Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 1, October 5, 1994

tenced to concurrent life sentences, but argued on

appeal that the two offenses should have been

grouped because the “counts involve the same victim and the same act or transaction,” § 3D1.2(a).

The government argued that rape is not “the same

act or transaction” as being murdered.

The appellate court held that the language of

§ 3D1.2(a) and the commentary require grouping.

Application Note 3 “states that ‘double counting’

should be avoided where two counts ‘represent essentially a single injury or are part of a single criminal episode or transaction involving the same victim,’ provided the counts arise from conduct occurring on the same day. . . . Example (2) to Note 3 . . .

provides that where ‘[t]he defendant is convicted of

kidnapping and assaulting the victim during the

course of the kidnapping . . . [t]he counts are to be

grouped together.’ . . . [T]his illustration indicates

that grouping is also appropriate for murder and

aggravated sexual abuse, at least where they are inflicted contemporaneously on a single victim or result in an essentially single composite harm.”

U.S. v. Chischilly, 30 F.3d 1144, 1160–61 (9th Cir.

1994).

See Outline at III.D.1.

Offense Conduct

Calculating Weight of Drugs

Tenth Circuit holds that government must prove

that D- rather than L-methamphetamine was involved before sentence can be based on stricter

calculation for D-methamphetamine. Defendant

was convicted of methamphetamine offenses. Although the government presented no evidence as

to what kind of methamphetamine was involved,

defendant’s offense level was based on the calculation for methamphetamine—which in the Guidelines means D-methamphetamine—rather than for

L-methamphetamine, which is treated less severely.

See § 2D1.1(c) at n.* and comment. (n.10.d).

The appellate court held that “[t]he government

has the burden of proof and production during the

sentencing hearing to establish the amounts and

types of controlled substances related to the offense. . . . Since the criminal offense makes no distinction between the types of methamphetamine, it

cannot be assumed that Deninno was convicted of

possession of D-methamphetamine.” Accord U.S. v.

Adjustments

Role in Offense

Fourth Circuit holds that abuse of trust enhancement cannot be based on a coconspirator’s

actions. Two defendants pled guilty to conspiracy

and mail fraud and were given § 3B1.3 enhancements for abuse of trust. The appellate court held

that the enhancements could not be given for abusing positions of trust in their own company because

that company was not a victim of the fraud. “It is

well-established that ‘the question of whether an

individual occupies a position of trust should be

addressed from the perspective of the victim.’”

 The government argued that the enhancements

were warranted as relevant conduct under § 1B1.3—

a third conspirator occupied a position of trust in

the victimized company and the abuse of his position was both reasonably foreseeable to defendants

and in furtherance of the conspiracy. The appellate

court disagreed. “By its own terms, § 1B1.3 holds a

defendant responsible only for reasonably foreseeable ‘acts and omissions’ of his co-conspirators . . . .

[T]he abuse of trust enhancement is premised on

the defendant’s status of having a relationship of

trust with the victim. . . . A co-conspirator’s status

cannot be attributed to other members of the conspiracy under § 1B1.3.”

The court also concluded that “the abuse of trust

provision falls under an exception to § 1B1.3,”

which states that § 1B1.3 does not apply if

“[o]therwise specified.” “It is clear that § 3B1.3

‘specifie[s]’ that abuse of trust enhancements be individualized, not based on the acts of co-conspirators. . . . [Section] 3B1.3 specifically states that the

two-level enhancement will apply if ‘the defendant

abused a position of public or private trust.’

U.S.S.G. § 3B1.3 (emphasis added).”

U.S. v. Moore, 29 F.3d 175, 178–80 (4th Cir. 1994)

(remanded).

See Outline at III.B.8.a.

Multiple Counts—Grouping

Ninth Circuit holds that rape and murder counts

involving same victim and transaction should have

been grouped. Defendant was convicted of aggravated sexual abuse and felony murder. Defendant

struck the victim with his truck and raped her, and

she died from her injuries soon after. He was senGuideline 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.
2 Guideline Sentencing Update, vol. 7, no. 1, October 5, 1994 • a publication of the Federal Judicial Center

Patrick, 983 F.2d 206, 208–10 (11th Cir. 1993) (remanded: government failed to prove D-methamphetamine was involved). The appellate court affirmed the sentence, however, because defendant

had failed to object at sentencing. His claim is thus

reviewed only for plain error, and because “factual

disputes do not rise to the level of plain error,” defendant “in effect waived the issue for appeal.”

U.S. v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994).

See Outline generally at II.B.1.

Estimating Drug Quantity

Eighth Circuit affirms use of purity of seized

drugs to estimate purity of unrecovered drug

amounts. Defendant sold two “eight-balls” of methamphetamine to an undercover agent and indicated

that he had eight others to sell. “Using percentages

of purity from the methamphetamine actually

seized on November 24, 1992, the [district] court

concluded that each eight-ball amounted to 1.2

grams of actual methamphetamine. Although appellant argues that the exact purity level of the

[eight] unrecovered eight-balls is impermissibly uncertain, the guidelines do not require an exact computation of the drug quantity. Instead, the guidelines provide that where the amount seized does

not reflect the scale of the offense, the court ‘shall

approximate the quantity of the controlled substance.’ U.S.S.G. § 2D1.1, application note 12. The

court may extrapolate drug quantity from the drugs

and money actually seized . . . . In making its calculation of the purity level of the drugs in appellant’s

possession at the time of the November 24th purchase, the district court properly relied on the purity level of the drugs actually seized.”

U.S. v. Newton, 31 F.3d 611, – (8th Cir. 1994).

See Outline at II.B.4.d.

General Application

Principles

Amendments

First Circuit affirms use of “one book” rule. Defendant was sentenced in 1993 but was sentenced

under the 1988 Guidelines—which were in effect

when the offense was committed—because using

later Guidelines would have caused ex post facto

problems. Defendant argued that the district court

should have considered whether to grant him a

third offense level reduction for acceptance of responsibility, which was not available until Nov. 1,

1992. The appellate court affirmed: “The 1992

Guidelines set forth what has been referred to as

the ‘one book’ rule. See U.S.S.G. § 1B1.11(b)(2) (Nov.

1992). This provision instructs the district court that

when it looks to an earlier version of the Guidelines

to calculate a sentence, it must apply all of the

Guidelines in that earlier version. It provides that a

court cannot ‘apply . . . one section from one edition . . . and another guideline section from a different edition.’” The court noted that defendant received a lower sentence than he could have if the

1992 Guidelines had been used in their entirety.

U.S. v. Springer, 28 F.3d 236, 237–38 (1st Cir.

1994).

See Outline at I.E.

Appellate Review

Discretionary Refusal to Depart Downward

Tenth Circuit will only review a refusal to depart

downward if the sentencing court clearly states

that it has no authority to depart. After rejecting

defendant’s claim that the district court’s statement

at sentencing indicated the court did not believe it

had authority to depart downward, the appellate

court added that “we no longer are willing to assume that a judge’s ambiguous language means

that the judge erroneously concluded that he or she

lacked authority to downward depart. We think that

‘the district courts have become more experienced

in applying the Guidelines and more familiar with

their power to make discretionary departure decisions under the Guidelines.’ . . . Accordingly, unless

the judge’s language unambiguously states that the

judge does not believe he has authority to downward depart, we will not review his decision. Absent

such a misunderstanding on the sentencing judge’s

part, illegality, or an incorrect application of the

Guidelines, we will not review the denial of a downward departure.”

U.S. v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.

1994).

See Outline at X.B.1.

Departures

Mitigating Circumstances

Fourth Circuit holds that definition of “non-violent offense” in § 5K2.13 is not the same as “crime

of violence” in § 4B1.2. Defendant was convicted of

sending threatening communications, but did not

carry out the threats. The district court held that

defendant was suffering from “a major depressive

episode” that warranted departure under § 5K2.13

for “significantly reduced mental capacity.” The government appealed, arguing that this was not a

“non-violent offense” as required under § 5K2.13.

The appellate court affirmed. Although defendant’s offense would be considered “violent” under

§ 4B1.2, the same definition should not be used for
Guideline Sentencing Update, vol. 7, no.1, October 5, 1994• a publication of the Federal Judicial Center 3

§ 5K2.13 departures: “U.S.S.G. § 5K2.13 is intended

to create lenity for those who cannot control their

actions but are not actually dangerous; U.S.S.G.

§ 4B1.2 is intended to treat harshly the career criminal, whether or not their actual crime is in fact violent. Moreover, the choice of different phrasing, the

absence of a cross-reference, and the careful definitions attached to one section but not the other, all

suggest that the Sentencing Commission did not intend to import its definition from one section into

another.” Therefore, because defendant’s offense

was not actually violent, he was eligible for departure under § 5K2.13. Accord U.S. v. Chatman, 986

F.2d 1446, 1448–53 (D.C. Cir. 1993). Contra U.S. v.

Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994); U.S. v.

Poff, 926 F.2d 588, 592 (7th Cir. 1991) (en banc).

U.S. v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994).

See Outline at VI.C.1.b.

D.C. Circuit holds that departure might be permissible if a defendant’s conditions of confinement

will be more severe solely because of his status as

a deportable alien. Defendant argued that his status as a deportable alien likely rendered him ineligible for certain benefits, such as being assigned to

serve any part of his sentence in a minimum security prison or serving the last 10% of his sentence in

some form of community confinement. The district

court ruled that these were not grounds for departure. The appellate court remanded, even though it

indicated that “circumstances justifying a downward departure on account of the deportable alien’s

severity of confinement may be quite rare. . . . For a

departure on such a basis to be reasonable the difference in severity must be substantial and the sentencing court must have a high degree of confidence that it will in fact apply for a substantial portion of the defendant’s sentence. . . . [E]ven a court

confident that the status will lead to worse conditions should depart only when persuaded that the

greater severity is undeserved.” Other circuits have

rejected similar arguments. See, e.g., U.S. v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993); U.S.

v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993); U.S. v.

Restrepo, 999 F.2d 640, 644 (2d Cir. 1993).

U.S. v. Smith, 27 F.3d 649, 651–55 (D.C. Cir. 1994)

(Sentelle, J., dissented).

See Outline at VI.C.5.b.

Sixth Circuit rejects “totality of circumstances”

departure where individual circumstances did not

warrant departure. “[W]e conclude that the district

court erroneously aggregated factors in order to depart downward. Even if we were to adopt the totality of circumstances approach to downward departures, the district court erred by accumulating typical factors ‘already taken into account’ by the sentencing guidelines, in order to arrive at an atypical

result. . . . Because the guidelines clearly contemplated all of the factors considered by the district

court, no downward departure was justified.”

U.S. v. Dalecke, 29 F.3d 1044, 1048 (6th Cir. 1994).

See Outline at VI.C.3.

Eleventh Circuit holds that § 5K2.10 downward

departure based on victim’s conduct was warranted. Defendant was convicted of an extortion offense after making a threat of harm to the victim.

“[T]he evidence suggested that Dailey’s victim had

defrauded him out of tens of thousands of dollars.

Dailey only threatened physical harm after he and

his family came under financial distress. . . . We

cannot say that the district court clearly erred in

finding that the conduct of Dailey’s victim contributed significantly to provoking his offense.”

U.S. v. Dailey, 24 F.3d 1323, 1328 (11th Cir. 1994).

See Outline at VI.C.4.b.

Determining the Sentence

Consecutive or Concurrent Sentences

Ninth Circuit affirms refusal to change federal

sentence to run concurrently with later, consecutive state sentence for same conduct. Defendant

pled guilty in state court and federal court to firearms offenses arising out of a single incident. He

was sentenced first in federal court, with no reference to the pending state sentence. His state sentence was then imposed to run consecutive to the

federal sentence. Defendant claimed that the district court “should have changed the federal sentence to make it run concurrently with the state

sentence once a state sentence was imposed, because the federal Sentencing Guidelines express a

general policy against consecutive sentences for the

same underlying conduct. See U.S.S.G. § 5G1.3.”

The appellate court affirmed the district court’s

refusal to change the sentence. “The state court . . .

specifically stated that its sentence would be consecutive to the existing federal sentence. . . . Had

the state court not made its sentence consecutive

to the federal sentence, it might have imposed a

harsher sentence; changing the federal sentence in

this case would undermine the state court’s sentencing scheme. Therefore, as a matter of comity,

we shall not order modification of Mun’s federal

sentence.”

U.S. v. Mun, No. 93-30286 (9th Cir. July 18, 1994)

(Boochever, J.).

See Outline at V.A.2 and 3.
Violent Crime Control and Law Enforcement Act of 1994

and the changes below, indicate that courts must

follow the Chapter Seven policy statements when

sentencing after revocation.

VII.A: For sentences imposed after revocation of

probation, 18 U.S.C. § 3565(a)(2) has been amended

by replacing the “available . . . at the time of the initial sentencing” language with “resentence the defendant under subchapter A” (18 U.S.C. §§ 3551–

3559). Along with new § 3553(a)(4)(B) above, this indicates that courts are no longer limited to the

guideline range that applied at defendant’s original

sentencing.

Along with drug possession, § 3565(a) now also

mandates revocation of probation for possession of

firearms or refusal of required drug testing. “A term

of imprisonment” is required, but the “not less than

one-third of the original sentence” language has

been deleted. (Sec. 110506)

VII.B: 18 U.S.C. § 3583(g) now requires revocation of supervised release for firearm possession or

drug test refusal, as well as drug possession. A term

of imprisonment must be imposed, but the “not

less than one-third of the term of supervised release” requirement was deleted.

Reimposition of supervised release after revocation is now authorized by new § 3583(h), if defendant is sentenced to less than the maximum prison

term available. “The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense

that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation.” (Sec. 110505)

Following is a brief summary of selected changes in

the 1994 crime bill related to sentencing under the

Guidelines, listed in order of the relevant Outline

section. Except as noted, the changes took effect

Sept. 13, 1994. Some provisions may apply to defendants who committed offenses before the effective

date, but ex post facto problems may arise. Crime

bill section numbers are in parentheses.

II.A.3: New 18 U.S.C. § 3553(f) provides a limited

exception to mandatory minimum sentences for

certain nonviolent drug offenses. The amendment

applies to defendants who are sentenced on or after

Sept. 23, 1994. A new guideline, § 5C1.2, implements the change. (Sec. 80001)

IV.B: The “three strikes” provision that mandates

life imprisonment for a third “serious violent

felony,” 18 U.S.C. § 3559(c), will have to be distinguished from the career offender provisions in the

Guidelines. For example, “serious violent felony”

and “serious drug offense” differ from “crime of violence” and “controlled substance offense.” (Sec.

70001)

V.E.2: 18 U.S.C. § 3572(a) is amended by adding

new paragraph (6) directing courts to consider “the

expected costs to the government of any imprisonment, supervised release, or probation component

of the sentence” in determining a fine. (Sec. 20403)

VII: 18 U.S.C. § 3553(a)(4) now states that courts

“shall consider . . . (B) in the case of a violation of

probation or supervised release, the applicable

guidelines or policy statements issued by the Sentencing Commission.” (Sec. 280001) This provision,

Note to readers: The format of Guideline Sentencing Update has been revised to allow larger type forimproved legibility. The larger size also allows more cases per issue and thus fewer issues per year,

which will lower the Center’s overall printing and mailing costs.

Guideline Sentencing Update, vol. 7, no. 1, Oct. 5, 1994

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 2, November 17, 1994

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.

General Application

Amendments

Eighth Circuit affirms use of amended guideline

for pre-amendment counts where other count for

similar conduct occurred after amendment. Defendant pled guilty to two counts of being a felon in

possession of a firearm and one count of possession of a short-barrelled shotgun. One of the felon

in possession offenses occurred after the Nov. 1,

1991, amendments that increased the base offense

level for that offense and changed the grouping

rules for firearms offenses; the other two offenses

occurred before the amendment. Defendant was

sentenced under the amended guidelines on all

three counts and, because his sentence was greater

than it would have been under the pre-amendment

guidelines, argued on appeal that this was an ex

post facto violation.

The appellate court affirmed. “At the time Cooper elected to commit the third firearms violation

he was clearly on notice of the 1991 amendments

to the Sentencing Guidelines and the fact that they

increased the offense levels for the firearm crimes

in question and required the aggregation of firearms in Counts I, II and IV. In our view, Cooper had

fair warning that commission of the January 23,

1992, firearm crime was governed by the 1991

amendments that provided for increased offense

levels and new grouping rules that considered the

aggregate amount of harm.” The court also reasoned that defendant’s offenses could be likened to

a continuing offense or “same course of conduct,”

for which “the date the crimes are completed determines the version of the Sentencing Guidelines to

be applied. . . . The offense conduct to which Cooper pled guilty involved a series of firearm offenses

spanning from August 24, 1991, to January 23, 1992.

As with the analogous cases referenced above, application of the Sentencing Guidelines in effect at

the time Cooper completed the last offense does

not violate the ex post facto clause.”

Dissenting in part, Judge Wollman stated that

the pre-amendment offense guidelines should be

applied to the earlier counts, but agreed that the

post-amendment grouping rules can be applied to

all three counts.

U.S. v. Cooper, 35 F.3d 1248, 1250–52 (8th Cir.

1994).

See Outline at I.E.

Fifth Circuit affirms refusal to lower sentence

following retroactive amendment. At her original

sentencing for methamphetamine offenses defendant received a substantial § 5K1.1 downward departure. After the method of calculating the weight

of a methamphetamine mixture was amended in

1993 and made retroactive, defendant filed a

motion under 18 U.S.C. § 3582(c)(2). Using the

amended guideline could have lowered defendant’s

guideline range, but not below the sentence she received after the original departure. The district

court denied defendant’s motion for a lower sentence, explaining that it had been “extremely lenient

in its downward departure and would not resentence Movant below this.”

The appellate court affirmed, while noting that

“[i]t is not evident what the court is supposed to do,

in a case such as this, when there has been a departure in the original sentencing decision.” The court

did not decide that issue, however, because the “application of § 3582(c)(2) is discretionary,” and in determining “it would not depart further under the

circumstances presented, the district court did not

abuse its discretion.”

U.S. v. Shaw, 30 F.3d 26, 28–29 (5th Cir. 1994)

(per curiam).

See Outline at I.E.

Adjustments

Obstruction of Justice

Eleventh Circuit holds en banc that obstruction

enhancement does not apply to persons who

“simply disappear to avoid arrest, without more.”

During plea negotiations but before indictment, a

couple being investigated for fraud disappeared.

The government eventually located them after getting an indictment, and the husband gave a false

name to police when arrested. Their sentences were

enhanced for obstruction of justice. Based on

§ 3C1.1, comment. (n.4(d)) (no enhancement for

“avoiding or fleeing from arrest”), the appellate

court reversed: “We conclude that the § 3C1.1 enhancement does not apply to persons engaged in

criminal activity who learn of an investigation into

that activity and simply disappear to avoid arrest,

without more. Such persons do not face a two-level

enhancement for failing to remain within the jurisdiction or for failing to keep the Government ap-
2 Guideline Sentencing Update, vol. 7, no. 2, November 17, 1994 • a publication of the Federal Judicial Center

Abuse of Trust and Vulnerable Victim

Seventh Circuit reverses failure to give abuse of

trust and vulnerable victim enhancements. Defendant fraudulently sold annuities through funeral

home directors to elderly clients who wanted to

pre-pay funeral expenses. He paid for some funerals

initially, but kept most of the money. The parties

stipulated that defendant was a licensed insurance

broker and that this license was necessary to purchase these annuities. The district court refused the

government’s request for a § 3B1.3 enhancement for

abuse of trust, but the appellate court reversed.

“Stewart’s position as a licensed insurance broker

enabled him to induce his elderly clients to entrust

him with funds for the purchase of annuities. By

paying the funeral directors ten percent for their

services as his agents in inducing the elderly to part

with their funds for the purchase of annuities, the

funeral directors were led to believe that Stewart

would purchase the annuities in his capacity as an

insurance agent to reimburse them for the cost of

the funerals. Stewart abused that position to embezzle over one million dollars.” Defendant’s position of trust also “made it significantly easier for

him to commit and conceal his fraudulent scheme.”

The district court denied the government’s request for a § 3A1.1 vulnerable victim enhancement

on the ground that the funeral directors were the

only victims of defendant’s fraud—the elderly clients suffered no losses because the directors provided the funeral services despite defendant’s failure to purchase sufficient annuities. The appellate

court reversed for clear error. “The district court appears to have succumbed to Stewart’s argument

that section 3A1.1 requires that the vulnerable victim suffer a financial loss. There is no requirement

in section 3A1.1 that a target of the defendant’s

criminal activities must suffer financial loss. . . .

[Defendant] made his elderly clients the innocent

instruments of his scheme to defraud the funeral

directors . . . . The evidence supports an inference

that Stewart targeted the elderly [and that] they

were especially vulnerable” to his promises.

U.S. v. Stewart, 33 F.3d 764, 768–71 (7th Cir. 1994).

See Outline at III.A.1.b and III.B.8.a.

Supervised Release

Revocation of Supervised Release

Sixth Circuit holds that restitution obligation

does not end if supervised release is revoked. Defendant argued that restitution is a condition of supervised release under 18 U.S.C. § 3663(g), and that

when his release was revoked the duty to pay restiprised of their whereabouts during its pre-indictment investigation.”

The appellate court also held that there were insufficient findings to support a § 3C1.1 enhancement for giving a false name. Under Application

Note 4(a), “a district court applying the enhancement because a defendant gave a false name at arrest must explain how that conduct significantly

hindered the prosecution or investigation of the offense.” Here, the district court simply inferred that

the false name “slowed down the criminal process.”

U.S. v. Alpert, 28 F.3d 1104, 1106–08 (11th Cir.

1994) (en banc) (two judges dissented) (superseding

opinion at 989 F.2d 454).

See Outline at III.C.1, 2.b and e, and 3.

Seventh Circuit reverses § 3C1.1 enhancement

for refusal to testify at coconspirator’s trial. Defendant and a coconspirator were indicted for conspiracy and substantive offenses. After defendant

pled guilty to a possession charge, the government

obtained a court order immunizing defendant and

directing him to testify at the coconspirator’s trial.

