Guideline Sentencing Update

a publication of the Federal Judicial Center volume 8, number 1, October 12, 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.

Determining the Sentence

“Safety Valve” Provision

Fifth Circuit holds that statements to a probation

officer do not satisfy requirement to provide information “to the Government.” Defendant faced a ten-year

mandatory minimum sentence after pleading guilty to

a drug conspiracy charge. He requested application of 18

U.S.C. §3553(f ), which allows sentencing under the

Guidelines without regard to the mandatory minimum.

USSG §5C1.2 incorporates §3553(f) into a guideline, and

subsection (5) requires the defendant to have “truthfully

provided to the Government all information and evidence the defendant has concerning the offense or

offenses that were part of the same course of conduct or

of a common scheme or plan.” The probation officer

interviewed defendant in preparation of the presentence

report, but neither defendant nor the probation officer

spoke to the government’s case agent. The court gave

defendant an opportunity to do so, but defendant refused. The court declined to apply §5C1.2 and sentenced

defendant to the mandatory minimum.

Defendant argued on appeal that his discussion with

the probation officer satisfied the requirement to disclose

to the Government all information he knew about the

criminal offense because the probation officer is, for

purposes of §5C1.2, “the Government.” The appellate

court disagreed and affirmed the sentence. “In the context of the sentencing hearing, [Fed. R. Crim. P.] 32(c) uses

‘Government’ in conjunction with ‘attorney’ or ‘counsel.’

By the use of in pari materia, the Government argues that

we should construe ‘Government’ in §5C1.2 the same

way. The Government’s position is supported by §5C1.2’s

explicit cross reference to Rule 32. See §5C1.2 commentary n.8. We agree with the Government and the district

court that the probation officer is, for purposes of §5C1.2,

not the Government. The purpose of the safety valve

provision was to allow less culpable defendants who fully

assisted the Government to avoid the application of the

statutory mandatory minimum sentences. . . . A

defendant’s statements to a probation officer do not assist the Government.”

U.S. v. Rodriguez, 60 F.3d 193, 195–96 (5th Cir. 1995).

First Circuit holds that defendant must make “affirmative act of cooperation” in providing “information

and evidence” to government under §3553(f)(5). The

“safety valve” provision in 18 U.S.C. §3553(f) requires,

inter alia, that “(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the

Government all information and evidence the defendant

has concerning the offense or offenses that were part of

the same course of conduct or of a common scheme or

plan.” Although defendant did not directly speak with the

government, he argued that he effectively provided the

required information because his discussion of the crime

with his coconspirators had been recorded by an undercover agent and, when pleading guilty, he admitted to the

facts presented by the government at the plea hearing.

The district court refused to apply §3553(f).

The appellate court affirmed. “Whatever the scope of

the ‘information and evidence’ that a defendant must

provide to take advantage of section 3553(f)(5), we hold

that a defendant has not ‘provided’ to the government

such information and evidence if the sole manner in

which the claimed disclosure occurred was through

conversations conducted in furtherance of the defendant’s criminal conduct which happened to be taperecorded by the government as part of its investigation.

. . . Nor does it suffice for the defendant to accede to

the government’s allegations during colloquy with the

court at the plea hearing. Section 3553(f)(5) contemplates an affirmative act of cooperation with the government no later than the time of the sentencing hearing.

Here, Wrenn did not cooperate . . . . And when the court

offered to postpone sentencing so Wrenn could make

a proffer to the government for purposes of section

3553(f)(5), he refused.”

U.S. v. Wrenn, No. 94-2089 (1st Cir. Sept. 25, 1995)

(Lynch, J.).

See Outline generally at V.F.

Violation of Supervised Release

Sixth Circuit holds that amended statutory language

does not require courts to follow revocation policy statements. The Violent Crime Control and Law Enforcement

Act of 1994, effective Sept. 13, 1994, amended 18 U.S.C.

§3553(a)(4) to state 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.” Defendant argues that

this amendment indicates that Congress intended that

courts must now impose sentence following revocation

of probation or supervised release in accordance with

the Chapter 7 policy statements in the Guidelines. After

his supervised release was revoked he was subject to a 3–
2 Guideline Sentencing Update, vol. 8, no. 1, October 12, 1995 • a publication of the Federal Judicial Center

9-month term under §7B1.4(a), but the court thought that

was too lenient and sentenced defendant to the two-year

statutory maximum.

