DeVaron, 175 F.3d 930, 937 (11th Cir. 1999)).

The Court affirmed the denial of the defendant’s motion to vacate his convictions for conspiracy to commit bank fraud and money laundering pursuant to 28 U.S.C. § 2255 in Baughman v. U.S., No. 08-14279, 2009 WL 714212 (11th Cir., Mar. 19, 2009), concluding that record supported the finding of the district court that the defendant never instructed his attorney to file a notice of appeal, and consulted with him on his right to appeal, id. at *3, *4.

In U.S. v. Bohning, NO. 07-15549, 2009 WL 724036, (11th Cir., Mar. 20, 2009), a prosecution of the defendant for various sex offenses involving minors, the Court held that the defendant’s Sixth Amendment right to counsel and Fifth Amendment due process rights were not violated by the government placing a lis pendens on his home, which the defendant would have sold to pay legal fees, discussing its prior decision in United States v. Register, 182 F.3d 820 (11th Cir. 1999), id. at *1, *2 (citing Register, at 834). The Court also held that the district court’s denial of the defendant’s motion to withdraw his guilty plea was not unreasonable. Id. at *3 (citing United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006))

 

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     Despite the substantial deference granted to sentencing courts pursuant to Gall v. United States, 552 U.S. ----, 128 S.Ct. 586 (2007), the Eleventh Circuit Court of Appeals will still expect unusual sentences to be supported by good reasons in the record. Kenneth K. Livesay was the Assistant Controller and Chief Information Officer of HealthSouth Corporation, who was involved in a conspiracy to inflate HealthSouth's revenues by making false statements on HealthSouth's books and in filings with the Securities and Exchange Commission, which resulted in losses of $1.4 billion to investors after the fraud was discovered and HealthSouth's stock plummeted. Livesay pled guilty to conspiracy to commit wire and securities fraud and falsification of financial information, and the government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1, based on Livesay's cooperation and substantial assistance.
     Livesay's recommended sentencing level was 28 and the government recommended a three level departure in its 5K1.1 motion to level 25 and a sentence of 60 months imprisonment. The sentencing court, however, apparently harbored considerably more lenient views towards Livesay, and granted the government's motion and departed downward 18 levels to a level 10, and sentenced Livesay to 60 months probation with the first six months to be served on home detention.
     The government appealed, and the Eleventh Circuit vacated and remanded for resentencing. See United States v. Livesay, 484 F.3d 1324, 1325-26 (11th Cir.2007). On resentencing, the government again filed a 5K1.1 motion, but in light of Livesay's continued substantial assistance since the first sentencing, recommended 20 months' imprisonment. The sentencing court again granted the government's motion and again imposed a sentence of 60 months probation with 6 months home detention, finding that Livesays assistance was extraordinary and warranted an extraordinary departure. The Court further stated that, even without the downward departure, it would have made the same variance under United States v. Booker, 543 U.S. 220 (2005) based upon the factors under 18 U.S.C. s 3553(a). Another appeal followed, and the United States Supremen Court eventually remanded to the Eleventh Circuit for reconsideration pursuant to Gall. See Livesay v. United States, --- U.S. ----, 128 S.Ct. 872, 872-73 (2008).
     The Eleventh Circuit noted that a “‘sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’” United State v. Livesay, No. 06-11303, 2008 WL 1810195 (11th Cir., April 23, 2008) (quoting United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir.2007); quoting Rita v. United States, --- U.S. ---, 127 S.Ct. 2456 (2007)). held that the sentencing court committed procedural  error pursuant to Gall by considering Livesay's repudiation or withdrawal from the conspiracy in determining the extent of the departure pursuant to 5K1.1, since withdrawal is not one of the factors enumerated under 5K1.1. Id. at *9. The Court further held that the sentencing court also committed Gall procedural error by failing to adequately explain its variance from the advisory Sentencing Guidelines range in a way which would allow for meaningful appellate review, noting that the lower court had offered:

[N]o explanation or reasoning of how a sentence of 60 months’ probation (with 6 months' home detention) for an individual who pled guilty to knowingly playing an active and crucial supervisory role in a massive $1.4 billion fraud for at least five years reflected the seriousness of the offense or the nature and circumstances of the crime. The district court did not state or explain in any way why it rejected the government's argument that, notwithstanding Livesay's timely assistance, Livesay should receive “some sentence of significance” in this $1.4 billion fraud scheme because he was a “key player, a significant cog, in the operation of this fraud at HealthSouth for a number of years.”

