Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 1, Mar. 10, 1997

General Application Principles

Sentencing Factors

Supreme Court holds that conduct from acquitted

counts may be used in guideline calculation. “In these

two cases, two panels of the Court of Appeals for the Ninth

Circuit held that sentencing courts could not consider

conduct of the defendants underlying charges of which

they had been acquitted. . . . Every other Court of Appeals

has held that a sentencing court may do so, if the Government establishes that conduct by a preponderance of the

evidence. . . . Because the panels’ holdings conflict with

the clear implications of 18 U.S.C. § 3661, the Sentencing

Guidelines, and this Court’s decisions, particularly Witte

v. United States, . . . 115 S. Ct. 2199 . . . (1995), we grant the

petition and reverse in both cases.”

“We begin our analysis with 18 U.S.C. § 3661, which

codifies the longstanding principle that sentencing

courts have broad discretion to consider various kinds of

information. . . . We reiterated this principle in Williams v.

New York, 337 U.S. 241 . . . (1949), in which a defendant

convicted of murder and sentenced to death challenged

the sentencing court’s reliance on information that the

defendant had been involved in 30 burglaries of which he

had not been convicted. . . . Neither the broad language of

§ 3661 nor our holding in Williams suggests any basis for

the courts to invent a blanket prohibition against considering certain types of evidence at sentencing. Indeed,

under the pre-Guidelines sentencing regime, it was ‘well

established that a sentencing judge may take into account facts introduced at trial relating to other charges,

even ones of which the defendant has been acquitted.’”

“The Guidelines did not alter this aspect of the sentencing court’s discretion.” Section 1B1.4 allows sentencing courts to “consider, without limitation, any information concerning the background, character and conduct

of the defendant, unless otherwise prohibited by law,”

and for “certain offenses . . . USSG § 1B1.3(a)(2) requires

the sentencing court to consider ‘all acts and omissions

. . . that were part of the same course of conduct or

common scheme or plan as the offense of conviction.’

Application Note 3 explains that ‘[a]pplication of this

provision does not require the defendant, in fact, to

have been convicted of multiple counts.’ . . . In short, we

are convinced that a sentencing court may consider

conduct of which a defendant has been acquitted.”

“The Court of Appeals’ position to the contrary not

only conflicts with the implications of the Guidelines, but

it also seems to be based on erroneous views of our

double jeopardy jurisprudence. . . . In Witte, we held that

a sentencing court could, consistent with the Double

Jeopardy Clause, consider uncharged cocaine importation in imposing a sentence on marijuana charges that

was within the statutory range, without precluding the

defendant’s subsequent prosecution for the cocaine offense. We concluded that ‘consideration of information

about the defendant’s character and conduct at sentencing does not result in “punishment” for any offense other

than the one of which the defendant was convicted.’ . . .

115 S. Ct. at 2207. Rather, the defendant is ‘punished only

for the fact that the present offense was carried out in a

manner that warrants increased punishment.’”

“The Court of Appeals likewise misunderstood the

preclusive effect of an acquittal, when it asserted that a

jury ‘rejects’ some facts when it returns a general verdict

of not guilty. . . . We have explained that ‘acquittal on

criminal charges does not prove that the defendant is

innocent; it merely proves the existence of a reasonable

doubt as to his guilt.’ . . . [T]he jury cannot be said to have

‘necessarily rejected’ any facts when it returns a general

verdict of not guilty.”

“We acknowledge a divergence of opinion among the

Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence.

The cases before us today do not present such exceptional circumstances, and we therefore do not address

that issue. We therefore hold that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so

long as that conduct has been proved by a preponderance of the evidence.”

U.S. v. Watts, 117 S. Ct. 633, 635–38 (1997) (per curiam)

(Stevens and Kennedy, JJ., dissenting).

See Outline at I.A.3

Violation of Supervised Release

Revocation

In Eighth Circuit, after revocation court may reimpose supervised release under § 3583(h) for defendant

originally sentenced before statute’s effective date.

Defendant was first sentenced in 1990. He began serving

his term of supervised release in May 1995, had it revoked
2 Guideline Sentencing Update, vol. 9, no. 1, March 10, 1997 • a publication of the Federal Judicial Center

in October, and was sentenced to 14 months in prison

with an additional supervised release term of 22 months.

The district court did not specify whether it sentenced

defendant under 18 U.S.C. § 3583(h), which authorized

the reimposition of supervised release after revocation,

effective Sept. 13, 1994, or under prior Eighth Circuit case

law that interpreted 18 U.S.C. § 3583(e) to allow for reimposition after revocation, see U.S. v. Schrader, 973 F.2d 623

(8th Cir. 1992). Defendant challenged the new term of

supervised release on ex post facto grounds.

The appellate court upheld the sentence. “In this circuit, under the prior law, the district court could impose,

in addition to the term of imprisonment . . . , a new term

of supervised release, so long as the aggregate of the

two terms is less than or equal to the original term of

supervised release. . . . We conclude that a defendant is

not potentially subject to an increased penalty under

§ 3583(h) because, given our [earlier] interpretation of

§ 3583(e)(3) . . . , the maximum period of time that a

defendant’s freedom can be restrained upon revocation

of supervised release under the new law is either the

same as, or possibly less than, under the prior law. Because application of the new law does not result in an

increased penalty, there is no ex post facto violation.” The

court distinguished U.S. v. Beals, 87 F.3d 854 (7th Cir.

1996), reasoning that the contrary holding was correct

for the Seventh Circuit because it had previously held that

reimposition after revocation was not authorized under

§ 3583. Thus, in the Seventh Circuit, reimposition under

§ 3583(h) was an ex post facto violation because it retroactively increased a defendant’s potential penalty.

U.S. v. St. John, 92 F.3d 761, 765–67 (8th Cir. 1996).

See Outline at VII.B.1

Determining the Sentence

“Safety Valve” Provision

Ninth Circuit holds that information “provided to the

Government” includes information provided to a different prosecutor in another case. Defendant pled

guilty to a marijuana offense that occurred in 1994. He

claimed that he qualified under 18 U.S.C. § 3553(f), USSG

§ 5C1.2, for sentencing below the mandatory minimum.

However, there was evidence that defendant committed a

similar offense in 1993, which he had not disclosed, and

the government claimed that he therefore did not meet

subsection (5)’s requirement to truthfully provide to the

Government all information concerning the offense and

related offenses. Defendant’s sentencing was postponed

twice, and before he was sentenced he pled guilty to and

admitted his involvement in the 1993 offense, and the

prosecutor in that case recommended a reduction under

§ 5C1.2. At the sentencing for the 1994 offense, defendant

argued that, by providing information to the prosecutor

in the 1993 case he satisfied subsection (5). The district

court denied the reduction and defendant appealed.

The appellate court remanded, first finding that the

district court erred by not providing reasons for the denial

at the final sentencing hearing. “[S]ection 3553(f) states

that the court shall depart from the mandatory minimum

sentence if it finds ‘at sentencing’ that the defendant

meets all five criteria. 18 U.S.C. § 3553(f) (emphasis

added); see also U.S.S.G. § 5C1.2. The district court thus

must provide reasons for agreeing or refusing to apply

section 5C1.2 at the time of sentencing.”

The court then concluded that defendant satisfied

subsection (5) when he was debriefed by the assistant

U.S. attorney (AUSA) in the 1993 case. “A defendant need

not disclose information to any particular government

agent to be eligible for relief under section 5C1.2. ‘The

prosecutor’s office is an entity,’ and knowledge attributed

to one prosecutor is attributable to others as well. . . . Thus,

the fact that AUSA Torres-Reyes, the prosecutor in this

case, was not present when AUSA Coughlin debriefed

Real-Hernandez in the 1993 incident is not relevant to the

question whether Real-Hernandez provided information

to the ‘government.’” The court also rejected the

government’s argument that the 1993 case debriefing

should not trigger the safety valve because it “was a totally

separate case and was only relevant to show [defendant]

had not been truthful” when he told government agents

in the 1994 case that he did not know anything. “The plain

language of section 5C1.2(5) allows any provision of

information in any context to suffice, so long as the

defendant is truthful and complete.”

U.S. v. Real-Hernandez, 90 F.3d 356, 361 (9th Cir. 1996).

See Outline at V.F.2

Fourth Circuit holds that government violated plea

agreement by arguing against safety valve reduction

after it failed to debrief defendant as promised. In its

plea agreement with defendant, the government agreed

that he would be debriefed by government agents. The

debriefing never occurred, however, and defendant

eventually submitted a proffer letter to the government

attempting to explain his involvement in and knowledge

of the offense. Defendant argued at sentencing that, in

the absence of the promised debriefing, the letter entitled him to the safety valve reduction under § 3553(f);

§ 5C1.2. The government argued against the reduction,

saying it could not verify the information defendant had

provided. The district court, without finding whether

defendant was telling the truth, determined that there

was not enough information to conclude that he was and

sentenced him to the statutory minimum.

The appellate court remanded. “[W]e have recognized

that the burden rests on the defendant to prove that the

prerequisites for application of the safety valve provision,

including truthful disclosure, have been met. . . . Debriefing by the Government plays an important role in

permitting a defendant to comply with the disclosure

requirement of the safety valve provision and in convinc-
Guideline Sentencing Update, vol. 9, no. 1, March 10, 1997 • a publication of the Federal Judicial Center 3

ing the Government of the fullness and completeness of a

defendant’s disclosure, thereby encouraging a favorable

recommendation. . . . [W]hen the Government promises

in a plea agreement to debrief a defendant, it may not

thereafter simply refuse to do so and then, having deprived the defendant of his best opportunity for attempting to obtain this favorable treatment, argue that the

defendant is not entitled to sentencing under the safety

valve provision. . . . On remand, the Government shall

comply with the plea agreement by debriefing BeltranOrtiz prior to resentencing. The district court shall then

determine whether Beltran-Ortiz has met the requirements of 18 U.S.C.A. § 3553(f).”

U.S. v. Beltran-Ortiz, 91 F.3d 665, 669 & n.4 (4th Cir.

1996).

See Outline at V.F.2

Supervised Release

Ninth Circuit holds that when retroactive application

of guideline amendment reduces prison term to less

than time already served, term of supervised release

begins on date defendant should have been released.

“Appellants in these consolidated cases were each convicted for growing marijuana in violation of 21 U.S.C.

§ 841(a) and sentenced to a term of imprisonment plus a

statutory three years of supervised release. In November,

1995, each received a reduction in his custodial sentence

by reason of a retroactive amendment to the sentencing

guidelines which affected the manner of calculating the

quantity of marijuana for sentencing purposes. Each had

already spent more time in prison than required by the

modified sentence.”

“The government nonetheless used each prisoner’s

actual release date as the starting date for measuring

the duration of the three years of supervised release. Appellants . . . ask[ed] the court to set the starting times for

their terms of supervised release on the dates their imprisonments should have ended under the new sentences. The district court, after reviewing the stated purposes of both custody and supervised release, agreed

with the government that supervised release must be

measured from the actual release dates.”

The appellate court reversed, concluding that, “while

the statutory scheme is not crystal clear, the supervised

release portion of the sentence begins on the date a

prisoner’s term of imprisonment expires, whether or not

he is released on that date. The appellants’ terms of supervised release began on the dates appellants should have

been released, rather than on the dates of their actual

release.” The applicable statutes state that a supervised

release term “commences on the day the person is released from imprisonment,” 18 U.S.C. § 3624(e), and that

“[a] prisoner shall be released . . . on the date of the

expiration of the prisoner’s term of imprisonment,”

§ 3624(a). “Neither direct nor circumstantial evidence of

legislative intent concerning the narrow question presented by this appeal is present. We know only that the

revised sentencing guideline was intended to apply retroactively, and was intended to have the remedial effect of

reducing sentences imposed under an earlier, more punitive sentencing formula. In a somewhat similar situation,

this court contemplated a problem of clarifying when a

period of supervised release was to begin. See U.S. v.

Montenegro-Rojo, 908 F.2d 425, 431 fn. 8 (9th Cir. 1990)

(stating that, in fairness, the extra time in prison should be

counted towards the year of supervised release).”

“We hold that in view of the language of 18 U.S.C.

§ 3624(a), and because of the obvious purpose of leniency

in applying the revised sentencing guidelines retroactively, we must follow the lead of this court in MontenegroRojo. We limit our holding to the unusual facts of this

case, where there has been a retroactive amendment to

the guidelines.”

U.S. v. Blake, 88 F.3d 824, 825–26 (9th Cir. 1996). But cf.

U.S. v. Douglas, 88 F.3d 533, 534 (8th Cir. 1996) (per curiam) (although clarifying guideline amendment reduced

defendant’s sentence to less than time served, rejecting

claim that excess time defendant spent in prison should

be credited against his term of supervised release).

See Outline generally at V.C

Adjustments

Vulnerable Victim

Eighth Circuit declines to apply 1995 amendment that

removed “target” language. Application Note 1 of §3A1.1

formerly stated that the adjustment applied “where an

unusually vulnerable victim is made a target” of the offense. Some circuits, including the Eighth, read that language to require that a defendant intentionally targeted

the victim because of a particular vulnerability. However,

the commentary was revised in 1995 by the removal of the

target language “to clarify application with respect to this

issue.” USSG App. C, Amend. 521, at 430 (Nov. 1995). The

revised note now states that the enhancement applies “to

offenses involving an unusually vulnerable victim in

which the defendant knows or should have known of the

victim’s unusual vulnerability.” USSG § 3A1.1(b), comment. n.2 (Nov. 1995). The court had to determine

whether it could apply the amended commentary to

defendants who were sentenced before Nov. 1995.

“[N]otwithstanding the Sentencing Commission’s description of Amendment 521 as a ‘clarification,’ we hold

that applying the new language set forth in U.S.S.G.

§ 3A1.1 comment. (n.2) (Nov. 1995), as opposed to the

language set forth in U.S.S.G. § 3A1.1 comment. (n.1)

(Nov. 1994), would in this case violate the Constitution’s

prohibition against ex post facto laws because: the application would be retrospective; it would, if anything, increase defendants’ sentences; it would not merely involve

a procedural change; and it would not be offset by other

ameliorative provisions. ”
Guideline Sentencing Update, vol. 9, no. 1, Mar. 10, 1997

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

The court then concluded that there was no evidence

to support a finding that defendants, who had defrauded

couples seeking to adopt children, targeted any of the

couples because of their desire to adopt or because of the

infertility problems of some of the victims. In any event,

the court also held that the defrauded couples’ “strong

desire to adopt” is not “the type of particular susceptibility contemplated by § 3A1.1,” and defendants should not

have received the enhancement.

U.S. v. Stover, 93 F.3d 1379, 1384–88 (8th Cir. 1996).

See Outline at III.A.1.a and d

Departures

Mitigating Circumstances

Ninth Circuit holds that sentencing entrapment may

warrant reducing amount of drugs used to determine

whether mandatory minimum applies. Defendant was

convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute. “At the sentencing hearing, the court found that sentencing entrapment

had occurred, and the government did not oppose a

downward departure from the applicable sentencing

guideline range based upon sentencing entrapment. The

district court attributed one kilogram of cocaine to

Castaneda and imposed the five year statutory minimum

sentence pursuant to 21 U.S.C. § 841(b)(1)(B)(ii). The

court said that it lacked discretion to sentence Castaneda

to a term below the statutory minimum. Castaneda

timely appealed.”

The appellate court remanded, reasoning that district

courts determine the quantity of drugs attributable to a

defendant, including amounts for purposes of establishing whether a mandatory minimum sentence applies. “If

a defendant proves that sentencing entrapment has occurred, there is no sound reason that the government’s

wrongful conduct should be protected by a statutory

minimum based upon an amount of drugs higher than a

defendant was predisposed to buy or sell. . . . The district

court here did not think that it had the discretion to

reduce the amount of cocaine attributable to Castaneda

by the amount tainted by sentencing entrapment. Otherwise, the court might have found, for example, that

Castaneda lacked the predisposition to sell 500 grams or

more of cocaine. Had the district court made such a

finding, it could have excluded more than 500 grams from

its finding of cocaine attributable to Castaneda. A finding

that less than 500 grams of cocaine were attributable to

Castaneda would result in no obligation to impose a

statutory minimum sentence.”

U.S. v. Castaneda, 94 F.3d 592, 594–96 (9th Cir. 1996).

See also U.S. v. Montoya, 62 F.3d 1, 3 (1st Cir. 1995) (courts’

authority to exclude drug amounts tainted by sentencing

entrapment “applies to statutory minimums as well as to

the guidelines”).

See Outline at VI.C.4.c
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 2, Apr. 29, 1997

Determining the Sentence

Consecutive or Concurrent Sentences

Supreme Court holds that § 924(c) sentence cannot be

imposed to run concurrently with a state sentence.