The appellate court affirmed, finding that the amendment did not change the current holding of all circuits

that Chapter 7 policy statements must be considered but

are not mandatory. Courts are required by 18 U.S.C.

§3553(b) to follow guidelines, but “[a]bsent any applicable guidelines, the mandatory language of §3553(b)

does not apply.” Chapter 7 consists of policy statements

only, without accompanying guidelines, that are intended to provide “greater flexibility to . . . the courts.” See

USSG Ch.7, Pt.A.3(a), intro. comment. “Therefore, because there are not any guidelines for the policy statements to interpret or explain, the mandatory language of

§3553(b) does not apply. On a plain reading of amended

§3553(a), a court is required to ‘consider’ the policy statements in Chapter 7 in imposing a sentence for supervised

release violation. Defendant argues that in amending

§3553 Congress only could have intended to make the

policy statements mandatory. [There are] two other possible purposes: To make explicit that when the Commission does issue guidelines pertaining to the revocation of

supervised release, those guidelines will be as binding as

other sentencing guidelines; and to affirm the principle

recognized by the Sixth Circuit that a court must consider the Chapter 7 policy statements when sentencing a

defendant for violation of the conditions of supervised

release. Defendant’s conclusion about Congressional

purpose does not follow from the wording of the amendment or reasoning of the cases. . . . Until the Sentencing

Commission changes the policy statements in Chapter 7

to guidelines or Congress unequivocally legislates that

the policy statements in Chapter 7 are binding, this Court

will not reduce the flexibility of the district courts in

sentencing supervised release violators.”

U.S. v. West, 59 F.3d 32, 35–36 (6th Cir. 1995).

See Outline at VII.

Departures

Substantial Assistance

Ninth Circuit holds that government may not refuse

§5K1.1 motion because defendant exercised right to

trial. Defendant pled guilty to drug charges pursuant to a

plea agreement in which he agreed to cooperate with the

government. He faced a sentencing range of 235–293

months, but the government made a §5K1.1 motion and

the district court sentenced him to 144 months. However,

before sentencing, defendant had moved to withdraw his

guilty plea and the court had denied the motion. After

sentencing, the government agreed to allow defendant to

withdraw his plea. The government tried to persuade

defendant to forego a trial by offering to recommend a

one-year sentence reduction if he pled guilty and, conversely, stating that if defendant went to trial it would

“present additional charges to the Grand Jury and would

not recommend [a §5K1.1] reduction.” Defendant insisted on going to trial and was found guilty. He received

a 188-month sentence after the government refused to

make a §5K1.1 motion and the district court refused to

depart. Defendant argued on appeal that the government’s refusal to file was “in retaliation for his choice to

exercise his constitutional right to a jury trial.”

The appellate court agreed that “[t]he record supports

this contention. . . . While it is undoubtedly true both that

the government does not have to make a substantial

assistance motion every time a defendant is cooperative

and that the government may use the motion as a carrot

to induce a defendant to make a plea, that is not what

transpired in this case. Here, the government initially took

the position at sentencing that the defendant had offered

substantial assistance and made the appropriate motion,

and then threatened to change its position to discourage

the defendant from going to trial. . . . Mr. Khoury has

presumptively established that the government has withdrawn its §5K1.1 motion because he forced them to go to

the trouble of proving their case before a jury, as was his

constitutional right. The government has pointed to no

intervening circumstances that diminished the usefulness of what they previously considered to be substantial

assistance. We therefore conclude that Mr. Khoury has

made the ‘substantial threshold showing’ [of an unconstitutional motive] required by Wade [v. U.S., 504 U.S. 181

(1992)].” On remand the district court should “exercise its

discretion and consider the appropriate Guideline factors relating to a §5K1.1 motion.”

U.S. v. Khoury, 62 F.3d 1138, 1140–42 (9th Cir. 1995)

(Fernandez, J., dissenting). Accord U.S. v. Paramo, 998 F.2d

1212, 1219–21 (3d Cir. 1993) (may not deny §5K1.1 motion

to penalize defendant for exercising right to trial).