Defendant refused to testify and was held in civil

contempt. The coconspirator was convicted anyway, but defendant was given a § 3C1.1 enhancement for refusing to testify.

The appellate court reversed because defendant’s conduct did not affect “the instant offense”

as required by § 3C1.1. “This court has defined ‘the

instant offense’ to refer ‘solely to the offense of conviction.’ . . . ‘Offense of conviction’ does not refer to

a separate crime by someone else. . . . Here, Partee’s

‘offense of conviction’ was possession of cocaine

with intent to distribute. Partee’s refusal to testify at

Dismuke’s trial had no impact on his possession

conviction and, therefore, Partee did not attempt ‘to

avoid responsibility for the offense for which he was

being tried.’” Although some circuits have read “instant offense” to include relevant conduct, this circuit “has instead defined it narrowly as ‘offense of

conviction,’ . . . and ‘offense of conviction’ refers

only to the ‘“offense conduct charged in the count

of the indictment or information of which the defendant was convicted.”’ . . . We are bound by this

definition, and applying it here we conclude that a

defendant cannot receive an enhancement for obstruction of justice for refusing to testify at a coconspirator’s trial. . . . This does not mean that a

defendant’s disregard for a court order to testify

under a grant of immunity will go unpunished; a

district court could sentence a defendant to imprisonment for criminal contempt of court.”

U.S. v. Partee, 31 F.3d 529, 531–33 (7th Cir. 1994).

See Outline at III.C.2.d and 4.
Guideline Sentencing Update, vol. 7, no. 2, November 17, 1994 • a publication of the Federal Judicial Center 3

The district court had also concluded that the

career offender guideline did not apply because defendant was released from prison on one of his two

predicate felonies just over fifteen years before the

date charged in the indictment for the beginning of

the instant conspiracy. However, the appellate court

agreed with the government that the district court

was not bound by the date in the indictment but

should “consider all relevant conduct pertaining to

the conspiracy in determining when that conspiracy began.” See also § 4B1.2, comment. (n.8)

(“the term ‘commencement of the instant offense’

includes any relevant conduct”).

U.S. v. Kennedy, 32 F.3d 876, 888–91 (4th Cir. 1994).

See Outline at IV.B.

Departures

Mitigating Circumstances

Ninth Circuit reverses departures based on

“combination of factors” and victim misconduct.

Two Los Angeles police officers were convicted of

civil rights offenses in the Rodney King beating case.

(Note: This summary assumes familiarity with the

basic facts of this widely publicized case.) In sentencing defendants to thirty months each, the district court departed downward three offense levels

for a combination of factors that individually would

not warrant departure: the additional punishment

defendants could receive from administrative sanctions and their susceptibility as police officers to

prison abuse; “the extreme absence of a need to

protect the public from future wrongdoing” by defendants; and “the unfairness of successive state

and federal prosecutions for the same conduct.”

The appellate court reversed, stating that “although a district court may grant a departure based

on a combination of factors that do not individually

justify a departure, this policy does not permit the

district court to consider in the mix factors that

should not be part of the consideration. . . . [O]ur

purpose is not to determine whether each factor

taken alone justifies a departure, but rather whether

consideration of the particular factor at all as part

of the decision to depart is consistent with the

structure and purposes of the Guidelines and the

federal sentencing statutes.” As for the individual

factors cited: “Personal and professional consequences that stem from a criminal conviction are

not appropriate grounds for departing, nor are they

appropriately considered as part of a larger complex of factors.” A departure based on the vulnerability of a police officer in prison “would be inconsistent with the structure and policies of the Guidetution did not survive. The appellate court concluded that “Congress intended restitution to be an

independent term of the sentence of conviction,

without regard to whether incarceration, probation,

or supervised release were ordered.” Reading

§ 3663(g) in the context of the whole statute shows

that it is not meant to make restitution “merely a

term of supervised release” but “is aimed at effectively using the court’s jurisdiction over the defendant during supervised release and probation, not

at modifying the obligation to make restitution. . . .

Accordingly, we conclude that a district court’s decision to revoke supervised release does not affect the

obligation to pay restitution if such obligation was

authorized under 18 U.S.C. §§ 3551, 3556.”

U.S. v. Webb, 30 F.3d 687, 689–91 (6th Cir. 1994)

(Jones, J., dissented).

See Outline generally at V.B.1.

Note: Reimposition of supervised release after revocation is now allowed under new 18 U.S.C. § 3583(h)

(effective Sept. 13, 1994).

Criminal History

Career Offender Provision

First and Fourth Circuits hold that a drug conspiracy conviction is a “controlled substance offense” for career offender purposes. In the First

Circuit, defendant was sentenced as a career offender after his conviction for a marijuana conspiracy. He appealed, arguing that conspiracy was

not listed in the career offender guideline or the enabling statute and that its inclusion in Application

Note 1 of § 4B1.2 is inconsistent with the guideline

and exceeds the mandate in the enabling statute.

The appellate court disagreed, holding that “the

application note comports sufficiently with the letter, spirit, and aim of the guideline to bring it

within the broad sphere of the Sentencing

Commission’s interpretive discretion.”

U.S. v. Piper, 35 F.3d 611, 616–19 (1st Cir. 1994).

The Fourth Circuit defendant was convicted of

conspiracy to distribute cocaine and was not sentenced as a career offender. In remanding, the appellate court concluded “that the career offender

provision of the Sentencing Guidelines was promulgated pursuant to the Commission’s general authority under [28 U.S.C.] § 994(a) as well as its more

specific authority under § 994(h) . . . [and] it was

reasonable for the Commission to interpret Congress’ directive in § 994(h) as permitting inclusion of

drug-related offenses other than the offenses specifically enumerated in § 994(h).”
Guideline Sentencing Update, vol. 7, no. 2, Nov. 17, 1994

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

lines. . . . While a departure based on U.S.S.G.

§ 5H1.4 involves the relatively objective question of

whether an extraordinary physical impairment exists, the determination of whether an individual’s

membership in a group regarded with hostility

leaves him vulnerable is both subjective and openended. Nothing would prevent this rationale from

being applied to numerous groups . . . all of whom

face an increased risk of abuse in prison.”

The court also held that “the fact that appellants

are neither dangerous nor likely to commit crimes

in the future is not an appropriate basis for a departure in this case. Although it is true that some

offenders who are classified in Criminal History

Category I have a greater likelihood of recidivism

than appellants, the Commission already took this

factor into account when it drafted the Guidelines . . . . This is so even for defendants who may be

unusually unlikely to commit crimes in the future.”

“Reliance on the ‘spectre of unfairness’ of dual

prosecutions to support a departure is improper

because it speaks neither to the culpability of the

defendant, the severity of the offense, nor to some

other legitimate sentencing concern. . . . We find

nothing in the structure or policies of the Guidelines to support a departure on the grounds that

successive prosecutions are burdensome.”

The district court also departed five levels under

§ 5K2.10 for victim misconduct, despite concluding

that this factor was no longer present at the time

that defendant’s conduct changed from legitimate

use of force to a criminal violation of civil rights.

The appellate court again reversed, concluding that

the victim’s conduct and the appropriateness of the

police response to it are taken into account in the

statute of conviction and the relevant guideline.

U.S. v. Koon, 34 F.3d 1416, 1452–60 (9th Cir. 1994).

See Outline at VI.C.3, 4.b, and 5.b.

Tenth Circuit reverses downward departure

based on post-arrest drug rehabilitation and religious activity. The district court departed downward based on a combination of “a very significant

change in the defendant’s conduct and attitudes towards life,” resulting from participation in religious

activities, and defendant’s concomitant drug rehabilitation after “a long history of drug abuse and

drug usage.” The appellate court reversed, first noting that it has previously prohibited departure for

drug rehabilitation. In addition, “post-offense rehabilitative efforts, including counseling, are a factor

to consider in § 3E1.1. Id., Application Note 1(g).

Chubbuck’s religious guidance falls squarely into

this category, and we therefore think that the guidelines have adequately considered Chubbuck’s rehabilitation, both in kind and in degree.”

U.S. v. Chubbuck, 32 F.3d 1458, 1461–62 (10th

Cir. 1994).

See Outline at VI.C.2.a and c.

Aggravating Circumstances

Fifth Circuit affirms § 5K2.1 departure for unintended death that resulted indirectly from offense

conduct. When defendant robbed a gas station, the

“traumatic event of the robbery” caused an employee to suffer a brain aneurysm that resulted in

her death two days later. The district court departed

upward under § 5K2.1 because “death resulted”

from the offense. The appellate court affirmed that

this was proper under § 5K2.1. “The court’s conclusion that although Davis did not consciously intend

to kill Overby his conduct was such that he should

have anticipated that a serious injury or death

could result from his conduct shows that relevant

factors under § 5K2.1 were thoroughly considered.”

U.S. v. Davis, 30 F.3d 613, 615–16 (5th Cir. 1994).

See Outline at VI.B.1.e.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 3, December 9, 1994

Departures

Substantial Assistance

Ninth Circuit holds that government’s improper

behavior authorized district court to grant §5K1.1

departure without government motion. Before and

during defendant’s plea proceedings his counsel

attempted to negotiate a plea agreement, whereby

defendant would testify against other defendants in

exchange for a §5K1.1 departure. The government

refused the offer, but then, without notifying

defendant’s counsel, subpoenaed defendant to testify at a grand jury hearing. Defendant contacted

his attorney, who tried to contact the prosecutor,

who did not return the phone calls. Counsel could

not contact defendant, either, because the government had moved defendant to another prison. Assuming that his attorney had reached the prosecutor and struck a deal for a departure, defendant testified before the grand jury. At defendant’s sentencing the government refused to file a §5K1.1 motion,

although it did file one for a codefendant who testified before the same grand jury.

The appellate court remanded, rejecting the

government’s argument that “its potentially unconstitutional behavior (interfering with defendant’s

Sixth Amendment rights) is not an ‘unconstitutional

motive’ within the meaning of [Wade v. U.S., 112 S.

Ct. 1840 (1992)], and that a downward departure is

not an appropriate remedy for such misconduct.”

The court held that defendant “has shown that he

provided substantial assistance, and that the

government’s improper conduct deprived him of an

opportunity to negotiate a favorable bargain before

testifying. Allowing such potentially unconstitutional behavior to go unremedied creates troubling

incentives. Although no cases have squarely addressed Hier’s situation, the government’s behavior

in this case authorizes the district court to grant

Hier’s request for a downward departure.”

U.S. v. Treleaven, 35 F.3d 458, 461–62 (9th Cir.

1994).

See Outline at VI.F.1.b.iii.

Fifth Circuit holds that district court must make

independent determination of extent of §5K1.1 departure. Defendants received downward departures

under §5K1.1, but argued on appeal that the district

court’s comments indicated that, as a matter of

policy, the court would not depart more than the

ten months the government recommended. The appellate court remanded. “Although the court referred to its power and discretion in determining

whether and to what extent to depart, the record

leaves open the question whether the court also adequately recognized its duty to evaluate independently each defendant’s case . . . . The court is

charged with conducting a judicial inquiry into

each individual case before independently determining the propriety and extent of any departure in

the imposition of sentence. While giving appropriate weight to the government’s assessment and recommendation, the court must consider all other

factors relevant to this inquiry.”

U.S. v. Johnson, 33 F.3d 8, 10 (5th Cir. 1994).

See Outline at VI.F.2.

Aggravating Circumstances

Second Circuit holds that likely fate of smuggled

aliens after reaching U.S. may be considered in departure decision. Defendants were convicted of

conspiring to bring 150 illegal aliens into the U.S.

from China. The district court departed upward,

partly based on the likelihood that, had the scheme

succeeded, the illegal aliens would have been subject to “involuntary servitude” to pay off their debts

to the smugglers. The appellate court affirmed.

“Testimony at trial established that . . . each of the

150 aliens would be indebted to the smugglers in

amounts ranging from $10,000 to nearly $30,000. A

contract to pay smuggling fees, unenforceable at

law or equity, necessarily contemplates other enforcement mechanisms, none of them savory. It requires no quantum leap in logic to infer from these

established facts that these huge debts would be

paid through years of labor under circumstances

fairly characterized as involuntary servitude.”

U.S. v. Fan, 36 F.3d 240, 245 (2d Cir. 1994).

See Outline generally at VI.B.1.j.

Offense Conduct

Mandatory Minimums

Eighth Circuit holds that quantity of LSD for

mandatory minimums should be calculated under

amended guideline method. Defendant pled guilty

to conspiracy to distribute LSD and stipulated that

the weight of the drug and carrier medium was over

ten grams. This subjected him to a ten-year mandaGuideline 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.
2 Guideline Sentencing Update, vol. 7, no. 3, December 9, 1994 • a publication of the Federal Judicial Center

tory minimum under 21 U.S.C. §841(b)(1)(A)(v), but

with a substantial assistance departure he was sentenced to 72 months. Guideline Amendment 488

(Nov. 1, 1993) changed the method of calculating

the weight of LSD and carrier media, see §2D1.1(c)

at n.* and comment. (n.18 and backg’d), and made

it retroactive under §1B1.10. Using the amendment

would lower defendant’s sentencing range to 33–41

months. The court declined to reduce the sentence,

however, concluding that defendant was still subject to the mandatory minimum term and, although

the sentence was below the minimum because of

defendant’s substantial assistance, it could not be

reduced further based on the amended guideline.

The appellate court agreed that it would be improper to “piggyback” the amended calculation

onto the substantial assistance reduction, but held

that the calculation for the mandatory minimum

quantity itself should be based on the amendment.

“In Chapman v. U.S., 500 U.S. 453, 468 . . . (1991),

the Supreme Court construed ‘mixture or substance’

in [§841(b)(1)(A)(v)] as ‘requir[ing] the weight of the

carrier medium to be included.’ . . . Amendment

488 merely provides a uniform methodology for calculating the weight of LSD and its carrier medium—

the ‘mixture’ or ‘substance’ containing a detectable

amount of LSD.”

The court concluded that “Amendment 488 and

Section 841 can and should be reconciled under

Chapman. . . . To calculate mixture weights differently for mandatory minimum sentences on one

hand and guideline sentences on the other would

unnecessarily swallow up the guideline, which, itself, demands a very significant sentence. Applying

two different measurements makes no sense. Accordingly, we find that Stoneking’s sentence may be

reduced under a retroactive application of Amendment 488.” Contra U.S. v. Boot, 25 F.3d 52, 54–55

(1st Cir. 1994) [6 GSU #15]. Because retroactive

application of an amendment is not mandatory, it

remains for “the district court to determine, in its

discretion, whether Amendment 488 should be applied retroactively to reduce Stoneking’s sentence.”

U.S. v. Stoneking, 34 F.3d 651, 652–55 (8th Cir.

1994).

See Outline at I.E, II.A.3, and II.B.1.

Loss

Third Circuit holds that loss from check kiting

scheme is not reduced by amounts repaid after offense is discovered. Defendant pled guilty to bank

fraud through check kiting. When the crime was detected the loss amounted to over $460,000. The district court reduced that sum to under $350,000,

however, to reflect payments defendant made to

some of the victim banks by the time he was sentenced. The appellate court remanded. “We believe

that check kiting crimes, because of their particular

nature, are crimes where the district court must calculate the victim’s actual loss as it exists at the time

the offense is detected rather than as it exists at the

time of sentencing. . . . By its very nature, the crime

of kiting checks ordinarily involves the borrowing of

funds without authorization from the bank and

without the offender providing any security to protect the bank against risk of loss. This distinction

warrants treating perpetrators of check kiting loan

frauds in most cases differently from perpetrators of

secured loan frauds for sentencing purposes.” Thus,

“the gross amount of the kite at the time of detection, less any other collected funds the defendant

has on deposit with the bank at that time and any

other offsets that the bank can immediately apply

against the overdraft (including immediate repayments), is the loss to the victim bank.”

U.S. v. Shaffer, 35 F.3d 110, 113–14 (3d Cir. 1994).

See also U.S. v. Mummert, 34 F.3d 201, 204 (3d Cir.

1994) (affirmed: where defendant arranged fraudulent unsecured loan to finance construction of

house by third party, loss is not reduced by third

party’s offer to repay bank after sale of house or

sign house over to bank—“A defendant in a fraud

case should not be able to reduce the amount of

loss for sentencing purposes by offering to make

restitution after being caught”). Cf. U.S. v. Bennett,

37 F.3d 687, 695 (1st Cir. 1994) (remanded: error to

reduce loss by amount repaid as part of civil settlement after fraudulent loan scheme was discovered).

See Outline at II.D.2.b and c.

Tenth Circuit holds that amount of loss is not

reduced by fraud victims’ tax benefits. Defendant

defrauded dozens of investors of several million

dollars. He argued that the amount of loss should

be reduced by $2 million for tax benefits the victims

obtained through their investments. The district

court refused to do so and the appellate court affirmed: “Defendant cites no authority in support of

his novel proposition, and we have found none. In

previous cases where we have deducted the value of

something the victim has received in computing actual loss, Defendant himself has been responsible

for the victim’s receipt of something of value. . . .

Because the Sentencing Commission did not [allow

for such a reduction], and because no Tenth Circuit

or other precedent supports Defendant’s argument

to reduce the amount of loss by a victim’s tax savings, we reject Defendant’s argument.”

U.S. v. McAlpine, 32 F.3d 484, 489 (10th Cir. 1994).

See Outline at II.D.2.d.
Guideline Sentencing Update, vol. 7, no. 3, December 9, 1994 • a publication of the Federal Judicial Center 3

Adjustments

Acceptance of Responsibility

Seventh Circuit affirms denial of § 3E1.1 reduction for silence on “conduct comprising the offense

of conviction.” Defendant pled guilty to credit card

offenses. The district court denied a reduction for

acceptance of responsibility because defendant refused to answer questions concerning how she arrived in Wisconsin, where she obtained the counterfeit credit cards, and the source of money recovered at her arrest that exceeded the amounts she

had obtained in the charged offenses. Defendant

had invoked the Fifth Amendment on these issues

and argued that § 3E1.1, comment. (n.1(a)), allowed

her to do so without penalty (“A defendant may remain silent in respect to relevant conduct beyond

the offense of conviction without affecting his ability to obtain a reduction under this subsection.”).

The appellate court affirmed the denial, although

it agreed with defendant that her silence regarding

the money that exceeded the amount in the offenses of conviction was protected under Application Note 1(a). “There is, however, an important

distinction between Hammick’s silence concerning

the source of the excess cash . . . and her silence

concerning [her] means of travel to Wisconsin and

the source of the counterfeit credit cards and other

documents she used to commit the offenses to

which she pleaded guilty.” Note 1(a) also indicates

that a defendant must “truthfully admit[] the conduct comprising the offenses of conviction.” “The

district judge’s request that Hammick explain how

she was able to carry out her crimes required no

more than ‘a candid and full unraveling’ of the conduct comprising her offense of conviction, . . . and

thus did not violate her right to remain silent concerning relevant conduct beyond the offense of conviction under the current version of the guideline.”

U.S. v. Hammick, 36 F.3d 594, 600–01 (7th Cir.

1994) (Bauer, J., dissented).

See Outline at III.E.3.

Ninth Circuit indicates defendant should notify

government of intent to plead guilty in order to

secure §3E1.1(b) reduction for timely assistance.

Defendant received the two-point reduction under

§3E1.1(a), but was denied the extra point under

§3E1.1(b) because he did not plead guilty until one

week before trial and “after the government had begun seriously to prepare for trial.” Defendant argued he had waited until the court ruled on his motion to dismiss on double jeopardy grounds, and

should not be denied the extra reduction because

the court did not decide the motion earlier or because he exercised his constitutional rights.

The appellate court affirmed. “While Narramore

may well have intended to plead guilty in the event

that his motion to dismiss was denied, he at no

time approached the government with this information so the trial preparation could have been

avoided. Nothing prevented him from doing so.

Narramore’s pretrial motion, if granted, would have

completely obviated trial. Accordingly, if Narramore

had earlier communicated his willingness to enter a

plea, the government would have had no reason to

prepare for trial. In such circumstances, his plea

cannot be considered timely for purposes of

§3E1.1(b).” As for defendant’s constitutional argument, “[i]ncentives for plea bargaining are not unconstitutional merely because they are intended to

encourage a defendant to forego constitutionally

protected conduct. . . . [B]y advising the government of his intent to plead guilty if his trial motion

were denied, Narramore could have enabled the

government to avoid trial preparation” and qualified for §3E1.1(b).

U.S. v. Narramore, 36 F.3d 845, 846–47 (9th Cir.

1994).

See Outline at III.E.5.

Criminal History

Armed Career Criminal

Sixth Circuit holds that enhanced penalty in

§4B1.4 for possessing firearm “in connection with

a crime of violence” does not require conviction

for that crime of violence. Defendant was convicted of being a felon in possession of a firearm

and, because of prior convictions, was subject to

sentencing as an armed career criminal under 18

U.S.C. §924(e) and §4B1.4. The district court found

that defendant possessed the firearm “in connection with a crime of violence” (an assault) and increased the offense level and criminal history category under §4B1.4(b)(3)(A) & (c)(2). Defendant appealed, arguing that the increases did not apply because he was not convicted of the assault in connection with the unlawful possession.

The appellate court affirmed, concluding that “a

conviction for a violent crime is not a prerequisite

to application of this section. . . . Where the drafters

of the guidelines intend that a defendant must have

been convicted of a particular crime if a particular

provision of the guidelines is to be applied, they

generally say so explicitly. . . . No corresponding

term appears in the definition of an ‘armed career

criminal,’ the category at issue here.”

U.S. v. Rutledge, 33 F.3d 671, 673–74 (6th Cir.

1994).

See Outline at IV.D.
Guideline Sentencing Update, vol. 7, no. 3, Dec. 9, 1994

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

conviction and arrived at a sentencing range of 18–

24 months. The court sentenced defendant to 18

months, to run consecutively to the state term,

making defendant’s “incremental punishment” for

the federal offense 18 months.