Under 18 U.S.C. § 924(c), the five-year mandatory sentence for using a firearm during a drug trafficking offense

may not be imposed to “run concurrently with any other

term of imprisonment.” In U.S. v. Gonzalez, 65 F.3d 814,

819–22 (10th Cir. 1995), the Tenth Circuit held that a

§ 924(c) sentence “may run concurrently with a previously imposed state sentence that a defendant has already begun to serve” (emphasis in original). After reviewing the legislative history and the purpose of § 924(c), the

court ultimately concluded that “the phrase ‘any other

offense’ encompasses only federal offenses” and that this

interpretation was consistent with USSG § 5G1.3(b). Cf.

U.S. v. Kiefer, 20 F.3d 874, 876–77 (8th Cir. 1994) (if called

for under § 5G1.3(b), mandatory sentence under § 924(e)

may be imposed to run concurrently with related state

sentence; distinguishing § 924(c) because § 924(e) does

not contain specific prohibition against concurrent sentencing); U.S. v. Drake, 49 F.3d 1438, 1440–41 (9th Cir.

1995) (following Kiefer).

The Supreme Court reversed, concluding that the text

of the statute was clear and the Tenth Circuit should not

have resorted to the legislative history. “The question we

face is whether the phrase ‘any other term of imprisonment’ ‘means what it says, or whether it should be limited

to some subset’ of prison sentences . . . —namely, only

federal sentences. Read naturally, the word ‘any’ has an

expansive meaning, that is, ‘one or some indiscriminately

of whatever kind.’ . . . Congress did not add any language

limiting the breadth of that word, and so we must read

§924(c) as referring to all ‘term[s] of imprisonment,’ including those imposed by state courts. . . . There is no basis

in the text for limiting § 924(c) to federal sentences.”

“Given the straightforward statutory command, there

is no reason to resort to legislative history. . . . In sum, we

hold that the plain language of 18 U.S.C. § 924(c) forbids

a federal district court to direct that a term of imprisonment under that statute run concurrently with any other

term of imprisonment, whether state or federal. The statute does not, however, limit the court’s authority to order

that other federal sentences run concurrently with or

consecutively to other prison terms—state or federal—

under § 3584.”

U.S. v. Gonzalez, 117 S. Ct. 1032, 1035–38 (1997) (Stevens and Breyer, JJ., dissenting).

See Outline at V.A.3

“Safety Valve” Provision

Ninth Circuit holds that court’s findings for safety valve

are not controlled by jury verdict. Defendant was convicted on heroin possession and importation charges. He

consistently denied that he knew the suitcase he had

been paid to carry contained heroin. The district court

believed him and, because defendant otherwise qualified for the safety valve provision, 18 U.S.C. § 3553(f);

USSG § 5C1.2, sentenced him below the mandatory minimum. The government appealed, “arguing that the jury’s

guilty verdict precludes any notion that Sherpa truthfully

provided ‘all information’ he had concerning the offense

. . . [and] legally forecloses any possibility that Sherpa’s

consistent profession of ignorance (regarding the presence of drugs in the suitcase) was based in truth.”

The appellate court affirmed. “Section 3553(f) requires

a determination by the judge, not the jury, as to the

satisfaction of the five underlying criteria. This is no

accident. The judge is privy to far more information

than the jury and is therefore in a much different posture to assess the case and determine whether the

defendant complies with § 3553(f).” Although a judge

“cannot set aside a verdict just because he or she personally disagrees with a jury’s finding,” the judge “could

logically find that reasonable minds might differ on a

given point so as to preclude a judgment of acquittal,

but conclude that he or she would have voted differently

had he or she been a juror. While the judge’s personal

disagreement has no impact on the jury’s finding of guilt,

we hold that such disagreement is properly considered

in the judge’s sentencing decision.”

The court also determined that U.S. v. Brady, 928 F.2d

844 (9th Cir. 1991), which held that a sentencing judge

may not reconsider facts that were necessarily rejected by

a jury’s not guilty verdict, was effectively overturned by

Koon v. U.S., 116 S. Ct. 2035 (1996). Koon emphasized “the

deference due the sentencing judge” and that sentencing

factors should only be excluded from consideration by

the Sentencing Commission, not by the courts. “We

therefore acted beyond our authority . . . in Brady . . . .

Consistent with the language of § 3553(f) and the different

roles involved when determining guilt and imposing sentence, we hold that the safety valve requires a separate

judicial determination of compliance which need not be

consistent with a jury’s findings.”

U.S. v. Sherpa, 97 F.3d 1239, 1243–45 (9th Cir. 1996), as

amended on denial of rehearing and rehearing en banc, —

F.3d — (9th Cir. Mar. 5, 1997).

See Outline at V.F.2
2 Guideline Sentencing Update, vol. 9, no. 2, April 29, 1997 • a publication of the Federal Judicial Center

Tenth Circuit holds that in resentencing after

§ 3582(c)(2) motion for reduction of sentence, safety

valve provision may not be applied if original sentence

was imposed before effective date of § 3553(f ). After

defendant was sentenced in 1993 to a 60-month mandatory minimum sentence for marijuana offenses, Amendment 516 (effective Nov. 1, 1995) changed the method

for determining the weight of marijuana plants for purposes of sentencing under § 2D1.1(c). The amendment

was made retroactive, see § 1B1.10(c), and defendant filed

a motion for reduction of sentence under 18 U.S.C.

§ 3582(c)(2). He was still subject to the mandatory minimum term, but argued that he qualified for the safety

valve exception to the mandatory minimum, 18 U.S.C.

§ 3553(f); USSG § 5C1.2, and should be sentenced within

the amended guideline range of 18–24 months. The district court held that § 3553(f), which did not take effect

until Sept. 23, 1994, could not be applied retroactively to

defendant’s 1993 sentence and thus the 60-month sentence would stand.

The appellate court agreed that “the safety valve exception applies to all sentences imposed on or after September 23, 1994, . . . and it is not retroactive. . . . We agree with

Mr. Torres that when we remand a case to the district court

with instructions to vacate the sentence and resentence

the defendant, ‘the district court [is] governed by the

guidelines in effect at the time of resentence’ . . . . But that

is not the situation Mr. Torres is in. There has been no

vacation of his sentence nor any order for resentencing.

. . . Rather, he seeks relief pursuant to § 3582(c)(2), which

is a different animal.”

Under that section, a defendant’s “eligibility for a reduction in sentence is ‘inexorably tied’” to USSG

§ 1B1.10, which states in Application Note 2: “In determining the amended guideline range under subsection

(b), the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline

provisions that were applied when the defendant was

sentenced. All other guideline application decisions

remain unaffected.” (Emphasis added by court.) “The

safety valve exception is specifically excluded from retroactive application by § 1B1.10, and Mr. Torres cannot

evade the plain language and effect of this section by

characterizing his § 3582(c)(2) motion as requiring de

novo resentencing.”

U.S. v. Torres, 99 F.3d 360, 362–63 (10th Cir. 1996). Cf.

U.S. v. Polanco, 53 F.3d 893, 898–99 (8th Cir. 1995) (after

vacating sentence for improperly departing from mandatory minimum absent § 3553(e) motion from government, directing district court to consider § 3553(f) when

resentencing on remand).

See Outline at V.F.1

Sentencing Procedure

Second Circuit uses supervisory authority to require

that defendants be given opportunity to have counsel

present at debriefing related to substantial assistance

reduction. Defendant pled guilty to one racketeering

count. He signed an agreement to cooperate with the

government which, in return, agreed to file a § 5K1.1

motion for downward departure if it determined that

defendant provided substantial assistance. After

debriefing defendant, the government did file the motion, but disparaged defendant’s assistance as reluctant

and less than candid. Relying on the government’s characterization, the district court declined to depart more

than three months from the guideline minimum of 63

months.

At the sentencing hearing, defense counsel objected to

the prosecutor’s comments and the sentence, complaining that the prosecutor did not notify her when the debriefing sessions were to occur and that she could have

helped her client cooperate more fully. “[T]he prosecutor

stated that her failure to give notice to defendant’s lawyer

was routine, adding that every witness or potential witness in the case was debriefed without counsel being

present because that was ‘standard practice’ in the Eastern District prosecutor’s office. The sentencing court

found the practice unremarkable” and rejected defense

counsel’s argument. On appeal defendant contended

that the Sixth Amendment entitled him to the assistance

of counsel during his debriefing.

The appellate court “d[id] not reach or decide

appellant’s constitutional argument,” instead concluding

that “the government’s standard practice in this district

of conducting debriefing interviews outside the presence

of counsel is inconsistent, in our view, with the fair administration of criminal justice. Consequently, we exercise our supervisory authority to bring it to an end, and

vacate the judgment in the instant case and remand for

resentencing.” The court reasoned that “[t]he special nature of a § 5K1.1 motion demonstrates that the government debriefing interview is crucial to a cooperating

witness. To send a defendant into this perilous setting

without his attorney is, we think, inconsistent with the

fair administration of justice.”

The court explained that “[d]efendant and his counsel

should be given reasonable notice of the time and place

of the scheduled debriefing so that counsel might be

present. A cooperating witness’s failure to be accompanied by counsel at debriefing may later be construed as a

waiver, providing defendant and counsel have had notice

so that the consequences of counsel’s failure to attend

could be explained to defendant. . . . Alternatively, waiver

can be set forth expressly in the cooperation agreement.”

U.S. v. Ming He, 94 F.3d 782, 785–94 (2d Cir. 1996).

See Outline generally at IX.C
Guideline Sentencing Update, vol. 9, no. 2, April 29, 1997 • a publication of the Federal Judicial Center 3

Departures

Mitigating Circumstances

Fourth Circuit rejects downward departure, sets forth

five-step analysis for departure decision. Defendant was

convicted on conspiracy and perjury charges. The district

court departed downward five offense levels based “on

the confluence of six factors”: (1) defendant was “a highly

decorated Vietnam War veteran [with] an unblemished

record of 20 years of service . . . in the military and in the

Secret Service; (2) he had a nine-year-old son with neurological problems who was in need of special supervision,

and his wife’s mental health was fragile; (3) he is recovering from an alcohol abuse problem and requires counseling; (4) his offense was not relatively serious because his

scheme to defraud did not involve ‘real fraud’; (5) his

imprisonment would be ‘more onerous’ because law

enforcement officers ‘suffer disproportionate problems

when they are incarcerated’; and (6) his status as a convicted felon—which prohibits him, an experienced firearms handler and instructor, from ever touching a firearm again and from voting for the rest of his life—constitutes sufficient punishment when coupled with his sentence of probation.”

The appellate court, guided by Koon v. U.S., 116 S. Ct.

2035 (1996), first “prescribe[d] the following analysis for

sentencing courts to follow when deciding whether to

depart, and we clarify the standards for review of departure decisions:

“1. The district court must first determine the circumstances and consequences of the offense of conviction.

This is a factual inquiry which is reviewed only for clear

error.

“2. The district court must then decide whether any of

the circumstances or consequences of the offense of

conviction appear ‘atypical,’ such that they potentially

take the case out of the applicable guideline’s heartland.

. . . Unlike the other steps in this analysis, a district court’s

identification of factors for potential consideration is

purely analytical and, therefore, is never subject to appellate review.

“3. . . . [T]he district court must identify each [atypical

factor] according to the Guidelines’ classifications as a

‘forbidden,’ ‘encouraged,’ ‘discouraged,’ or ‘unmentioned’ basis for departure. Because a court’s classification of potential bases for departure is a matter of guideline interpretation, we review such rulings de novo in the

context of our ultimate review for abuse of discretion. . . .

And ‘[a] district court by definition abuses its discretion

when it makes an error of law.’ . . . A factor classified as

‘forbidden’ . . . can never provide a basis for departure and

its consideration ends at this step. . . .

“4. . . . ‘Encouraged’ factors . . . are usually appropriate

bases for departure. But such factors may not be relied

upon if already adequately taken into account by the

applicable guideline, and that legal analysis involves interpreting the applicable guideline, which we review de

novo to determine whether the district court abused its

discretion. . . . Conversely, ‘discouraged’ factors . . . are ‘“not

ordinarily relevant,”’ but may be relied upon as bases for

departure ‘“in exceptional cases”’. . . . When the determination of whether a factor is present to an exceptional

degree amounts merely to an evaluation of a showing’s

adequacy, it becomes a legal question, and our review is

de novo to determine whether the district court abused its

discretion. Finally, . . . ‘unmentioned’ factors . . . may justify

a departure where the ‘structure and theory of both relevant individual guidelines and the Guidelines taken as a

whole’ indicate that they take a case out of the applicable

guideline’s heartland. . . . The interpretation of whether the

Guidelines’ structure and theory allow for a departure is,

again, a legal question subject to de novo review to determine whether the district court abused its discretion.

“5. As the last step, the district court must consider

whether circumstances and consequences appropriately

classified and considered take the case out of the applicable guideline’s heartland and whether a departure . . . is

therefore warranted. Because this step requires the sentencing court to ‘make a refined assessment of the many

facts bearing on the outcome, informed by its vantage

point and day-to-day experience in criminal sentencing’

and its comparison of the case with other Guidelines

cases, this part of the departure analysis ‘embodies the

traditional exercise of discretion by [the] sentencing

court.’. . . While we review this ultimate departure decision

for abuse of discretion, . . . if the district court bases its

departure decision on a factual determination, our review of that underlying determination is for clear error.

And if the court’s departure is based on a misinterpretation of the Guidelines, our review of that underlying ruling is de novo.”

The court then reversed, finding that none of the factors justified a departure under the foregoing analysis.

Defendant’s service record and his family responsibilities

are “discouraged” factors under the Guidelines, see

§§ 5H1.6 and 5H1.11, and “the record does not indicate

that these factors are present to an ‘exceptional’ degree.”

Defendant’s alcohol problem is a “forbidden” basis for

departure, so it was “legal error and per se an abuse of

discretion for the district court to have relied on this

factor.” The last three factors “are all ‘unmentioned’ factors. We conclude, however, that none of these factors

warranted the district court’s downward departure in this

case because a departure based on the first two reasons is

inconsistent with the structure and theory of the relevant

guidelines . . . and the third factor is not present to an

exceptional degree.”

U.S. v. Rybicki, 96 F.3d 754, 757–59 (4th Cir. 1996).

See Outline at VI.C.1.a, h, 2.c, 3, and 5.b
Guideline Sentencing Update, vol. 9, no. 2, Apr. 29, 1997

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Second Circuit affirms downward departure based

on combination of physical impairment and “good

works.” Based on defendant’s health problems and “good

acts,” the district court departed from offense level 20 to

level 10 and imposed a sentence of three years’ probation,

six months of home confinement, and 500 hours of community service. The government appealed the departure.

Following the Koon standard of abuse of discretion for

review of departures, the appellate court affirmed. The

court recognized that physical problems, § 5H1.4, and

“good works,” § 5H1.11, are “not ordinarily relevant” to

departure decisions. “In extraordinary cases, however,

the district court may downwardly depart when a number

of factors that, when considered individually, would not

permit a downward departure, combine to create a situation that ‘differs significantly from the “heartland” cases

covered by the guidelines.’ U.S.S.G. § 5K2.0 cmt.”

The court agreed that defendant’s case “differed significantly from the heartland of guideline cases. Rioux

had a kidney transplant over 20 years ago, and his new

kidney is diseased. Although his kidney function remains

stable, he must receive regular blood tests and prescription medicines. As a complication of the kidney medications, Rioux contracted a bone disease requiring a double

hip replacement. Although the replacement was successful, it does require monitoring. While many of Rioux’s

public acts of charity are not worthy of commendation,

he unquestionably has participated to a large degree in

legitimate fund raising efforts. . . . It was not an abuse of

discretion for the district court to conclude that, in combination, Rioux’s medical condition and charitable and

civic good deeds warranted a downward departure.”

U.S. v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996).

See Outline at VI.C.1.a and d

To all readers of Guideline Sentencing Update and

Guideline Sentencing: An Outline:

 There is an error in the February 1997 edition of Guideline Sentencing: An Outline of Appellate Case Law on

Selected Issues, which was distributed throughout the

courts in March. Please delete the note on p. 47 at the

beginning of section II.C that refers to a 1995 amendment to § 2D1.1(b)(1). That proposed change did not

go into effect.

Also note:

Have you received a copy of the Center’s report The U.S.

Sentencing Guidelines: Results of the Federal Judicial

Center’s 1996 Survey ? In March, copies were sent to all

appeals court and district court judges, all chief probation officers, and all Sentencing Commission commissioners. If you have not received a copy, please fax a

request to the Center's Information Services Office at

202-273-4025.
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 3, July 28, 1997

Criminal History

Career Offender Provision

Supreme Court resolves circuit split, holds that “maximum term authorized” for career offender guideline

calculation includes statutory enhancements. In 28

U.S.C. §994(h), the Sentencing Commission was directed

to “assure that the guidelines specify a sentence to a term

of imprisonment at or near the maximum term authorized” for a career offender. Amendment 506 (Nov. 1, 1994)

redefined USSG §4B1.1’s “Offense Statutory Maximum”

as “not including any increase in that maximum term

under a sentencing enhancement provision that applies

because of the defendant’s prior criminal record.” The

appellate courts split on whether Amendment 506 conflicted with the mandate of §994(h) or was a reasonable

interpretation of the statute. See Outline at IV.B.3.