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

Offense Conduct

Calculating Weight of Drugs

Fourth Circuit holds that amended LSD calculation

applies to “liquid LSD.” Defendant was convicted of LSD

offenses that involved LSD dissolved on blotter paper and

in a liquid solvent, and his sentence was based on the total

weight of the mixtures. After the 1993 amendment to the

LSD calculation (Amendment 488), he moved for resentencing. The district court applied the new method to the

LSD on blotter paper but not to the liquid, reasoning that

“in calculating the Guidelines involving liquid LSD, the 0.4

mg conversion factor should not be used because there is

no carrier medium involved.” The change in the weight of

the blotter paper LSD was too small to lower the offense

level, so defendant’s sentence was not changed and he

appealed, arguing that his offense level should be deter-
Guideline Sentencing Update, vol. 8, no. 1, October 12, 1995 • a publication of the Federal Judicial Center 3

mined by calculating the number of doses in the liquid

and then using the 0.4 mg per dose conversion factor of

the amendment.

The appellate court remanded. Although Amendment

488 focuses on doses of LSD “on a blotter paper carrier

medium” and did not provide a specific calculation for

liquid LSD, there is a reference to it in §2D1.1, comment.

(n.18): “In the case of liquid LSD (LSD that has not been

placed onto a carrier medium), using the weight of the LSD

alone to calculate the offense level may not adequately

reflect the seriousness of the offense. In such a case, an

upward departure may be warranted.” The court determined “that the Commission intended ‘liquid LSD’ to refer

to pure LSD dissolved or suspended in a liquid solvent, the

form of LSD at issue in this case,” and “did not intend

‘liquid LSD’ to refer to pure LSD because the Guidelines

readily distinguish between drugs contained in an impure mixture or substance and drugs in ‘pure’ or ‘actual’

form.” However, “[b]y defining pure LSD dissolved or

suspended in a liquid solvent as ‘LSD not placed onto a

carrier medium,’ Amendment 488 interprets the liquid

solvent as not to be an LSD carrier medium for Guidelines

purposes,” leading the court to conclude that the 0.4 mg

per dose calculation for paper carrier media is “inapplicable to liquid LSD.” Instead, “Amendment 488 dictates

that, in cases involving liquid LSD, the weight of the pure

LSD alone should be used to calculate the defendant’s

base offense level . . . . [T]he plain language of the amendment supports this interpretation because Application

Note 18 expressly authorizes the use of ‘LSD alone’ in cases

involving liquid LSD,” and the reference to upward departure “would be unnecessary had the Commission not

intended courts to use the weight of the LSD alone in

calculating a defendant’s base offense level.”

The court thus held that the offense level must be

based on either the weight of pure LSD in the liquid or the

number of doses contained in the liquid multiplied by

0.05 mg (the Drug Enforcement Administration’s standard dosage unit for LSD referenced in §2D1.1’s Background Commentary)—“we conclude that using the 0.05

mg factor is consistent with our conclusion above that the

liquid solvent in liquid LSD is not a carrier medium for

Guidelines purposes and with Amendment 488’s primary

approach that courts should use the weight of the LSD

alone, and not the weight of the LSD and its liquid solvent

or any potential carrier medium.” “As in using the weight

of the pure LSD, the court remains free to depart upward if

it determines that using the 0.05 mg conversion factor

does not reflect the seriousness of Turner’s offense.” Because the issue was not addressed below, the court added

that it “need not decide whether [to] use the entire weight

of the liquid LSD or some other weight in applying any

statutory minimum sentence.”

U.S. v. Turner, 59 F.3d 481, 484–91 (4th Cir. 1995).

See Outline at II.B.1.

Seventh Circuit holds that drugs purchased for personal use are included for sentencing on drug distribution conspiracy. Defendant pled guilty to conspiracy to

possess with intent to distribute and to distribute cocaine. An admitted cocaine addict, he argued that approximately half of the cocaine he purchased from his

supplier should not be included in calculating his offense

level because it was for his personal use rather than for

distribution. See U.S. v. Kipp, 10 F.3d 1463, 1465–66 (9th

Cir. 1993) [6 GSU #9]. The district court disagreed and

sentenced defendant on the full quantity of cocaine that

he had purchased.