Although the district court neither strictly followed Note 3 nor specifically explained why it did

not use the recommended calculation, the appellate

court affirmed. A “review of the history of §5G1.3

supports the inference that its current language is

intended to give sentencing courts leeway in deciding what method to use to determine what a reasonable incremental penalty is in a given case. . . .

Although the district court no longer has complete

discretion to employ any method it chooses when it

decides upon a reasonable incremental penalty,

neither is it required to use the commentary methodology or else depart from the Guideline. . . . True,

the court must attempt to calculate the reasonable

incremental punishment that would be imposed

under the commentary methodology. If that calculation is not possible or if the court finds that there

is a reason not to impose the suggested penalty, it

may use another method to determine what sentence it will impose. The court must, however, state

its reasons for abandoning the commentary methodology in such a way as to allow us to see that it

has considered the methodology. . . . Applying these

principles to the case at hand, it becomes clear that

the district court did everything it was required to

do. . . . It did need to consider the methodology

and it did need to give its reasons for using an alternative method.” Cf. U.S. v. Coleman, 15 F.3d 612–

13 (6th Cir. 1994) (remanded: courts must consider

§5G1.3(c) and, “to the extent practicable,” utilize

methodology in Note 3).

U.S. v. Redman, 35 F.3d 437, 440–42 (9th Cir.

1994).

See Outline at V.A.3.

Challenges to Prior Convictions

Ninth Circuit holds that Custis applies to challenges under Guidelines. The district court denied

defendant’s challenge to a prior conviction that increased his Guidelines sentence. Basing its decision

on §4A1.2, comment. (n.6), and Custis v. U.S., 114

S. Ct. 1732 (1994), the appellate court affirmed. “We

conclude that Burrows had no right conferred by

the Sentencing Guidelines to attack his prior convictions in his sentencing proceeding and no constitutional right to attack any prior convictions save

those which were obtained in violation” of the right

to counsel. Although U.S. v. Vea-Gonzales, 999 F.2d

1326 (9th Cir. 1993), held that defendants have a

constitutional right to challenge prior sentences, “as

far as its constitutional holding goes, Vea-Gonzales

is no longer good law” in light of Custis.

U.S. v. Burrows, 36 F.3d 875, 885 (9th Cir. 1994).

See Outline at IV.A.3.

Determining the Sentence

Consecutive or Concurrent Sentences

Ninth Circuit holds that courts must consider,

but are not strictly bound by, the methodology in

§5G1.3(c), comment. (n.3). Defendant was serving

a state sentence at the time he was to be sentenced

for an unrelated federal offense. To determine the

extent to which the federal sentence should be consecutive to the state sentence, the district court followed the procedure in §5G1.3(c), comment. (n.3),

and approximated “the total punishment that

would have been imposed under §5G1.2 . . . had all

of the offenses been federal offenses for which sentences were being imposed at the same time.” The

resulting guideline range was less than defendant

was to serve on the state sentence. As an alternative, the court departed downward from defendant’s

criminal history category by discounting the state
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 4, January 6, 1995

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.

Departures

Mitigating Circumstances

Ninth Circuit holds that departure is warranted

for “sentencing entrapment.” Defendant was the

target of a sting operation in which a confidential

informant and undercover agent induced him to

sell 10,000 doses of LSD. The evidence indicated

that defendant had never engaged in a drug deal

anywhere near this size and that he was pressured

into selling more than the 5,000 doses he was willing to sell, but the jury rejected defendant’s entrapment defense. The district court expressed dissatisfaction with the guideline minimum of 151 months

but concluded it had no ground for departure.

The appellate court reversed, holding that under

these circumstances a departure for sentencing entrapment, or “sentence factor manipulation,” would

be proper. The Guidelines were amended after

defendant’s sentencing to allow the possibility of

departure in a reverse sting, see §2D1.1, comment.

(n.17) (Nov. 1993). Although this was not a reverse

sting, the court concluded that the amendment

“shows that the Sentencing Commission is aware of

the unfairness and arbitrariness of allowing drug

enforcement agents to put unwarranted pressure on

a defendant in order to increase his or her sentence

without regard for his predisposition, his capacity

to commit the crime on his own, and the extent of

his culpability. Our conclusion that a finding of sentencing entrapment is warranted in the instant case

is motivated by the same concerns, and, as such, is

fully consistent both with the Amendment and with

the sentencing factors prescribed by Congress.”

“In this case, Judge Ideman found that Staufer

was a user and sometime seller of LSD, but that he

sold only to personal friends and had never engaged in a deal even approaching the magnitude of

the transaction for which he was convicted. The

court recognized that . . . he was not predisposed

‘to involve himself in what turned out to be, from

the standpoint of the Sentencing Guidelines, an immense amount of drugs.’ We are persuaded that

‘sentencing entrapment may be legally relied upon

to depart under the Sentencing Guidelines,’ . . .

and, based on the district court’s findings, we conclude that Staufer was so entrapped in this case.”

U.S. v. Staufer, 38 F.3d 1103, 1107–08 (9th Cir.

1994) (Beezer, J., dissenting).

See Outline at VI.C.4.c.

Sixth Circuit rejects downward departure for

white-collar defendant’s community ties and charitable deeds. Defendant and others were indicted on

33 counts relating to the sale of adulterated orange

juice. He pled guilty to one count and faced a sentence of 30–37 months. Based on “a substantial

number of letters” praising defendant, the district

court found that defendant’s “community ties, civic

and charitable deeds, and prior good works merited

a substantial downward departure” and sentenced

defendant to 12 months of home confinement and

a $250,000 fine.

The appellate court remanded, holding that “it is

usual and ordinary, in the prosecution of similar

white-collar crimes involving high-ranking corporate executives such as Crouse, to find that a defendant was involved as a leader in community charities, civic organizations, and church efforts. . . .

[T]he Sentencing Guidelines already considered the

nature of white-collar crime and criminals when

setting the offense levels that govern this offense.

Furthermore, the Guidelines reward defendants

who have lived previously lawful lives by setting

substantially lower sentencing ranges for them than

those suggested for past offenders. . . . The record

shows that Crouse has performed many fine deeds

in his life and has won the devotion and admiration

of people whom he has helped and who have honored him with positions of community leadership.

However, he also has derived well over $1 million in

income from . . . the adulteration scheme.”

U.S. v. Kohlbach, 38 F.3d 832, 838–39 (6th Cir.

1994).

See Outline at VI.C.1.a.

First Circuit rejects departure based on comparison of defendant’s charitable work and community service to that of “the typical bank robber.”

Defendant was convicted of several counts relating

to a bank robbery. The district court departed under §5H1.11 because defendant’s “charitable work

and community service stood apart from what one

would expect of ‘the typical bank robber.’” The

court noted that “[i]f this was a securities fraud case

or bank fraud case, probably the downward departure would not be appropriate.”

The appellate court remanded, noting at the outset that “a defendant’s record of charitable work

and community service falls into the discouragedfeature category of justifications for departure.”
2 Guideline Sentencing Update, vol. 7, no. 4, January 6, 1995 • a publication of the Federal Judicial Center

Therefore “departure is warranted only if the ‘nature

and magnitude’ of the feature’s presence is unusual

or special,” and “a court must ask ‘whether the case

differs from the ordinary case in which those [discouraged] features are present.’” Here, the district

court “did not compare Bonasia’s history of charitable and community service to the histories of defendants from other cases who similarly had commendable community service records. . . . [T]he

court erred by restricting the scope of its comparison to only bank robbery cases. A court should survey those cases where the discouraged factor is

present, without limiting its inquiry to cases involving the same offense, and only then ask whether the

defendant’s record stands out from the crowd.”

U.S. v. DeMasi, – F.3d – (1st Cir. Oct. 26, 1994).

See Outline at VI.C.1.a.

Seventh Circuit holds departure for family

responsibilities may be allowed in extraordinary

cases. The district court was inclined to depart for

defendant’s family responsibilities but concluded

that U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991)

(Thomas I), prohibited it. The appellate court remanded. “Because our sister circuits have uniformly

rejected Thomas I’s interpretation of section 5H1.6

both before and after the November 1, 1991 amendment, and because that amendment omits the language on which Thomas I specifically relied, we

hold today that a district court may depart from an

applicable guideline range once it finds that a

defendant’s family ties and responsibilities or community ties are so unusual that they may be characterized as extraordinary. Any other reading would

be inconsistent with the plain language of section

5H1.6 in that it would render meaningless the Commission’s use of the phrase ‘not ordinarily relevant.’”

U.S. v. Canoy, 38 F.3d 893, 906 (7th Cir. 1994).

See Outline at VI.C.1.a.

Tenth Circuit holds prison overcrowding cannot

be basis for downward departure. Among other

reasons, the district court justified a downward departure on the basis of prison overcrowding after

finding that federal prisons are operating at 148%

of capacity. The appellate court reversed. “In [28

U.S.C. §] 994(g), Congress directed the Sentencing

Commission, not the courts, to consider prison

capacities. While the Commission is directed to take

into account prison overcrowding in devising its

overall guideline scheme, prison capacity is not an

appropriate consideration for courts in determining

the sentences of individual defendants.”

U.S. v. Ziegler, 39 F.3d 1058, 1063 (10th Cir. 1994).

See Outline generally at VI.C.5.b.

Substantial Assistance

Eleventh Circuit holds that where district court

accepted plea agreement that obligated government to move for Rule 35(b) reduction, it may not

reject the motion without hearing evidence. Defendant’s plea agreement effectively obligated the government to file a Rule 35(b) motion if it determined

that his post-sentence cooperation warranted an

additional reduction in sentence. Eventually the

government did file a motion, with a request for an

evidentiary hearing, but the evidence of defendant’s

cooperation was not set forth in the motion for security reasons. The district court denied the motion

and defendant appealed.

The appellate court allowed the appeal, finding

that “if the motion is made pursuant to a plea

agreement, the rights of the defendant are implicated by the district court’s refusal to hear evidence

of a defendant’s substantial assistance. If the defendant were not permitted to appeal, he or she would

be effectively without recourse to enforce a breached plea agreement.” The court then remanded for

an evidentiary hearing, holding that in these circumstances the refusal to grant a hearing had

“effectively prevented the government from presenting its Rule 35 motion [and] forced a breach of the

plea agreement.” The court noted that the need for

a hearing arose from the particular facts of this case

and that “[i]n some instances a written motion outlining the defendant’s cooperation may suffice to

satisfy the plea agreement.”

U.S. v. Hernandez, 34 F.3d 998, 1000–01 & n.6

(11th Cir. 1994).

See Outline at VI.F.4.

Aggravating Circumstances

Ninth Circuit reverses departure based on “the

danger of violence associated with a fraudulent

drug sale.” Defendant pled guilty to distribution of

cocaine, possession of cocaine with intent to distribute, and to carrying a firearm in connection

with a drug trafficking crime under 18 U.S.C.

§924(c). Because he was attempting to cheat the

buyers (who were really undercover agents), he sold

much less than the negotiated amount—only about

25 grams of cocaine was contained in three kilogram-sized bricks. With only 25 grams of cocaine

actually involved, defendant’s guideline maximum

was 16 months. However, the district court held

that departure was warranted because of a greater

likelihood of violence during an attempted drug

fraud than in an “honest” drug sale. Defendant was

sentenced to 25 months, plus the mandatory consecutive 60-month sentence on the firearm charge.
Guideline Sentencing Update, vol. 7, no. 4, January 6, 1995 • a publication of the Federal Judicial Center 3

The appellate court reversed, concluding that the

risk of violence was accounted for by the § 924(c)

conviction. “Possession of a gun . . . is dangerous

precisely—and only—because it may be used when

one drug trafficker tries to cheat or rob another or

when law enforcement officials try to apprehend a

drug trafficker. . . . The fact that an attempted fraud

occurs in any given transaction adds little, if anything, to the risk already reflected in section 924’s

mandatory sentencing provisions. . . . Because that

danger is taken into account in the mandatory consecutive sentence under section 924(c)(1), it should

not also be reflected in Zamora’s sentence on the

distribution charge.” The court noted that it expressed no view whether departure would be warranted in a similar case where the defendant was

not also subject to a sentence under §924(c)(1).

U.S. v. Zamora, 37 F.3d 531, 533–34 (9th Cir.

1994) (Rymer, J., dissenting).

See Outline generally at VI.B.2.a.

Criminal History

Third Circuit holds that downward departure

for career offender may include departure by

offense level as well as criminal history category.

The district court held that career offender status

overstated defendant’s criminal history and departed under §4A1.3 by lowering defendant’s criminal history category, but concluded that it could not

also lower defendant’s offense level. The appellate

court remanded: “Because career offender status

enhances both a defendant’s criminal history category and offense level, . . . a sentencing court may

depart in both under the proper circumstances.”

U.S. v. Shoupe, 35 F.3d 835, 837–38 (3d Cir. 1994)

(Alito, J., dissenting).

See Outline at VI.A.3.a.

Offense Conduct

Calculating Weight of Drugs

Third Circuit holds that government bears ultimate burden of proof on intent and capability regarding negotiated amounts. For the calculation of

negotiated drug amounts under §2D1.1, comment.

(n.12), the appellate court agreed with the circuits

that have held that once the government meets its

initial burden of proving the amount under negotiation, defendant then has the burden of showing lack

of both intent and reasonable capability. However,

the ultimate burden of persuasion “remains at all

times with the government. Thus, if a defendant

puts at issue his or her intent and reasonable capability to produce the negotiated amount of drugs by

introducing new evidence or casting the government’s evidence in a different light, the government

then must prove either that the defendant intended

to produce the negotiated amount of drugs or that

he or she was reasonably capable of doing so.” The

court concluded that “it is more reasonable to read

Note 12, in its entirety, as addressing how a defendant’s base offense level may be determined in the

first instance when a drug transaction remains unconsummated, for it is important to bear in mind

that calculating the amount of drugs involved in

criminal activity neither aggravates nor mitigates a

defendant’s sentence; rather, it provides the starting

point.” The court added that “a district court must

make explicit findings as to intent and capability.”

U.S. v. Raven, 39 F.3d 428, 434–37 (3d Cir. 1994).

See Outline at II.B.4.a.

Drug Quantity—Relevant Conduct

Fifth Circuit holds that amended guideline

method for calculating weight of LSD does not apply retroactively to mandatory minimum calculation. Defendant sought resentencing after the

method of calculating LSD quantities under the

Guidelines was amended and made retroactive. The

district court denied the motion, holding that the

amendment could not be applied retroactively because defendant was subject to a 10-year statutory

minimum sentence.

The appellate court affirmed. “We conclude that

the district court’s ruling is correct based on a logical reading of the policy statement to §2D1.1(c).

This policy statement provides that the new approach to calculating the amount of LSD ‘does not

override the applicability of “mixture or substance”

for the purpose of applying any mandatory minimum sentence (see Chapman; §5G1.1(b)).’ U.S.S.G.

§2D1.1, comment. (backg’d). The Chapman citation

refers to Chapman v. U.S., 500 U.S. 453 . . . (1991),

in which the Supreme Court held that the term

‘mixture or substance’ in 21 U.S.C. §841(b) required

the weight of the carrier medium for LSD to be included for purposes of determining the mandatory

minimum sentence. . . . A common sense interpretation of this policy statement leads to the inescapable conclusion that the mandatory minimum of

§841, calculated according to Chapman, overrides

the retroactive application of the new guideline.”

U.S. v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994)

(per curiam). Accord U.S. v. Mueller, 27 F.3d 494,

496–97 (10th Cir. 1994); U.S. v. Boot, 25 F.3d 52, 54–

55 (1st Cir. 1994). Contra U.S. v. Stoneking, 34 F.3d

651, 652–55 (8th Cir. 1994) [7 GSU #3].

See Outline at I.E, II.A.3, and II.B.1.
Adjustments

Obstruction of Justice

Ninth Circuit affirms there was sufficient nexus

between crime of conviction and reckless endangerment. Defendant committed an armed bank

robbery. He abandoned his stolen getaway car on

the same day, then four days later carjacked a taxicab. Local sheriffs were alerted after the carjacking

and tried to capture defendant, who led them on a

30-minute chase, drove straight at a police car, and

caused another police car to crash. The district

court imposed a §3C1.2 enhancement for reckless

endangerment during flight, finding that the car

chase was part of the effort to avoid apprehension

for the bank robbery as well as the carjacking. Defendant appealed, claiming there was no “nexus”

between the bank robbery—the offense of conviction—and his reckless behavior. Because the government did not challenge the assertion that

§3C1.2 requires such a nexus, the appellate court

“assume[d] without so holding” that a nexus is required. The court affirmed.

“A sufficient nexus exists to warrant enhancement under U.S.S.G. §3C1.2 if a substantial cause

for the defendant’s reckless escape attempt was to

avoid detection for the crime of conviction. In applying the nexus test, we look to the state of mind

of the defendant when he recklessly attempted to

avoid capture, not to why the police were pursuing

him. The factors of geographic and temporal proximity give some indication of causation, but are not

controlling determinates, particularly when the

defendant’s state of mind is established. On the day

of his escape attempt and capture, Duran informed

an agricultural worker that he had stolen a taxicab

and robbed a bank. Thus, one of the reasons he initiated the dangerous car chase was the bank robbery. The district court found the car chase was ‘in

efforts to avoid apprehension due to his commission of the bank robbery, as well as stealing the motor vehicle.’ The district court’s findings are not

clearly erroneous. There was sufficient nexus between the bank robbery and the car chase.”

U.S. v. Duran, 37 F.3d 557, 559–60 (9th Cir. 1994).

See Outline at III.C.3.

Supervised Release

Revocation of Supervised Release

Fifth Circuit holds that need for rehabilitation

may be considered in setting sentence after revocation. Defendant’s three-year term of supervised

release was revoked for drug possession under 18

U.S.C. §3583(g). He was thus subject to a minimum

term of one year in prison, and the district court

determined the maximum sentence allowed under

§3583(e)(3) was two years. The court imposed the

maximum, citing defendant’s need for drug rehabilitation as a reason for the length of the sentence.

The appellate court affirmed. “We now hold that

the language of 18 U.S.C. §3583(g), and the purposes and intent behind the statute, is best served

by permitting a district judge to consider a defendant’s need for rehabilitation in arriving at a specific sentence of imprisonment upon revocation of

supervised release. While we do not decide whether

rehabilitative needs can be used to determine

whether to impose imprisonment as an initial matter, once imprisonment is mandated by 18 U.S.C.

§3583(g) rehabilitative needs may be considered to

determine the length of incarceration within the

sentencing range.”

U.S. v. Giddings, 37 F.3d 1091, 1096–97 (5th Cir.

1994).

See Outline at VII.B.1 and 2.

Guideline Sentencing Update, vol. 7, no. 4, Jan. 6, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 5, February 3, 1995

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.

grams resulted in a guideline range of 46–57

months. However, the district court applied 21

U.S.C. § 841(b)(1)(B)(vii), which mandates a fiveyear minimum sentence for 100 kilograms of marijuana, concluding that defendant’s admission in the

plea agreement that the conspiracy involved over

100 kilograms indicated that defendant necessarily

foresaw that amount.

The appellate court remanded, concluding first

that the “indictment, plea agreement, and stipulation of facts merely describe . . . the quantity of

marijuana for which the conspiracy as a whole was

responsible. Aside from the 85 kilograms of marijuana for which Estrada admitted personal responsibility, they do not attribute an amount that was

within the scope of his agreement and that was reasonably foreseeable to him.” Defendant’s statements could not be read as an admission of responsibility for 100 kilograms of marijuana in the offense of conviction.

The government argued in the alternative that

the sentence was proper because the 79 kilograms

from Arizona that defendant agreed were relevant

conduct should also be included in the calculation

of the mandatory minimum amount. The appellate

court rejected that argument, agreeing with U.S. v.

Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993), that

“[t]he mandatory minimum sentence is applied

based only on conduct attributable to the offense of

conviction. . . . Because the 79 kilograms of marijuana from the Arizona conspiracy are not a part of

the offense charged in Count One, it could not be

properly considered in determining the applicability of the mandatory minimum sentence under

§ 841(b).” The court remanded for the district court

to make a specific factual determination of the

amount of marijuana attributable to defendant in

the offense of conviction, which it had not done before because it relied on the plea agreement.

U.S. v. Estrada, 42 F.3d 228, 231–33 (4th Cir.

1994) (Wilkins, C.J.). But cf. U.S. v. Reyes, 40 F.3d

1184, 1151 (10th Cir. 1994) (for defendant convicted

on one count of possession of cocaine with intent

to distribute, affirming inclusion of cocaine from

prior related transactions to reach mandatory minimum despite lower amount specified in indictment—defendant received notice in plea agreement

that minimum might apply).

See Outline at II.A.3.

Sentencing Procedure

Plea Bargaining—Dismissed Counts

En banc Fifth Circuit reconsiders, holds that

conduct in dismissed counts may be considered in

upward departure decision. Defendant pled guilty

to two bank robberies; two other bank robberies

were dismissed as part of the plea agreement. The

district court departed upward after finding that

defendant’s criminal history was underrepresented,

basing its decision in part on the dismissed robberies. In U.S. v. Ashburn, 20 F.3d 1336 (5th Cir. 1994)

[6 GSU #13], the appellate court remanded, holding

that “[c]ounts which have been dismissed pursuant

to a plea bargain should not be considered in effecting an upward departure.”

Upon reconsideration, however, the en banc

court held that prior criminal conduct related to

counts dismissed as part of a plea bargain may be

used to justify an upward departure. The court reasoned that § 4A1.3 “expressly authorizes the court

to consider ‘prior similar adult criminal conduct not

resulting in a criminal conviction.’ . . . Neither this

guideline nor its commentary suggests that an exception exists for prior similar criminal conduct

that is the subject of dismissed counts of an indictment. . . . We have found no statute, guidelines section, or decision of this court that would preclude

the district court’s consideration of dismissed

counts of an indictment in departing upward.”

U.S. v. Ashburn, 38 F.3d 803, 807–08 (5th Cir.

1994) (en banc) (two judges dissenting).

See Outline at IX.A.1.