The Supreme Court has now resolved the split by

“conclud[ing] that the Commission’s interpretation is inconsistent with §994(h)’s plain language, and . . . that

‘maximum term authorized’ must be read to include all

applicable statutory sentencing enhancements.” Rejecting arguments that §994(h) was ambiguous, the Court

found “that the word ‘maximum’ most naturally connotes

the ‘greatest quantity or value attainable in a given case.’”

Furthermore, “the phrase ‘term authorized’ refers not to

the period of incarceration specified by the Guidelines,

but to that permitted by the applicable sentencing statutes. Accordingly, the phrase ‘maximum term authorized’ should be construed as requiring the ‘highest’ or

‘greatest’ sentence allowed by statute. . . . Where Congress

has enacted a base penalty for first-time offenders or

nonqualifying repeat offenders, and an enhanced penalty for qualifying repeat offenders, the ‘maximum term

authorized’ for the qualifying repeat offenders is the enhanced, not the base, term.”

U.S. v. LaBonte, 117 S. Ct. 1673, 1675–78 (1997) (Breyer,

Stevens, and Ginsburg, JJ., dissenting).

See Outline at IV.B.3

Departures

Extent of Departure

Seventh and Ninth Circuits differ on whether they may

require use of analogies to Guidelines in setting extent of

departure after Koon. In the Seventh Circuit case, the

appellate court held that the district court chose an inappropriate analogy for an upward departure, and that

therefore the extent of the departure was unreasonable.

In so doing, the court also ruled that Koon v. U.S., 116 S. Ct.

2035 (1996), did not remove the circuit’s requirement to

explain the extent of a departure by analogy to the Guidelines. “[I]n computing the degree of an upward departure,

the district court is ‘required to articulate the specific

factors justifying the extent of [the] departure and to

adjust the defendant’s sentence by utilizing an incremental process that quantifies the impact of the factors considered by the court on the . . . sentence.’”

“We do not read Koon to require that we abdicate our

reviewing authority over the magnitude of a departure

chosen by the district court. As noted at the outset, our

authority to review the district judge’s departure decision

in Horton’s case stems from section 3742(e)–(f), which

provides for appellate review of the reasonableness of the

extent of any departure assigned by the district court, an

issue quite separate from the court’s decision whether to

depart at all. Although Koon changed the standard of

review with respect to the latter issue, . . . and adopted a

unitary abuse of discretion standard for the review of

departure decisions, . . . we do not believe that it subverted our rationale for requiring a district court to explain its reasons for assigning a departure of a particular

magnitude in a manner that is susceptible to rational

review. . . . Because this requirement does not deprive the

district judge of the deference to which he is due, we do

not believe it to be inconsistent with Koon.”

U.S. v. Horton, 98 F.3d 313, 319 (7th Cir. 1996) (Evans, J.,

dissenting). See also U.S. v. Barajas-Nunez, 91 F.3d 826,

834 (6th Cir. 1996) (“Although Koon has changed the

standard of review to an abuse of discretion standard, the

rationale for requiring an explanation of reasons for departure and the extent thereof still remains.”).

The Ninth Circuit, on the other hand, decided en banc

that Koon effectively overruled its earlier holding that the

extent of departure must be determined by reference to

“the structure, standards and policies” of the Guidelines

and “be based upon objective criteria drawn from the

Sentencing Reform Act and the Guidelines,” and that

courts “should include a reasoned explanation of the

extent of the departure” with reference to these principles. See U.S. v. Lira-Barraza, 941 F.2d 745, 747–51 (9th

Cir. 1991) (en banc).

“In Lira-Barraza, we relied heavily on the Seventh

Circuit’s decision in U.S. v. Ferra, 900 F.2d 1057 (7th Cir.

1990), . . . as support for the proposition that the extent of

an upward departure requires a comparison to analogous

Guideline provisions. . . . In light of Koon, we now reject

such a mechanistic approach to determining whether the
2 Guideline Sentencing Update, vol. 9, no. 3, July 28, 1997 • a publication of the Federal Judicial Center

extent of a district court’s departure was unreasonable,

and hold that where, as here, a district court sets out

findings justifying the magnitude of its decision to depart

and extent of departure from the Guidelines, and that

explanation cannot be said to be unreasonable, the sentence imposed must be affirmed. . . . As the Supreme

Court has repeatedly noted, ‘it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular

sentence.’ . . . Because the extent of the district court’s

departure was not unreasonable, we find no abuse of

discretion in the sentence imposed.” The court did note

that “[a]n analysis and explanation by analogy, per LiraBarraza, may still be a useful way for the district court to

determine and explain the extent of departure, but it is

not essential.”

U.S. v. Sablan, 114 F.3d 913, 916–19 & n.10 (9th Cir.

1997) (en banc) (five judges dissenting), rev’g 90 F.3d 362.

See also U.S. v. Hardy, 99 F.3d 1242, 1253 (1st Cir. 1996)

(affirming upward departure: “A sentencing court is not

required to ‘dissect its departure decision, explaining in

mathematical or pseudo-mathematical terms each microscopic choice made.’ . . . Similarly, the reasonableness

vel non of the degree of departure need ‘not [ ] be determined by rigid adherence to a particular mechanistic

formula, but by an evaluation of “the overall aggregate of

known circumstances.”’”).

See Outline at VI.D and X.A.1

Mitigating Circumstances

First Circuit holds that third-party job loss cannot be

categorically excluded as potential basis for departure.

Defendants, owners of a small business, were convicted of

tax evasion. The district court denied their request for a

downward departure on the claim that “twelve innocent

employees will lose their jobs and suffer severe hardship”

if defendants are imprisoned. The court agreed that the

business would fail and the employees would lose their

jobs, but concluded that, as a matter of law, the Sentencing Commission had considered the possible failure of a

small business and its effect on employees. On defendants’ appeal, the government argued that departure is

precluded by §5H1.2, which states that “vocational skills

are not ordinarily relevant” in a departure decision.

The appellate court, following Koon v. U.S., 116 S. Ct.

2035 (1996), reversed. “It is clear that the Guidelines do

not explicitly list the factor at issue here among the forbidden or the discouraged factors. The question is whether

the Commission’s ‘vocational skills’ comment implicitly

discourages consideration of job loss to innocent employees. We note first that ‘vocational skills’ themselves

are not a forbidden factor, but a discouraged factor. . . .

Therefore, even if the present case merely concerned

vocational skills, a per se approach would be inappropriate and the district court would still have to consider

whether the case was in some way ‘different from the

ordinary case where the factor is present.’ Koon, . . . 116 S.

Ct. at 2045.”

“We do not agree with the Government’s contention

that the loss of employment to innocent employees necessarily falls within the term ‘vocational skills.’ That a

defendant may have vocational skills of great value or

rarity does not necessarily tell one whether incarceration

of that defendant will entail job loss to others totally

uninvolved in the defendant’s crimes. Vocational skills

may or may not be related to job loss to others.”

The court found support in Koon for its “belief that

courts should be careful not to construe the categories

covered by the Guidelines’ factors too broadly.” In Koon,

“the Supreme Court recognized that while ‘socio-economic status’ of the defendant is an impermissible

ground for departure and ‘a defendant’s career may relate

to his or her socio-economic status, . . . the link is not so

close as to justify categorical exclusion of the effect of

conviction on a career. Although an impermissible factor

need not be invoked by name to be rejected, socio-economic status and job loss are not the semantic or practical

equivalents of each other.’ . . . 116 S. Ct. at 2051.”

“As Koon holds that job loss by the defendant resulting

from his incarceration cannot be categorically excluded

from consideration, we think it follows that job loss to

innocent employees resulting from incarceration of a

defendant may not be categorically excluded from consideration. . . . To add a judicial gloss equating job loss by

innocent third parties with ‘vocational skills’ is to run

headlong into the problem of judicial trespass on legislative prerogative against which the Supreme Court warned

in Koon. We do not travel this path.”

The court stressed that “[t]he mere fact that innocent

others will themselves be disadvantaged by the defendants’ imprisonment is not alone enough to take a case

out of the heartland. These issues are matters of degree,

involving qualitative and quantitative judgments” that

must be made by the district court. “[W]e decide only that

there is no categorical barrier to the district court’s consideration of a departure—not that a departure would be

proper on these facts.”

U.S. v. Olbres, 99 F.3d 28, 32–36 & n.12 (1st Cir. 1996).

See Outline at VI.C.1.e and X.A.1

Determining the Sentence

“Safety Valve” Provision

Tenth Circuit holds that burden is on defendants to

show weapon was not possessed “in connection with

the offense,” §5C1.2(2); Tenth and D.C. Circuits differ

on whether a defendant can be held responsible for a

codefendant’s possession. In the Tenth Circuit, three defendants were arrested while carrying marijuana in duffel

bags from a marijuana patch to their vehicles parked 200
Guideline Sentencing Update, vol. 9, no. 3, July 28, 1997 • a publication of the Federal Judicial Center 3

to 300 yards away. A rifle was found in the vehicle belonging to one defendant, who claimed the rifle was only for

protection against snakes. All defendants argued that the

firearm was not possessed “in connection with the offense” within the meaning of USSG §5C1.2(2), 18 U.S.C.

§3553(f)(2). Section 5C1.2 does not define “possess” or

“in connection with,” so the district court looked to

§2D1.1(b)(1) and found it was not “clearly improbable

that the weapon was possessed in connection with the

offense conduct of conviction.” The court thus held that

defendants were ineligible for sentencing below the fiveyear statutory minimum.

The appellate court affirmed the sentences. The district court’s findings and the one defendant’s admission

that he had the gun for protection “establish[ed] proximity of the firearm to the offense,” and the court held that

“a firearm’s proximity and potential to facilitate the offense is enough to prevent application of USSG

§5C1.2(2).” The court also rejected the other two defendants’ claim that they should not be held accountable for

their codefendant’s possession of the weapon. “‘Offense’

for purposes of §5C1.2(2) includes ‘the offense of conviction and all relevant conduct.’ USSG §5C1.2 comment.

(n.3). The commentary in application note 4, read together with §1B1.3, simply acknowledges that individual

defendants are accountable for their own conduct and

that participants in joint criminal enterprises can be accountable for the foreseeable acts of others that further

the joint activity. . . . Blackburn and Hilton knew of the

presence of the weapon Hallum brought to the marijuana

patch; that it might further their joint activity was reasonably foreseeable.”

U.S. v. Hallum, 103 F.3d 87, 89–90 (10th Cir. 1996).

The defendant in the D.C. Circuit pled guilty to a drug

conspiracy charge. His brother pled guilty to that charge

and two other charges related to his possession of a firearm during the last of the four drug sales in the conspiracy.

That sale occurred outside a restaurant and was handled

by defendant’s brother while he sat in his car, in which he

had a gun. Defendant remained inside the restaurant

during the entire transaction. Although he otherwise

qualified for the safety valve, the district court ruled that,

based on either coconspirator liability or constructive

possession, he had possessed a firearm in connection

with the offense in violation of §5C1.2(2).

The appellate court remanded, holding first that “coconspirator liability cannot establish possession under

the safety valve.” The court reasoned that “application

note four provides that, ‘[c]onsistent with §1B1.3 (Relevant Conduct), the term “defendant,” as used in subdivision (2), limits the accountability of the defendant to his

own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully

caused.’ . . . This language parallels the wording of one of

the two principal provisions defining the scope of relevant conduct . . . . Notably absent from application note

four, however, is any mention of the other principal provision defining the scope of relevant conduct, which

holds defendants liable for ‘all reasonably foreseeable

acts and omissions of others in furtherance of the jointly

undertaken criminal activity.’ Id. §1B1.3(a)(1)(B). Omission of this co-conspirator liability language, we think,

can hardly have been inadvertent. Its omission, moreover, is consistent with the safety valve’s basic purpose:

to spare certain minor participants in drug trafficking

enterprises from mandatory minimum sentences when

imposition of the mandatory sentences would be disproportionate to the defendants’ culpability. . . . Given the

great likelihood that at least one member of a drug distribution conspiracy will possess a firearm, . . . incorporating co-conspirator liability into the safety valve’s weapon

possession element would render the safety valve virtually useless.”

The court recognized “the tension” between Note 4 and

“application note three’s broad definition of ‘offense,’

which includes ‘all relevant conduct.’ . . . Applying the

principle that the specific trumps the general, however,

we read application note four, which addresses only the

weapon possession element, as restricting the meaning

of application note three, which applies to several elements of the safety valve. Indeed, application note four

describes the weapon possession element’s use of the

term ‘defendant’ as ‘limiting’ defendants’ liability, . . . a

limitation that would have no function if application note

three incorporated co-conspirator liability into the

weapon possession element. We also think it significant

that, by comparison to the provision enhancing drug

sentences for gun possession, which uses the passive

voice—requiring enhancement if a firearm ‘was possessed,’ id. §2D1.1(b)(1)—and omits any reference to the

defendant, the safety valve speaks in the active voice,

requiring that ‘the defendant’ must do the possessing . . . .

And most fundamentally, we think our interpretation of

the safety valve is faithful to its purpose.”

The court also held that the alternative ground of

constructive possession, while a possibly valid ground

to deny the safety valve, did not apply under the facts of

this case. “[F]inding a participant in a drug operation

constructively possessed someone else’s weapon requires some additional evidence linking the participant

to the weapon—a link nowhere evident in the record

before us.”

In re Sealed Case, 105 F.3d 1460, 1461–65 (D.C. Cir.

1997).

See Outline generally at V.F
Guideline Sentencing Update, vol. 9, no. 3, July 28, 1997

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Washington, DC 20002-8003

Sentencing of Organizations

Determining the Fine

Ninth Circuit holds that court could impose fine that

might jeopardize continued viability of organization.

Defendant (ELI) pled guilty to eight fraud counts. In addition to restitution of $322,442, the district court imposed

a fine of $1.5 million. The fine was a departure from the

sentencing guideline range of $6,425,013 to $9,178,590,

and was reached after an independent auditor analyzed

ELI’s finances. ELI appealed, claiming that the fine would

jeopardize its continued viability and, pursuant to USSG

§8C3.3, a lower fine should have been imposed.

The appellate court held that the fine was properly

imposed. In relevant part, §8C3.3(a) states that a court

“shall reduce the fine below that otherwise required . . . , to

the extent that imposition of such fine would impair its

ability to make restitution to victims.” Subsection (b)

states that a court “may impose a fine below that otherwise required . . . if the court finds that the organization is

not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay the

minimum fine required.” An unnumbered paragraph

adds that “the reduction under this subsection shall not

be more than necessary to avoid substantially jeopardizing the continued viability of the organization.”

The court held that §8C3.3 “does not prohibit a court

from imposing a fine that jeopardizes an organization’s

continued viability. It permits, but does not require, a

court in such circumstances and in its discretion, to reduce the fine. The only time a reduction is mandated

under section 8C3.3 is if the fine imposed, without reduction, would impair the defendant’s ability to make restitution to victims. . . . Thus, even if the district court’s fine

would completely bankrupt ELI, neither section 8C3.3(a)

nor section 8C3.3(b) precluded the court from imposing

such a fine so long as the fine did not impair ELI’s ability to

make restitution. It did not. . . . [Thus], the plain language

of Guideline Section 8C3.3 did not require the district

court to further reduce ELI’s fine.”

The court also looked at the guideline covering fines for

individuals. “Under Guideline Section 5E1.2(a), a court

must first determine if an individual defendant is financially able to pay any fine at all. If the defendant successfully demonstrates that he is unable to pay any fine, then

a fine may be inappropriate. . . . Unlike Guideline Section

5E1.2, Guideline Sections 8C3.3 and 8C2.2, which apply to

organizational defendants such as ELI, do not require a

sentencing court to consider whether the defendant can

pay a fine, so long as the ability to pay restitution is not

impaired.” The court added that the district court properly considered the factors listed in 18 U.S.C. §3572 in

setting the fine, and that nothing in that statute precluded

a fine that could jeopardize the company’s viability.

U.S. v. Eureka Lab., Inc., 103 F.3d 908, 912–14 (9th Cir.

1996).

To be included in Outline at section VIII
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 4, Sept. 30, 1997

Adjustments

Multiple Counts—Grouping

Ninth Circuit holds that drug conspiracy and money

laundering counts should be grouped. Defendant was

convicted of conspiracy to distribute drugs and money

laundering, and the evidence showed that the laundered

money came from the drug business. She appealed the

district court’s refusal to group the conspiracy and money

laundering counts for sentencing purposes. The appellate court reversed and remanded for resentencing.

