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

The Introductory Commentary to Part B of Chapter Eight states:

As a general principle, the court should require that the organization take all appropriate steps to provide compensation to victims and otherwise remedy the harm caused or threatened by the offense. A restitution order or an order of probation requiring restitution can be used to compensate identifiable victims of the offense. A remedial order or an order of probation requiring community service can be used to reduce or eliminate the harm threatened, or to repair the harm caused by the offense, when that harm or threatened harm would otherwise not be remedied.

U.S.S.G., Ch. 8, Pt. B. Guideline Section 8B1.1 requires a court to enter a restitution order for the full amount of a victim’s loss if such an order is authorized. Section 8B1.3 authorizes a court to order community service as a condition of probation “where such community service is reasonably designed to repair the harm caused by the offense.” U.S.S.G. § 8B1.3. The commentary on Section 8B1.3 notes that the community service should be “related to the purposes of sentencing.” U.S.S.G. § 8B1.3, Cmt.

            Guidelines Section 8B2.1 describes an “effective compliance and ethics program.” It states that, in order to have an effective compliance and ethics program, a corporation or organization must:

1. Exercise due diligence to prevent and detect criminal conduct and establish standards and procedures to prevent and

detect criminal conduct;

2. “[P]romote an organizational culture that encourages ethical conduct and a commitment to compliance with the law”;

3. Ensure that the corporation’s or organization’s governing authority is knowledgeable about the compliance and ethics program and that specific individuals have day-to-day responsibility for the program; and

4. Take reasonable steps to ensure that the compliance and ethics program is followed, enforced and evaluated.

            A critical provision is Guidelines Section 8C2.5, which governs determination of a corporation’s “culpability score.” That section provides for a base score of 5 points with increases or decreases to the level for:

1. Condoning, tolerating or “willful ignorance” of criminal activity by corporate governing authorities or high-level personnel;

2. Any prior history of misconduct;

3. Any violation of orders or obstruction of justice; and/or

4. Self-reporting, cooperation and acceptance of responsibility.

With regard to a decrease in culpability level for cooperation, the Application Notes state that:

[C]ooperation must be both timely and thorough. To be timely, the cooperation must begin essentially at the same time as the organization is officially notified of a criminal investigation. To be thorough, the cooperation should include the disclosure of all pertinent information known by the organization. A prime test of whether the organization has disclosed all pertinent information is whether the information is sufficient for law enforcement personnel to identify the nature and extent of the offense and the individual(s) responsible for the criminal conduct.

U.S.S.G. § 8C2.5, Note 12.

            Another vital provision is Guideline Section 8C2.8—the corporate equivalent of Code Section 3553(a) which courts must consider in sentencing individuals. Section 8C2.8 provides:

(a) In determining the amount of the fine within the applicable guideline range, the court should consider:

(1) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, and protect the public from further crimes of the organization;

(2) the organization’s role in the offense;

(3) any collateral consequences of conviction, including civil obligations arising from the organization’s conduct;

(4) any nonpecuniary loss caused or threatened by the offense;

(5) whether the offense involved a vulnerable victim;

(6) any prior criminal record of an individual within high-level personnel of the organization or high-level personnel of a unit of the organization who participated in, condoned, or was willfully ignorant of the criminal conduct;

(7) any prior civil or criminal misconduct by the organization other than that counted under §8C2.5(c);

(8) any culpability score under §8C2.5 (Culpability Score) higher than 10 or lower than 0;

(9) partial but incomplete satisfaction of the conditions for one or more of the mitigating or aggravating factors set forth in §8C2.5 (Culpability Score);

(10) any factor listed in 18 U.S.C. § 3572(a); and

(11) whether the organization failed to have, at the time of the instant offense, an effective compliance and ethics program within the meaning of §8B2.1 (Effective Compliance and Ethics Program).

(b) In addition, the court may consider the relative importance of any factor used to determine the range, including the pecuniary loss caused by the offense, the pecuniary gain from the offense, any specific offense characteristic used to determine the offense level, and any aggravating or mitigating factor used to determine the culpability score.

U.S.S.G. § 8C2.8. The Application Notes to Section 8C2.8 further state, in relevant part, “[i]f punitive collateral sanctions have been or will be imposed on the organization, this may provide a basis for a lower fine within the guideline fine range.” U.S.S.G. § 8C2.8, Note 2.

            Finally, Part C of Chapter Eight provides for departures from a sentence/fine if a court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” U.S.S.G., Ch. 8, Pt. C, Introductory Commentary. The relevant potential grounds for upward or downward departures are:

1. Substantial assistance to authorities under Section 8C4.1;

2. Risk of death or bodily injury under Section 8C4.2;

3. Threat to the environment under Section 8C4.4;

4. Threat to a market under Section 8C4.5;

5. Public entity (ground for downward departure) under Section 8C4.7;

6. If members or beneficiaries of the corporation or organization are also victims (ground for downward departure) under Section 8C4.8;

7. Whether the remedial costs exceed the gain from the offense under Section 8C4.9; and

8. Mandatory programs to detect and prevent violations of the law under Section 8C4.10.

            From this maze of Guidelines, the following potential points can be derived for corporate criminal counsel to potentially argue in favor of a low or lesser punishment or fine, departure or for mitigation generally:

1. Any compliance and ethics programs instituted or proposed by the corporation either before or following the alleged conduct;
2. Any actions the corporation has taken to remedy any harm from the alleged conduct, including:
   1. Restitution to any victims;
   2. Institution or proposal of a compliance and ethics program;
   3. Any other efforts the corporation has made to detect or prevent criminal activity, or to detect or prevent any recurrence of the alleged conduct;
3. The corporation’s service to the community before or following the alleged conduct;
4. Whether the corporation reported the alleged conduct to law enforcement;
5. Whether the corporation cooperated and/or rendered substantial assistance to the Government, and the degree of such cooperation and/or assistance;
6. Whether the alleged conduct constituted a distinct, isolated instance, as opposed to demonstrating that the corporation had an alleged criminal purpose;
7. The relative position of the individuals involved in, or having knowledge of, the alleged conduct—i.e. whether governing or high level officers or lower level personnel;
8. Whether the corporation has any history of similar conducts;
9. The seriousness of the alleged conduct, including whether it resulted in any physical harm, threat to any market, third party, etc.;
10. The corporation’s role in the alleged conduct, including whether the corporation or its officers, members or employees were also victims of the alleged conduct;
11. The lack of likelihood of recurrence of the alleged conduct;
12. The corporation’s efforts to investigate the alleged conduct and actions against culpable individuals;
13. Whether the alleged conduct resulted in collateral consequences to the corporation, including costs from investigation, civil lawsuits relating to the alleged conduct, etc.; and
14. Whether the gains from the alleged conduct were outweighed by the costs incurred by the corporation in responding to and remedying the alleged conduct.

These points may also furnish useful guidelines or tips for corporate officers or members and counsel in attempting to devise appropriate responses in the event of notice of alleged wrongdoing and/or a criminal investigation.

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))