Offense Conduct

Mandatory Minimums

Fourth Circuit holds that mandatory minimum

sentences are to be based only on conduct in the

offense of conviction. Defendant was convicted on

a charge of conspiracy to possess with intent to distribute and to distribute marijuana. The indictment

and plea agreement specified that the conspiracy

involved over 100 kilograms of marijuana, but the

agreement also stated that 85 kilograms was attributable to defendant. Defendant stipulated that another 79 kilograms from a separate marijuana conspiracy in Arizona was includable as relevant conduct under the Guidelines. The total of 164 kilo-
2 Guideline Sentencing Update, vol. 7, no. 5, February 3, 1995 • a publication of the Federal Judicial Center

Sixth Circuit holds that drug quantities from

different offenses may not be aggregated for mandatory minimum purposes. Defendant was convicted of a conspiracy to distribute cocaine base

that involved 23 grams. He was also convicted on a

separate possession charge that involved 37 grams

of cocaine base. The district court concluded that it

had “no discretion” and sentenced defendant under

21 U.S.C. § 841(b)(1)(A) for a violation of § 841(a)

involving 50 grams or more of cocaine base.

The appellate court remanded. “It is obvious

from the statute’s face—from its use of the phrase ‘a

violation’—that this section refers to a single violation. Thus, where a defendant violates subsection (a)

more than once, possessing less than 50 grams of

cocaine base on each separate occasion, subsection

(b) does not apply, for there is no single violation

involving ‘50 grams or more’ of cocaine base. This is

true even if the sum total of the cocaine base involved all together, over the multiple violations,

amounts to more than 50 grams.” The court noted

that “§ 841(b)(1)(A) is quite unlike the sentencing

guidelines,” which require aggregation of amounts

in multiple violations. Section 841(b)(1)(A) “requires

a court to consider separate violations of § 841(a)

without aggregating the amount of drugs involved.”

U.S. v. Winston, 37 F.3d 235, 240–41 & n.10 (6th

Cir. 1994).

See Outline at II.A.3.

Fourth Circuit holds that Guidelines method of

aggregating different drugs should not be used to

compute mandatory minimums. Defendant was

convicted of conspiracy to distribute cocaine and

cocaine base, and of possession with intent to distribute cocaine base. At sentencing, “the district

court attributed to Boone 4.23 kilograms of powder

cocaine and 9.24 grams of cocaine base, neither of

which, individually, meet the minimum drug

amounts of [21 U.S.C. §] 841(b)(1)(A). However, the

district court, utilizing the drug conversion tables of

U.S.S.G. § 2D1.1, comment (n.2), aggregated the

4.23 kilograms of cocaine and 9.24 grams of cocaine

base under U.S.S.G. § 2D1.1, comment (n.6) and

arrived at a total amount of 52 grams of cocaine

base. On this basis the district court invoked the

mandatory life provision of section 841(b)(1)(A). . . .

[W]hile aggregation may be sometimes required

under the Guidelines, ‘§ 841(b) provides no mechanism for aggregating quantities of different controlled substances to yield a total amount of narcotics.’” Defendant should have been sentenced under

§ 841(b)(1)(B) for the lower amounts.

U.S. v. Harris, 39 F.3d 1262, 1271–72 (4th Cir.

1994).

See Outline at II.A.3.

Adjustments

Obstruction of Justice

D.C. Circuit holds that clear and convincing evidence is required for application of § 3C1.1 to perjury in trial testimony. Defendant’s trial testimony

contradicted a police officer’s testimony. The trial

court found—by a preponderance of the evidence—

that defendant had committed perjury and applied

the § 3C1.1 enhancement for obstruction of justice.

Defendant appealed and the appellate court remanded, concluding that a higher standard of proof

was required.

Section 3C1.1, comment. (n.1) “direct[s] trial

judges to evaluate the testimony ‘in a light most favorable to the defendant.’ In our view, the enunciated standard exceeds a ‘preponderance of the evidence.’ . . . [W]e think that it is something akin to

‘clear-and-convincing’ evidence. . . . We have never

seen the preponderance-of-the-evidence standard

defined along the lines indicated in Application

Note 1 . . . . And we cannot imagine why the Sentencing Commission would have written the Application Note as it did had it intended nothing more

than the usual standard of proof. . . . [W]e hold that

when a district court judge makes a finding of perjury under section 3C1.1, he or she must make independent findings based on clear and convincing

evidence. The nature of the findings necessarily depends on the nature of the case. Easy cases, in

which the evidence of perjury is weighty and indisputable, may require less in the way of factual findings, whereas close cases may require more.”

U.S. v. Montague, 40 F.3d 1251, 1253–56 (D.C.

Cir. 1994). See also U.S. v. Onumonu, 999 F.2d 43, 45

(2d Cir. 1993) (evidence standard under Note 1 “‘is

obviously different—and more favorable to the defendant—than the preponderance-of-evidence standard’ [and] sounds to us indistinguishable from a

clear-and-convincing standard”).

See Outline at III.C.2.a and 5.

Eighth Circuit holds that obstruction at first

trial may be used to enhance sentence at second

sentencing after first conviction was reversed.

Defendant’s sentence was increased under § 3C1.1

for committing perjury during his trial testimony.

However, his conviction was reversed and remanded for retrial. He then pled guilty to a lesser charge.

The district court again imposed a § 3C1.1 enhancement based upon defendant’s perjury during

the first trial.

The appellate court affirmed. “A defendant’s

attempt to obstruct justice does not disappear

merely because his conviction has been reversed on

grounds having nothing to do with the obstruction.
Guideline Sentencing Update, vol. 7, no. 5, February 3, 1995• a publication of the Federal Judicial Center 3

The trial was part of the prosecution of the offense

to which defendant pleaded guilty on remand. Section 1B1.4 of the Sentencing Guidelines allows

courts to ‘consider, without limitation, any information concerning the . . . conduct of the defendant,

unless otherwise prohibited by law,’ in determining

whether to depart from the guideline range. Defendant does not deny that he lied under oath, nor

does he point us to any reason, other than the reversal of his conviction, that would serve to limit

the District Court’s ability to consider his perjury in

enhancing his sentence on remand. We hold that

the reversal of a conviction on other grounds does

not limit the ability of a sentencing judge to consider a defendant’s conduct prior to the reversal in

determining a sentence on remand.”

U.S. v. Has No Horse, No. 94-2365 (8th Cir. Dec.

14, 1994) (Arnold, C.J.).

See Outline generally at III.C.4.

Vulnerable Victims

Ninth Circuit holds that vulnerable victim need

not be victim of offense of conviction, also affirms

departure for extreme psychological injury to victims. Defendant pled guilty to several counts of obstructing an FBI investigation, making false statements to the FBI, and obstructing justice by giving

false testimony to a grand jury. All related to his

false claims of knowing the whereabouts of a longmissing child and the identity of her killer. Based

on the anguish suffered by the child’s family in having their hopes raised and then dashed by defendant’s “cruel hoax” (which included statements directed at the family), the district court enhanced his

sentence under § 3A1.1 even though the family was

not the direct victim of the offenses of conviction.

The appellate court affirmed. “We hold that

courts properly may look beyond the four corners

of the charge to the defendant’s underlying conduct

in determining whether someone is a ‘vulnerable

victim’ under section 3A1.1. By the words of the

provision itself, no nexus is required between the

identity of the victim and the elements of the crime

charged. . . . Moreover, the Guidelines specifically

instruct the district court to take into account in

adjusting the defendant’s base offense level ‘all

harm’ the defendant causes. U.S.S.G. § 1B1.3(a)(3).

We conclude that even though the harm Haggard

caused Michaela’s family members was not an element of any of the crimes of which he was convicted, the district court did not err in considering

them ‘vulnerable victims’ for purposes of section

3A1.1.” See also U.S. v. Echevarria, 33 F.3d 175, 180–

81 (2d Cir. 1994) (affirmed: patients were vulnerable

victims of defendant who posed as doctor to

fraudulently obtain medical payments from government and insurers—defendant “directly targeted

those seeking medical attention” and “exploit[ed]

their impaired condition”).

The court also affirmed an upward departure

under § 5K2.3 for extreme psychological injury to

victims. “In these circumstances, Michaela’s family

was a direct victim of Haggard’s criminal conduct.”

The court rejected defendant’s claim that applying

§ 5K2.3 and § 3A1.1 was double counting: “The two

provisions in question account for different aspects

of the defendant’s criminal conduct. One section focuses on the psychological harm the defendant

caused his victims. . . . The other section accounts

for the defendant’s choice of victims.” The court

similarly upheld a departure under § 5K2.8, finding

that the family was a direct victim of the offense

and that defendant’s conduct “was in fact unusually

cruel and degrading to Michaela’s family.”

U.S. v. Haggard, 41 F.3d 1320, 1325–27 (9th Cir.

1994).

See Outline at III.A.1.b, VI.B.1.d and e.

Acceptance of Responsibility

First Circuit holds that obstruction of justice

cannot preclude the extra-point reduction under

§ 3E1.1(b) unless it affects timeliness requirement.

Defendant received an obstruction enhancement

under § 3C1.1. The district court determined that

this was an “extraordinary case” where both § 3C1.1

and § 3E1.1(a) applied and granted a two-level reduction for acceptance of responsibility. However,

without analyzing whether defendant met the requirements of § 3E1.1(b), the court refused to grant

the extra-level reduction under that section.

The appellate court remanded, holding that once

the district court found that defendant qualified for

the two-point reduction under § 3E1.1(a), it had to

consider whether he qualified for § 3E1.1(b). “The

language of subsection (b) is absolute on its face. It

simply does not confer any discretion on the sentencing judge to deny the extra one-level reduction

so long as the subsection’s stated requirements are

satisfied. . . . [I]f a defendant’s obstruction of justice

directly precludes a finding of timeliness under section 3E1.1(b), then a denial of the additional onelevel decrease would be appropriate. If, however,

the defendant’s obstruction of justice has no bearing on the section 3E1.1(b) timeliness inquiry, . . .

then the obstruction drops from the equation.”

U.S. v. Talladino, 38 F.3d 1255, 1263–66 (1st Cir.

1994).

See Outline at III.E.5.
Guideline Sentencing Update, vol. 7, no. 5, Feb. 3, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Eighth Circuit affirms denial of extra-point reduction for guilty plea after first conviction was reversed. Defendants were convicted on four counts

after a trial, but their convictions were reversed on

appeal. They then pled guilty to one count and argued that the district court should have awarded a

point for timely acceptance of responsibility under

§ 3E1.1(b). The appellate court affirmed the denial.

“Even though each defendant pleaded guilty within

approximately three months of the reversal of his

convictions on initial appeal, we do not agree that

the government was saved much effort by those

pleas, since the bulk of preparation by the government was for the initial trial and could relatively

easily have been applied to the second trial as well.”

U.S. v. Vue, 38 F.3d 973, 975 (8th Cir. 1994).

See Outline at III.E.5.

General Application

Sentencing Factors

Tenth Circuit holds that post-sentencing conduct may not be considered at resentencing after

remand. Defendant’s first sentence was remanded

as an improper downward departure. At resentencing the district court again departed, partly on the

basis of defendant’s successful completion of sixmonth periods of community confinement and

home confinement. Distinguishing between a limited remand and, as here, a complete remand for

resentencing (“de novo resentencing”), the appellate court noted “that de novo resentencing permits

the receipt of any relevant evidence the court could

have heard at the first sentencing hearing.” U.S. v.

Ortiz, 25 F.3d 934, 935 (10th Cir. 1994) (affirmed:

district court properly considered new evidence regarding drug quantity in offense of conviction). Accord U.S. v. Bell, 5 F.3d 64, 67 (4th Cir. 1993); U.S. v.

Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).

Here, however, the appellate court held that the

rule in Ortiz does not apply to new conduct that

occurred after the first sentencing. “While [Ortiz]

indicates resentencing is to be conducted as a fresh

procedure, the latitude permitted is circumscribed

by those factors the court could have considered ‘at

the first sentencing hearing.’ Thus, events arising

after that time are not within resentencing reach.”

Whether or not a defendant’s post-sentencing rehabilitative conduct may provide a ground for downward departure, therefore, it was improper to consider it when resentencing this defendant.

U.S. v. Warner, No. 94-4113 (10th Cir. Dec. 19,

1994) (Moore, J.).

See Outline generally at I.C and IX.F.

————————————

Amended opinion: U.S. v. Mun, 41 F.3d 409, 413

(9th Cir. 1994). Amending the opinion originally decided July 18, 1994, and reported in 7 GSU #1, the

court deleted the language relating to comity. The

court still affirmed the sentence, but based its holding on the language of § 5G1.3 (1987): Section

“5G1.3’s provision mandating concurrent sentences

applies only if ‘the defendant is already serving one

or more unexpired sentences.’ At the time the federal court sentenced Mun he was not serving another sentence. The state sentence was imposed after the federal sentence. Therefore, § 5G1.3 did not

require the district court to alter its sentence to

make it run concurrently with the state sentence.”

See Outline at V.A.2 and 3.

Vacated for rehearing en banc: U.S. v. Stoneking,

34 F.3d 651 (8th Cir. 1994), order granting rehearing

en banc and vacating opinion, Sept. 16, 1994.

Stoneking was summarized in 7 GSU #3 and cited in

the summary of Pardue in 7 GSU #4.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 6, February 17, 1995

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.

Sentencing Procedure

Procedural Requirements

Second Circuit holds that defendant was entitled to notice before sentencing hearing that district court planned to sentence her under harsher

guideline than used in presentence report. Defendant pled guilty to assisting the filing of a false federal income tax return. The PSR based her sentence

on §2T1.4(a), with an ultimate guideline range of

0–6 months. At the sentencing hearing, however,

the district court took a different view of the facts

and used §2T1.9, leading to a sentence of ten

months. The appellate court remanded, concluding

that because the factors that determined which

guideline section to use were “reasonably in dispute,” see §6A1.3(a), defendant “was entitled to advance notice of the district court’s ruling and the

guideline upon which it was based.”

U.S. v. Zapatka, No. 93-1805 (2d Cir. Dec. 29,

1994) (Van Graafeiland, J.). Cf. U.S. v. Jackson, 32

F.3d 1101, 1106–09 (7th Cir. 1994) (remanding sua

sponte abuse of trust adjustment at sentencing

hearing because defendant had no notice it was

contemplated—“When the trial judge relies on a

Guideline factor not mentioned in the PSR nor in

the prosecutor’s recommendation, contemporaneous notice at the sentencing hearing . . . fails to

satisfy the dictates of Rule 32”) (note: although

concurring in the result, two judges on the panel

did not join this part of the opinion).

See Outline at IX.E.

Determining the Sentence

Supervised Release

Sixth Circuit holds that Anti-Drug Abuse Act of

1986 did not limit district court discretion to end

supervised release after one year. Defendant was

sentenced under 21 U.S.C. §841(b)(1)(C), which requires a three-year term of supervised release. One

year later, however, the district court terminated

defendant’s supervised release early pursuant to 18

U.S.C. §3583(e)(1). The government argued that the

requirement for a three-year term in §841(b)(1)(C),

enacted as part of the Anti-Drug Abuse Act of 1986,

overrode §3583(e)(1) and therefore the district court

had no authority to end defendant’s supervised release early. The appellate court disagreed, concluding that when Congress enacted the ADAA “it only

partially limited a court’s discretionary authority to

impose the sentence. Congress did not alter the

court’s separate authority to terminate a sentence

of supervised release, under 18 U.S.C. §3583(e)(1),

if the conduct of the person and the interest of justice warranted it. . . . [W]e hold that a district court

has discretionary authority to terminate a term of

supervised release after the completion of one year,

pursuant to 18 U.S.C. §3583(e)(1), even if the defendant was sentenced to a mandatory term of supervised release under 21 U.S.C. §841(b)(1)(C) and 18

U.S.C. §3583(a).”

U.S. v. Spinelle, 41 F.3d 1056, 1059–61 (6th Cir.

1994).

See Outline generally at V.C.

Fines

Second Circuit holds that imposition of punitive fine is not required before cost of imprisonment fine may be imposed. The district court did

not impose a punitive fine under §5E1.2(a) and (c),

but did impose a fine under §5E1.2(i) to cover the

costs of defendant’s imprisonment and post-release

supervision. The appellate court affirmed, holding

“that §5E1.2 does not require the district court to

impose a fine under §5E1.2(c) before it can impose

a fine measured by the cost of imprisonment under

§5E1.2(i). We read the word ‘additional’ in subsection (i) as an expression of the Sentencing Commission’s intention that a defendant’s total fine,

including the cost of imprisonment, may exceed

the relevant fine range listed in subsection (c). . . .

[T]he total fine is the significant figure. . . . If the

defendant is not able to pay the entire fine amount

that the court would otherwise impose pursuant to

subsections (c) and (i), the district court may exercise its sound discretion in determining which of

the two subsections (or which combination of

them) to rely upon in pursuing the goals of sentencing. . . . [T]he fine money goes into the Crime

Victims Fund regardless of which subsection the

district court selects.”

Three circuits now hold that a punitive fine is

not required before a cost of imprisonment fine;

four hold that it is.

U.S. v. Sellers, 42 F.3d 116, 119–20 (2d Cir. 1994).

See Outline at V.E.2.
2 Guideline Sentencing Update, vol. 7, no. 6, February 17, 1995 • a publication of the Federal Judicial Center

Adjustments

Role in Offense

Seventh Circuit holds that if number of persons

is sole basis for finding activity was “otherwise extensive,” that number must be more than five. Defendant was convicted of extortion offenses and

given a §3B1.1(a) enhancement for being the organizer of an “otherwise extensive” criminal activity.

That finding was based solely on the fact that five

persons were involved in the extortions—defendant,

two other criminally responsible participants, and

two “outsiders.” The appellate court held that this

was improper. “The involvement of five individuals,

not all of whom are ‘participants,’ does not, without

more, justify a finding that criminal activity was

‘otherwise extensive.’ . . . Although the meaning of

‘otherwise extensive’ is unclear, we must interpret

that term in a manner that does no violence to the

remainder of Section 3B1.1. Given the Section’s five

participant prong, it would be anomalous to conclude that the presence of five individuals—not all

of whom are participants—warranted an increase.

. . . If a district court intends to rely solely upon the

involvement of a given number of individuals . . . , it

must point to some combination of participants

and outsiders equaling a number greater than five.”

U.S. v. Tai, 41 F.3d 1170, 1174–75 (7th Cir. 1994).

See Outline at III.B.3.

Seventh Circuit holds that status as distributor,

without more, did not warrant §3B1.1(a) enhancement. Defendant was convicted of conspiracy to

distribute marijuana, possession of marijuana with

intent to distribute, and money laundering. He purchased marijuana from coconspirators in Arizona

and transported it back to Illinois for sale. He

worked closely with several of the coconspirators,

occasionally transported marijuana for one of them,

and for a time subleased from one coconspirator a

house used to process and store marijuana. The

district court imposed a §3B1.1(a) enhancement,

concluding that defendant was an organizer or

leader of a criminal activity that involved five or

more participants and was “otherwise extensive.”

The appellate court remanded, concluding that

defendant did not, in fact, organize or lead any

other participants but operated within the conspiracy as an independent buyer and seller. The district

court had reasoned that defendant “was at the top

of a drug distribution network [and] exercised total

decision making authority over his marijuana purchases.” The appellate court held that “by itself,

being a distributor, even a large distributor like

Mustread, is not enough to support a §3B1.1 offense level increase. . . . If the record does not show

that he [was an organizer or leader], if the defendant maintained no real guiding influence or authority over the purchasers, a §3B1.1 adjustment is

inappropriate. . . . And the record does not show

that Mustread had influence or authority over anybody to whom he distributed. Similarly, that Mustread ‘exercised total decision making authority over

his marijuana purchases’ cannot, by itself, support

the conclusion that Mustread played an aggravated

role. One can make decisions for oneself without

having authority or influence over others. The trial

judge’s reasoning does support the conclusion that

Mustread committed the crimes of which he was

convicted, but it is a significant extension from that

to the conclusion that Mustread had an aggravated

role relative to other participants.” Defendant “exercised no decision making authority over other participants. He made decisions for himself, but the

record does not show that he decided anybody

else’s course of action.”

U.S. v. Mustread, 42 F.3d 1097, 1103–05 (7th Cir.

1994).

See Outline at III.B.4.

Offense Conduct

Loss

Ninth Circuit holds that cost of committing

crime is not subtracted from value of goods in calculating loss. Defendant was convicted of theft of

government property for harvesting and selling federal timber taken from U.S. Forest Service land. In

calculating the loss under §2B1.1(b)(1), the district

court used the value of the stolen timber. Defendant argued that “this amount erroneously includes

the portion of the profit that was spent to cover logging expenses,” which he would subtract from the

gross value to measure the loss as defendant’s “net

gain.” The appellate court disagreed and affirmed

the district court. “We do not subtract the costs of

pulling off the caper when we calculate the value

of stolen property. Although being cut and carted

away is surely a significant event from the perspective of a tree, it is not an economically significant

event” for purposes of §2B1.1(b)(1).

U.S. v. Campbell, 42 F.3d 1199, 1205 (9th Cir.

1994).

See Outline generally at II.D.1.

Drug Quantity—Relevant Conduct

Eleventh Circuit holds that earlier drug sale was

not part of relevant conduct. Defendant was convicted of conspiracy to distribute dilaudid plus one
Guideline Sentencing Update, vol. 7, no. 6, February 17, 1995• a publication of the Federal Judicial Center 3

count of cocaine distribution that was directly related to the dilaudid conspiracy. The district court

included as relevant conduct another cocaine distribution that was not part of the dilaudid conspiracy. Adopting the test for “similarity, regularity,

and temporal proximity” used by other circuits (and

now in §1B1.3, comment. (n.9(B)) (Nov. 1994)), the

appellate court remanded. “Maxwell’s counts of

conviction involve a dilaudid distribution scheme.