“Section 3D1.2 permits grouping of closely related

counts. Subsection (b) permits grouping ‘[w]hen counts

involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.’” The court

found that defendant’s “crimes satisfy the first requirement of subsection (b) of §3D1.2. Victimless crimes, such

as those involved here, are treated as involving the same

victim ‘when the societal interests that are harmed are

closely related.’ U.S.S.G. §3D1.2, Application Note 2.”

“The money laundering prohibition was adopted as

part of the Anti-Drug Abuse Act of 1986. . . . The societal

interests harmed by money laundering and drug trafficking are closely related: Narcotics trafficking enables traffickers to reap illicit financial gains and inflict the detrimental effects of narcotics use upon our society; money

laundering enables criminals to obtain the benefits of

income gained from illicit activities, particularly drug

trafficking and organized crime. See also Most Frequently

Asked Questions About the Sentencing Guidelines 20 (7th

ed. 1994) (‘[B]ecause money laundering is a type of statutory offense that facilitates the completion of some other

underlying offense, it is conceptually appropriate to treat

a money laundering offense as “closely intertwined” and

groupable with the underlying offense.’). . . . Grouping the

crimes of conspirators who engage in both trafficking and

laundering merely implements the Sentencing Commission’s direction to group closely related counts.” The

court disagreed with the Fifth and Eleventh Circuits,

which “have held that the societal interests implicated by

drug trafficking and money laundering are not closely

related because narcotics distribution ‘increas[es] lawlessness and violence’ while ‘money laundering disperses

capital from lawfully operating economic institutions.’

U.S. v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991); see also U.S.

v. Harper, 972 F.2d 321, 322 (11th Cir. 1992).”

The court also concluded that defendant’s offenses

“satisfy the second requirement of subsection (b) of

§3D1.2. Lopez’s acts of drug trafficking and money laundering were connected by a common criminal objective.

Lopez laundered money to conceal the conspiracy’s drug

trafficking and thus facilitated the accomplishment of

the conspiracy’s ultimate objective of obtaining the financial benefits of drug trafficking.”

U.S. v. Lopez, 104 F.3d 1149, 1150–51 (9th Cir. 1997) (per

curiam) (Fernandez, J., dissenting).

See Outline at III.D.1

Departures

Mitigating Circumstances

Fourth Circuit rejects departing when §5G1.3 does not

give credit for previously discharged related sentence.

Defendant was convicted on a drug conspiracy charge in

1988. That conviction served as a predicate offense for a

CCE charge, to which he pled guilty in July 1992 after two

years of preindictment and pretrial negotiations and delays. Defendant was still serving the related 1988 sentence when he was convicted in 1992, but had finished it

by the time he was sentenced on the CCE conviction in

1994. Had the 1988 term still been undischarged, credit

for time served could have been given under §5G1.3(b) &

comment. (n.2). Finding that the Guidelines did not adequately account for a related sentence’s being already

discharged, the district court departed downward to give

defendant credit for the time he had served.

The appellate court vacated the departure. “The Sentencing Guidelines expressly permit district courts to give

sentencing credit only for terms of imprisonment

‘result[ing] from offense(s) that have been fully taken into

account in the determination of the offense level for the

instant offense’ if the previous term of imprisonment is

‘undischarged.’ U.S.S.G. §5G1.3. The Application Notes

and Background Statement to §5G1.3 similarly limit its

application to undischarged terms of imprisonment.

And, despite several amendments to the Sentencing

Guidelines, the Sentencing Commission has not altered

§5G1.3 to include credit for discharged sentences. . . .

[W]e conclude that the Sentencing Commission did not

leave unaddressed the question of whether a sentencing

judge can give credit for discharged sentences, but rather

consciously denied that authority.”

The court also rejected defendant’s claim that departure was warranted because the 22-month delay between

conviction and sentencing rendered §5G1.3 inap-
2 Guideline Sentencing Update, vol. 9, no. 4, September 30, 1997 • a publication of the Federal Judicial Center

Violation of Supervised Release

Sentencing

Ninth Circuit holds that revocation sentence may be

reduced under §3582(c)(2) when already-served sentence for underlying conviction could have been reduced by a later amendment. Defendant pled guilty to a

marijuana offense in 1991. After completing his 51-

month sentence in March 1995, he began serving his term

of supervised release. Three months later, defendant violated the conditions of his release and was sentenced to

seven months in prison. In November 1995, an amendment to §2D1.1 changed the method of calculating quantity for offenses involving marijuana plants. The amendment was made retroactive and, if it could have been

applied to defendant, would have reduced his original

guideline range from 51–63 months to 27–33 months.

Defendant filed a motion pursuant to 18 U.S.C. §3582(c),

requesting that his sentence on the violation of release be

reduced to time served. The district court did so.

“The question presented is whether the district court

had discretion under section 3582(c)(2) to reduce

Etherton’s sentence pursuant to the revocation of supervised release.” Section 3582(c)(2) allows a court to

“modify a term of imprisonment . . . in the case of a

defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission.” The appellate court determined that this section could be applied to reduce the sentence for the release violation. “The

seven months imprisonment is not punishment for a new

substantive offense, rather ‘it is the original sentence that

is executed when the defendant is returned to prison after

a violation of the terms of . . . supervised release.’ . . . [W]e

interpret the statute’s directive that ‘the court may reduce

the term of imprisonment’ as extending to the entirety of

the original sentence, including terms of imprisonment

imposed upon revocation of supervised release.”

U.S. v. Etherton, 101 F.3d 80, 81 (9th Cir. 1996) (Nelson,

J., dissenting). Cf. U.S. v. Trujeque, 100 F.3d 869, 871 (10th

Cir. 1996) (remanded: because defendant’s sentence under Fed. R. Crim. P. 11(e)(1)(C) was based on a valid plea

agreement and not “on a sentencing range that has subsequently been lowered by the Sentencing Commission,”

§3582(c)(2) cannot be applied and his motion to lower his

sentence should have been dismissed).

See Outline at I.E and VII.B.1

Offense Conduct

Relevant Conduct

Eighth Circuit holds defendants responsible for cocaine shipment they were directly involved with despite their claim that they expected to receive marijuana. Defendants agreed to accept deliveries of packplicable. “The Sentencing Guidelines . . . direct district

courts to determine credit for prior sentences at the time

of sentencing and provide no exceptions for cases in

which the defendant’s sentencing has been delayed.

Moreover, it was McHan who is principally responsible

for bringing about delays in his trial and sentencing by

engaging in proactive negotiation and sometimes dilatory litigation. At least where there is no indication that

the government intentionally delayed the defendant’s

processing for the purpose of rendering §5G1.3(c) inapplicable, we decline to undermine the Sentencing Guidelines’ general preference for repose and specific preference for denying sentencing credit for previously discharged sentences.”

U.S. v. McHan, 101 F.3d 1027, 1040 (4th Cir. 1996) (Hall,

J., dissenting). Contra U.S. v. Blackwell, 49 F.3d 1232, 1241–

42 (7th Cir. 1995) (on remand, district court may consider

departure because §5G1.3 does not cover situation where

related sentence was already discharged).

See Outline at V.A.3

Eighth Circuit holds that §3553(e) motion has no

time limit and may be made by government in conjunction with defendant’s §3582(c)(2) motion. Defendant

received a §5K1.1 substantial assistance reduction at his

sentencing and, after another year of assistance, a further

reduction under Fed. R. Civ. P. 35(b) to a sentence of 131

months, a 55% reduction from the original guideline

minimum. Later, defendant moved for a sentence reduction under 18 U.S.C. §3582(c)(2), based on a retroactive

guideline amendment. The government urged the court

to grant the motion and reduce defendant’s sentence to

106 months, which would equal a 55% reduction from

the amended guideline minimum. Because this would

fall below the 120-month statutory minimum, the government also made a motion under §3553(e). The court

granted defendant’s motion, but concluded that the

government could not invoke §3553(e) in the context of

a §3582(c)(2) motion and reduced the sentence to the

120-month minimum.

The appellate court remanded for reconsideration.

“Section 3582(c)(2) does not itself authorize a reduction

below the statutory minimum, . . . but the benefit accruing

from a lowered sentencing range is independent of any

substantial-assistance considerations. In order that a

defendant may receive the full benefit of both a change

in sentencing range and the assistance the defendant

has previously rendered, we conclude that the government may seek a section 3553(e) reduction below the

statutory minimum in conjunction with a section

3582(c)(2) reduction. Section 3553(e) contains no time

limitation foreclosing such a conclusion.”

U.S. v. Williams, 103 F.3d 57, 58 (8th Cir. 1996) (per

curiam).

See Outline at I.E and VI.F.3
Guideline Sentencing Update, vol. 9, no. 4, September 30, 1997 • a publication of the Federal Judicial Center 3

ages containing marijuana for another person. After two

successful deliveries, a third package was intercepted

and, after a controlled delivery, defendants were arrested.

The third package contained cocaine rather than marijuana. Defendants pled guilty to conspiring to distribute

and possess with intent to distribute controlled substances. At sentencing, the district court held defendants

accountable for the cocaine shipment despite their

claims that they were expecting another marijuana shipment and could not reasonably foresee that cocaine

would be in the package.

The appellate court affirmed, although it concluded

“that it would have been more fitting to assess the conspirators’ responsibility for the cocaine under Guideline

§1B1.3(a)(1)(A). Unlike paragraph (a)(1)(B), which the

district court utilized to hold [defendants] liable for the

‘acts and omissions of others,’ paragraph (a)(1)(A) appertains to conduct personally undertaken by the defendant

being sentenced.” Application Note 2 states that “the

defendant is accountable for all quantities of contraband

with which he was directly involved. . . . The requirement

of reasonable foreseeability applies only in respect to the

conduct (i.e., acts and omissions) of others under subsection (a)(1)(B). It does not apply to conduct that the defendant personally undertakes . . . ; such conduct is addressed under subsection (a)(1)(A).”

“Mindful of these precepts, we have no difficulty in

determining that the district court correctly attributed

the 239.5 grams of cocaine to [defendants]. Through their

own actions, the two men aided, abetted, and wilfully

caused the conveyance . . . of at least three packages. . . .

Their convictions verify that they embarked upon this

behavior with the requisite criminal intent and with every

expectation of receiving some type of illegal drug to distribute. Accordingly, . . . they are accountable at sentencing for the full quantity of all illegal drugs located within

the parcels.”

U.S. v. Strange, 102 F.3d 356, 359–61 (8th Cir. 1996).

See Outline at II.A.2

Second Circuit requires “specific evidence” of

defendant’s involvement before counting drug

amounts from uncharged relevant conduct. Defendant

was convicted of drug charges after being caught attempting to import heroin on a plane flight from Nigeria.

His sentence was first based on the 427.4 grams of heroin

contained in balloons he had swallowed. The district

court then found that defendant had made seven other

trips to Nigeria for the purpose of importing heroin, concluded that it was reasonable to assume that the same

amount of heroin was involved in all eight trips, and used

the total of 3,419.2 grams as relevant conduct to set the

offense level. The appellate court remanded for resentencing, holding that there must be “specific evidence—

e.g., drug records, admissions or live testimony—to calculate drug quantities for sentencing purposes,” and that

no such evidence had been shown to support the extra

amounts of heroin.

On remand, the district court conducted a sentencing

hearing that produced extensive statistical evidence and

other information relating to quantities carried by heroin

swallowers from Nigeria who were arrested at JFK Airport

during the time defendant made his trips; plus, other

district judges were surveyed on their experiences with

heroin swallowers. The district court also relied on defendant’s statements at the time of arrest and his demeanor

at trial and sentencing, concluding that the evidence

supported a finding that he was responsible for carrying

between 1,000 and 3,000 grams of heroin.

The appellate court vacated the sentence. Although

the preponderance of evidence standard is generally used

for resolving disputed facts at sentencing, “we have ruled

that a more rigorous standard should be used in determining disputed aspects of relevant conduct where such

conduct, if proven, will significantly enhance a sentence.

See U.S. v. Gigante, 94 F.3d 53, 56–57 (2d Cir. 1996). . . . The

‘specific evidence’ we required [in the previous opinion]

to prove a relevant-conduct quantity of drugs for purposes of enhancing a sentence must be evidence that

points specifically to a drug quantity for which the defendant is responsible.” The court reasoned that “under the

Sentencing Guidelines, evidence tending to prove ‘relevant conduct’ is not merely taken into consideration at

sentencing, it determines sentencing (subject only to departure authority), and it does so at the same level of

severity as if the defendant had been convicted of the

relevant conduct. That circumstance prompted us to require ‘specific evidence’ of a ‘relevant conduct’ drug

quantity, and we adhere to that requirement.”

The “items of evidence [used by the district court] are

not ‘specific evidence’ of drug quantities carried by

Shonubi on his prior seven trips. . . . The DEA records

informed [the court] of what 117 other balloon swallowers from Nigeria had done during the same time period as

Shonubi’s eight trips. Those records of other defendants’

crimes arguably provided some basis for an estimate of

the quantities that were carried by Shonubi on his seven

prior trips, but they are not ‘specific evidence’ of the

quantities he carried.” Similarly, the other evidence “relates to Shonubi specifically,” but does “not provide ‘specific evidence’ of the quantities carried on his prior seven

trips.” The court then ruled that, “[s]ince the Government

has now had two opportunities to present the required

‘specific evidence’ to the sentencing court, no further

opportunity is warranted, and the case must be remanded for imposition of a sentence based on the quantity of drugs Shonubi carried on the night of his arrest.”

U.S. v. Shonubi, 103 F.3d 1085, 1087–92 (2d Cir. 1997).

See Outline at I.A.3, II.A.1 and B.4.d, and IX.B
Guideline Sentencing Update, vol. 9, no. 4, Sept. 30, 1997

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One Columbus Circle, N.E.

Washington, DC 20002-8003

General Application Principles

Amendments

Eighth Circuit holds that sentencing court was bound

by original drug quantity finding when considering

whether to apply retroactive amendment. Defendant

and his son were arrested after federal agents discovered

110 marijuana plants on his property. In accordance with

a plea agreement, defendant was reindicted and charged

with manufacturing 73 marijuana plants; his son was

charged with manufacturing 37 plants. The government

and defendant stipulated that 73 plants were attributable

to defendant, the presentence report stated that defendant was accountable for 73 plants, and the district court

sentenced him to 30 months on that basis. After Amendment 516 to §2D1.1(c) retroactively changed the weight

equivalence of marijuana plants for sentencing purposes

from 1 kilogram to 100 grams, defendant filed motions to

have his sentence reconsidered pursuant to 18 U.S.C.

§3582(c)(2). The court denied the motions, stating in part

that defendant could have been held accountable for 110

plants, which would have resulted in a statutory mandatory minimum sentence of 60 months.

The appellate court remanded, concluding that “the

district court was bound by its previous determination

with respect to the number of marijuana plants that was

relevant to Mr. Adams’s sentence. In the first place, although the finding is perhaps not technically res judicata,

it is unusual, for efficiency reasons if no other, for trial

courts to revisit factual findings. In the second place, the

district court had already made a finding that the seventythree plants for which Mr. Adams was going to be held

responsible ‘adequately reflect[ed] the seriousness of the

actual offense behavior,’ else the court could not have

approved the reduction in the charges against Mr. Adams

at all. See U.S.S.G. §6B1.2(a). In the third place, the sentencing guidelines direct a district court in situations like

the present one to ‘consider the sentence that it would

have imposed had the amendment[] . . . been in effect’ at

the time of the original sentencing. See U.S.S.G.

§1B1.10(b). We think it implicit in this directive that the

district court is to leave all of its previous factual decisions intact when deciding whether to apply a guideline

retroactively.”

U.S. v. Adams, 104 F.3d 1028, 1030–31 (8th Cir. 1997).

See also U.S. v. Cothran, 106 F.3d 1560, 1562–63 (11th Cir.

1997) (citing Adams, affirming district court’s refusal during §3582(c)(2) hearing to reconsider number of marijuana plants that defendant had not contested at original

sentencing—“§3582(c)(2) and related sentencing guidelines do not contemplate a full de novo resentencing”).

See Outline at I.E
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 5, Nov. 25, 1997

Determining the Sentence

“Safety Valve” Provision

Third Circuit holds that defendant possessed firearm

during relevant conduct and thus cannot qualify for

safety valve. Defendant pled guilty to one count of possession with intent to distribute over 50 grams of cocaine

base. He was arrested while selling crack on the street in

September 1994. The evidence indicated that he regularly

sold drugs during the preceding year and, at least in May

and June of that year, purchased several guns in connection with his drug dealing. To qualify for the safety valve

reduction, a defendant cannot “possess a firearm . . . in

connection with the offense.” 18 U.S.C. § 3553(f)(2);

USSG §5C1.2(2). Application Note 3 of §5C1.2 states that

“offense” in subdivision (2) means “the offense of conviction and all relevant conduct.” The district court held that

defendant possessed a firearm in connection with the

offense as defined in Note 3 and declined to apply the

safety valve provision.