The appellate court affirmed, finding that its decision

was controlled by Precin v. U.S., 23 F.3d 1215, 1219 (7th

Cir. 1994) (affirming inclusion of cocaine that defendant received for personal use as “commission” from

sales for another conspirator—“Any cocaine which

Precin received for his personal use was necessarily intertwined with the success of the distribution”). Accord

U.S. v. Brown, 19 F.3d 1246, 1248 (8th Cir. 1994); U.S. v.

Innamorati, 996 F.2d 456, 492 (2d Cir. 1993). The court

concluded that all of the drugs were part of the “same

common scheme or plan”—all the cocaine came from

the same supplier, “was not divided into packages for

distribution and packages for personal use, . . . [and] the

amount that Snook personally consumed directly affected the conspiracy—the more Snook used, the more

he had to sell to bankroll his habit.” The court distinguished Kipp because that case did not involve a conspiracy—the offense of conviction there was possession

with intent to distribute, and “the court decided that only

the amount of drugs that the defendants intended to

distribute was ‘part of the same course of conduct or

common scheme or plan.’”

U.S. v. Snook, 60 F.3d 394, 395–96 (7th Cir. 1995).

See Outline at II.A.1.

Loss

Seventh Circuit holds that interest due on a loan

may be included in loss calculation. Defendant was

convicted of offenses involving a series of fraudulent

loans. In determining the amount of loss involved, the

district court included the interest that defendant had

agreed to pay on the loans. Defendant appealed, arguing

that §2F1.1, comment. (n.7), states that loss “does not . . .

include interest the victim could have earned on such

funds had the offense not occurred.”

The appellate court affirmed, agreeing with the circuits

that have held that the exclusion of interest in Note 7

“refers to speculative ‘opportunity cost’ interest—the

time value of money stolen from the victims. . . . It does

not refer to a guaranteed, specific rate of return that a

defendant contracts or promises to pay.” The court

added that “Note 7 states that loss is the value of the thing

stolen—money, property, or services. In the context of a
Guideline Sentencing Update, vol. 8, no. 1, October 12, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

loan agreement, the thing itself, or property, includes

both the principal and the agreed-upon interest. But for

the promise to pay interest, the bank would not have

made the loan. The interest Allender challenges here

could therefore properly be considered part of the

property itself for purposes of Note 7. But even if it is

properly deemed ‘interest’ under this Note, the language

allows for a distinction to be made between the types of

interest based on the level of certainty with which the

interest was due. The Note uses the phrase ‘interest the

victim could have earned on such funds.’ Inherent in

this phrasing is a degree of speculation that is usually

associated with mere investment opportunities—the

time value of money. But where there is an enforceable

agreement to pay a calculable sum, all speculation disappears. If this was the kind of interest contemplated

by Note 7, the commentary drafters would likely have

used different language, perhaps the phrase ‘interest the

victim would have earned.’ They did not, and therefore

we think that the only ‘interest’ properly excluded from

the loss calculations here is the opportunity cost value of

the item stolen.”

The court noted that this decision conflicted with a

recent decision by another panel in U.S. v. Clemmons,

48 F.3d 1020, 1025 (7th Cir. 1995), which held that under

Note 7 interest promised to defrauded investors should

not be included as loss. The current opinion was circulated among all active judges in the circuit and “[a] majority of the court has . . . agreed that Clemmons should be

overruled to the extent that it conflicts with the holding in

this opinion.”

U.S. v. Allender, 62 F.3d 909, 917 (7th Cir. 1995).

See Outline at II.D.2.d.

Certiorari granted:

U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994), cert. granted,

64 U.S.L.W. 3199 (U.S. Sept. 27, 1995) (No. 94-1664).

“Question presented: Is district court’s downward departure from prescribed range of Sentencing Guidelines on

basis of factors not expressly prohibited as grounds for

departure to be reviewed under de novo standard applied

by court below or under deferential standard set forth

in U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993), and other

cases?” Certiorari was also granted in a companion case,

Powell v. U.S., No. 94-8842 (U.S. Sept. 27, 1995), “to resolve

sharp conflict among federal courts of appeals in essential approach to reviewing departures under federal Sentencing Guidelines, and in correct analysis of particular

categories of downward departure involved in this case.”