The extrinsic offense, on the other hand, involved a

cocaine distribution scheme. Other than Maxwell,

the dilaudid distribution scheme and the cocaine

distribution scheme did not involve any of the

same parties.” Also, the two cocaine transactions

occurred more than a year apart, so “these acts are

temporally remote.” The court concluded that “we

cannot say that there are any ‘distinctive similarities’ between the dilaudid distribution scheme and

the cocaine distribution scheme that ‘signal that

they are part of a single course of conduct.’ Rather,

the two offenses appear to be ‘isolated, unrelated

events that happen only to be similar in kind.’ We

do not think that two offenses constitute a single

course of conduct simply because they both involve

drug distribution.”

U.S. v. Maxwell, 34 F.3d 1006, 1010–11 (11th Cir.

1994).

See Outline at I.A.2 and II.A.1.

Departures

Aggravating Circumstances

Eighth Circuit affirms departure for dangerous

nature of weapon involved in weapons offense.

Defendant pled guilty to the possession of a firearm

in a school zone. The district court held that an upward departure was warranted under §5K2.6 “due

to the dangerousness of the weapon involved”—a

semi-automatic pistol—in close proximity to a

school. Defendant argued on appeal that §5K2.6

may only be used to enhance a non-weapons

charge. The appellate court held that “this reading

of section 5K2.6 is too narrow. . . . Even where the

applicable offense guideline and adjustments take

into consideration a factor listed in the policy statements, departure from the applicable guideline

range is warranted if the factor is present to a degree substantially in excess of that which is ordinarily involved in the offense. . . . The base offense

guideline for 18 U.S.C. §922(q) penalizes simply the

possession of a firearm within a school zone. See

U.S.S.G. §2K2.5. It does not take into account

whether the firearm was loaded, semi-automatic,

easily accessible, or had an obliterated serial number. See id. All of these aggravating facts appear

here. For an especially serious weapon, the district

court has leeway to enhance the sentence accordingly, even in a weapons charge.”

U.S. v. Joshua, 40 F.3d 948, 951–52 (8th Cir.

1994). See also U.S. v. Thomas, 914 F.2d 139, 143–44

(8th Cir. 1990) (without reference to §5K2.6, affirmed departure based on dangerous nature of

fully loaded weapons for defendant convicted of

possession of firearms by a convicted felon).

See Outline generally at VI.B.1.a.

Criminal History

Tenth Circuit reverses upward departure because dissimilar remote criminal conduct was not

sufficiently serious. Defendant had 14 prior convictions, 13 of which were not counted in his criminal

history score because they were too remote under

§4A1.2(e). The district court departed because of

“the very extensive prior adult criminal conviction

record of this defendant,” increasing his criminal

history category from I to III. The prior convictions

were not similar to the current offense, but the

court did not specify that the remote convictions

comprised “serious dissimilar” criminal conduct so

as to warrant departure pursuant to §4A1.2, comment. (n.8).

The appellate court remanded. In light of Note

8, “the upward departure can only be valid if the

record showed ‘serious dissimilar’ conduct by the

defendant.” The record showed that the prior conduct should not be considered “serious.” First, “defendant had never before been given a sentence of

imprisonment exceeding one year and one month,

a standard used in the Guidelines in setting the

number of points assigned to prior convictions,” see

§4A1.1(a), and thus an indication of seriousness.

Second, “little, if any, weight should have been

given to the eight misdemeanor convictions which

occurred more than 30 years prior to defendant’s

arrest in the instant case.” A 1970 conviction for

“assault on a female” may or may not have been serious, but “no evidence was produced regarding

Wyne’s underlying prior criminal conduct other

than the fact of conviction, the offense or offenses

included, and the sentence imposed. This is significant because . . . ‘assault on a female’ in . . . the

state of conviction, can consist of mere verbal accosting.” The government did not meet its burden

of providing evidence that “it was ‘serious dissimilar’ conduct, within the meaning of the Guidelines.”

Lastly, the court concluded that defendant’s four remote DUI convictions (from 1974 to 1982) could

not, when “distinguishing offenses to be regarded as
Guideline Sentencing Update, vol. 7, no. 6, Feb. 17, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

‘serious’ from within the realm of all criminal behavior, . . . qualify as serious criminal conduct justifying the decision to depart.”

U.S. v. Wyne, 41 F.3d 1405, 1408–09 (10th Cir.

1994).

See Outline at VI.A.1.b.

General Application

Double Jeopardy

Seventh Circuit affirms consecutive sentences

for RICO offense and pre-Guidelines predicate act

offenses. Defendants were convicted of a RICO violation, to which the Guidelines applied, and of several other offenses that served as the predicate acts

supporting the RICO conviction and were sentenced

under pre-Guidelines law. The district court made

the Guidelines and pre-Guidelines sentences consecutive. Defendants appealed, arguing that separate consecutive sentences for the predicate acts—

which were used to increase their Guidelines sentences for the RICO offense—subjected them to

multiple punishment for the same offense in violation of the Double Jeopardy Clause.

The appellate court affirmed. “Perhaps the

simple answer to this problem is, given that RICO

and the predicate acts are not the same offense,

Defendants clearly were never punished twice for

the same crime: Defendants were punished once

for racketeering and once (but separately) for extortion, gambling, and interstate travel. It just so happens the Sentencing Guidelines consider the predicate racketeering acts (i.e. extortion, gambling, and

interstate travel) relevant to computing the appropriate sentence for racketeering. See U.S.S.G.

§2E1.1(a). Though the commission of these acts increased the racketeering sentence, the Defendants

were punished for racketeering—the predicate acts

were merely conduct relevant to the RICO sentence.

. . . Provided Defendants could be convicted for

both RICO and predicate act offenses (which they

could) and provided the sentencing court could

consider the predicate acts in assessing the RICO

sentence insofar as they were conduct relevant to

the RICO act (which it could) no double jeopardy

problem portends.”

U.S. v. Morgano, 39 F.3d 1358, 1367 (7th Cir.

1994).

See Outline at I.A.4.

______________________________

Certiorari granted: U.S. v. Wittie, 25 F.3d 250 (5th

Cir. 1994), cert. granted, Witte v. U.S., 115 S. Ct. 715

(Jan. 6, 1995) (note: spelling of name corrected in

Supreme Court). Question presented: Does government prosecution and punishment for offense violate Double Jeopardy Clause if it already was included in relevant conduct for sentencing under

federal sentencing guidelines in different and final

prosecution? See summary of Wittie in 6 GSU #16

and Outline at I.A.4.

A note to readers

Issues in volume 7 of Update are now available electronically via the Federal Judicial

Center’s Internet home page. Issues from earlier volumes will be added in the future. Information on how to download files and necessary software is included. Issues will be placed

there as soon as they are completed, so they

will be available there approximately two

weeks before you receive your paper copy.

The Internet address is http://www.fjc.gov.

A Web browser like Mosaic or Netscape is required for access to the home page.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 7, April 21, 1995

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.

Violation of Probation and

Supervised Release

Seventh Circuit overrules Lewis, holds that

Chapter 7 policy statements are not binding. In

U.S. v. Lewis, 998 F.2d 497 (7th Cir. 1993), the Seventh Circuit held that all policy statements—including those in Chapter 7—are binding on district

courts unless they contradict a statute or guideline.

However, after reevaluating Supreme Court precedent and noting that every other circuit to decide

the issue has held that Chapter 7 is not binding, the

court overruled Lewis. “The policy statements in

Chapter 7 . . . are neither Guidelines nor interpretations of Guidelines. They tell the district judge how

to exercise his discretion in the area left open by

the Guidelines and the interpretive commentary on

the Guidelines. Such policy statements are entitled

to great weight because the Sentencing Commission is the expert body on federal sentencing, but

they do not bind the sentencing judge. Although

they are an element in his exercise of discretion and

it would be an abuse of discretion for him to ignore

them, they do not replace that discretion by a rule.”

U.S. v. Hill, 48 F.3d 228, 230–32 (7th Cir. 1995).

See Outline at VII.

Offense Conduct

Mandatory Minimums

Third, Sixth, and Seventh Circuits hold that

amended guideline method for calculating the

weight of LSD does not apply retroactively to calculation for mandatory minimums; Ninth Circuit

holds that it does. The Third, Sixth, and en banc

Seventh Circuits all affirmed district court refusals

to apply retroactively the guideline amendments for

calculating LSD weight, see §2D1.1(c) at n.* and

comment. (n.18 and backg’d), to the calculation of

LSD amounts for mandatory minimum sentences.

The courts concluded that Chapman v. U.S., 500

U.S. 453 (1991), still applies and the weight of the

LSD and its carrier medium should be used for

mandatory minimum purposes.

U.S. v. Hanlin, 48 F.3d 121, 124–25 (3d Cir. 1995);

U.S. v. Andress, 47 F.3d 839, 841 (6th Cir. 1995) (per

curiam); U.S. v. Neal, 46 F.3d 1405, 1408–11 (7th Cir.

1995) (en banc) (three judges dissenting). See also

summary of Pardue in 7 GSU #4.

The Ninth Circuit, however, held that the

amended guideline method should be used for

mandatory minimum calculations. The court found

persuasive the reasoning in U.S. v. Stoneking, 34

F.3d 651 (8th Cir. 1994) [7 GSU #3], although it acknowledged that Stoneking was vacated for rehearing en banc. “It is our belief that the assignment of

a uniform and rational weight to LSD on a carrier

medium does not conflict with Chapman. . . .

Rather than ‘overriding’ Chapman’s interpretation of

‘mixture or substance,’ the formula set forth in

Amendment 488 merely standardizes the amount of

carrier medium that can be properly viewed as

‘mixed’ with the pure drug.”

U.S. v. Muschik, No. 93-30461 (9th Cir. Feb. 28,

1995) (Wood, Sr. J.) (remanded).

See Outline at II.A.3 and II.B.1.

Calculating Weight of Drugs

Ninth Circuit holds that the one kilogram per

plant conversion ratio for marijuana is not limited

to seizures of live plants. Defendant pled guilty to

manufacturing and possessing with intent to distribute “at least one hundred marijuana plants.” She

admitted growing and harvesting the marijuana,

but argued that the sentence should be based on

the 10–20 kilograms of dried marijuana that was actually harvested from the plants. The district court

found that defendant had grown and harvested at

least one hundred marijuana plants and based her

offense level on the one plant equals one kilogram

ratio in §2D1.1(c) at n.* (“In the case of an offense

involving marijuana plants, if the offense involved

(A) 50 or more marijuana plants, treat each plant as

equivalent to 1 KG of marijuana . . . ”).

The appellate court affirmed, holding that the

kilogram conversion ratio may be applied to a

grower when live plants were not actually seized

but there is sufficient evidence to prove the number

of plants involved. The court noted that its decision

in U.S. v. Corley, 909 F.2d 359 (9th Cir. 1990), indicating that the ratio should be used only when live

plants are seized, was based on earlier versions of

the Guidelines and 21 U.S.C. §841(b). The Guidelines were changed in Nov. 1989 after §841(b) was

amended to increase its ratio from 100 grams per

plant to one kilogram per plant for more than fifty

plants. The Ninth Circuit has “explained that Congress did not introduce the one kilogram conver-
2 Guideline Sentencing Update, vol. 7, no. 7, April 21, 1995 • a publication of the Federal Judicial Center

sion ratio because that quantity provided any

evidentiary ‘estimate’ of the potential yield of a

marijuana plant . . . . Congress imposed that conversion ratio because it provided a degree of punishment determined appropriate for producers of

50 or more marijuana plants.” Following this “underlying purpose behind the one kilogram conversion ratio,” the court held “that the one kilogram

conversion ratio applies even when live plants are

not seized. . . . When sufficient evidence establishes

that defendant actually grew and was in possession

of live plants, then conviction and sentencing can

be based on evidence of live plants. The fact that

those plants were eventually harvested, processed,

sold, and consumed does not transform the nature

of the evidence upon which sentencing is based

into processed marijuana.”

U.S. v. Wegner, 46 F.3d 924, 925–28 (9th Cir. 1995).

Accord U.S. v. Haynes, 969 F.2d 569, 571–72 (7th Cir.

1992). Other circuits have held that the kilogram

equivalence is limited to live plants. See U.S. v.

Stevens, 25 F.3d 318, 321–23 (6th Cir. 1994); U.S. v.

Blume, 967 F.2d 45, 49–50 (2d Cir. 1992); U.S. v.

Osburn, 955 F.2d 1500, 1509 (11th Cir. 1992).

See Outline at II.B.2.

General Application

Sentencing Factors

Second Circuit holds that Guidelines are mandatory. Without notice to the government or findings

based on the Guidelines, the district court departed

downward from defendants’ guideline ranges, concluding that “the Guidelines are one of several factors to be considered in imposing sentence, and are

not necessarily controlling. . . . [T]he court determined that, in the case before it, the Sentencing

Guidelines did not govern because the 24 to 30

month range was ‘greater than necessary’ to

achieve general punishment purposes as that

phrase is used in 18 U.S.C. §3553(a). The court

therefore imposed lesser sentences, noting without

findings or particulars that the ‘sentences imposed

would be appropriate’ even if the Guidelines were,

in fact, binding.”

The appellate court remanded. “Notwithstanding that the Guidelines appear to be but one of several factors to be considered by a sentencing court,

the statute goes on to say that the court ‘shall impose a sentence of the kind, and within the [Guidelines] range . . . unless the court finds that there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration by the Sentencing Commission. . . .’ 18

U.S.C. §3553(b). Thus, although subsection (a) fails

to assign controlling weight to the Guidelines, subsection (b) does so. . . . We hold that section 3553

requires a court to sentence within the applicable

Guidelines range unless a departure, as that term

has come to be understood, is appropriate.” The

court remanded for consideration of whether “permissible bases for downward departure exist.”

U.S. v. DeRiggi, 45 F.3d 713, 716–19 (2d Cir.

1995).

See Outline at I.C.

Departures

Substantial Assistance

Eighth Circuit holds that government may,

within limits, apply substantial assistance motion

to only some of defendants’ multiple mandatory

minimum sentences. Defendants were each subject

to three mandatory minimum sentences for drug

and weapons offenses. The government filed substantial assistance motions under §5K1.1 and 18

U.S.C. §3553(e), but limited the §3553(e) motions

to only one of the mandatory minimums for each

defendant. The district court accepted this limitation as valid and sentenced defendants accordingly.

The appellate court agreed that the government

could so limit its §3553(e) motion. “The issue before us is whether the term ‘a sentence’ in §3553(e)

refers to each offense of conviction when multiple

mandatory minimums are involved, or to the total

sentence imposed by reason of the conviction. Although the word ‘sentence’ is not defined in Chapter 227 of the Criminal Code (18 U.S.C. §§ 3551–

3586) . . . numerous provisions in that Chapter

make it clear that ‘a sentence’ is imposed for each

offense of conviction. . . . Likewise, the Guidelines

recognize that each offense in a multicount conviction receives a separate sentence, even though

many counts may be grouped or sentenced concurrently in determining the total Guidelines prison

sentence. . . . Thus, we conclude that the plain language of §3553(e) authorizes the government to

make a separate substantial assistance motion decision for each mandatory minimum sentence to

which a defendant is subject.”

However, the government may not limit its motion for improper reasons, such as controlling the

length of the sentence. “[T]he government’s statements at the evidentiary hearing suggest that its

motions were limited in scope at least in part . . . to

reduce the district court’s discretion to depart from

the government’s notion of the appropriate total

sentences . . . . The prosecutor’s role in this aspect

of sentencing is limited to determining whether the

defendant has provided substantial assistance with
Guideline Sentencing Update, vol. 7, no. 7, April 21, 1995• a publication of the Federal Judicial Center 3

respect to ‘a sentence,’ advising the sentencing

court as to the extent of that assistance, and recommending a substantial assistance departure. . . . The

desire to dictate the length of a defendant’s sentence for reasons other than his or her substantial

assistance is not a permissible basis for exercising

the government’s power under §3553(e).” The court

remanded “to permit the government either to file

new §3553(e) motions or to provide satisfactory assurance to the district court that its prior motions

were based solely upon its evaluation of the

Stockdalls’ respective substantial assistance.”

U.S. v. Stockdall, 45 F.3d 1257, 1260–61 (8th Cir.

1995).

See Outline generally at VI.F.3 and 4.

Second Circuit holds that Rule 35(b) motion

cannot be denied without affording defendant an

opportunity to be heard. Defendant received a

§5K1.1 downward departure for substantial assistance. He continued to cooperate after sentencing

and the government later made a motion under

Fed. R. Crim. P. 35(b) for a further reduction. Before

defendant even knew the motion had been filed the

district court denied it, stating that defendant’s

criminal conduct was too serious to permit an even

lower sentence. Defendant argued that summary

dismissal of the motion without giving him an opportunity to be heard violated Rule 35(b), denied

him due process, and was an abuse of discretion.

The appellate court agreed and remanded. The

court reasoned that the same process for §5K1.1

motions should be applied to Rule 35(b) because

the “only practical difference between” the two motions “is a matter of timing”—one is for substantial

assistance before, the other after, sentencing. In

§5K1.1 motions “the exercise of discretion requires

that the court give the real party in interest an opportunity to be heard. A defendant must have an

opportunity to respond to the government’s characterization of his cooperation.” In light of this, and a

defendant’s right to challenge the government’s refusal to file a §5K1.1 motion in some instances, the

court concluded “that just as a defendant may comment on the government’s refusal to move under

§5K1.1, a defendant should be able to comment on

the inadequacy of the government’s motion under

that section or under Rule 35(b).”

The government argued that defendant’s opportunity to be heard at the original sentencing was

adequate, but the court disagreed: “The Rule 35(b)

motion here concerned events that had not yet occurred at the time of the sentencing hearing in February 1993. Obviously, Gangi did not have an opportunity to be heard at that time as to those

events. . . . [F]airness requires that a defendant at

least be allowed to comment on the government’s

motion. . . . We therefore hold that a defendant must

have an opportunity to respond to the government’s

characterization of his post-sentencing cooperation

and to persuade the court of the merits of a reduction in sentence. While we rest our decision on the

requirements of Rule 35, we recognize that failure

to afford an opportunity to be heard would raise

grave due process issues. Our holding does not

mean that the defendant is entitled to a full evidentiary hearing, as distinguished from a written

submission. Whether such a hearing is necessary is

left to the discretion of the district court.”

U.S. v. Gangi, 45 F.3d 28, 30–32 (2d Cir. 1995).

See Outline generally at VI.F.4.

Criminal History

Second Circuit holds that Guidelines do not authorize use of unrelated, uncharged foreign criminal conduct for criminal history departure. Defendant pled guilty to possessing fraudulent alien registration cards. The district court imposed an upward departure—from criminal history category I to

IV—on the basis of the government’s claims that

defendant previously engaged in homicide, terrorism, and drug trafficking while working for the

Medellin drug cartel in Colombia, conduct for

which he was never charged or convicted.

The appellate court remanded, holding that the

Guidelines authorize some consideration of foreign

convictions or sentences, but not other alleged

criminal conduct. Under §§4A1.1–1.3, the court reasoned, “not even foreign sentences may be used initially in determining the criminal history category,

but they may be used, like a [domestic] pending

charge, as the basis for an upward departure. In

light of these precise provisions as to how charges

and foreign sentences may be used, it is significant

that nowhere do the Guidelines specifically authorize the use of unrelated, uncharged foreign criminal conduct, or even foreign arrests, for a departure

in the criminal history category.” The court also

concluded that even if §4A1.3(e)’s consideration of

“prior similar adult criminal conduct not resulting

in a criminal conviction . . . might reasonably be

extended to include criminal conduct in a foreign

country, a court might properly consider that conduct only if it is ‘similar’ to the crime of conviction.

Chunza’s alleged prior acts of homicide, terrorism,

and drug trafficking in Colombia are not ‘similar’ to

his possession of false immigration documents in

the United States.”

U.S. v. Chunza-Plazas, 45 F.3d 51, 56–57 (2d Cir.

1995).

See Outline generally at VI.A.1.c.
Guideline Sentencing Update, vol. 7, no. 7, April 21, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Mitigating Circumstances

Ninth Circuit holds that whether offense level

“overrepresents the defendant’s culpability” under

Note 16 of §2D1.1 is independent of qualification

for §3B1.2 adjustment. Defendants were part of a

large cocaine conspiracy and personally delivered

738 and 200 kilograms, respectively, from a stash

house to various locations. They pled guilty and argued that they should receive departures under

§2D1.1, comment. (n.16), because they had base offense levels above 36 and received §3B1.2 mitigating role adjustments. The district court refused to

depart because defendants’ offense levels did not

overrepresent their culpability in the criminal activity. Defendants argued on appeal that “whether the

base offense level referred to in [Note 16’s] clause

(A) ‘overrepresents the defendant’s culpability’ is

determined solely by whether or not the defendant

qualifies for a mitigating role adjustment under

§3B1.2. In their view, if the defendant qualifies for a

minor role adjustment, he also qualifies for a downward departure.”

The appellate court disagreed, concluding that

“the defendants’ reading of Note 16 would make

clause (B) irrelevant. For if ‘overrepresentation’ were

satisfied whenever a minor role adjustment was

found, there would be no need for a distinct determination of ‘overrepresentation.’ . . . The issue is

whether the original base offense level, set by the

amount of the controlled substance the defendant

is ‘accountable’ for under §1B1.3, is commensurate

with the defendant’s involvement in the crime. . . .

In this case the defendants were only charged at a

level reflecting drugs that they actually transported

or handled. If that established a base level higher

than their culpability, the district court could depart

downward. We conclude that the district court

properly considered various equities and degrees of

involvement before it declined to depart downward.

Because the district court did not err in its interpretation of Note 16, its discretionary denial of a

downward departure is not reviewable.”

U.S. v. Pinto, 48 F.3d 384, 387–88 (9th Cir. 1995).

See Outline generally at III.B.7 and VI.C.5.a.