The appellate court affirmed. “The record shows that

Wilson’s drug dealing activities in the year preceding his

arrest fit within the definition of ‘same course of conduct.’ By his own admission, he was regularly engaged in

drug sales for the year prior to his September arrest,

satisfying both the ‘regularity’ and ‘temporal proximity’

tests for determining ‘same course of conduct.’ . . . [Also],

the record has demonstrated that Wilson has dealt drugs,

and cocaine in particular, both when he was in possession of firearms and in connection with the offense of

conviction. Wilson’s admission of prior drug dealing,

the reputation evidence and the circumstances surrounding his September arrest are sufficient to satisfy

the similarity prong.”

“We conclude from this course of conduct that Wilson’s

prior drug dealing was relevant conduct to the offense of

conviction . . . for the purposes of the Relevant Conduct

and Safety Valve Provisions.” The court then found that

defendant’s “involvement with firearms is integrally

connected to his prior drug dealing,” and therefore he

“failed to meet one of the requirements of the Safety Valve

Provision.”

U.S. v. Wilson, 106 F.3d 1140, 1144–45 (3d Cir. 1997). See

also U.S. v. Plunkett, 125 F.3d 873, 874–75 (D.C. Cir. 1997)

(affirmed: safety valve did not apply to defendant who,

although he had no weapon during single drug transaction that was basis of offense of conviction, admittedly

possessed firearm during relevant conduct).

See Outline generally at V.F

Eighth Circuit holds that defendant, not a coconspirator, must possess weapon to preclude safety valve.

Defendant pled guilty to drug conspiracy charges, plus a

charge of using and carrying a firearm in relation to a

drug-trafficking crime. The basis for the firearm charge

was that defendant knew his coconspirator carried a

weapon during the conspiracy. At sentencing, the district

court ruled that defendant was ineligible for the safety

valve reduction because of the coconspirator’s possession. The safety valve provision requires that a defendant

did not “possess a firearm or other dangerous weapon (or

induce another participant to do so) in connection with

the offense.” 18 U.S.C. §3553(f)(2); USSG §5C1.2(2).

The appellate court remanded. Note 4 to §5C1.2(2)

“provides that ‘[c]onsistent with [U.S.S.G.] §1B1.3 (Relevant Conduct),’ the use of the term ‘defendant’ in

§5C1.2(2) ‘limits the accountability of the defendant to

his own conduct and conduct that he aided or abetted,

counseled, commanded, induced, procured, or willfully

caused.’ . . . This language mirrors §1B1.3(a)(1)(A). Of

import is the fact that this language omits the text of

§1B1.3(a)(1)(B) which provides that ‘relevant conduct’

encompasses acts and omissions undertaken in a ‘jointly

undertaken criminal activity,’ e.g. a conspiracy.” Therefore, “we conclude that in determining a defendant’s

eligibility for the safety valve, §5C1.2(2) allows for consideration of only the defendant’s conduct, not the conduct

of his co-conspirators. As it was Wilson’s co-conspirator,

and not Wilson himself, who possessed the gun in the

conspiracy, the district court erred in concluding that

Wilson was ineligible to receive the benefit of §5C1.2.”

U.S. v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997) (per

curiam). Accord In re Sealed Case, 105 F.3d 1460, 1461–65

(D.C. Cir. 1997) [9 GSU #3]. But see U.S. v. Hallum, 103 F.3d

87, 89–90 (10th Cir. 1996) (proper to deny safety valve for

codefendant’s possession of weapon) [9 GSU #3].

See Outline generally at V.F

Ninth Circuit holds that safety valve provision does

not allow departure to probation when statute of conviction prohibits probation sentence. Defendant faced

a ten-year statutory minimum sentence, but qualified for

the safety valve provision. In addition to sentencing below the mandatory minimum, the district court sua

sponte departed below the guideline range to impose a

sentence of probation. The government appealed, and

the appellate court remanded for resentencing. Apart

from finding that the departure itself—for aberrant be-
2 Guideline Sentencing Update, vol. 9, no. 5, November 25, 1997 • a publication of the Federal Judicial Center

havior—was not justified, the court held that the government was entitled to notice that the district court planned

to depart on a ground that was not raised by either party

or the presentence report. See other cases in Outline at

VI.G and U.S. v. Pankhurst, 118 F.3d 345, 357 (5th Cir. 1997)

(remanded: “notice must be given to the Government

before a district court may depart downward”).

The court also held that a sentence of probation was

illegal in this case. Defendant was convicted of violating

21 U.S.C. §841(a)(1). Section 841(b), which required the

ten-year minimum sentence for defendant, states that

“notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of

any person sentenced under this subparagraph.” Defendant argued that the safety valve, 18 U.S.C. § 3553(f),

which also contains “notwithstanding any other provision of law” language, “trumps” §841(b)’s prohibition,

but the court disagreed. “To suggest that a court can

disregard both the minimum sentence and the probation

ban would render the ban on probation in §841 entirely

meaningless, since every time a court avoided the 10-year

minimum, it could also disregard the probation ban.

Construing §841(b) to give effect to every provision, it

appears that §841 establishes the probation ban as the

ultimate floor in case the mandatory minimum sentence

is somehow avoided. We therefore hold that the ‘notwithstanding any other provision of law’ language in §3553(f)

is tied only to the ability to disregard statutory minimum

terms of imprisonment; any other reading would eviscerate this ultimate floor in §841.”

The court also noted that “the Guidelines themselves

clarify that a sentence of probation is impermissible for

the crime committed by Green. First, probation is prohibited under the Guidelines for any ‘Class A’ felony,

which is defined [as carrying] a maximum term of life

imprisonment. . . . U.S.S.G. §5B1.1(b)(1).” Defendant was

convicted of such a felony. “Second, the Sentencing

Guidelines also expressly incorporate the probation ban

in statutes such as §841(b), by prohibiting probation in

the event that the offense of conviction expressly precludes probation as a sentence. . . . U.S.S.G. §5B1.1(b)(2).”

U.S. v. Green, 105 F.3d 1321, 1323–24 (9th Cir. 1997).

See Outline at VI.G, generally at V.F

Departures

Mitigating Circumstances

Ninth Circuit affirms departure based on prejudice to

defendant from government conduct during plea negotiations. Defendant was indicted on cocaine and heroin

distribution charges. “The district court originally dismissed the five-count indictment, finding that the government had engaged in misconduct by entering into

plea negotiations with Lopez in the absence of his attorney. This court reversed the dismissal, determining it to

be an inappropriate remedy.” Defendant was then convicted at a jury trial, and “the district court sentenced

Lopez to 135 months in custody. In imposing this sentence, the district court departed downward three levels

because of the prejudice to Lopez which resulted from the

government’s conduct.”

The appellate court affirmed. “The government appeals what it characterizes as the district court’s threelevel downward departure for governmental misconduct.

A reading of the sentencing transcript makes clear, however, that the district court assumed it could not depart

downward for governmental misconduct. . . . Rather, it

instituted a downward departure due to prejudice Lopez

suffered as a result of the government’s conduct. . . .

Lopez’s opportunity for full and fair plea negotiations was

seriously affected. The district court noted that ‘although

it cannot be determined what the result of those negotiations might have been, it is clear that he reasonably

believed he had no choice but to go to trial.’ . . . The

prejudice Lopez encountered as a direct result of the

government’s conduct was, in our view, significant

enough to take this case out of the heartland of the Guidelines. . . . Therefore, the district court’s three-level departure was not an abuse of discretion.”

U.S. v. Lopez, 106 F.3d 309, 311 (9th Cir. 1997).

See Outline at VI.C.4.c

Eighth Circuit establishes analysis for aberrant behavior departure after Koon. Defendant pled guilty to

participating in a drug manufacturing conspiracy. The

district court granted a downward sentencing departure

under §5K2.0 for aberrant behavior. The government appealed, arguing that defendant’s conduct was not a

“single act” of aberrant behavior. The appellate court,

concluding that “this is no longer the most relevant inquiry,” remanded and discussed departures in light of

Koon v. U.S., 116 S. Ct. 2035 (1996), and how it affects the

analysis of whether to depart for aberrant behavior.

Under Koon, “a court of appeals need not defer to the

district court’s determination of an issue of law, such as

‘whether a factor is a permissible basis for departure

under any circumstances.’ But the district court is entitled

to deference on most departure issues, including the

critical issues of ‘[w]hether a given factor is present to a

degree not adequately considered by the Commission,

or whether a discouraged factor nonetheless justifies

departure because it is present in some unusual or exceptional way.’”

“On this appeal, the parties primarily debate whether

Kalb’s offense was a ‘single act of aberrant behavior’ as

that term has been defined in prior Eighth Circuit departure cases. . . . However, . . . our prior cases, and the district

court in this case, have not accurately anticipated the

Koon-mandated mode of analysis in a number of significant respects.”
Guideline Sentencing Update, vol. 9, no. 5, November 25, 1997 • a publication of the Federal Judicial Center 3

“First, the Sentencing Commission only mentioned

‘single acts of aberrant behavior’ in discussing probation

and split sentences. Thus, it is an encouraged factor only

when considering crimes in which the offender might be

eligible, with a departure, for those modest forms of punishment. . . . Under Koon, for a serious crime like Kalb’s

that cannot warrant probation, a ‘single act of aberrant

behavior’ is an unmentioned, not an encouraged departure factor.”

“Second, our prior cases suggest that the only ‘aberrant

behavior’ which may be considered for departure purposes is the ‘single act of aberrant behavior’ mentioned in

the introductory comment about probation and split

sentences. . . . The Commission’s introductory comment

about single acts of aberrant behavior does not appear in

its general discussion of departures. . . . Thus, under Koon,

‘aberrant behavior’ in general is an unmentioned factor,

and the task for the sentencing court is to analyze how and

why specific conduct is allegedly aberrant, and whether

the Guidelines adequately take into account aspects of

defendant’s conduct that are in fact aberrant.”

“Third, when dealing with an unmentioned potential

departure factor such as alleged aberrant behavior, Koon

instructs the sentencing court to consider the ‘structure

and theory of both relevant individual guidelines and the

Guidelines taken as a whole.’ . . . In this case, we cannot tell

from the sentencing record what aspects of Kalb’s behavior the district court considered ‘aberrant,’ and why that

particular kind of aberrant behavior falls outside the

heartland of the guidelines applicable in determining

Kalb’s sentencing range. For example, the court stated that

Kalb’s shipping of six gallons of a precursor chemical was

a single aberrant act, but it did not compare this single act

to those of other peripheral drug conspirators, such as

cocaine and heroin couriers.”

U.S. v. Kalb, 105 F.3d 426, 428–30 (8th Cir. 1997) (Bright,

J., dissenting).

See Outline at VI.C.1.c

Aggravating Circumstances

Sixth Circuit holds that potential dangerousness of defendant with mental disease did not warrant upward

departure. Defendant was convicted of four federal firearms offenses in 1991. Before sentencing, the government moved for a hearing under 18 U.S.C. §4244 to determine his mental condition. Following §4244(d), the court

found that defendant “is presently suffering from a mental disease or defect and that he should, in lieu of being

sentenced to imprisonment, be committed to a suitable

facility for care or treatment.”

During defendant’s treatment, doctors found a new

medication that improved his condition enough to warrant a “Certificate of Recovery and Request for Court to

Proceed with Final Sentencing” in 1995. The certificate

also recommended that, after sentencing, defendant be

returned to the institution for proceedings under §4246,

“Hospitalization of a person due for release but suffering

from mental disease or defect.” This recommendation

was made because the time defendant had spent at the

institution was longer than his sentence would be and so,

after sentencing, he would be released; there was no

assurance that he would continue his medication without

further supervision; and, without the medication, he

could pose a danger to others.

Defendant’s guideline range was 12–18 months, but

the court “ruled that the danger Moses posed to the community warranted an upward departure to a sentence of

120 months ‘primarily on the basis of Section 5K2.14, but

alternatively on the ground of Section 5K 2.0 . . . .’”

The appellate court held that the departure was invalid. Under §5K2.14 (“national security, public health, or

safety was significantly endangered”), the sentencing

court is required “to look at the offense committed and

the dangerousness of the defendant at the time of the

crime, not the future dangerousness of the defendant.”

However, “it is evident . . . that the district court, legitimately concerned about the prospects that Moses would

discontinue Clozaril, was focusing on Moses’ future dangerousness when it applied §5K2.14. That was legal error.”

The court also found that §5H1.3 (“[m]ental and emotional conditions are not ordinarily relevant” in departure

decisions) applied here and precluded departure. “Section 5H1.3 by its terms must encompass a variety of

mental illnesses, including many that might make a defendant dangerous to himself and others. Moses’ paranoid schizophrenia made him dangerous at the time of

his crime, but not in an uncommon way, or in a way so out

of the ordinary (in the context of mentally ill criminals) as

to override application of the rule.”

The court also rejected §5K2.0 as a basis for departure.

A defendant’s need for treatment does not warrant departure, the court held. And, as noted above, “we do not believe that Moses’ dangerousness makes this is an ‘extraordinary case.’” The court then disagreed with U.S. v. Hines,

26 F.3d 1469, 1477 (9th Cir. 1994) (defendant’s “extremely

dangerous mental state” and the “significant likelihood

he will commit additional serious crimes” warranted upward departure under §5K2.0 and §4A1.3). Danger resulting from mental illness cannot justify departure “when

there exists a statute, 18 U.S.C. §4246, directly designed

to forestall such danger through continued commitment . . . . Otherwise, virtually every criminal defendant

who, at the time of sentencing, met the dangerousness

criteria of §4246 would also be subject to an upward

departure. . . . [W]e hold that under the relevant statutes

and guidelines, the appropriate mechanism of public

protection is a commitment proceeding under §4246,

rather than an extended criminal sentence.”

U.S. v. Moses, 106 F.3d 1273, 1277–81 (6th Cir. 1997).

See Outline at VI.B.2.c
Guideline Sentencing Update, vol. 9, no. 5, Nov. 25, 1997

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Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Offense Conduct

Calculating Weight of Drugs

Second Circuit holds that “not reasonably capable of

providing” exception to using agreed-upon amount is

not applicable to buyer in reverse sting. Defendant

agreed to pay $11,000 for 125 grams of heroin from undercover agents. When arrested at the time the buy was to

occur, defendant had only $2,039. The district court based

the sentence on the agreed-upon 125 grams of heroin. On

appeal, defendant conceded he had agreed to buy 125

grams but argued that, following Application Note 12 of

§2D1.1, his sentence should be based on the amount that

$2,039 would buy because he was financially incapable of

purchasing 125 grams.

Note 12 states, in relevant part: “In an offense involving an agreement to sell a controlled substance, the

agreed-upon quantity of the controlled substance shall

be used to determine the offense level unless the sale is

completed and the amount delivered more accurately

reflects the scale of the offense. . . . In contrast, in a reverse

sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the

offense because the amount actually delivered is controlled by the government, not by the defendant. If, however, the defendant establishes that he or she did not

intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level

determination the amount of controlled substance that

the defendant establishes that he or she did not intend to

provide or was not reasonably capable of providing.”

The appellate court concluded that “[t]he plain language of the last sentence of Application Note 12 reveals

that it applies only where a defendant is selling the controlled substance, that is, where the defendant ‘provid[es]

the agreed-upon quantity of the controlled substance.’

(emphasis added) It is hard to believe that the narrowness

of this language is inadvertent, coming immediately after

a discussion of what happens in a reverse sting, where the

government agent ‘provides’ the controlled substance

and the defendant provides only the money to purchase

it. Moreover, in a reverse sting, as the government points

out, drug traffickers making an illegal purchase frequently hold purchase money in reserve nearby for ready

access while they test the quality of the drugs being purchased. We note also that drugs have been delivered on

consignment, . . . or on credit with a down payment . . . .

These possibilities lend support to the logic of the Sentencing Commission’s distinction.” Because the “not reasonably capable” exception does not apply to buyers,

“[t]he district court correctly calculated Santos’ sentence

on the basis of 125 grams of heroin, which was the agreedupon amount in this transaction.”

U.S. v. Gomez, 103 F.3d 249, 253–54 (2d Cir. 1997).

See Outline at II.B.4.d
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 6, March 11, 1998

General Application Principles

Amendments

Ninth Circuit holds that applying § 1B1.11(b)(3) to increase offense level under guideline amended after

some of defendant’s offenses occurred violates ex post

facto clause. Defendant was convicted of five counts of

mail fraud, four of which occurred before a 1989 amendment to USSG § 2F1.1. For the amount of loss involved in

defendant’s five counts, the amended guideline would

increase his offense level by eleven, instead of by eight

under the 1988 guideline. The district court used the 1994

guidelines (which included the amendment), ruling that

there was no ex post facto problem because the conduct

charged in the fifth count occurred after the amendment.