Id. at *11.

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Continuing to troll the waters post-Kimbrough, the Eleventh Circuit reconsidered its earlier rejection of the defendant’s crack v. powder claim in U.S. v. Stratton, No.06-10080 (Eleventh Cir. Mar. 13, 2008). The Eleventh Circuit stated that it was reconsidering its earlier rejection of Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining reasonableness. The case was remanded to the district court for the limited purpose of permitting the district court to consider the 3553 factors in light of Kimbrough. There is some hope for sentencing sanity in crack cases.

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In United States v. Pugh, No. 07-10183, 2008 WL 253040, *9, *12 (11th Cir., January 31, 2008), the Eleventh Circuit in a careful analysis ruled that a child pornographer would not get a probationary sentence.  This decision could be summed up as follows: this guy is not getting probation.

Relying on its decisions in United States v. Martin, 455 F.3d 1227 (11th Cir.2006) and United States v. McBride, No. 06-16544, 2007 WL 4555205, at *3 (11th Cir. Dec.28, 2007) and the Supreme Court’s instruction in Booker and Gall to consider the § 3553(a) factors and the “totality of the circumstances,” has greatly reduced the discretion granted to sentencing courts by holding that a sentence may be “substantively unreasonable” where it is (1) grounded on one of the § 3553(a) factors, (2) relies on “impermissible” factors, or (3) fails to consider other “relevant” or “pertinent” § 3553(a) factors. Most importantly, “the district court must give some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that “achieve[s] the purposes of sentencing stated in § 3553(a).” Id. *21. Ergo—appellate courts can still second-guess a sentencing court and reverse where they disagree with the lower court regarding the factors or grounds considered in imposing sentence, or the weight given to any particular factor or ground. The Court rephrased the standard of review set forth in Gall, holding that remand is appropriate where the Court is “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.” Id. at *9. It referred to the failure to consider particular grounds or factors, or to give such grounds or factors the appropriate weight, as determined by the appellate court, as “symptoms” of an unreasonable sentence. Id. at *12.

Admittedly, Pugh was extremely bad case for examining reasonable variances from the Guidelines range under Gall—Pugh plead guilty to possessing extremely graphic images of child pornography, and the sentencing court varied downward from an advisory Guidelines range of 97 to 120 months to a non-custodial sentence based on the fact that Pugh had no significant criminal history, that his possession of child pornography was “passive,” that he had reported his receipt of child pornography, that he was not a pedophile, that he was addicted to adult pornography and not child pornography, and that he had entered into treatment. Id. at *5. However, the Eleventh Circuit, in reversing the sentence imposed by the district court as substantively unreasonable, further took the opportunity to minimize the importance of § 3553(a) factors heavily relied upon by defendants, namely “the nature and circumstances of the offense and the history and characteristics of the defendant,” pursuant to 18 U.S.C. § 3553(a)(1), while critiquing the failure of the sentence imposed by the district court to account for other § 3553(a) factors which would support a sentence within the range recommended by the Guidelines and by the government. Id. at *12-*18.

A warning in the wake of Pugh: failure to consider sentencing factors which the Court of Appeals would consider important, or to give those factors the weight which the Court of Appeals would, could be “symptoms” of a Pugh reversal.

Finally, for an excellent discussion of the effect of Gall and Kimbrough in future sentencings check out this new blog from Ohio State University.