Criminal History

Criminal Livelihood Provision

Seventh Circuit holds that proof showing defendant derived requisite amount of income from

criminal activity may be indirect. Defendant pled

guilty to possession of stolen mail and his criminal

record showed a lengthy history of mail theft. He

admitted to having a $100 to $150 per day heroin

habit and that he stole mail to support his addiction. The government did not present direct evidence that defendant had stolen the equivalent of

2,000 times the hourly minimum wage (approximately $8,500 at the time), the threshold amount

for application of §4B1.3, and defendant only admitted to possessing $2,741 worth of stolen mail for

the year. However, the appellate court held that the

district court properly applied §4B1.3 based on all

of the evidence in context. Defendant’s own estimates indicated that his “heroin habit required over

$8,500 a year. The evidence also showed that Taylor

had no legitimate income for the twelve months

prior to his arrest, that he held a job for only three

months in the prior eleven years, and that he had

an extensive history in the mail theft business. This

evidence is certainly relevant to the application of

this enhancement and, after considering it all in

context, the court had no difficulty concluding that

Taylor stole the required amount from the mails

that year in order to live and feed his drug habit.”

U.S. v. Taylor, 45 F.3d 1104, 1106–07 (7th Cir.

1995).

See Outline generally at IV.B.3.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 8, May 31, 1995

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.

and their timing is a judicial function and therefore is

non-delegable.”

U.S. v. Johnson, 48 F.3d 806, 807–09 (4th Cir. 1995).

Accord U.S. v. Porter, 41 F.3d 68, 71 (2d Cir. 1994); U.S.

v. Albro, 32 F.3d 173, 174 (5th Cir. 1994) (timing and

amount of payments); U.S. v. Gio, 7 F.3d 1279, 1292–

93 (7th Cir. 1994) (same). But cf. U.S. v. Clack, 957

F.2d 659, 661 (9th Cir. 1992) (indicating court may set

upper limit of total restitution and delegate to probation officer timing and amount of payments).

See Outline at V.D.1.

Departures

Mitigating Circumstances

Second Circuit affirms downward departure

based on small quantities of drugs distributed by

defendants at any one time during conspiracy. Two

defendants were low-level employees in a drug conspiracy. Although they handled only small amounts

of drugs at any one time, they worked for several

months and, under the Guidelines, were held responsible for 7 and 2–3 kilograms of crack cocaine,

yielding minimum sentences of 235 and 188 months.

However, the sentencing judge thought this result

overstated defendants’ culpability and looked at

their conduct in terms of the “‘quantity/time factor’—what the Judge explained as ‘the relationship

between the amount of narcotics distributed by a defendant and the length of time it took the defendant

to accomplish the distribution.’” Reasoning that

Congress authorized severe sentences mainly for

“stereotypical drug dealers” who move large

amounts of drugs and make lots of money, and that

“those who deal in kilogram quantities of narcotics

are more culpable than the street peddler who sells

$10 bags,” the court determined that “the ‘quantity/

time factor’ was a factor that had not been ‘adequately taken into consideration by the Sentencing

Commission in formulating the Guidelines’” for

those who deal in small quantities over a long period.

In setting the extent of a departure for such defendants, the court concluded that “the appropriate

time period that would correlate culpability (and

hence punishment) with drug quantity should vary

depending on the defendant’s role, [and] the appropriate period for a sporadic street-level dealer might

be one day, for a more regular distributor, one week,

and for those involved at higher levels of a narcotics

Determining the Sentence

Restitution

Fourth Circuit holds that final decisions about

amount of restitution and schedule and amounts of

payments cannot be delegated to probation officer.

The district court ordered that “defendant shall make

restitution of not less than $6,000.00 but not more

than $35,069.10, in such amounts and at such times

as may be directed by the Bureau of Prisons and/or

the probation officer. Restitution payments of not

less than $100.00 per month shall be made during

the period of supervised release and payments shall

be greater if the probation officer determines the defendant is capable of paying more. . . . Restitution in

this case, just like in any other case, can be adjusted

appropriately by the probation officer or the Court,

depending on the defendant’s ability to pay, should

that change either upwardly or downwardly.”

The appellate court remanded. “The question presented in this case is whether the court may . . . delegate to a probation officer the authority to determine, within a range, the amount of restitution or the

amount of installment payments of a restitution order. We hold that this delegation from a court to a

probation officer would contravene Article III of the

U.S. Constitution and is therefore impermissible. . . .

Sections 3663 and 3664 of Title 18 clearly impose on

the court the duty to fix terms of restitution. This

statutory grant of authority to the court must be read

as exclusive because the imposition of a sentence, including any terms for probation or supervised release, is a core judicial function. . . . In this case, the

district court appears to have delegated to the probation officer the final authority to determine the

amount of restitution and the amount of installment

payments (albeit within a range), without retaining

ultimate authority over such decisions (such as by requiring the probation officer to recommend restitutionary decisions for approval by the court). The

order was understandably fashioned to address a

situation where the defendant did not have assets to

pay restitution immediately but had the capacity to

earn money for payment in the future. . . . The problem is a difficult one, and we recognize that district

courts, to remain efficient, must be able to rely as

extensively as possible on the support services of

probation officers. But making decisions about the

amount of restitution, the amount of installments,
2 Guideline Sentencing Update, vol. 7, no. 8, May 31, 1995 • a publication of the Federal Judicial Center

Substantial Assistance

Seventh Circuit holds that denial of Rule 35(b)

motion was improperly based on factors unrelated

to defendant’s cooperation. Defendant testified for

the government in several trials and post-trial hearings in the three years after he was sentenced. The

government filed a Fed. R. Crim. P. 35(b) motion to

reduce defendant’s sentence for his substantial assistance, but the district court denied it. The appellate

court reversed, concluding that “the district court intermixed Lee’s claims with its criticisms of procedures and conduct by the former U.S. attorneys [in

related] cases thereby confusing the proceedings and

depriving Lee a fair opportunity for consideration.”

The court found that “[t]he prosecution, Lee’s

former counsel and Lee all testified to Lee’s helpfulness and continuing cooperation which extended

beyond one year, including some information not

known by the defendant until one year or more after

imposition of his sentence. The proof was not in dispute. The district court, however, focused its ire on

perceived coverup motives from the prosecution.”

The decision to deny relief “did not relate to the

proof offered during the hearing on Lee’s cooperation,” but rather to “the judge’s dissatisfaction with

the performance and conduct of the [government attorneys]. . . . Lee’s rights were not adequately considered by the district judge who conducted a wideranging criticism and dialogue on the misconduct of

government counsel in the [related] cases and

seemed to charge Lee with complicity because he, as

a witness in those cases, accepted favors from the

government.” While the district court’s concerns may

be legitimate, “such blame should [not] extend to

Lee. . . . We think Lee has shown entitlement to relief

of a reduced sentence, [and] conclude that the trial

court abused its discretion in the manner in which it

conducted the hearing which resulted in denial of relief to Lee on improper grounds.”

U.S. v. Lee, 46 F.3d 674, 677–81 (7th Cir. 1995).

See Outline generally at VI.F.4.

Offense Conduct

Calculating Weight of Drugs

Eighth Circuit holds that kilogram conversion

ratiofor marijuana does not require seizure of live

plants. Defendant was convicted on several charges

related to a marijuana growing and distribution operation that ended in 1991 when the marijuana farms

were seized. Using evidence of the number of plants

that defendant was responsible for during the course

of the operation, the district court followed §2D1.1(c)

at n.* and converted each plant into one kilogram of

marijuana to set the offense level. Defendant apoperation, one month.” The court used the weekly

figure for these defendants and based the departure

sentences on the amount of drugs that the conspiracy distributed during the time they were actually working in an average week.

The appellate court affirmed. “[W]e are persuaded

that, at least as to defendants whose attributable aggregate quantities place them at the high end of the

drug-quantity table, where sentencing ranges exceed

the significant mandatory minimum sentences established by Congress, Judge Martin properly concluded that the normal guideline sentence may, in

some circumstances, overrepresent the culpability of

a defendant and that the ‘quantity/time factor,’ which

was not adequately considered by the Commission,

was available as a basis for departure. . . . The quantities attributable to [defendants] subjected them to

guideline sentences of more than nineteen and fifteen years, respectively, they worked for modest

wages, and they were not shown to have any proprietary interest in the drug operation of their employers.

Judge Martin reasonably concluded that guideline

sentences of more than fifteen years, based on aggregate drug quantities reflecting sales of approximately

50 grams per day, overstated the culpability of these

two defendants. And his selection of a one-week interval for application of the ‘quantity/time factor’ did

not render the extent of his departure ‘unreasonable,’

see 18 U.S.C. §3742(e)(3) (1988), where it resulted in a

ten-year sentence, not subject to parole.” The court

noted that it “need not decide whether the ‘quantity/

time factor’ can be a basis for departure as to defendants whose base offense level is not at the high end

of the drug-quantity table.” Nor did it decide whether

such a departure would be precluded by recently

added Note 16 in §2D1.1, which authorizes departures in limited circumstances for certain low-level

offenders with high offense levels: “The limitations of

Note 16 can have no restrictive effect upon the appellants, since their offenses were committed prior

to the November 1, 1993, effective date of Note 16.”

The court did, however, remand a departure for

a third defendant who had sold small amounts of

heroin and was not subject to a long sentence. “It

simply cannot be said that a guideline sentencing

range of 51 to 63 months, indicated by his aggregate

quantity of four ounces of heroin bought and resold

during a four-month period, overstated his culpability. Application of the ‘quantity/time factor’ to a person in Abad’s circumstances would precisely realize

the Government’s apprehension that the entire structure of the Commission’s drug-quantity table was being abandoned.”

U.S. v. Lara, 47 F.3d 60, 63–67 (2d Cir. 1995).

See Outline generally at VI.C.5.a.
Guideline Sentencing Update, vol. 7, no. 8, May 31, 1995• a publication of the Federal Judicial Center 3

pealed, arguing that this conversion ratio should be

applied only to live plants and that the marijuana attributed to him had already been harvested.

The appellate court affirmed, reasoning that a “legitimate goal of §2D1.1(c) is to punish those guilty of

offenses involving marijuana plants more severely in

order to get at the root of the drug problem. In the

present case . . . there was considerable evidence of

Wilson’s participation in the planting and cultivation

of marijuana plants. Thus, following the plain language of the guidelines, this must be an offense ‘involving marijuana plants.’ See U.S.S.G. §2D1.1(c).

Accordingly, we hold that where, as here, the evidence demonstrates that an offender was involved in

the planting, cultivation, and harvesting of marijuana plants, the application of the plant count to

drug weight conversion of §2D1.1(c) is appropriate.”

U.S. v. Wilson, 49 F.3d 406, 409–10 (8th Cir. 1995).

See the summary of Wegner in 7 GSU #7 for other

cases on this issue.

See Outline at II.B.2.

General Application

Relevant Conduct

D.C. Circuit holds that conduct must be related to

offense of conviction, not merely to other relevant

conduct, to be used under §1B1.3. Defendant pled

guilty to one fraud count (count four) and had three

other fraud counts dismissed. All three dismissed

counts were used as relevant conduct in setting the

offense level. The appellate court affirmed the use of

counts one and two, holding that although they were

“separately identifiable” from the offense of conviction they were “similar in nature”—all involved presenting a counterfeit check to obtain money or

goods—and, at three months apart, close enough in

time to reasonably conclude they were part of the

“same course of conduct” under §1B1.3(a)(2). The

third dismissed count, however, a credit card fraud,

“is both separately identifiable from count four and

of a different nature. That counts three and four both

involved fraud to obtain money is not enough. While

substantial similarities exist between count three

and counts one and two—they all involved the same

alias and occurred within two months—the government must demonstrate a connection between

count three and the offense of conviction, not between count three and the other offenses offered as

relevant conduct. The credit card fraud in count

three is thus not part of the same course of conduct

as the offense of conviction. The district court committed clear error in treating it as relevant conduct.”

U.S. v. Pinnick, 47 F.3d 434, 438–39 (D.C. Cir. 1995).

See Outline at I.A.2.

Second Circuit holds that the Guidelines require

a particularized finding of the scope of the criminal

activity that defendant jointly undertook with others. Defendant was one of many sales representatives in a fraudulent loan telemarketing scheme. Although it was uncontested that defendant knew the

scheme was fraudulent, no evidence was presented

that his involvement extended beyond his own sales

efforts or that he had any other role or participation

in the scheme. However, the district court held defendant responsible for the entire loss caused by the

fraud, finding that this was a jointly undertaken activity and the conduct of the other participants was

reasonably foreseeable to him.

The appellate court remanded because there was

no finding that the acts of other participants were

within the scope of defendant’s agreement. For relevant conduct involving others, the Guidelines “require the district court to make a particularized finding of the scope of the criminal activity agreed upon

by the defendant. . . . [T]hat the defendant is aware

of the scope of the overall operation is not enough to

hold him accountable for the activities of the whole

operation. The relevant inquiry is what role the defendant agreed to play in the operation, either by an

explicit agreement or implicitly by his conduct.”

Here, the evidence shows that defendant’s agreement

“was limited to his own fraudulent activity and did

not encompass the fraudulent activity of the other

representatives. His objective was to make as much

money in commissions as he could. He had no interest in the success of the operation as a whole, and

took no steps to further the operation beyond executing his sales.” The court noted that, because the

government may not have had notice that it needed

to show evidence of defendant’s agreement as outlined in this opinion, it may try to do so on remand.

U.S. v. Studley, 47 F.3d 569, 574–76 (2d Cir. 1995).

See Outline at I.A.1.

Adjustments

Multiple Counts—Grouping

Sixth Circuit holds that multiple counts from different indictments may be grouped. Defendant was

charged with multiple offenses in two different indictments and pled guilty to one count from each indictment. The district court determined the offense

level for each count and then applied the multiple

count adjustment under §3D1.4 to reach a combined

adjusted offense level. Defendant argued that it was

improper to apply §3D1.4 to counts from different

indictments.

The appellate court affirmed. “Even though Part D

of Chapter Three contains no explicit language ap-
Guideline Sentencing Update, vol. 7, no. 8, May 31, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

plying §3D1.4 to multiple counts in separate indictments, the absence of such a statement is of no moment. First, there is no language in Part D of Chapter

Three prohibiting the application of §3D1.4 to

counts in separate indictments. Second, U.S.S.G.

§3D1.5 states ‘[u]se the combined offense level to

determine the appropriate sentence in accordance

with the provisions of Chapter Five.’ In order to apply

a sentence to multiple counts in separate indictments pursuant to §5G1.2, a combined offense level

must first have been determined which incorporates

the counts from the separate indictments. Thus, in

order to make sense, §3D1.4 must be read to apply to

counts existing in separate indictments in which

sentences are to be imposed at the same time or in a

consolidated proceeding. . . . The only logical reading

of U.S.S.G. §§3D1.1–5 and 5G1.2 requires that §3D1.4

apply to multiple counts in separate indictments.”

U.S. v. Griggs, 47 F.3d 827, 831–32 (6th Cir. 1995).

See also U.S. v. Coplin, 24 F.3d 312, 318 & n.6 (1st Cir.

1994) (“§5G1.2 would not make much sense unless

we also assumed that the grouping rules under chapter 3, part D had previously been applied to counts

‘contained in different indictments . . . for which sentences are to be imposed at the same time.’ Accordingly, we read this concept into chapter 3, part D.”).

See Outline generally at III.D.1.

Sentencing Procedure

Procedural Requirements—Notice

Seventh Circuit holds that testimony from codefendants’ sentencing hearings may not be used to

increase defendant’s offense level unless defendant

has adequate notice. Defendant received an aggravating role adjustment under §3B1.1(c), despite the

fact that a similarly situated codefendant did not and

the government stated at the sentencing hearing that

it would be inappropriate and did not present any

evidence to support it. The court based the enhancement on testimony about defendant at the sentencing hearings of other defendants. Neither defendant

nor the government had notice before the hearing

that the court intended to use that testimony.

The appellate court remanded after applying “a

two-prong inquiry: first, was the specific evidence

considered by the court from the prior sentencing

hearings previously undisclosed to [defendant], and

second, if he had no prior knowledge, was he given a

reasonable opportunity to respond to the information.” The court first concluded that although most

of the information used to justify the enhancement

was in the presentence report, “certain significant

evidence taken into account by the district court was

not disclosed to [defendant] before the hearing.”

On the second issue, the court found that defendant “was on notice of a dispute between himself

and others and was given some opportunity to respond to the new evidence before he was sentenced.

. . . On balance, however, we do not believe [he] was

given sufficient notice to allow him meaningfully to

rebut the prior testimony. Because the government

backed away from a role increase, [defendant] knew

that no new evidence would be introduced at the

hearing to support such an increase. Additionally, . . .

he knew that the same judge had found the evidence

insufficient to support such an increase for [the codefendant]. . . . Thus, when they arrived for the sentencing, [defendant] and his attorney reasonably

would not have anticipated the need for evidence to

rebut new, damaging information . . . . We therefore

conclude that [defendant] did not receive sufficient

notice, as required by Rule 32, so that he could comment meaningfully on the court’s decision to impose

a role increase.”

U.S. v. Blackwell, 49 F.3d 1232, 1237–40 (7th Cir.

1995).

See Outline at IX.D.2 and E.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 9, July 7, 1995

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.

General Application

Double Jeopardy

Supreme Court holds that use of relevant conduct to increase guideline sentence for one offense

does not preclude later prosecution for that conduct. When defendant was sentenced on a marijuana

charge his offense level was increased under § 1B1.3

for related conduct involving cocaine. This increased

his guideline range (from approximately 78–97

months to 292–365 months), although he then received a § 5K1.1 departure to 144 months. Defendant

was later indicted for conspiring and attempting to

import cocaine, but the district court dismissed the

charges on the ground that punishing defendant for

conduct that was used to increase his sentence for

the marijuana offense would violate the Double

Jeopardy Clause’s prohibition against multiple punishments. However, the Fifth Circuit reversed, holding that “the use of relevant conduct to increase the

punishment of a charged offense does not punish

the offender for the relevant conduct,” and therefore

prosecution for the cocaine offenses was not prohibited by the Double Jeopardy Clause. U.S. v. Wittie,* 25

F.3d 250, 258 (5th Cir. 1994) [6 GSU #16].

The Supreme Court agreed with the appellate

court that there is no double jeopardy bar to the second prosecution. “We find this case to be governed

by Williams [v. Oklahoma,]” 358 U.S. 576 (1959), in

which the Court “made clear that use of evidence of

related criminal conduct to enhance a defendant’s

sentence for a separate crime within the authorized

statutory limits does not constitute punishment for

that conduct within the meaning of the Double Jeopardy Clause. . . . We are not persuaded by petitioner’s

suggestion that the Sentencing Guidelines somehow

change the constitutional analysis. A defendant has

not been ‘punished’ any more for double jeopardy

purposes when relevant conduct is included in the

calculation of his offense level under the Guidelines

than when a pre-Guidelines court, in its discretion,

took similar uncharged conduct into account. . . . As

the Government argues, ‘[t]he fact that the sentencing process has become more transparent under the

Guidelines ... does not mean that the defendant is

now being “punished” for uncharged relevant conduct as though it were a distinct criminal “offense.”’

. . . The relevant conduct provisions are designed to

channel the sentencing discretion of the district

courts and to make mandatory the consideration of

factors that previously would have been optional. . . .

Regardless of whether particular conduct is taken

into account by rule or as an act of discretion, the

defendant is still being punished only for the offense

of conviction.”

The Court also addressed petitioner’s “contention

that he should not receive a second sentence under

the Guidelines for the cocaine activities that were

considered as relevant conduct for the marijuana

sentence. As an examination of the pertinent sections should make clear, however, the Guidelines

take into account the potential unfairness with

which petitioner is concerned. . . . There are often

valid reasons why related crimes committed by the

same defendant are not prosecuted in the same proceeding, and § 5G1.3 of the Guidelines attempts to

achieve some coordination of sentences imposed in

such situations with an eye toward having such punishments approximate the total penalty that would

have been imposed had the sentences for the different offenses been imposed at the same time (i.e., had

all of the offenses been prosecuted in a single proceeding). See USSG § 5G1.3, comment., n. 3.” Along

with the protections in § 5G1.3, the Court noted that

a district court retains discretion to depart “to protect against petitioner’s second major practical concern: that a second sentence for the same relevant

conduct may deprive him of the effect of the downward departure under § 5K1.1 of the Guidelines for

substantial assistance to the Government, which reduced his first sentence significantly. Should petitioner be convicted of the cocaine charges, he will be

free to put his argument concerning the unusual

facts of this case to the sentencing judge as a basis

for discretionary downward departure.”

Witte v. U.S., 115 S. Ct. 2199, 2206–09 (1995)

(Stevens, J., dissenting in part).

*Note: Spelling of defendant’s name was incorrect in

the appellate court case title.

See Outline at I.A.4.

Determining the Sentence

Consecutive or Concurrent Sentences

Seventh Circuit concludes departure may be

warranted when § 5G1.3(b) does not apply because

a prison term for related conduct has already been

served. Defendant was convicted of conspiracy to

commit bank fraud. At sentencing the government

and defendant requested a downward departure of
2 Guideline Sentencing Update, vol. 7, no. 9, July 7, 1995 • a publication of the Federal Judicial Center

fourteen months to account for a sentence defendant served in prison for related conduct that was

considered in setting the offense level for the instant

offense. Had defendant still been serving the prior

sentence, § 5G1.3(b) would have effected the same

result by requiring concurrent sentences. The district

court refused to depart, based on a belief that defendant’s prior sentence was mistakenly too lenient.

The appellate court concluded that the district

court acted within its discretion in refusing to depart

and that its decision was, “like any other refusal to

depart, unreviewable.” However, the sentence was

remanded on another matter and the court “encouraged” the district court to reconsider. “Section 5G1.3

on its face does not apply to [defendant] because, by

the time of his sentencing in Milwaukee, he had

completed his term for the related conduct in Kansas

and therefore had no relevant ‘undischarged term of

imprisonment.’ The probation office in this case apparently recognized that the rationale underlying

§ 5G1.3—to avoid double punishment—nevertheless

was applicable to a defendant . . . who had fully discharged his prior term. It sought guidance from the

Sentencing Commission, which suggested that a

downward departure would be the appropriate way

to recognize such a defendant’s prior time in prison.