The appellate court remanded. “The district court implicitly followed a Guidelines policy statement when it

sentenced all five counts under the 1994 Guidelines. Effective as of the November 1, 1993 Guidelines, USSG

§ 1B1.11(b)(3) p.s. explains that, ‘If the defendant is convicted of two offenses, the first committed before, and the

second after, a revised edition of the Guidelines Manual

became effective, the revised edition of the Guidelines

Manual should be applied to both offenses.’ . . . We have

not previously applied policy statement § 1B1.11(b)(3).

Generally speaking, Commission policy statements are

binding on us. . . . However, we need not apply the Guidelines where they would violate the Constitution, regardless of the intent of the Commission. . . . Under the facts of

this case, we find that the policy statement § 1B1.11(b)(3)

violates the ex post facto clause of the Constitution.”

“We have required all single-count conduct to be sentenced under a single Guidelines manual. . . . We have also

required that all continuing offenses be sentenced under

one Guidelines manual: the later one. . . . However, we

have applied more than one Guidelines manual to multiple counts involving offenses completed at different

times, and we must do so in this case.”

“Application of the policy statement in this case would

violate the Constitution; its application would cause

Ortland’s sentence on earlier, completed counts to be

increased by a later Guideline. . . . The harm caused by the

earlier offenses can be counted in sentencing the later

one. . . . That does not mean that the punishment for the

earlier offenses themselves can be increased, simply because the punishment for the later one can be. In fact,

were the later count to fall at some time after sentencing,

all that would remain would be the earlier sentences,

which would be too long.” The court vacated and remanded for resentencing “under the 1988 Guidelines on

counts one through four and under the 1994 Guidelines

on count five.”

U.S. v. Ortland, 109 F.3d 539, 546–47 (9th Cir. 1997).

See Outline at I.E

Offense Conduct

Mandatory Minimums and Other Issues

Second Circuit holds that § 2D1.1(b)(6) reduction can

apply to defendant who is not subject to mandatory

minimum. “This case presents the question of whether

U.S.S.G. § 2D1.1(b)(4) (now § 2D1.1(b)(6)) can be applied

in cases in which the defendant is not subject to a statutory mandatory minimum sentence. The district court

concluded, over the objection of both the defendant and

the government, that Section 2D1.1(b)(4) is not applicable in such a case. Applying the plain language of the

Sentencing Guidelines, we disagree.” The section states:

“If the defendant meets the criteria set forth in subdivisions (1)–(5) of § 5C1.2 (Limitation on Applicability of

Statutory Minimum Sentences in Certain Cases) and the

offense level determined above is level 26 or greater,

decrease by 2 levels.”

“Had the Sentencing Commission intended to limit

the application of §2D1.1 to those defendants who are

subject to a mandatory minimum sentence, it could easily have done so . . . . Instead, Congress and the Commission chose to draft [§2D1.1(b)(6)] in such a way that, by its

plain terms, it applies whenever the offense level is 26 or

greater and the defendant meets all of the criteria set

forth in § 5C1.2(1)–(5), regardless of whether § 5C1.2 applies independently to the case.”

“Moreover, if the Commission had intended the twolevel reduction to be given only to defendants who are

subject to mandatory minimum sentences, it would logically have located the reduction directly within § 5C1.2,

which applies only to those defendants who are subject to

such mandatory sentences. Instead, it placed the reduction in § 2D1.1, which applies to all defendants who have

been convicted of drug crimes, regardless of whether or

not they are subject to mandatory minimum sentences.”

The court vacated and remanded, with instructions to

determine whether defendant “has met the criteria listed

in §5C1.2(1)–(5). If he has, he should be given a two-point

reduction pursuant to §2D1.1(b)[(6)].”

U.S. v. Osei, 107 F.3d 101, 102–05 (2d Cir. 1997) (per

curiam).

To be included in Outline at II.A.3; see also V.F.1
2 Guideline Sentencing Update, vol. 9, no. 6, March 11, 1998 • a publication of the Federal Judicial Center

Possession of Weapon by Drug Defendant

Fifth Circuit holds that carrying weapon as part of job

does not preclude §2D1.1(b)(1) enhancement. Defendant was an INS agent who was part of a drug conspiracy

that transported cocaine and marijuana from Mexico to

Houston in INS vehicles. He was present during at least

one transport where, as part of his job, he carried a gun.

However, the district court declined to enhance his sentence for possessing a firearm during a drug offense under § 2D1.1(b)(1), and the government appealed.

The appellate court reversed and remanded. “Possession of a firearm will enhance a defendant’s sentence

under U.S.S.G. § 2D1.1(b)(1) where a temporal and spatial relationship exists between the weapon, the drugtrafficking activity, and the defendant. . . . This enhancement provision will not apply where the defendant is able

to show that it is ‘clearly improbable’ that the weapon was

connected with an offense. U.S.S.G. § 2D1.1 n.3. . . . Under

the facts of this case, we cannot say that Marmolejo has

borne his burden of proving that it is ‘clearly improbable’

that his gun was connected to his offense. . . . That carrying

a gun was an incidence of his position does not undo the

benefit that drug traffickers received from having an

armed guard protect their goods. Marmolejo used his

position to transport drugs and therefore any incidence of

that position which further facilitated the transport

should properly be taken into account at sentencing.”

U.S. v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997).

See also U.S. v. Sivils, 960 F.2d 587, 596 (6th Cir. 1992)

(§ 2D1.1(b)(1) properly applied to county sheriff who carried weapon as part of job); U.S. v. Ruiz, 905 F.2d 499, 508

(1st Cir. 1990) (same, for police officer).

See Outline at II.C.4

Sentencing Procedure

Plea Bargaining

Tenth Circuit holds that Rule 11(e)(1)(C) plea agreement that specifies sentencing range is binding and

district court cannot depart downward. Defendant and

the government entered into a plea agreement that

stated, in part: “The United States has made an -

 pursuant to Rule 11(e)(1)(C), Fed. R. Crim. P., that a

specific offense level is the appropriate disposition of this

case. The United States and defendant have agreed that

the offense level is 16.” The district court determined that

the guideline range was 21–27 months and, after ruling

that it lacked authority to consider defendant’s motion for

downward departure, sentenced him to 27 months. Defendant appealed, arguing that because the agreement

specified a sentencing range rather than an exact term of

months it was not a Rule 11(e)(1)(C) agreement that

bound the court, and that, even if the agreement fell

under Rule 11(e)(1)(C), the district court had jurisdiction

to depart downward.

The appellate court affirmed, concluding first that “a

plea agreement specifying a sentence at a particular

guideline range is specific enough to fall within the language of [Rule] 11(e)(1)(C).” See also U.S. v. Nutter, 61 F.3d

10, 11–12 (2d Cir. 1995) (range of 155–181 months specific

enough to satisfy 18 U.S.C. § 3742(c)(1) and Rule

11(e)(1)(C)); U.S. v. Mukai, 26 F.3d 953, 954–55 (9th Cir.

1994) (plea agreement providing for five to seven years’

imprisonment was Rule 11(e)(1)(C) agreement); U.S. v.

Lambey, 974 F.2d 1389, 1396 (4th Cir. 1992) (indicating

that specifying a sentencing range would satisfy Rule

11(e)(1)(C)); U.S. v. Kemper, 908 F.2d 33, 36 (6th Cir. 1990)

(agreement that assumed sentence within range of 27–33

months was binding under Rule 11(e)(1)(C)).

Defendant’s second argument “contradicts the plain

language of Rule 11,” which states that if a Rule 11(e)(1)(C)

agreement is accepted “the court shall inform the defendant that it will embody in the judgment and sentence the

disposition provided for in the plea agreement.” Fed. R.

Crim. P. 11(e)(3). “Based on the clear language of Rule

11(e)(1)(C) and the applicable case law, Veri had no reason to believe the district court would entertain a motion

for downward departure when the plea agreement specified a disposition at offense level sixteen and included no

provision for downward departure.” See also Mukai, 26

F.3d at 956–57 (where agreement allowed for downward

departure only within sentencing range specified in Rule

11(e)(1)(C) agreement, district court could not depart

below that range); U.S. v. Cunavelis, 969 F.2d 1419, 1422

(2d Cir. 1992) (district court had no authority to go beyond

four-level reduction specified in Rule 11(e)(1)(C) agreement in making departure under § 5K1.1). Cf. U.S. v.

Swigert, 18 F.3d 443, 445–46 (7th Cir. 1994) (where Rule

11(e)(1)(C) agreement called for specific “term of imprisonment,” district court could not impose split sentence of

imprisonment and community confinement or home

detention under § 5C1(d)(2)).

U.S. v. Veri, 108 F.3d 1311, 1313–15 (10th Cir. 1997).

See Outline at VI.F.2 and IX.A.4

Departures

Mitigating Circumstances

Fourth Circuit acknowledges that, after Koon, postoffense rehabilitation may provide basis for departure.

Defendant sought a downward departure based upon his

post-offense rehabilitation efforts. Although the district

court was inclined to depart, it held that it could not under

U.S. v. Van Dyke, 895 F.3d 984, 986–87 (4th Cir. 1990)

(holding that post-offense rehabilitation may be considered for acceptance of responsibility reduction but not for

departure). During the pendency of defendant’s appeal,

the Supreme Court decided Koon v. U.S., 116 S. Ct. 2035

(1996), which addressed the analysis courts should follow

for departures.
Guideline Sentencing Update, vol. 9, no. 6, March 11, 1998 • a publication of the Federal Judicial Center 3

The appellate court remanded, recognizing that “Koon

rejected the reasoning that we employed in Van Dyke and

made clear that . . . only those factors on which the

Commission has forbidden reliance . . . never may provide

an appropriate basis for departure. . . . All others potentially may provide a basis for departure under appropriate

circumstances.” Therefore, “it is clear that our holding in

Van Dyke that post-offense rehabilitation can never form

a proper basis for departure has been effectively overruled by Koon. The Sentencing Commission has not expressly forbidden consideration of post-offense rehabilitation efforts; thus, they potentially may serve as a basis

for departure. Because the acceptance of responsibility

guideline takes such efforts into account in determining

a defendant’s eligibility for that adjustment, however,

post-offense rehabilitation may provide an appropriate

ground for departure only when present to such an exceptional degree that the situation cannot be considered

typical of those circumstances in which an acceptance of

responsibility adjustment is granted.”

U.S. v. Brock, 108 F.3d 31, 33–35 (4th Cir. 1997). Accord

U.S. v. Sally, 116 F.3d 76, 79–82 (3d Cir. 1997).

See Outline at VI.C.2.a and X.A.1

Adjustments

Acceptance of Responsibility

Seventh Circuit outlines when attorney’s statements

may be attributed to defendant for § 3E1.1 purposes. On

the issue of whether a particular drug deal should have

been considered relevant conduct, defendant remained

silent. However, his attorney made both legal and factual

arguments against using that deal in setting defendant’s

offense level. The district court held that it was relevant

conduct, and also concluded that the attorney’s factual

arguments, which attempted to deny or minimize

defendant’s involvement in that deal, were false denials of

relevant conduct that, under § 3E1.1, comment. (n.1(a)),

warranted denial of the acceptance of responsibility reduction. Defendant appealed, arguing that his attorney’s

challenges were not to the facts but to the legal conclusions drawn from facts he had admitted.

The appellate court first agreed that a defendant

should be able to challenge the legal conclusion of

whether admitted facts constitute relevant conduct and

remain eligible for the § 3E1.1 reduction. “We think this

situation is closely analogous to challenging the constitutionality of a statute while admitting the conduct which

would violate the statute, or challenging the applicability

of a statute to the facts. In both cases, the application

notes to the Guidelines suggest that such challenges do

not deprive an otherwise eligible defendant of the reduction for acceptance of responsibility.”

Here, however, defendant’s attorney challenged facts

as well as legal conclusions, and the court recognized the

district court’s frustration with the way it was done. “The

defendant and his attorney appear to have been attempting to manipulate the Guidelines. The attorney directed

his client to remain silent about relevant conduct, apparently in order to keep his client within Application Note

1(a) . . . . The attorney then challenged facts comprising

relevant conduct in the course of argument and in the

written objections to the PSR. . . . Because the Guidelines

provide that an otherwise eligible defendant may remain

silent as to relevant conduct without losing the acceptance of responsibility reduction, the attorney presumably believed his client had everything to gain and nothing to lose from this strategy. But in this case, the district

court called the attorney’s bluff, and attributed the

attorney’s factual challenges to [defendant].”

The appellate court found such an attribution “troubling for a number of reasons,” and instructed district

courts on how to handle future cases. “In a case such as

this one, where the defendant remains otherwise silent as

to relevant conduct but his lawyer challenges certain facts

alleged in the PSR, we think the court should attempt to

ensure that the defendant understands and approves the

argument before attributing the factual challenges in the

argument to the defendant for purposes of assessing acceptance of responsibility. . . . If the defendant does understand and agree with the argument, then the factual

challenges can be and should be attributed to him. If the

defendant rejects the attorney’s argument, the court can

simply disregard it. Such a procedure would insure that a

defendant would be unable to reap the benefit of his

attorney’s factual challenges without risking the acceptance of responsibility reduction.”

In addition, “[w]hen an attorney challenges the facts

set out in the PSR during argument, we think the court

should put counsel to his or her proof. The court should

ask whether the attorney intends to present evidence in

support of these fact challenges. If so, the argument can

go forward. If not, the argument is really baseless, and the

court need not allow an attorney to waste the court’s time

with a baseless argument when there is no evidence supporting the factual challenges. . . . If the attorney proffers

evidence, we can safely assume the defendant himself is

challenging the facts, and the court can then decide

whether the challenge is frivolous.”

Here, it was not clear whether defendant understood

and agreed with his attorney’s arguments; thus, the acceptance of responsibility reduction could not be denied

on this ground. However, the district court gave another,

independent reason for denying the reduction—that defendant “was insincere in his apology to the court, and

that he did not actually accept responsibility for his offense.” Because that finding was not clearly erroneous,

the appellate court affirmed.

U.S. v. Purchess, 107 F.3d 1261, 1267–69 (7th Cir, 1997).

See Outline at III.E.2 and 3
Guideline Sentencing Update, vol. 9, no. 6, March 11, 1998

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One Columbus Circle, N.E.

Washington, DC 20002-8003

Determining the Sentence

Consecutive or Concurrent Sentences

Eleventh Circuit holds that government cannot omit

relevant conduct to avoid concurrent sentences under

§ 5G1.3(b). Defendant stole cars and ran “chop shops” for

several years. In 1992 he was sentenced in state court to 12

years for three car thefts. Two years later he pled guilty in

federal court to conspiracy to run a chop shop operation.

The presentence report, based on information supplied

by the government, calculated the offense level by using

all the cars involved in the chop shop conspiracy except

for the three involved in the state conviction. Because the

state thefts were thus not “fully taken into account in the

determination of the offense level for the instant offense,”

§ 5G1.3(b), the sentencing court exercised its discretion

under § 5G1.3(c) to make the federal sentence consecutive to the undischarged state sentence. Defendant appealed, arguing that the state thefts were relevant conduct requiring application of §5G1.3(b), and that the

government omitted them because their inclusion would

not have increased his sentence (his guideline range was

100–125 months, but the statutory maximum for his offense of conviction was only 60 months).

The appellate court agreed, concluding that “the Government deliberately refrained from portraying [the state

thefts] as relevant conduct for one reason—to manipulate the application of the guidelines so that his federal

sentence would run consecutively to the state sentences.”

Such manipulation is “contrary to both the letter and

spirit of the guidelines. First, section 1B1.3 states that a

defendant’s offense level ‘shall be determined on the basis of’ all relevant conduct. U.S.S.G. § 1B1.3(a) (emphasis

added). . . . Second, the guidelines were written to prevent

the Government from manipulating indictments and

prosecutions to increase artificially a defendant’s sentence or sentences for the same criminal conduct.” Moreover, deliberately omitting relevant conduct would violate the guidelines’ “real offense” sentencing approach.

“We therefore conclude that when a defendant is serving

an undischarged sentence resulting from conduct that is

required to be considered in a subsequent sentencing

proceeding as relevant conduct pursuant to section

1B1.3, section 5G1.3(b) provides that the subsequent sentence should run concurrently to the undischarged sentence.”

Because defendant’s state thefts were, in fact, conduct

relevant to the federal offense of conviction, they should

have been “fully taken into account” in setting the offense

level. “[T]he district court consequently erred in concluding that section 5G1.3(b) does not require the instant

sentence to run concurrently to the state sentences.”

However, the court noted that, even though § 5G1.3(b)

requires concurrent sentences, the district court retains

discretion to consider an upward departure on remand.