See also 7GSU #2; Outline at VI.C.3 and VI.C.4.b.

Opinion withdrawn:

U.S. v. Garza, 57 F.3d 950 (10th Cir. 1995), was withdrawn from publication Sept. 6, 1995, after a joint

motion to dismiss the appeal was granted and the

judgment vacated. Parts of the opinion were included in

the upcoming September 1995 Outline (currently being

printed with distribution expected after Oct. 23). The

references to Garza in sections VI.C.5.c and VI.F.1.b.i

should be deleted.

Correction:

The pending amendment to §2D1.1, which requires

the use of number of pills rather than gross weight for

certain controlled substances, will not be retroactive as is

stated in the September 1995 Outline. Please delete that

statement at the top of page 31 in section II.B.1.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 8, number 2, November 28, 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

Second Circuit affirms small downward departure

for antitrust defendant because his imprisonment

would have imposed “extraordinary hardship on the

defendant’s employees.” Defendant was convicted of

one count of price fixing and faced a guideline range of

8–14 months, which requires imprisonment for at least

half the minimum term. See §5C1.1(d). The district court

granted defendant’s request for a departure of one offense level, which would allow defendant to avoid prison.

The court concluded that imprisoning defendant “would

extraordinarily impact on persons who are employed by

him” and placed defendant on two years’ probation, with

the first six months in home confinement.

The appellate court affirmed, finding that the departure was legally appropriate and supported by the facts of

the case. The court acknowledged that under §2R1.1, the

guideline that applied to defendant, “antitrust offenders

should generally be sentenced to prison” and that “the

business effects of a white collar offender’s incarceration

generally provide no ground for departure.” However, “a

district court not only can, but must, consider the possibility of downward or upward departure ‘when there are

compelling considerations that take the case out of the

heartland factors upon which the Guidelines rest.’ . . .

Among the permissible justifications for downward departure, we have held, is the need, given appropriate

circumstances, to reduce the destructive effects that

incarceration of a defendant may have on innocent third

parties,” such as family members under §5H1.6. “The

issue before us, then, is whether the facts considered by

the district court comprise such ‘extraordinary circumstances,’ falling outside the heartland envisioned by the

Antitrust Guideline. Our de novo review . . . makes clear

that extraordinary effects on an antitrust offender’s employees, ‘to a degree[ ] not adequately taken into consideration by the Sentencing Commission,’ warrant a

downward departure.”

The court then held that the district court properly

found that defendant’s “situation [was] extraordinary

when it distinguished his case from other ‘high level

business people’ it had sentenced.” The record showed

that defendant’s remaining “companies’ continuing livelihood depends entirely on [his daily] personal involvement, and that, in his absence, [their main creditor]

might well withdraw its credit, leading to both companies’ immediate bankruptcy and the loss of employment for [at least] 150 to 200 employees.” It was not error

to find that imprisoning defendant “would have extraordinary effects on his employees to a degree not adequately taken into consideration by the Sentencing

Commission. While we agree with our sister circuits that

business ownership alone, or even ownership of a vulnerable small business, does not make downward departure appropriate, . . . departure may be warranted where,

as here, imprisonment would impose extraordinary

hardship on employees. As we have noted in similar circumstances, the Sentencing Guidelines ‘do not require

a judge to leave compassion and common sense at the

door to the courtroom.’”

U.S. v. Milikowsky, 65 F.3d 4, 6–9 (2d Cir. 1995).

See Outline at VI.C.1.e.

Extent of Departure

Seventh Circuit holds that defendant may appeal calculation of sentencing range even if new range would

be above sentence defendant had received after downward departure. The district court determined that

defendant’s guideline range was 121–151 months. After

the government recommended a 25% downward departure for substantial assistance, the court sentenced defendant to 91 months. Defendant appealed, arguing that

he should have received a reduction in his offense level

for being a minor participant, reducing his guideline

range to 100–125 months, and that the 25% departure

should have been made from the lower range.

As an initial matter, the appellate court faced “a jurisdictional question: whether a defendant may appeal the

computation of his sentencing range, when he already

has a sentence below the lower bound of the range he

thinks is right.” The court said yes, even though the extent

of a discretionary departure is normally unreviewable:

“Correction of a legal error often leads to a revision in the

judgment, and the possibility that the district judge will

impose the same sentence does not preclude review. . . .