. . . We recognize that distinguishing between two defendants merely by virtue of their sentencing dates

appears contrary to the Guidelines ‘goal of eliminating unwarranted sentence disparities.’ . . . Although

we may not directly review the district court’s rejection of a departure, we do encourage the court upon

remand to reconsider its decision. . . . Assuming [defendant] would have been eligible for the 14-month

credit if he still were serving the prior terms at issue,

we think it would be fair and appropriate to deduct

that amount from the new sentence imposed on the

instant offense.”

U.S. v. Blackwell, 49 F.3d 1232, 1241–42 (7th Cir.

1995).

See Outline generally at V.A.3.

Ninth Circuit holds that sentence under 18

U.S.C. § 924(e)(1) may be reduced below mandatory

minimum to give credit for time served on related

charge. Defendant was serving a state sentence for

armed robbery when he pled guilty to being a felon

in possession of the same weapon used in the robbery. Because he had three prior violent felony convictions, 18 U.S.C. § 924(e)(1) required that he be

“imprisoned not less than fifteen years,” and the government and defendant agreed to a guideline sentence of 188 months. The district court agreed with

defendant that, under § 5G1.3(b) and comment.

(n.2), the state sentence had been “fully taken into

account” in determining the federal sentence and

the two sentences should be made concurrent with

credit for the twelve months defendant had served

on the state charge, i.e., the federal sentence should

be 176 months. However, the district court concluded it could not go below the mandatory 180

months and imposed the agreed-on guideline sentence of 188 months.

The appellate court remanded, following the

holding in U.S. v. Kiefer, 20 F.3d 874 (8th Cir. 1994) [6

GSU #12], that “in appropriate circumstances time

served in custody prior to the commencement of the

mandatory minimum sentence is time ‘imprisoned’

for purposes of § 924(e)(1).” The court concluded

that time served in state prison on a related charge is

“an appropriate circumstance,” and that in order to

harmonize § 924(e) with the guideline sentencing

scheme and the rest of the Sentencing Reform Act of

1984, “we construe 18 U.S.C. § 924(e)(1) to require

the court to credit Drake with time served in state

prison. To hold otherwise would ‘frustrate the concurrent sentencing principles mandated by other

statutes.’ . . . [T]he district court indeed was required

to reduce Drake’s mandatory minimum sentence for

the time Drake served in Oregon prison.”

U.S. v. Drake, 49 F.3d 1438, 1440–41 (9th Cir.1995).

See Outline at V.A.3.

Adjustments

Obstruction of Justice

Tenth Circuit holds that obstruction enhancement does not apply if defendant did not know that

an investigation of the offense of conviction had begun. Defendant was part of a conspiracy to manufacture explosives without a license. One of the conspirators was arrested on an unrelated weapons

charge, and while he was being questioned at the police station the police received a tip about the explosives. In the meantime, without knowing that the police had begun to investigate the explosives manufacture, defendant and others attempted to hide the

explosive materials. The police ultimately recovered

the explosives and defendant pled guilty to conspiracy. She received a § 3C1.1 enhancement for obstructing the investigation by hiding the explosives,

but argued on appeal that she should not have received the enhancement for obstructing an investigation of which she was unaware.

The appellate court agreed and remanded. “A

plain reading of U.S.S.G. § 3C1.1 compels the conclusion that this provision should be read only to cover

willful conduct that obstructs or attempts to obstruct

‘the investigation . . . of the instant offense.’ (emphasis added) . . . To our mind, the clear language of
Guideline Sentencing Update, vol. 7, no. 9, July 7, 1995• a publication of the Federal Judicial Center 3

§ 3C1.1 enunciates a nexus requirement that must be

met to warrant an adjustment. This requirement is

that the obstructive conduct, which must relate to

the offense of conviction, must be undertaken during the investigation, prosecution, or sentencing.

Obstructive conduct undertaken prior to an investigation, prosecution, or sentencing; prior to any indication of an impending investigation, prosecution,

or sentencing; or as regards a completely unrelated

offense, does not fulfill this nexus requirement. . . .

There is simply no evidence that Ms. Gacnik undertook to hide the explosive materials with any knowledge of an impending investigation or during any investigation of the conspiracy for which she was ultimately convicted. We disagree with the district court

that the very act of concealment, standing alone, is

sufficient evidence of Ms. Gacnik’s awareness of an

investigation pointed at her offense of conviction.

The record reveals only that Ms. Gacnik was aware

that the police had taken Mr. Gade into custody for

having discharged a gun, but this knowledge of police interest in a completely unrelated offense, not

involving her, simply does not meet the requirements of § 3C1.1.”

U.S. v. Gacnik, 50 F.3d 848, 852–53 (10th Cir. 1995).

See Outline at III.C.4.

Seventh Circuit holds that obstruction of related

state prosecution does not warrant enhancement

unless it actually obstructed federal prosecution of

the “instant offense.” Defendant was arrested in

April 1992 on a state drug charge. After release on

bond in June he fled the country but returned in November. He was rearrested by the state in December,

at which time a federal investigation into defendant’s

drug activities began. After defendant was convicted

and began serving his sentence on the state charge,

he was indicted on federal charges and pled guilty to

conspiracy to distribute cocaine. Concluding that the

criminal conduct underlying the state prosecution

from which defendant fled constituted part of the

criminal conduct underlying the instant federal offense, and that defendant’s flight impeded the state

prosecution and investigation, the district court applied the § 3C1.1 obstruction enhancement. “In

short, the district court considered the state and federal offenses to be one and the same and, for purposes of section 3C1.1, the ‘instant offense’ included

the state prosecution.”

The appellate court remanded because there was

no evidence that defendant’s flight obstructed the

federal investigation or prosecution. The court acknowledged that “because the state offense was an

overt act of the federal conspiracy charge, arguably

the state offense is part of the ‘instant offense’ for

purposes of section 3C1.1. Consequently, there is a

basis for the district judge to say as she did that ‘it’s

the same offense you look at and not the particular

entity that was prosecuting it at the time the obstruction occurred.’ Although we agree that the factual basis for the state charges are encompassed within the

federal offense, the inclusiveness of the federal offense does not necessarily dictate the conclusion

that any obstruction of the prior state prosecution

automatically compels a finding that the federal

prosecution was also obstructed. This is too long a

stretch and ignores the temporal requirement of

[§] 3C1.1 that the obstructive conduct occur ‘during’

the investigation, prosecution, or sentencing of the

instant offense. In other words, section 3C1.1 intends

that the obstructive conduct have some discernible

impact on the investigation, prosecution, or sentencing of the federal offense which may or may not encompass the state offense. . . . Obstructive conduct

having no impact on the investigation or prosecution

of the federal offense falls outside the ambit of section 3C1.1 no matter when the obstruction occurs;

i.e., whether it occurs during a state or federal investigation or prosecution. Even if the state and federal

offenses are the same, under section 3C1.1 it is the

federal investigation, prosecution, or sentencing

which must be obstructed by the defendant’s conduct no matter the timing of the obstruction.”

U.S. v. Perez, 50 F.3d 396, 398–400 (7th Cir. 1995).

See Outline at III.C.4.

Sixth Circuit holds that § 3C1.2 enhancement for

reckless endangerment does not apply if defendant

did not know a law enforcement officer was in pursuit. Defendant was driving away from a drug delivery site when detectives in an unmarked police van

attempted to block the car and arrest the occupants.

Defendant swerved around the van, striking the leg

of a detective who had jumped out of the van, and

was eventually arrested. Without making a finding

that defendant knew that police officers were in pursuit at the time he swerved around the van, the district court imposed a § 3C1.2 enhancement. The appellate court remanded “for the district court to

make a specific finding regarding defendant’s knowledge,” holding that “a § 3C1.2 enhancement is inapplicable if the defendant did not know it was a law

enforcement officer from whom he was fleeing.”

The appellate court also held that the sentence

was appealable even though defendant had received

a downward departure under § 5K1.1 to a sentence

below the ranges suggested by both the government

and defendant. “A defendant may appeal his sentence even when the sentence imposed fell within

the range advocated by him so long as he can iden-
Guideline Sentencing Update, vol. 7, no. 9, July 7, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

tify a specific legal error,” which defendant did with

his claim of a misapplication of § 3C1.2. Thus, this

decision is consistent with cases that have held that

the guideline range is the point of reference for a departure and must be correctly calculated. See cases

in Outline at VI.D.

U.S. v. Hayes, 49 F.3d 178, 182–84 (6th Cir. 1995).

See Outline at III.C.3.

Offense Conduct

Marijuana

Eleventh Circuit holds that “dead, harvested root

systems are not ‘plants’ within the meaning of” the

statute or Guidelines. When defendant was arrested

police found 27 live marijuana plants and, in a trash

can, “26 dead, crumbling roots, each attached to a

small portion of the stalk (‘root systems’), remaining

from previously-harvested plants.” The district court

counted all 53 plants and sentenced defendant

under § 2D1.1(c), n.*, which treats each plant as one

kilogram of marijuana for offenses involving 50 or

more plants.

The appellate court remanded, concluding “that

clearly dead vegetable matter is not a plant.” The

court reasoned that its decision in U.S. v. Foree, 43

F.3d 1572 (11th Cir. 1995), holding that marijuana

cuttings and seedlings are not “plants” until they develop root systems, “treats evidence of life as a necessary (but alone insufficient) prerequisite of

‘planthood,’ and its reasoning counsels rejection of

the government’s converse contention here that dead

marijuana remains are plants simply because they

have roots.”

The court also noted that it has held that once

plants are harvested the actual weight must be used,

not the kilogram-per-plant equivalency, and specifically disagreed with circuits that have held that the

number of plants may be used even after harvesting.

See cases summarized in 7 GSU nos. 7 & 8. “Our decisions . . . contemplate the use of actual post-harvest

weight of consumable marijuana, rather than presumed weight derived from the number of harvested

plants, for sentencing in manufacturing and conspiracy to manufacture, as well as possession, cases.

. . . The fact that [21 U.S.C.] § 841(b) creates alternative plant number and marijuana weight sentencing

regimes implies that growers should not continue to

be punished for plants when those plants cease to

exist. . . . We therefore reaffirm that dead, harvested

root systems are not marijuana plants for sentencing

purposes irrespective of whether the defendant is

convicted of possession, manufacturing, or conspiracy to manufacture marijuana plants. We leave it

to the district court to decide, in the first instance,

how the 26 dead root systems should be accounted

for in sentencing in this case (as they cannot be

counted as plants).”

U.S. v. Shields, 49 F.3d 707, 710–13 (11th Cir. 1995).

See Outline at II.B.2.

Certiorari Granted:

U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995) (en banc),

cert. granted, No. 94-9088 (June 19, 1995). Question

presented: Does amendment to Sentencing Guidelines establishing presumptive weight of LSD for purposes of establishing base offense level for violations

involving LSD change manner of computing weight

of LSD for purposes of statute imposing mandatory

minimum sentence for possession or distribution?

See Outline at II.B.1 and summary of Neal in 7 GSU #7.

Judgment Vacated:

U.S. v. Porat, 17 F.3d 660 (3d Cir. 1994), vacated on

other grounds, No. 94-140 (U.S. June 26, 1995), and

remanded for reconsideration in light of U.S. v.

Gaudin, No. 94-514 (U.S. June 19, 1995).

See Outline at V.C and summary of Porat in 6 GSU #11.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 10, August 10, 1995

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.

Departures

Mitigating Circumstances

Ninth Circuit holds that departure for “sentencing

entrapment” may be warranted. In a “reverse sting” operation defendant was convicted of conspiracy to possess

with intent to distribute five kilograms of cocaine. However, the evidence indicated that defendant agreed to buy

the cocaine only after several months of persistent pressure by a confidential informant. Also, defendant preferred and could afford to buy only one kilogram, and

agreed to buy the five kilograms only after the undercover

agent offered to “front” four of the five kilograms and the

informant said he would buy back three or four kilograms

from defendant. There was also some doubt that defendant had, in fact, agreed to buy five kilograms. The district

court denied defendant’s request for a departure based

on sentencing entrapment, held him responsible for five

kilograms, and imposed the mandatory minimum sentence of ten years. On appeal defendant conceded he was

predisposed to dealing cocaine, but argued that departure was warranted because “he would not have negotiated a transaction for five kilograms of cocaine but for the

government’s unusually favorable financial terms,” see

§2D1.1, comment. (nn. 12 & 17).

The appellate court remanded, finding defendant’s

“sentencing entrapment theory convincing. Application

Notes 12 and 17 clearly require the district court to determine whether sentencing entrapment has occurred.

Under Note 12, the district court ‘shall exclude’ from the

calculation the amount of drugs which flow from sentencing entrapment. Further, under Note 17, a downward

departure is warranted when sentencing entrapment

occurs.” The defendant “has the burden of proof to demonstrate that he had neither the intent nor the resources

for completing a five kilogram cocaine transaction . . . ,

[but] the district court is obligated to make express factual findings as to whether Naranjo met this burden.” The

district court’s statement, however, “fails to provide any

finding relevant to the critical issue of Naranjo’s predisposition to engage in a five-kilogram cocaine transaction.

. . . Our reading of the record strongly suggests that

Naranjo had neither the intent nor the resources to engage in a five-kilogram cocaine transaction.” The case

was remanded “with instructions to provide specific factual findings to support [the] ruling that Naranjo did not

prove sentencing entrapment.”

U.S. v. Naranjo, 52 F.3d 245, 250–51 (9th Cir. 1995).

See Outline at VI.C.4.c and II.B.4.a.

Seventh Circuit holds that departure for “sentence

manipulation” would be warranted only “for the most

outrageous governmental conduct.” Defendant claimed

that the government engaged in sentence manipulation

when—against government policy—it continued to use a

confidential informant (CI) after he made an unauthorized drug purchase from defendant. Defendant argued

that the government wanted to ensure that he made

another sale of weapons to the CI so that his sentence

would be enhanced under §2K2.1(b)(1)(B) (increasing

offense level by two for offense involving 5–7 firearms).

The appellate court rejected defendant’s argument.

“The doctrine of sentencing manipulation states that a

judge cannot use evidence to enhance a defendant’s sentence if the government procured that evidence through

outrageous conduct solely for the purpose of increasing

the defendant’s sentence under the Sentencing Guidelines. . . . We decline to extend the application of this

doctrine any further than for the most outrageous governmental conduct. . . . The defendant would have to

establish that the government specifically continued to

employ the CI for the purpose of pursuing another two

point enhancement such that the defendant’s due process was violated.” Agreeing with the district court that

the government had legitimate reasons for continuing to

use the CI, the court added that “if the government really

wanted to enhance Messino’s sentence, it could have

authorized the CI to try to buy other weapons in addition

to those already purchased. The fact that it refrained from

doing so makes it clear that the government was not

engaged in deliberate sentence manipulation.”

U.S. v. Messino, 55 F.3d 1241, 1256 (7th Cir. 1995).

See Outline at VI.C.4.c.

Substantial Assistance

Third Circuit holds that §5K1.1 motion—in absence

of motion under §3553(e)—does not permit departure

below statutory minimum sentence. Defendant’s plea

agreement stated that, in return for his cooperation, the

government would move under §5K1.1 for a departure

from the applicable guideline range. There was no agreement for departure via 18 U.S.C. §3553(e) below the 10-

year mandatory minimum. The district court ruled that

because the government moved only under §5K1.1, it

could not depart below the statutory minimum and imposed the 10-year sentence. Defendant argued on appeal

that a §5K1.1 motion also authorizes departure below a

mandatory minimum sentence.
2 Guideline Sentencing Update, vol. 7, no. 10, August 10, 1995 • a publication of the Federal Judicial Center

The appellate court affirmed. “The root issue for decision here is whether the prosecutor in a given case will be

able to grant access to a Guideline departure for cooperation and at the same time retain control of access to a

departure from a lower, statutory minimum. A literal

reading of §5K1.1 would indicate that a prosecutor has

this option. This conclusion is consistent as well with the

Congressional judgment reflected in §3553(e). Moreover,

no policy considerations appear to counsel against this

conclusion and a number counsel in favor. . . . We hold

that a motion under USSG §5K1.1 unaccompanied by a

motion under 18 U.S.C. §3553(e) does not authorize a

sentencing court to impose a sentence lower than a statutory minimum.” In so holding the court joined the Eighth

Circuit. Four circuits have held that a §5K1.1 motion

authorizes departure below the statutory minimum without a separate motion under §3553(e).

U.S. v. Melendez, 55 F.3d 130, 135–36 (3d Cir. 1995)

(Huyett, Dist. J., dissenting).

See Outline at VI.F.3.

Third Circuit requires “individualized, case-by-case

consideration of the extent and quality of a defendant’s

cooperation in making downward departures under

§5K1.1.” In departing downward three offense levels after

a §5K1.1 motion, the district court stated that “my practice, when I grant a §5K1.1 motion, is to go down three

levels, three additional levels, on the theory if Acceptance

of Responsibility is worth three levels, Substantial Cooperation should be worth the same.” (Emphasis added by

appellate court.) Although the court also gave other reasons to support the final sentence imposed, the appellate

court held that remand was required to ensure that the

court did not use a “mechanical policy of departing down

three levels for substantial cooperation.”

A defendant’s substantial assistance “‘can involve a

broad spectrum of conduct that must be evaluated by

the court on an individual basis.’ Application Note to

U.S.S.G. §5K1.1 (emphasis added). A proper exercise of

the district court’s discretion under §5K1.1, therefore,

involves an individualized qualitative examination of

the incidents of the defendant’s cooperation, and would

not seem to admit of the use of sentencing ‘practices.’”

The district court’s other reasons did not, “as required

by §5K1.1, analyze the cooperation itself, as opposed to

the crime or the defendant. Moreover, the otherwise

detailed statement of reasons was delivered, by its

own terms, only to explain why the court sentenced defendant above the minimum of the applicable guideline

range of 360 months to life, not to explain why the court

chose the three-level adjustment. . . . [W]e conclude that

the district court erred as a matter of law in what, at least

on the face of the record, appears to have been a mechanical application of the guidelines to this one defendant

in the conspiracy.”

U.S. v. King, 53 F.3d 589, 590–92 (3d Cir. 1995).

See Outline at VI.F.3.

Adjustments

Vulnerable Victim

Ninth Circuit holds that defendant need not specifically, or initially, target vulnerable victim. Defendants

were convicted on fraud and other charges in connection

with their operation of a fraudulent health insurance

scheme. The insurance was originally sold to employer

associations, but over the course of the scheme individual

claimants did not have their medical claims paid. These

individuals continued to pay premiums to defendants

to keep their coverage despite the fact that defendants

“often stalled and gave claimants ‘the run-around.’” The

district court made it clear that it based defendants’

§3A1.1 enhancements on their continuing to take money

from these claimants, not because they originally targeted them: “It’s that after they found out victims were

vulnerable and they could not pay those claims, they

continued to accept premiums from people who had not

had claims paid but were afraid not to keep making their

premium payments for fear they wouldn’t be covered.”

Defendants argued on appeal that §3A1.1 cannot apply

because they did not specifically target their victims, as

Application Note 1 indicates is required, and that these

victims were no more vulnerable than other victims of

health insurance fraud.

The appellate court rejected both arguments and affirmed. The court acknowledged that Note 1 “states that

§3A1.1 ‘applies to offenses where an unusually vulnerable

victim is made a target of criminal activity by the defendant.’ . . . (emphasis added). The commentary thus appears to require more than just actual or constructive

knowledge—the commentary suggests that the defendant must have an actual intent to ‘target’ a vulnerable

victim before §3A1.1 can apply.” However, such a requirement “is inconsistent with the plain language of §3A1.1,

which only requires that the defendant ‘should have

known’ that the victim was vulnerable.” The commentary

can be reconciled with the guideline by reading it to have

“a limited purpose—‘to exclude those cases where defendants do not know they are dealing with a vulnerable

person.’” Here, defendants had that knowledge because

they “personally talked to and engaged in stalling tactics

with individual claimants who complained about unpaid

medical claims. Appellants thus knew, or at the very least

‘should have known,’ that many vulnerable victims were

not getting their claims paid, and yet appellants continued to accept premiums from them.”
Guideline Sentencing Update, vol. 7, no. 10, August 10, 1995 • a publication of the Federal Judicial Center 3

The court also held that the “individuals who developed medical problems and then could not get their

claims paid fulfill both the unusually vulnerable ‘physical

or mental condition’ and the ‘otherwise particularly susceptible’ criteria of §3A1.1. Several of the victims had

serious physical or mental conditions that required follow-up care. These individuals realistically could not have

switched insurance companies—they were at the mercy

of the appellants.” The court “emphasize[d] that appellants in this case did more than just fail to pay for the

victims’ medical claims. Appellants continued to accept

premiums from these victims, many of whom were ‘afraid

not to keep making their premium payments for fear they

wouldn’t be covered.’ It is this continual fraud perpetrated

upon these victims—who became vulnerable once they

developed medical conditions, had outstanding medical

bills, and in some cases needed further treatment—that

triggered §3A1.1.”

The court specifically disagreed with U.S. v. Rowe, 999

F.2d 14, 17 (1st Cir. 1993), which reversed a §3A1.1 enhancement in a similar case. But note that the First Circuit

reasoned that the individual claimants were not vulnerable to defendant’s offenses because, unlike the case here,

“the thrust of the wrongdoing with which Rowe was

charged was the initial fraudulent solicitations and the

mismanagement or looting of the plan’s assets. The near

certainty that some of the subscribers would be more

enmeshed than others appears to have been a collateral

aspect of the wrongdoing.”

U.S. v. O’Brien, 50 F.3d 751, 754–57 (9th Cir. 1995).

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

Acceptance of Responsibility

Second Circuit holds that §3E1.1(b)(1) reduction may

not be denied because defendant was not truthful about

misconduct of others. Defendant received the two-point

reduction for acceptance of responsibility but the district

court denied the additional point under §3E1.1(b)(1) because it believed that, while defendant provided complete information about his own conduct, he misrepresented the involvement of others in the conspiracy. The

appellate court rejected this reasoning and remanded. “A

three-level reduction is available to a defendant who, in

addition to clearly demonstrating his acceptance of responsibility, ‘assist[s] authorities in the investigation or

prosecution of his own misconduct’ by ‘timely providing

complete information to the government concerning his

own involvement in the offense.’ See id. §3E1.1(b)(1) (emphasis supplied). . . . Section 3E1.1(b)(1) refers only to the

defendant’s ‘own misconduct’ and ‘own involvement,’

and a defendant has satisfied the requirements for an

adjustment under that section when he has described his

own involvement in the crime. . . . Once it is determined

that a defendant has completely and truthfully disclosed

his criminal conduct to the government, the inquiry with

respect to section 3E1.1(b)(1) is complete.”