U.S. v. Fuentes, 107 F.3d 1515, 1521–27 (11th Cir. 1997).

See Outline generally at V.A.3
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 7, April 28, 1998

Offense Conduct

Mandatory Minimums and Other Issues

Seventh Circuit holds that defendant may receive

§ 2D1.1(b)(6) reduction even if § 3E1.1 reduction is denied. Under USSG § 2D1.1(b)(6) (formerly § 2D1.1(b)(4)),

drug defendants whose offense level is 26 or above can

qualify for a two-level reduction if they satisfy the requirements of subdivisions (1)–(5) of the “safety valve” provision, § 5C1.2. In this case, the district court denied defendant an acceptance of responsibility reduction because

he had failed to appear for his plea hearing, finally turning

himself in seven months later, and did not fully admit his

criminal conduct until the sentencing hearing. However,

because defendant did finally admit his conduct, the

court concluded that he met the requirements of § 5C1.2

and thereby qualified for the two-level reduction under

§ 2D1.1(b)(6). Defendant appealed, claiming it was inconsistent to deny the § 3E1.1 reduction while granting

the § 2D1.1(b)(6) reduction.

The appellate court affirmed. Subdivision (5) of § 5C1.2

requires that, “not later than the time of the sentencing

hearing, the defendant has truthfully provided to the

Government all information and evidence the defendant

has concerning the offense.” “Section 5C1.2(5) in one

respect demands more of an effort from the defendant

than § 3E1.1(a), . . . but in other respects may demand less.

Under §5C1.2(5), the defendant is required to provide the

necessary information ‘not later than the time of the

sentencing hearing.’ U.S.S.G. § 5C1.2(5). In contrast, the

commentary to § 3E1.1 advises the district court that it

may consider whether the defendant provided information in a timely manner. . . . Likewise, the commentary to

§ 3E1.1 points to prompt and voluntary surrender and

voluntary termination of criminal conduct as factors for

consideration, while neither the text nor commentary for

§ 5C1.2 highlights such factors. Assuming that the district

court in Webb’s case appropriately awarded a § 5C1.2

reduction, it was nevertheless permitted to refuse a

§ 3E1.1(a) reduction.”

U.S. v. Webb, 110 F.3d 444, 447–48 (7th Cir. 1997). Cf. U.S.

v. Mertilus, 111 F.3d 870, 874 (11th Cir. 1997) (per curiam)

(remanded: although § 2D1.1(b)(6) uses the factors listed

in § 5C1.2, the two sections operate independently and it

was error not to consider § 2D1.1(b)(6) reduction because

offense of conviction is not listed in § 5C1.2 as eligible for

safety valve). See also U.S. v. Osei, 107 F.3d 101, 102–05 (2d

Cir. 1997) [9 GSU #6].

To be included in Outline at II.A.3; see also V.F.2

Determining the Sentence

Safety Valve Provision

Sixth Circuit holds that safety valve may be applied to

defendant whose appeal was pending on provision’s

date of enactment. Defendant was originally sentenced

in 1991 to 121 months on an LSD charge. On appeal, the

appellate court remanded for clarification of a plea withdrawal issue, and the district court imposed the same

sentence on remand. After a Nov. 1993 amendment

changed the guideline for calculation of LSD amounts,

defendant filed a motion for sentence modification under 18 U.S.C. § 3582(c). Although the district court

granted her motion, it held that she was still subject to a

10-year mandatory minimum sentence and imposed a

modified sentence of 120 months. One month after this

sentence, on Sept. 23, 1994, the safety valve statute took

effect, 18 U.S.C. § 3553(f); USSG § 5C1.2. Defendant appealed her sentence, claiming she should be resentenced

under the safety valve provision.

“The question before us is whether § 3553(f) of the

safety valve statute should be applied to cases pending

on appeal when it was enacted. This subsection applies

‘to all sentences imposed on or after’ [10 days after] the

date of enactment . . . . The statute’s language does not

address the question of its application to cases pending

on appeal. The statute’s purpose statement, however,

suggests that it should receive broad application and

should apply to cases pending on appeal when the statute

was enacted.”

“A case is not yet final when it is pending on appeal. The

initial sentence has not been finally ‘imposed’ within the

meaning of the safety valve statute because it is the function of the appellate court to make it final after review or

see that the sentence is changed if in error. When a sentence is modified under 18 U.S.C. § 3582(c)(2), the courts

are required to consider the factors that are set out in 18

U.S.C. § 3553(a). . . . The consideration of these factors is

consistent with the application of the safety valve statute.

Therefore, § 3553(a) authorizes consideration of the

safety valve statute when a defendant is otherwise properly resentenced under § 3582(c)(2).”

The court also concluded that its holding is consistent

with §§ 3553(a) and 3582(b)(2)–(3), “which indicate that a

sentence is not final if it can be appealed and modified

pursuant to 18 U.S.C. § 3742. Similarly, § 3582(b)(1) indicates that a sentence is not final if it can be modified

pursuant to 18 U.S.C. § 3582(c). In each of these situations

resentencing is possible because of an exception to the
2 Guideline Sentencing Update, vol. 9, no. 7, April 28, 1998 • a publication of the Federal Judicial Center

general rule that the initial sentence was final. Each situation raises the possibility that resentencing will lower the

defendant’s unrestricted guideline range below the statutory minimum, thus making consideration of the safety

valve relevant. Therefore, we hold that appellate courts

may take the safety valve statute into account in pending

sentencing cases and that district courts may consider

the safety valve statute when a case is remanded under

§ 3742 or §3582(c), the Sentencing Guidelines or other

relevant standards providing for the revision of sentences.”

U.S. v. Clark, 110 F.3d 15, 17–18 (6th Cir. 1997). See also

U.S. v. Mihm, 134 F.3d 1353, 1355 (8th Cir. 1998) (“[T]he

§ 3553(f) safety valve is a general sentencing consideration that the district court must take into account in

exercising its present discretion to resentence under

§ 3582(c)(2). . . . [T]he grant of §3582(c)(2) relief to Mihm

is a distinct sentencing exercise, one that results in a

sentence ‘imposed on or after’ September 23, 1994. Thus,

there is no retroactivity bar to applying § 3553(f) in these

circumstances.”). Contra U.S. v. Stockdale, 129 F.3d 1066,

1068 (9th Cir. 1997) (“A person whose sentence is reduced

pursuant to the change in the weight equivalencies is not

entitled to retroactive application of the safety valve statute, whether his original sentence was pursuant to a

guideline range or the statutory minimum. Both the language of the applicable provisions and their purposes

require this result.”) (note: order was amended on denial

of rehearing and rehearing en banc, April 20, 1998); U.S. v.

Torres, 99 F.3d 360, 362–63 (10th Cir. 1996) (do not apply to

defendant originally sentenced in 1993 who was resentenced under § 3582(c) after retroactive amendment

changed guideline calculation of marijuana plants).

See Outline at V.F.1

Ninth Circuit holds that adverse jury finding does not

preclude safety valve reduction. Defendant claimed to

have no knowledge that a suitcase he had been asked to

transport contained heroin. However, the jury found him

guilty of possession of heroin with intent to distribute and

of importation of heroin. At sentencing, the district court

found that defendant had told the government everything he knew about the offenses and reduced his sentence under the safety valve provision, § 3553(f); § 5C1.2.

The government argued that, because knowledge of the

drugs is an element of the convicted offenses, the jury’s

guilty verdict precludes a finding that defendant “truthfully provided” information as required under

§ 3553(f)(5); § 5C1.2(5).

The appellate court affirmed the sentence, holding

that recent Supreme Court cases make it clear that sentencing findings do not have to agree with a jury verdict.

In Koon v. U.S., 116 S. Ct. 2035 (1996), “the Supreme Court

made it clear that courts may not define facts relevant to

sentencing beyond those identified in the guidelines,”

and “reflect[ed] the long-standing tradition that sentencing is the province of the judge, not the jury. . . . In light of

the Court’s decision in Koon, we have no difficulty holding

that a district court may reconsider facts necessary to the

jury verdict in determining whether to apply the safety

valve provision of the guidelines.”

The court found further support in U.S. v. Watts, 117 S.

Ct. 633 (1997), which held that “a jury’s verdict of acquittal

does not prevent the sentencing court from considering

conduct underlying the acquitted charge.” In reversing

Ninth Circuit precedent, the Court also stated that “the

jury cannot be said to have ‘necessarily rejected’ any facts

when it returns a general verdict of not guilty.” The appellate court thus held that, “[c]onsistent with the language

of § 3553(f) and the different roles involved when determining guilt and imposing sentence, . . . the safety valve

requires a separate judicial determination of compliance

which need not be consistent with a jury’s findings.”

Because the district court’s conclusion here was not

clearly erroneous, the sentence was affirmed.

U.S. v. Sherpa, 110 F.3d 656, 661–62 (9th Cir. 1996)

(amending 97 F.3d 1239).

See Outline generally at V.F.2

Supervised Release

Sixth Circuit holds that period of supervised release

may be tolled while defendant is out of country after

deportation. In 1992 defendant pled guilty to immigration fraud. He was sentenced to three months of imprisonment to be followed by two years of supervised release.

As special conditions of supervised release, defendant

was to agree to voluntary deportation, was not to reenter

the United States without written permission of the Attorney General, and, if allowed to reenter, would report to the

nearest probation office so that his period of supervised

release “shall be resumed.” Defendant served his sentence and was deported. Within a year he returned to the

United States illegally and was eventually arrested in

1996. The original district court revoked defendant’s supervised release and sentenced him to 24 months in

prison, rejecting defendant’s arguments that the court

had no authority to toll his period of release and therefore

that period had expired in 1995.

The appellate court affirmed the revocation and sentence, concluding that tolling a period of supervised release is allowed under the “broad discretion to fashion

appropriate conditions of supervised release” granted to

district courts under USSG § 5D1.3 and 18 U.S.C.

§ 3583(d). “We think that the tolling order met the specified criteria [in § 5D1.3]. Mr. Isong had repeatedly violated

immigration laws, and he had flagrantly violated his original sentence within months of its entry. Given his demonstrated disrespect for the law, it seems to us that the tolling

order was an appropriate penological measure, designed

to ensure that the defendant would be subject to supervi-
Guideline Sentencing Update, vol. 9, no. 7, April 28, 1998 • a publication of the Federal Judicial Center 3

sion if and when he returned to the United States. The

tolling order was also appropriate from a deterrence

standpoint. It is unlikely that Mr. Isong could have been

supervised after his deportation to Nigeria. Supervised

release without supervision is not much of a deterrent to

further criminal conduct.”

The court also rejected defendant’s argument that,

because 18 U.S.C. § 3624(e) specifically provides for tolling a period of supervised release if a defendant is imprisoned for another crime for 30 days or more, the lack of any

comparable tolling provision for a deported defendant

impliedly forbids such an order. The argument “is blunted

here by the rest of the statutory scheme. When deportation is part of a defendant’s sentence, the deportation

normally occurs upon the end of any term of imprisonment. An unserved period of supervised release does not

defer deportation. 8 U.S.C. § 1252(h). In most instances,

supervised release of a defendant who is outside the

United States would be essentially meaningless. It seems

to us that a tolling order is an appropriate way to make

supervised release meaningful for defendants who are

going to be deported. This circumstance, coupled with

the district court’s discretion to set appropriate conditions of supervised release . . . , is sufficient to counter any

negative implication that might otherwise stem from 18

U.S.C. § 3624(e).”

U.S. v. Isong, 111 F.3d 428, 429–31 (7th Cir. 1997)

(Moore, J., dissented). See also U.S. v. (Mary) Isong, 111

F.3d 41, 42 (6th Cir. 1997) (affirming condition of supervised release that defendant remain under supervision

for three years, not including any time she is not in the

country if she is deported).

See Outline generally at V.C

First Circuit holds that supervised release begins on

date of actual release from prison, not date prisoner

would have been released had he not been convicted of

charge that was later dismissed. Defendant was sentenced in 1991 to two concurrent terms of 21 months each

plus a consecutive term of 60 months for a third count of

using a firearm during a drug offense, 18 U.S.C. § 924(c).

He also received concurrent supervised release terms of

three and five years on the first two counts. In early 1996,

defendant filed a motion under 28 U.S.C. § 2255 seeking

to have his § 924(c) conviction vacated on the basis of

Bailey v. U.S., 116 S. Ct. 501 (1995). His motion was granted

and the conviction and sentence were vacated and the

count was dismissed. Because the remaining valid sentences had long been completed, the court ordered

defendant’s immediate release and commencement of

the terms of supervised release. Defendant appealed,

arguing that his supervised release terms should be reduced by the time he was imprisoned (approximately 39

months) beyond the date the two valid sentences would

have ended. Alternatively, he requested that the supervised release terms be eliminated altogether to compensate him for the deprivation of freedom that resulted from

the vacated conviction and sentence.

The court rejected defendant’s arguments, and specifically disagreed with the rationale of U.S. v. Blake, 88 F.3d

824, 825–26 (9th Cir. 1996) (when retroactive guideline

amendment reduces prison term to less than time served,

term of supervised release begins on date defendant

should have been released) [9 GSU #1]. Defendant’s arguments are “contrary to the language of 18 U.S.C.

§ 3624[(e)],” which states that a “term of supervised release commences on the day the person is released from

imprisonment” and “does not run during any period in

which the person is imprisoned in connection with a

conviction for a Federal, State, or local crime.” Defendant

can reasonably argue that, because he should have been

released from prison in late 1992 and his term of release

begun at that time, he should be given credit for his excess

prison time by reducing his time on release. However,

“[t]he fact remains that § 3624(e) ties the beginning of a

term of supervised release to release from imprisonment.

It forbids the running of the term of supervised release

during any period in which the person is imprisoned.

Joseph was in prison at the time he now seeks to identify

as the beginning of his terms of supervised release and

was, under the plain language of § 3624(e), ineligible for

supervised release then. . . . [L]ike the Eighth Circuit in

[U.S. v. Douglas, 88 F.3d 533, 534 (8th Cir. 1996)], we

believe that the language in § 3624(e) must be given its

plain and literal meaning.”

The court also found defendant’s arguments undermined by 18 U.S.C. § 3583(e), under which “a defendant

can ask the district court to grant early termination of his

supervised release terms ‘in the interests of justice’ after

completing one full year of supervised release. . . . The

availability of this mechanism, which will enable Joseph

to argue whatever points of equity and fairness he thinks

persuasive to the district court, further persuades us not

to invent some form of automatic credit or reduction here

to compensate for Joseph’s increased incarceration.”

U.S. v. Joseph, 109 F.3d 34, 36–39 (1st Cir. 1997).

See Outline generally at V.C

Adjustments

Obstruction of Justice

Second Circuit examines when § 3C1.1 enhancement

may be given for perjury during a related state investigation. Defendant was convicted of environmental

crimes. The district court found that, during a state investigation into the illegal waste dumping later prosecuted in

federal court, defendant committed perjury. Concluding

that defendant was aware of the federal investigation at

that time and that it was the motivation for his perjury, the

court imposed a § 3C1.1 enhancement for obstruction of
Guideline Sentencing Update, vol. 9, no. 7, April 28, 1998

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justice. Because “the connection between the two cases is

quite close,” the appellate court agreed that “here, perjury

in the [state] action could constitute obstruction of justice in the instant federal offense.”

However, the court concluded that the district court

did not make adequate findings to show that defendant’s

perjury actually warranted enhancement. “[I]n order to

base a § 3C1.1 enhancement upon the giving of perjured

testimony, a sentencing court must find that the defendant 1) willfully 2) and materially 3) committed perjury,

which is (a) the intentional (b) giving of false testimony (c)

as to a material matter.” The appellate court concluded

that the district court did not sufficiently address the

materiality elements. “We understand the materiality element to mean ordinarily that the intentional giving of

false testimony must be material to the proceeding in

which it is given. In other words, Herzog can be found to

have committed perjury in the state proceeding only if the

sentencing court finds that he intentionally gave false

testimony which was material to the state civil action.”

“This case presents an additional twist. Where, as here,

the enhancement is applied based upon perjury made

not in the instant judicial proceeding, but, rather, in a

related but separate state action, we must assume that the

element of materiality which is required by the Guidelines

(as opposed to that required for a finding of perjury) must

refer to a finding that the false testimony is material to the

instant action. Just because perjured testimony is given in

a related action, and simply because that testimony is

found to have been material to the related proceeding,

does not mean that the statements are material to the

instant proceeding. We believe that, even if the court finds

that Herzog’s statements constituted perjury because

they were material to the state proceeding, it must also

find that the perjury was material to the instant federal

offense before applying that state perjury as the basis for

a § 3C1.1 enhancement of his federal sentence. We thus

hold that, when false testimony in a related but separate

judicial proceeding is raised as the basis for a § 3C1.1

obstruction of justice enhancement, a sentencing court

may only apply the enhancement upon making specific

findings that the defendant intentionally gave false testimony which was material to the proceeding in which it

was given, that the testimony was made willfully, i.e., with

the specific purpose of obstructing justice, and that the

testimony was material to the instant offense.”