Unless the judge expressly states that he would impose

the same sentence whichever range is correct, . . . the

defendant has the potential for gain on a remand, because the district judge may have meant to grant a substantial discount from the properly calculated range. . . .

The treatment of overlapping guideline ranges . . . offers

a close parallel—with the difference that instead of two

overlapping guideline ranges we have one range plus a

zone of reasonable departures. If the district judge had

said that he would impose a 91-month sentence whether
2 Guideline Sentencing Update, vol. 8, no. 2, November 28, 1995 • a publication of the Federal Judicial Center

or not he thought Burnett a ‘minor’ participant, then

there would be no point to this appeal. As things stand,

however, the actual sentence may be a ‘result’ of the

decision about minor-participant status. . . . It is in the

interest of the legal system and defendants alike to ensure

that even ‘discounted’ sentences rest on a legally correct

foundation. We therefore conclude that [18 U.S.C.]

§3742(a)(2) provides jurisdiction to entertain a claim that

an error in the calculation of the guideline range influenced the sentence, whether or not that sentence ultimately falls below the properly calculated range.”

However, the court ultimately affirmed the sentence

after concluding that defendant’s claim to minor participant status was not supported by the facts. Note that two

other circuits have addressed this jurisdictional question

and reached different conclusions. Compare U.S. v.

Hayes, 49 F.3d 178, 182 (6th Cir. 1995) (because defendant

alleged a “specific legal error,” court would review 113-

month sentence imposed after §5K1.1 departure even

though it was below guideline range that would result if

defendant’s appeal of §3C1.2 enhancement succeeded;

sentence remanded for further findings on whether

§3C1.2 should be applied) with U.S. v. Dutcher, 8 F.3d 11,

12 (8th Cir. 1993) (affirmed: although defendant claimed

that §3B1.1(a) enhancement was improper and his guideline range should have been 108–135 months rather than

168–210 months, court would not review 84-month

sentence imposed after §5K1.1 departure—even if

defendant’s claim was correct, “his eighty-four month

sentence would still represent a downward departure

from the applicable guideline range [and] would still

be non-reviewable”).

U.S. v. Burnett, 66 F.3d 137, 138–40 (7th Cir. 1995).

See Outline at VI.D.

General Application

Amendments

Eighth and Ninth Circuits hold that 1991 amendment

clarifying that career offender provision does not apply

to felon-in-possession offense should be applied retroactively, but amendment to §2K2.1 that increased

offense level for that offense cannot. Both defendants

committed the offense of being a felon in possession of

a firearm, and were sentenced as career offenders, before

the Nov. 1991 amendment to §4B1.2’s commentary

(Amendment 433) “clarified” that the career offender

guideline did not apply to that offense. After the amendment was made retroactive (Amendment 469) in Nov.

1992, both defendants sought resentencing. Application

of Amendment 433 to the pre-1991 guidelines they were

originally sentenced under would significantly lower

their sentences, mainly by eliminating application of the

career offender provision. Both district courts did apply

Amendment 433, but instead of using the offense guideline in effect at the time of defendants’ offenses or original

sentencing they used a post-Nov. 1991 version of §2K2.1,

which had been amended to increase the base offense

level for the felon-in-possession offense but was not

made retroactive. The courts reasoned that amended

§2K2.1 could be used because it did not result in a harsher

sentence than what defendants were originally subject to

under the pre-Nov. 1991 guideline and then-existing circuit law. Defendants appealed and, following different

reasoning, both appellate courts remanded.

The Ninth Circuit held that using the later version of

§2K2.1 was an ex post facto violation because it “imposes

a base offense level 15 levels higher than that imposed

under the 1988 version—resulting in a harsher punishment under the later Guidelines. . . . The government has

erroneously assumed that the proper comparison is between the 84-month sentence initially imposed on

Hamilton under the 1988 Guidelines and the 77-month

sentence imposed upon him at resentencing. This comparison is inappropriate, however, because it is based

on the sentencing court’s initial sentencing ‘error.’ . . .