U.S. v. Leonard, 50 F.3d 1152, 1158–59 (2d Cir. 1995).

See Outline at III.E.4.

Determining the Sentence

Consecutive or Concurrent Sentences

Third Circuit holds that courts are not required to

depart downward in order to impose the “reasonable

incremental penalty” calculated under §5G1.3(c). At the

time of sentencing defendant had served 17 months of a

prior 21-month sentence. For each of the instant offenses

his guideline range was 15–21 months, and the district

court imposed concurrent 15-month sentences that were

to run concurrently with the remaining 4 months on the

prior sentence. Defendant claimed that this was improper because his total time served for the prior and

instant offenses should be only 24 months pursuant to

Note 3 of §5G1.3(c), which calculates a “reasonable incremental penalty” by “approximat[ing] the total punishment that would have been imposed under §5G1.2 (Sentencing on Multiple Counts of Conviction) had all of the

offenses been federal offenses for which sentences were

being imposed at the same time.” He argued that, following Application Note 3, he should receive no more than 7

additional months of incarceration.

The appellate court affirmed, holding that district

courts are not required to depart from the guideline range

for the instant offense in order to impose the total punishment calculated under Note 3. “Section 5G1.3 provides

guidance in determining whether to run a sentence concurrently or consecutively. While it appears to permit a

downward departure from the applicable guideline range

to meet its objectives, it does not create a sentencing

scheme in itself nor does it require a downward departure. . . . [S]entencing Holifield to less than 15 months to

meet the general objectives of §5G1.3 would have been a

departure from the guideline range. And although §5G1.3

would permit a departure, the Commentary clearly states

that the methodology ‘does not, itself, require the court to

depart.’” The court also noted that Illustration D in the

Commentary supports this conclusion by indicating that

a total sentence in excess of that reached under the Note

3 methodology is proper and a downward departure is not

required. See also U.S. v. Whiteley, 54 F.3d 85, 91–92 (2d Cir.

1995) (affirmed: “While downward departures are not

impermissible . . . §5G1.3(c) does not itself authorize a

court to impose a sentence below the guideline minimum

in order to replicate the ‘total punishment’ that would
Guideline Sentencing Update, vol. 7, no. 10, August 10, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

have been imposed upon Whiteley had he been sentenced for all relevant offenses at once”).

The court added that it agreed with “the majority of

circuits that have [concluded] that although the district

court must calculate the ‘reasonable incremental punishment’ according to the [Note 3] methodology, it need not

impose that penalty. Instead, the court may employ a

different method in determining the sentence as long as

it indicates its reasons for not employing the commentary

methodology.”

U.S. v. Holifield, 53 F.3d 11, 14–17 (3d Cir. 1995).

See Outline at V.A.3.

General Application

Amendments

Third Circuit upholds “one book rule.” Although

defendant was sentenced in November 1993, his crime

was completed by May 1988. Following the “one book

rule” in §1B1.11(b)(2) (Nov. 1992), the district court used

the 1987 Guidelines in their entirety to avoid ex post facto

problems because the 1993 Guidelines would have required a more severe sentence (by three offense levels).

Defendant argued that, following prior Third Circuit

cases that disapproved the one book rule, he should have

been sentenced under the 1987 Guidelines but also received the benefit of the three-level, rather than twolevel, reduction for acceptance of responsibility that

was available in 1993.

The appellate court affirmed. Although the circuit had

previously rejected the one book rule, the court concluded that “the Sentencing Commission, through its

adoption of section 1B1.11(b)(2), has effectively overruled those opinions insofar as they conflict with the codification of the ‘one book rule.’ . . . [W]e join the majority

of other courts of appeal which have already upheld the

application of the ‘one book rule.’” The court also rejected

defendant’s claim that “because the ‘one book rule’ was

not in effect at the time of his offenses, its application

violates the ex post facto clause” by not allowing the threelevel reduction. “In this case, the application of the 1987

guidelines, pursuant to section 1B1.11(b)(2), resulted in a

sentence of at least thirteen months less than what

Corrado would have received under the 1993 guidelines.

In our view, where, as here, the applicable guidelines

overall work to the defendant’s advantage in terms of the

sentence imposed, there is no ex post facto violation.”

U.S. v. Corrado, 53 F.3d 620, 623–25 (3d Cir. 1995).

See Outline at I.E.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 7, number 11, August 31, 1995

Fifth Circuit holds that district court may not order

deportation as condition of supervised release. Defendant pled guilty to making false statements on immigration documents. The district court ordered defendant

be deported as a condition of supervised release under

18 U.S.C. §3583(d). That statute provides in part that “if

an alien defendant is subject to deportation, the court

may provide, as a condition of supervised release, that he

be deported and remain outside the United States, and

may order that he be delivered to a duly authorized immigration official for such deportation.” The Eleventh

Circuit has held that this language “authorizes district

courts to order deportation as a condition of supervised

release, any time a defendant is subject to deportation.”

U.S. v. Chukwura, 5 F.3d 1420, 1423–24 (11th Cir. 1993).

However, the appellate court here disagreed and

“subscribe[d] to the First Circuit’s interpretation of

§3583(d). In U.S. v. Sanchez, 923 F.2d 236, 237 (1st Cir.

1991) (per curiam), the First Circuit held that §3583(d)

‘simply permits the sentencing court to order, as a condition of supervised release, that “an alien defendant [who]

is subject to deportation” be surrendered to immigration

officials for deportation proceedings under the Immigration and Naturalization Act. In other words, following

appellant’s surrender to Immigration authorities, he is

entitled to whatever process and procedures are prescribed by and under the Immigration and Naturalization Act for one in appellant’s circumstances, for the

purpose of determining whether he is “an alien defendant . . . subject to deportation.”’ . . . We hold that the

district court exceeded its statutory power under

§3583(d) in ordering Quaye deported as a condition of

supervised release.”

U.S. v. Quaye, 57 F.3d 447, 449–50 (5th Cir. 1995).

See Outline at V.C.

Departures

Substantial Assistance

Fifth Circuit holds that government breached plea

agreement by denying defendant an opportunity to

provide substantial assistance. Under the plea agreement defendant would plead guilty to exportation of a

stolen vehicle and the government would move for a

§5K1.1 departure if defendant provided substantial assistance in related matters. The district court would not

accept the plea because defendant denied knowing that

the vehicle was stolen, an element of the offense charged.

Defendant and government agreed that defendant would

Determining the Sentence

Consecutive or Concurrent Sentences

Tenth Circuit holds that courts may use estimate

of actual, rather than nominal, length of an “undischarged term of imprisonment” under §5G1.3(c).

Defendant’s original federal sentence was remanded.

Before resentencing he began serving an unrelated 18-

year (216-month) state sentence. On remand the district

court followed §5G1.3(c) to calculate the “reasonable

incremental punishment” on the federal offense. Under

Application Note 3, the “combined sentence of imprisonment” defendant would face had all the offenses been

federal offenses sentenced at the same time was 210–262

months. The court then found that the time defendant

would actually serve for the state offenses was probably

no more than 12 years (144 months), rather than 18 years.

Using that estimate, the court imposed a wholly consecutive sentence of 87 months for the federal offense, and

defendant’s estimated “combined sentence” of 231

months was within the range calculated under Note 3.

The appellate court remanded for more specific findings on the time defendant would likely serve for the state

offenses, but affirmed the principle of using such an

estimate. The court followed the conclusion in U.S. v.

Whiting, 28 F.3d 1296, 1311 (1st Cir. 1994), that the 1991

version of §5G1.3(c) refers to “the real or effective [state]

sentence—not to a nominal one.” “[C]onsistent with

Whiting, we hold that the ‘real or effective’ term of imprisonment, rather than the nominal sentence, may be

used when applying §5G1.3(c) to calculate a reasonable

incremental punishment if that ‘real or effective’ term of

state imprisonment can be fairly determined on a reliable basis. . . . Here, however, the record contains no evidence to support the district judge’s assumption that

Yates’s real or effective state sentence will be 12 years.”

The court remanded for the district court to hear evidence and “make a finding on the likely ‘real or effective

sentence’ to be served. The judge should state his findings

thereon and explain his rationale in determining the

reasonable incremental punishment under USSG

§5G1.3(c). The trial judge must make such findings on the

basis of the evidence before him, including pertinent

state statutes and regulations, not relying on an ‘educated

guess’ as to the length of Yates’s state incarceration.”

U.S. v. Yates, 58 F.3d 542, 548–49 (10th Cir. 1995). See

also U.S. v. Redman, 35 F.3d 437, 439 (9th Cir. 1994) (affirming §5G1.3(c) sentence using estimate that defendant would serve 36 months of 15-year sentence).

See Outline at V.A.3.

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.
2 Guideline Sentencing Update, vol. 7, no. 11, August 31, 1995 • a publication of the Federal Judicial Center

plead nolo contendere and the rest of the plea agreement

would be unchanged, and the district court accepted the

nolo plea. However, at sentencing defendant moved to

withdraw his plea, arguing that the government breached

the plea agreement by making no effort to determine

whether he could provide substantial assistance and then

not filing a §5K1.1 motion. The district court denied the

motion to withdraw and sentenced defendant.

The appellate court reversed. “It is apparent from the

record that the government breached the plea agreement.

Having been informed that Laday maintained his lack

of knowledge that the subject backhoe was stolen, the

prosecutor decided not to interview him. Under the plea

agreement the government did not have the prerogative

of denying Laday an opportunity to provide substantial

assistance.” The court also rejected the government’s

claim that defendant’s denial of knowledge that the vehicle was stolen rendered any assistance he might offer

insubstantial and thus excused its failure to file. “The

government was aware of Laday’s claim of lack of guilty

knowledge when it committed to the amended plea

agreement calling for his plea of nolo contendere. The

government may not now use that claim to avoid its

obligations under the express terms of the plea agreement.” Cf. U.S. v. Ringling, 988 F.3d 504, 506 (4th Cir.

1993) (remanded: although government did not promise

to make §5K1.1 motion, where plea agreement stated

that government “will make known at the time of sentencing the full nature and extent of Defendant’s cooperation,” government breached plea agreement by not

even providing opportunity to cooperate).

U.S. v. Laday, 56 F.3d 24, 25–26 (5th Cir. 1995).

See Outline at VI.F.1.b.ii.

D.C. Circuit holds that exposure to danger in attempt

to provide substantial assistance does not warrant

§5K2.0 departure as a “mitigating circumstance of a

kind” not adequately considered by Commission. Pursuant to his plea agreement, defendant attempted to

provide substantial assistance to the government in its

investigation of others. However, the information he

provided was either already known to the government or

did not lead to any arrests or drug seizures, and the

government did not file a §5K1.1 motion. Defendant

did not contest that, but moved for a §5K2.0 departure

on the ground that in attempting to cooperate with the

government he exposed himself to danger and risked

injury. The district court denied the motion and defendant appealed.

The appellate court affirmed, concluding that the Sentencing Commission “explicitly considered ‘danger or

risk of injury to the defendant or his family resulting from

his assistance’ and included it as a factor under section

5K1.1 to be considered by the district court in determining the appropriate extent of a ‘substantial assistance’

sentencing departure. See U.S.S.G. §5K1.1(a)(4), p.s. We

find no evidence, or reason to believe, that the Commission inadequately considered this mitigating circumstance in confining its applicability to section 5K1.1 and

Watson provides none.”Cf. U.S. v. Garza, 57 F.3d 950, 953–

54 (10th Cir. 1995) (remanded: where government did not

file §5K1.1 motion, district court could not depart for

“super acceptance of responsibility” based partly on facts

that defendant did cooperate with government and spent

some time in solitary confinement to protect him from

other inmates who might have retaliated against him

because of his ongoing cooperation—these factors are

accounted for in §5K1.1).

Note that, because it found that defendant did not

argue the issue in the district court, the appellate court

did not determine whether danger or risk of injury might

be a “mitigating circumstance . . . to a degree[] not adequately taken into consideration by the Sentencing

Commission.” (Judge Wald dissented on this point, concluding that defendant did raise the issue.)

U.S. v. Watson, 57 F.3d 1093, 1096 (D.C. Cir. 1995) (per

curiam).

See Outline at VI.C.5.b and F.1.b.i.

Fifth Circuit holds that district courts have “almost

complete discretion” in setting the extent of §5K1.1

departure. The government moved for a downward departure under §5K1.1 to reward defendants’ substantial

assistance. It recommended sentences of 24 and 30

months, well below the guideline ranges and 10-year

mandatory minimum sentences defendants faced.

However, the district court sentenced each defendant to

60 months, indicating that it was concerned that defendants were “significant criminals” and that less culpable

coconspirators had received equal or greater sentences.

Defendants argued that because disparity in sentences

among codefendants is an improper basis for departure,

it is also an improper basis for not departing to the extent

recommended by the government.

The appellate court affirmed, holding that “the decision as to the extent of the departure is committed to the

almost complete discretion of the district court, which

may consider factors beyond the narrower set that could

independently support the departure in the first instance. In an analogous context, we have held that the

district court may, in determining a specific sentence

within the applicable Guideline range, consider a factor

that may itself not support an upward or downward departure. . . . The same analysis applies to a sentence

outside the Guideline range from which the court had a

valid basis for downwardly departing. In both circumstances, because there is no express limitation on the

sentencing court’s discretion, it is virtually complete, and

the sentence is unreviewable unless otherwise in violation of federal statutory or constitutional law.” Because
Guideline Sentencing Update, vol. 7, no. 11, August 31, 1995 • a publication of the Federal Judicial Center 3

the sentences imposed were not in violation of law, the

appellate court affirmed. For the same reasons, the court

rejected defendants’ claims that the district court erred

in considering that defendants could later seek further

reduction for future assistance under Rule 35 and that

monetary remuneration defendants received for their

cooperation constituted some compensation.

U.S. v. Alvarez, 51 F.3d 36, 39–41 & n.5 (5th Cir. 1995).

See Outline at VI.F.2.

General Application

Sentencing Factors

Ninth Circuit holds that courts may consider on remand a sentence imposed after the original federal

sentencing if the underlying conduct occurred before

the original sentencing. In early 1992, defendant conspired to murder someone. In October 1992, defendant

was sentenced for unrelated federal offenses. In 1993 he

pled guilty to the murder charge in state court. He appealed his federal sentence and it was remanded for resentencing in 1994. At resentencing the district court

included the 1993 state conviction as a “prior felony

conviction [for] a crime of violence” under §2K2.1(a)(4).

Defendant appealed, arguing that “the date of his original sentencing is a ‘watershed’ date, after which additional sentences may not be construed or counted as

‘prior sentences’ at resentencing.”

In what appears to be a case of first impression in the

circuit courts, the appellate court affirmed because the

conduct underlying the state offense occurred before

the original federal sentencing. “Resentencing on remand is de novo but the court may not consider postsentencing conduct or conduct beyond the scope of a

limited remand. . . . The court in this case did not consider

post-sentencing conduct, but rather a post-sentencing

sentence. As the state court sentence represents Klump’s

prior conduct, the policy [above] is not undermined by

counting the state court sentence as a ‘prior sentence.’

The conspiracy to commit murder preceded by at least

six months the first federal sentencing. This court’s remand was general, not limited. . . . Accordingly, the

general rule that resentencing is de novo applies and

the court correctly found that the state sentence was a

‘prior sentence.’”

U.S. v. Klump, 57 F.3d 801, 802–03 (9th Cir. 1995).

See Outline at I.C.

Ninth Circuit holds that information revealed by

defendant under state immunity may not be used in

federal sentencing. In a state proceeding unrelated to

the instant federal action, defendants were granted

transactional immunity for their conduct relating to a

death. When defendants were sentenced in federal court,

the immunized conduct was considered “prior similar

adult criminal conduct” warranting an upward criminal

history departure. The district court concluded that a

state grant of use immunity could bind a federal court,

but not a grant of transactional immunity.

The appellate court remanded, holding that Supreme

Court precedent established that “once the defendant

demonstrates that he has testified under a state grant

of immunity, the federal authorities bear the burden

of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for

the disputed evidence. . . . Therefore, state transactional

immunity can be effective as federal use immunity.” The

court also held that the fact that defendants’ testimony

had not been compelled did not change this rule. On

remand the government must demonstrate an independent and legitimate source for the evidence relating

to the death or defendants should be sentenced without

reference to that information.

U.S. v. Camp, 58 F.3d 491, 492–93 (9th Cir. 1995).

See Outline at I.C.

Amendments

Two circuits hold that the right to appointed counsel

does not extend to a post-appeal motion for retroactive

application of an amended guideline. The defendant in

each circuit was sentenced for an LSD offense and, after

the offense level calculation for LSD weight was changed

in 1993 and made retroactive, moved under 18 U.S.C.

§3582(c)(2) to have the sentence recalculated. Each district court denied the motion and the appellate courts

upheld that decision. Defendants also argued that they

should have had counsel appointed under the Criminal

Justice Act, 18 U.S.C. §3006A(c), which continues the

appointment of counsel “at every stage of the proceedings . . . through appeal, including ancillary matters

appropriate to the proceedings.”

Both circuits rejected this claim, concluding that

§3006A does not extend beyond the initial appeal. The

Second Circuit, stating that extending the right would

be unworkable because of the potential burden on attorneys and cost to the public, held that “the reference to

ancillary matters in §3006A does not require the furnishing of Criminal Justice Act counsel in post-appeal motions for reduction of sentence seeking the benefit of

subsequent changes in the Guidelines. The provision of

counsel for such motions should rest in the discretion of

the district court.” The Fifth Circuit agreed, adding that

“as a matter of common sense, a motion to modify a

sentence pursuant to §3582(c)(2), which can be filed long

after conviction, is too far removed to be considered

‘ancillary’ to the criminal proceeding.”

U.S. v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995);

U.S. v. Reddick, 53 F.3d 462, 464–65 (2d Cir. 1995).

See Outline at I.E.
Guideline Sentencing Update, vol. 7, no. 11, August 31, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Offense Conduct

Mandatory Minimums

Second, Eighth, and Eleventh Circuits join majority

in holding that amended guideline calculation for LSD

does not apply to mandatory minimum calculation.

In U.S. v. Stoneking, 34 F.3d 651 (8th Cir. 1994), the Eighth

Circuit held that the guideline amendments for calculating the weight of LSD per dosage unit, see §2D1.1(c) at n.*

and comment. (n.18 and backg’d), which were made retroactive under §1B1.10(d), could be applied to the calculation of LSD weight for mandatory minimum sentencing purposes. Most circuits, however, have held that

mandatory minimum amounts must still be calculated

under Chapman v. U.S., 500 U.S. 453 (1991), by including

the weight of the carrier medium. Sitting en banc, the

Eighth Circuit reversed Stoneking, concluding that the

amendment conflicts with Chapman and that “where

the per dose approach conflicts with the mandatory

minimum sentence approach, the mandatory minimum approach prevails.”

The Eleventh Circuit reached a similar conclusion in

reversing a retroactive modification of a sentence to below the mandatory minimum, concluding that “the

amendment cannot be reconciled with Chapman in that

Chapman requires that the entire, actual weight of the

carrier medium, whatever its composition, be taken

into account. . . . [W]e feel constrained to hold that the

entire weight rule of Chapman must still be followed for

purposes of determining whether a defendant is subject

to the mandatory, minimum sentence called for in 21

U.S.C. §841(b)(1).”

The Second Circuit followed suit in a direct appeal

(defendant was sentenced before the amendment but his

appeal was after), concluding that the Sentencing Commission had neither the intent nor authority “to displace

the Chapman method . . . . Until there is either congressional action or a reinterpretation of [§841(b)] by the Supreme Court, Chapman governs the meaning of the term

‘mixture or substance’ for purposes of determining LSD

quantity under 21 U.S.C. §841(b), and LSD weight will be

calculated for sentencing under a dual weight system.”

Ten circuits have now ruled on this issue, and only the

Ninth Circuit has held that the amended guideline

method should be used for mandatory minimum purposes. The Supreme Court recently granted certiorari on

this matter in U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995)

(en banc), cert. granted, 115 S. Ct. 2576 (1995).

U.S. v. Kinder, No. 94-1333 (2d Cir. Aug. 16, 1995) (Winter, J.) (Leval, J., dissenting); U.S. v. Stoneking, 60 F.3d 399,

402 (8th Cir. 1995) (en banc) (four judges dissenting); U.S.

v. Pope, 58 F.3d 1567, 1570–72 (11th Cir. 1995).

See Outline at II.B.1 and cases summarized in 7GSU #7.

Possession of Weapon by Drug Defendant

Fifth Circuit holds that §2D1.1(b)(1) enhancement

may not be based on presumption that defendant possessed weapon during drug offense because he was an

armed police officer. Defendant pled guilty to possession

of cocaine with intent to distribute and received the

§2D1.1(b)(1) enhancement for possession of a firearm

during a drug trafficking crime. The appellate court vacated and remanded. “The district court in the case at bar

based its decision upon a presumption that Siebe was an

armed police officer. This is a case of first impression. This

court has not addressed the question of whether a presumption based upon the fact that a defendant is a police

officer can be used for an enhancement under the Guidelines. In the case at bar there is no evidence absent such a

presumption that Siebe possessed a firearm during the

commission of the offense. Although the FBI found ninety

guns in Siebe’s residence, they found no drugs or drug

paraphernalia in the residence. There was no evidence of

Siebe’s drug trafficking activities. Based upon the lack of

evidence in this case, the court finds that the Government

did not satisfy its burden of proof.”

U.S. v. Siebe, 58 F.3d 161, 163 (5th Cir. 1995).

See Outline at II.C.1 and 3.