“The sentencing court did not make findings with respect to either aspect of materiality. Although [it] found

that the false state deposition was motivated by the instant federal offense, motivation alone does not equate to

materiality. We therefore vacate Herzog’s sentence and

remand for additional findings.”

U.S. v. Zagari, 111 F.3d 307, 328–29 (2d Cir. 1997).

See Outline at III.C.4 (State offenses)
Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 9, no. 8, June 24, 1998

Offense Conduct

Drug Quantity

Supreme Court affirms that, under the Guidelines, the

sentencing court determines whether offense involved

cocaine or crack when jury verdict allows for either.

Defendants were charged with conspiring to possess with

intent to distribute mixtures containing cocaine and cocaine base (crack), 21 U.S.C. §§ 841, 846. The jury was

instructed that the government must prove that the conspiracy involved cocaine or cocaine base, and it returned

a general verdict of guilty. The district court imposed

sentences based on both cocaine and cocaine base.

On appeal, defendants argued that, because the jury

returned a verdict based on cocaine or cocaine base, their

sentences could only be based on cocaine, which would

result in shorter sentences. The appellate court rejected

that argument, finding that the Sentencing Guidelines

require the sentencing judge, not the jury, to determine

the kind and amount of drugs involved in a conspiracy.

U.S. v. Edwards, 105 F.3d 1179, 1180–81 (7th Cir. 1997).

The Supreme Court affirmed, agreeing “that in the

circumstances of this case the judge was authorized to

determine for sentencing purposes whether crack, as

well as cocaine, was involved in the offense-related activities. The Sentencing Guidelines instruct the judge in a

case like this one to determine both the amount and the

kind of ‘controlled substances’ for which a defendant

should be held accountable—and then to impose a sentence that varies depending upon amount and kind. . . .

Consequently, regardless of the jury’s actual, or assumed,

beliefs about the conspiracy, the Guidelines nonetheless

require the judge to determine whether the ‘controlled

substances’ at issue—and how much of those substances—consisted of cocaine, crack, or both.”

Nonetheless, “petitioners argue that the drug statutes,

as well as the Constitution, required the judge to assume

that the jury convicted them of a conspiracy involving

only cocaine. Petitioners misapprehend the significance

of this contention, however, for even if they are correct, it

would make no difference to their case. That is because

the Guidelines instruct a sentencing judge to base a drugconspiracy offender’s sentence on the offender’s ‘relevant

conduct.’ USSG §1B1.3. And ‘relevant conduct,’ in a case

like this, includes both conduct that constitutes the ‘offense of conviction,’ id., §1B1.3(a)(1), and conduct that is

‘part of the same course of conduct or common scheme

or plan as the offense of conviction,’ id., § 1B1.3(a)(2).

Thus, the sentencing judge here would have had to determine the total amount of drugs, determine whether the

drugs consisted of cocaine, crack, or both, and determine

the total amount of each—regardless of whether the

judge believed that petitioners’ crack-related conduct

was part of the ‘offense of conviction,’ or the judge believed that it was ‘part of the same course of conduct, or

common scheme or plan.’ The Guidelines sentencing

range—on either belief—is identical.” The Court added

that “petitioners’ statutory and constitutional claims

would make a difference if it were possible to argue, say,

that the sentences imposed exceeded the maximum that

the statutes permit for a cocaine-only conspiracy,” but

that was not the case here.

Edwards v. U.S., 118 S. Ct. 1475, 1477 (1998). See also

U.S. v. Lewis, 113 F.3d 487, 490 (3d Cir. 1997) (instruction

that jury had to find that defendant distributed cocaine or

cocaine base to convict him of § 841(a)(1) distribution

offense was not improper—district court determines

weight and identity of controlled substance for sentencing under § 841(b)).

To be included in Outline at II.A.3

Possession of Weapon by Drug Defendant

Ninth Circuit holds that § 2D1.1(b)(1) should not be

applied if defendant was entrapped into possessing

weapon. Defendant pled guilty to cocaine distribution.

An informant made several purchases from defendant,

and one time traded a handgun for cocaine. When defendant was arrested and his home searched, officers found

the gun along with cocaine and drug paraphernalia. Although a charge of using or carrying a gun during a drugtrafficking offense was dropped, the sentencing court

applied the two-level enhancement under § 2D1.1(b)(1)

for possessing a weapon during a drug-trafficking crime.

The court rejected defendant’s argument that he had

been entrapped into possessing the gun and that the

court should not apply § 2D1.1(b)(1) or, if it did, should

offset it by a two-level reduction for sentencing entrapment.

The appellate court remanded, concluding that its

precedents hold that sentencing entrapment, if proved,

may warrant a downward departure or a refusal to apply

an enhancement. “We hold that if Parrilla was entrapped

into trading cocaine for a gun, then the doctrine of sentencing entrapment precludes application of the twolevel gun enhancement under § 2D1.1(b)(1). Our holding

rests upon the basic principle that a defendant’s sentence

should reflect ‘his predisposition, his capacity to commit
2 Guideline Sentencing Update, vol. 9, no. 8, June 24, 1998 • a publication of the Federal Judicial Center

the crime on his own, and the extent of his culpability.’”

Defendant bears the burden of proving sentencing entrapment by a preponderance of the evidence, and the

sentencing court must make “express factual findings” as

to whether defendant has met that burden. Here, the

court remanded because “nothing in the record shows

that the district court considered all the relevant evidence

or made the required findings to reject Parrilla’s sentencing entrapment claim, [and] the record is not sufficiently

developed to show whether the district court properly

applied the gun enhancement.”

U.S. v. Parrilla, 114 F.3d 124, 127–28 (9th Cir. 1997).

To be included in Outline at II.C.1.

D.C. Circuit examines sentencing liability for defendant whose participation in conspiracy straddled his

eighteenth birthday. Defendant was 11 years old when he

first joined a large drug conspiracy. He turned 18 during

the course of the conspiracy, and was 19 when he was

indicted. In addition to his own conduct, the sentencing

court held defendant liable for the foreseeable conduct in

furtherance of the conspiracy by his fellow conspirators

that occurred before he turned 18. Defendant argued,

first, that as a juvenile he did not have the requisite capacity to “join” a conspiracy, and second, that because “a

defendant’s relevant conduct does not include the conduct of members of a conspiracy prior to the defendant

joining the conspiracy,” USSG § 1B1.3, comment. (n.2)

(emphasis added), he should not be held liable for the

conduct of others before he turned 18.

The court acknowledged that, in some instances, federal juvenile delinquency law may limit a young defendant’s liability for the conduct of others. “[I]n the case of a

defendant younger than twenty-one at the time of the

indictment who joined a conspiracy prior to reaching

eighteen, the government must either obtain a transfer of

the defendant to adult status or prove that the defendant

personally engaged in some affirmative act in furtherance of the conspiracy after turning eighteen before the

court may attribute to him as relevant conduct drugs sold

by coconspirators before he reached age eighteen.”

The court affirmed the sentence because “there was

overwhelming evidence of post-eighteen action in furtherance of the conspiracy. . . . The adult conduct ratifies

the juvenile agreement to join the conspiracy and the

juvenile participation in the conspiracy. . . . Since [defendant] was properly convicted in adult court of a conspiracy he joined as a juvenile but continued in after

eighteen, the Guidelines unambiguously permit the

court to consider his and his co-conspirator’s foreseeable

conduct ‘that occurred during the commission of the

[entire conspiracy] offense,’ . . . starting when he joined

the conspiracy at age eleven.”

U.S. v. Thomas, 114 F.3d 228, 262–67 (D.C. Cir. 1997).

To be included in Outline at I.I and II.A.2

Criminal History

Career Offender

Fourth Circuit holds that post-offense reclassification

of prior violent felony to misdemeanor level does not

change its status under career offender provision. Defendant was sentenced in 1996 as a career offender, partly

on the basis of a 1986 state conviction for “assault on a

woman,” which at the time carried a two-year maximum

sentence. In 1994 the state reclassified that offense as an

A1 misdemeanor with a maximum sentence of 150 days.

As such, it would not have qualified as a crime of violence

as defined in § 4B1.2 at the time defendant was sentenced, and he argued that he should not have been

sentenced as a career offender.

The appellate court disagreed and affirmed the sentence. “The issue presented in the instant appeal appears

to be one of first impression for the federal courts. Guided

by the language of the guideline and the accompanying

notes a rejection of Johnson’s position is dictated.” For the

“two prior felony conviction ” required for career offender

status, § 4B1.2(c)(2) provides that: “The date that a defendant sustained a conviction shall be the date that the guilt

of the defendant has been established.” The court found

that defendant “sustained his conviction for assault on a

female in 1986. In 1986, assault on a female was punishable by a statutory maximum of 2 years. Thus, Johnson’s

assault conviction is properly considered a prior felony

conviction for guideline purposes.”

U.S. v. Johnson, 114 F.3d 435, 445 (4th Cir. 1997).

To be included in Outline at IV.B.3

General Application Principles

Amendments

Eighth Circuit outlines procedure for district courts

when considering whether to apply retroactive amendments following § 3582(c)(2) motion. Defendant was

sentenced in 1993 for a marijuana offense. After a § 5K1.1

departure, the district court departed well below the

guideline range but not below the 60-month statutory

minimum, despite a motion by the government under 18

U.S.C. § 3553(e). After a Nov. 1995 amendment to the

Guidelines retroactively reduced the penalty for offenses

involving marijuana plants, defendant filed a motion to

reduce his sentence, 18 U.S.C. § 3582(c)(2). He argued

that his new sentencing range would be 57–71 months,

and that the substantial assistance departure should be

recalculated from this level.

The government argued against a reduction, claiming

that defendant had already benefited from a substantial

reduction, that it would not have moved for a reduction

below the statutory minimum if the amendment had

been in effect, and that defendant’s later escape from

prison undermined his value as a witness. The govern-
Guideline Sentencing Update, vol. 9, no. 8, June 24, 1998 • a publication of the Federal Judicial Center 3

ment also claimed that, because of the longer original

guideline range, it did not charge defendant with a

§ 924(c) firearms violation or file notice of his status as a

repeat drug offender, which would have added to the

statutory minimum sentence. The district court, in a oneline, handwritten ruling, denied defendant’s motion “for

the reasons set out in the [government’s] response.

The appellate court remanded for reconsideration.

Reading § 3582(c)(2) and USSG § 1B1.10(b) together, “a

district court [must] make two distinct determinations.

First, by substituting only the amended sentencing range

for the originally determined sentencing range, and leaving all other previous factual decisions concerning particularized sentencing factors (e.g., role in the offense,

obstruction of justice, victim adjustments, more than

minimal planning, acceptance of responsibility, number

of plants, etc.) intact, the district court must determine

what sentence it would have imposed had the new sentencing range been the range at the time of the original

sentencing. Second, having made the first determination,

the district court must consider that determination together with the general sentencing considerations contained in section 3553(a) and, in the exercise of its thus

informed discretion, decide whether or not to modify the

original sentence previously imposed. . . . The denial of

Wyatt’s motion for a sentence reduction, absent any indication that the district court considered what would have

been an appropriate sentence under the retroactive

amendment, constitutes an abuse of discretion.”

The court went on to consider which of the factors

raised by the government could properly be considered

on remand, such as “other charges the government might

have been able to file had it not entered the plea agreement. While we agree that the district court should not

speculate about what charges the government chose not

to pursue, the district court is free to consider the complete nature of the defendant’s crime pursuant to section

3553(a).” As for defendant’s escape, that may not be consider in setting the amended guideline range, but “it is

appropriate for the district court to consider his escape as

relevant to the defendant’s nature and characteristics

when determining whether ultimately to grant the motion to modify his sentence.”

The court rejected defendant’s claim that the district

court was bound to honor it’s original decision to depart,

and to use the amended guideline range as its starting

point. “A discretionary decision to depart from the Guidelines range on the basis of substantial assistance made at

the original time of sentencing is not a ‘guideline application decision’ that remains intact when the court considers the new Guideline range. . . . The district court’s discretionary decision of whether to depart from the new

amended Guidelines range based upon Wyatt’s prior substantial assistance is not dictated or mandated by either

its prior decision to depart or by the extent of its prior

departure, because ‘the benefit accruing from a lowered

sentencing range is independent of any substantial-assistance considerations.’ . . . The district court retains

unfettered discretion to consider anew whether a departure from the new sentencing range is now warranted in

light of the defendant’s prior substantial assistance.”

U.S. v. Wyatt, 115 F.3d 606, 608–10 (8th Cir. 1997). Accord

U.S. v. Vautier, 140 F.3d 1361, 1364–66 (11th Cir. 1998) (in

similar case, agreeing with Wyatt on two-step inquiry and

that district court “has the discretion to decide whether to

re-apply a downward departure for substantial assistance

when considering what sentence the court would have

imposed under the amended guideline”). See also USSG

§ 1B1.10(b), comment. (n.3) (“[w]hen the original sentence represented a downward departure, a comparable

reduction below the amended guideline range may be

appropriate”).

See Outline at I.E

Departures

Mitigating Circumstances

First Circuit holds that agreeing to be deported did not

warrant downward departure. Defendant pled guilty to

unlawful reentry following deportation and the government “agreed to recommend a downward departure under U.S.S.G. § 5K2.0 in return for a stipulation of alienage

and deportability following his release from prison, as

well as waivers of any deportation hearing and any appeal

from the deportation order.” The offer was in line with a

1995 memorandum from the Attorney General that authorized U.S. attorneys to recommend departure under

these circumstances. The district court rejected the departure, holding that it did not have authority under the

Guidelines to do so.

The appellate court agreed, holding that a stipulation

to deportation was neither a mitigating circumstance “of

a kind” not considered by the Sentencing Commission

nor mitigation “to a degree” not contemplated by the

Commission. “[W]e think it is quite clear that the Commission would have considered that an alien defendant,

particularly one convicted of unlawful reentry subsequent to deportation for an aggravated felony, almost

certainly would be deported again. . . . Furthermore, we

believe it would be farfetched to suppose that the Commission overlooked the central reality that in all likelihood deportation would occur by normal operation of

law as a matter of course—irrespective of the alien

defendant’s consent—following a conviction for illegal

reentry subsequent to deportation for an aggravated

felony.”

The court also cited statistics showing that, on average,

over a million illegal aliens are expelled from the U.S. each

year and that approximately 97% accept a voluntary departure procedure. “These analogous data indicate that
Guideline Sentencing Update, vol. 9, no. 8, June 24, 1998

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an alien criminal defendant with no plausible basis for

contesting deportation—particularly one convicted of

illegal reentry subsequent to deportation for an aggravated felony—does not meet the atypicality requirement

for a section 5K2.0 departure simply by relying upon

whatever administrative convenience presumably may

result from a stipulated deportation. . . . We therefore

conclude that the Sentencing Commission was fully cognizant that virtually all alien criminal defendants, convicted under 8 U.S.C. § 1326(a) and sentenced pursuant

to U.S.S.G. § 2L1.2, would be subjected to deportation

and that many undoubtedly would stipulate to deportation. Accordingly, we hold, at least in the absence of a

colorable, nonfrivolous defense to deportation, that the

proffered ground for departure under U.S.S.G. § 5K2.0

does not constitute a mitigating circumstance of a kind

not adequately considered by the Commission.”

On the second possible departure rationale, the court

stated that “[a] mitigating circumstance is present to a

degree not contemplated by the Commission only if it is

portentous enough to make the case meaningfully atypical. . . . Absent some mitigating circumstance not suggested here, no substantial atypicality is demonstrated

where an alien defendant simply stipulates to deportation and no nonfrivolous defense to deportation is discernible.” And because no specific facts were alleged that

this particular defendant’s stipulation was atypical, “the

parties essentially are left with their implicit contention

that any stipulated deportation constitutes an extraordinary mitigating circumstance, for no other reason than

that it bears the government’s endorsement and dispenses with an administrative hearing. However, were

downward departures permitted simply on the

conclusory representations in the Memorandum, without regard to whether the alien defendant has a

nonfrivolous defense to deportation, individualized

guideline sentencing indeed could be undermined by

what the district court aptly termed a ‘shadow guideline’

that would erode the prescribed [base offense level] in any

alien-criminal defendant’s case to which the government

chose to apply the Memorandum, simpliciter.”

U.S. v. Clase-Espinal, 115 F.3d 1054, 1056–60 (1st Cir.

1997). Cf. U.S. v. Young, No. 97-1455 (2d Cir. May 12, 1998)

(Keenan, Dist. J.) (reversed: improper to give departure to

recently naturalized U.S. citizen defendant—who could

not be deported—on ground that had he not been naturalized, he might have received departure for agreeing to

be deported).

See Outline at VI.C.5.b