[W]hen the sentencing court initially sentenced Hamilton, it erred in calculating his sentence; instead of being

sentenced to 84 months, Hamilton should have been

sentenced only to 12 to 18 months. Therefore, we must

compare the sentence that Hamilton received upon resentencing, 77 months, to the sentence that he should

have received originally, 12 to 18 months.” To properly

resentence defendant, the court held, “the sentencing

court is to apply the Guidelines in effect at the time of the

offense, but must also consider the clarification provided

by Amendment 433. As we conclude that application of

the 1993 Guidelines indeed violates the Ex Post Facto

prohibition, . . . the sentencing court [must] apply the

Guidelines in effect at the time of the offense—the 1988

Guidelines—in light of Amendment 433.”

The Eighth Circuit, rejecting the government’s argument that Amendment 433 “is plainly inconsistent

with both pre- and post-November 1991 law” and should

not be applied retroactively, concluded that “the

Commission’s decision that the change is clarifying and

suitable for retroactive use is not at odds with the Guidelines. . . . [T]he amendment raising the base offense level

for felon-in-possession is best understood as a decision

by the Commission that this crime was too leniently

punished under the correct interpretation of its preNovember 1991 Guidelines. . . . Douglas seeks resentencing wholly under the Guidelines version employed by the

original district court, but in light of a retroactive amendment clarifying that the court applied the wrong provision of that version. We conclude that Douglas is entitled

to the relief that he seeks.” Using the later version of

§2K2.1, which was not designated for retroactive applica-
Guideline Sentencing Update, vol. 8, no. 2, November 28, 1995 • a publication of the Federal Judicial Center 3

tion, would also be inconsistent with §1B1.10, comment.

(n.2) (when applying a retroactive amendment, “the court

shall substitute only the amendments listed in subsection

(c) for the corresponding guideline provisions that were

applied when the defendant was sentenced. All other

guideline application decisions remain unaffected.”).

Hamilton v. U.S., 67 F.3d 761, 764–65 (9th Cir. 1995);

U.S. v. Douglas, 64 F.3d 450, 451–53 (8th Cir. 1995). But cf.

U.S. v. Lykes, 999 F.2d 1144, 1148–50 (7th Cir.1993) (not an

ex post facto violation to apply amended §2K2.1 and

Amendment 433 to defendant sentenced in 1992 for 1990

offense; alternatively, if applying later guideline would

violate ex post facto, Amendment 433 would not be

applied to 1989 Guidelines because it was a substantive

change that conflicted with circuit precedent).

See Outline at I.E and IV.B.1.b.

Sentencing Procedure

Waiver of Rights in Plea Agreement

Ninth Circuit upholds unconditional waiver of right

to appeal sentence despite change in law between time

of plea and sentencing. As part of the plea agreement

defendant “waived ‘the right to appeal any sentence

imposed by the district judge.’ The waiver was not conditioned on the imposition of any particular sentence or

range.” With a downward departure under §4A1.3 because his criminal history score overstated the seriousness of his prior offenses, defendant was sentenced to the

10-year mandatory minimum. After the plea agreement

but before defendant was sentenced, Congress enacted

18 U.S.C. §3553(f), which allows drug offenders to be

sentenced below applicable mandatory minimum terms

if they meet certain requirements. The district court itself

raised the issue of whether defendant might qualify,

but ultimately ruled that he could not because he had

three criminal history points and §3553(f) applies only if

defendant “does not have more than 1 criminal history

point, as determined under the sentencing guidelines.”

Defendant appealed, arguing (1) that the district court

erred in ruling that he could not qualify for §3553(f)

(presumably by departure to a lower criminal history

score), and (2) that he should not be held to his waiver

because he could not knowingly and intelligently waive

the right to appeal the application of a law that did not

exist at the time of his plea agreement.