 

 

 

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The Eleventh Circuit’s decision in United States v. Pugh, No. 07-10183, 2008 WL 253040 (11th Cir., January 31, 2008) is interestingly at odds with the result in its decision in United States v. McBride, 511 F.3d 1293, 1296 (11th Cir. 2007), decided about a month before Pugh.

In McBride, in which the Court of Appeals affirmed the district court’s downward departure from a recommended Sentencing Guidelines range of 151 to 188 months to impose an 84-month sentence on the defendant, who pled guilty to distributing child pornography, because the defendant’s father had been murdered, the defendant had been physically and sexually abused as a child, suffered from various health problems and had enrolled in a sexual treatment program.

Although the Court did not cite Gall, it rejected the government’s argument on appeal that “although the district court discussed many of the [18 U.S.C.] § 3553(a) factors, it failed to give proper weight to some while overemphasizing others,” id. at 1297, holding that the Court:

[W]ill only reverse a procedurally proper sentence 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,”

id. Similarly, a string of post-Gall, unpublished, decisions of the Court of Appeals prior to Pugh accorded substantial deference to sentencing courts’ decisions as to which factors under § 3553(a) to base a sentence upon, and the weight to be given a particular factor. See United States v. Mole, No. 07-12266, 2008 WL 216082, *2 (11th Cir., January 28, 2008) (unpublished) (“[N]othing in Bookeror elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors”); United States v. Kivett, No. 07-10202, 2008 WL 185502, *6 (11th Cir., January 23, 2008) (unpublished) (“The district court need not recite a laundry list of the § 3553(a) factors; rather, some indication in the record that the court adequately and properly considered the applicable advisory Guidelines range and the § 3533(a) sentencing factors is sufficient”); United States v. Ramirez, No. 07-13060, 2008 WL 185509, *2 (11th Cir., January 23, 2008) (unpublished) (“‘The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court[,]’ and we ‘will not substitute our judgment in weighing the relevant factors because ‘our review is not de novo’”); United States v. Arneto-Anaya, No. 07-12427, 2008 WL 142022, *2 (11th Cir., January 16, 2008) (unpublished) (same); United States v. Caisano-Guapi, No. 07-13520, 2008 WL 114878, (11th Cir., January 14, 2008) (unpublished). However, unlike McBride or Pugh, these cases involved sentences within the recommended Guidelines ranges, or upward departures or variances.

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Despite the apparent limitation in Pugh, No. 07-10183 (11th Cir. Jan. 31, 2008) of a sentencing courts' discretion to grant downward variances from the ranges recommended by the United States Sentencing Guidelines, we are happy to note that the Eleventh Circuit Court of Appeals continues to affirm downward variances in deference to sentencing courts’ determinations (albeit if only through unpublished opinions).

• In United States v. Anderson, the defendant pled guilty to one count of insider trading from which the defendant profited approximately $135,000. No. 07-11848, 2008 WL 525669, *1 (11th Cir., Feb. 28, 2008) (per curiam) (unpublished). Anderson promptly repaid the monies he had earned, and the sentencing court sentenced him to 3 years probation, despite the Guidelines’ and the government’s recommendation of a sentence from 18 to 24 months. Id. The government appealed, and the Eleventh Circuit vacated Anderson’s sentence, concluding that the sentence was unsupported by “extraordinary circumstances.” Id.
• Then, in the wake of Gall v. U.S., 128 S.Ct. 586 (2007), the Court granted Anderson’s petition for rehearing, reversed itself, and affirmed the probationary sentence imposed by the district court, which was based not only upon Anderson’s disgorgement of the profits of his trading, but also, under 18 U.S.C. § 3553(a), “[i]n recognition of the limitations on Anderson’s marketability and employment, the district court reasonably imposed a probationary sentence and home confinement to ‘allow [him] to continue working.’” Id. at *3.
• Anderson is an encouraging sign from the Court of Appeals for practitioners with clients with relatively less severe charges but with persuasive facts and circumstances on the 3553(a) side.

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