The appellate court held that the waiver was valid and

dismissed the appeal. “The temporal scope of an appeal

waiver appears to be an issue of first impression in the

federal courts. . . . We hold that Johnson’s appeal waiver

encompasses appeals arising out of the law applicable

to his sentencing. On its face, Johnson’s waiver does not

appear to be limited to issues arising from the law as it

stood at the time of his plea: the waiver refers to ‘any

sentence imposed by the district judge,’ not ‘any sentence imposed under the laws currently in effect.’ Although the sentencing law changed in an unexpected

way, the possibility of a change was not unforeseeable

at the time of the agreement. Johnson was presumably

aware that the law in effect at the time of sentencing,

not the time of the plea, would control his sentence if

the change in law did not increase his sentencing exposure. . . . Therefore, a waiver of an appeal of ‘any sentence’

is most reasonably interpreted as intending to waive

appeals arising out of the district court’s construction of

the laws that actually determine Johnson’s sentence, regardless of when they were enacted.” The court also held

that “the waiver could be knowing and voluntary as to

laws enacted after the plea was entered into. . . . The fact

that Johnson did not foresee the specific issue that he

now seeks to appeal does not place that issue outside the

scope of his waiver.”

U.S. v. Johnson, 67 F.3d 200, 202–03 (9th Cir. 1995).

See Outline at IX.A.5.

Fed. R. Crim. P. 35(c)

Second Circuit holds that “imposition of sentence”

for purposes of Rule 35(c)’s seven-day limit refers to the

oral pronouncement of sentence. Four days after defendant was sentenced, and before written judgment of sentence was entered, the district court entered an order

stating that there may be other factors relevant to the

sentence that were not accounted for and that it was

considering correcting the sentence under Fed. R. Crim.

P. 35(c). However, because this could not be accomplished within the seven-day limit of the rule, the court

reserved the right to correct the sentence if error was

found. Almost six months later, at another sentencing

hearing, the district court reconsidered the sentence

and departed downward.

The appellate court reversed, holding first that the

“correction” in this case—a downward departure—“is

clearly outside the scope of the rule. By its terms Rule

35(c) permits corrections of ‘arithmetical, technical, or

other clear error[s].’ . . . Since Abreu-Cabrera’s resentencing represented nothing more than a district court’s

change of heart as to the appropriateness of the sentence, it was accordingly not a correction authorized by

Rule 35(c).”

The court also had to answer “the question of whether

‘imposition of sentence’ refers to the oral pronouncement of a defendant’s sentence or the docket entry of a

written sentence (which was not done with respect to the

oral pronouncement of Abreu-Cabrera’s original sentence),” to determine whether Rule 35(c) actually applied

here. Reasoning that the purpose of the rule is finality in

sentencing, the court held that “a sentence is imposed for

purposes of Rule 35(c) on the date of oral pronounce-
Guideline Sentencing Update, vol. 8, no. 2, November 28, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

ment, rather than the date [the written] judgment is entered. . . . A contrary rule, interpreting the phrase to refer

to the written judgment, would allow district courts to

announce a sentence, delay the ministerial task of formal

entry, have a change of heart, and alter the sentence—a

sequence of events we believe to be beyond what the rule

was meant to allow.” Accord U.S. v. Townsend, 33 F.3d

1230, 1231 (10th Cir. 1994) (“sentence is imposed upon a

criminal defendant, for purposes of Rule 35(c), when the

court orally pronounces sentence from the bench”). See

also U.S. v. Fahm, 13 F.3d 447, 453 (1st Cir. 1994) (“judgment and docket entry plainly reflect that the twentymonth prison sentence was ‘imposed’” for purposes of

Rule 35(c)). But see U.S. v. Clay, 37 F.3d 338, 340 (7th Cir.

1994) (stating that “date of ‘imposition of the sentence’

from which the seven days runs signifies the date judgment enters rather than the date sentence is orally pronounced”; when district court, after reconsidering original sentence and deciding not to change it, entered final

judgment twelve days after oral pronouncement of sentence, “it acted within the time constraints of” Rule 35(c)).

U.S. v. Abreu-Cabrera, 64 F.3d 67, 72–74 (2d Cir. 1995).

See Outline at IX.F.

Certiorari granted:

U.S. v. Melendez, 55 F.3d 130 (3d Cir. 1995), cert.

granted, 64 U.S.L.W. 3340 (U.S. Nov. 6, 1995) (No. 95-

5661). “Question presented: Does district court have

discretion to depart below applicable statutory minimum sentence when government has filed motion pursuant to Section 5K1.1 for downward departure from

applicable range under federal Sentencing Guidelines

but government has not filed motion under 18 U.S.C.

§3553(e) for departure below statutory minimum?”

See also the summary of Melendez in 7 GSU #10 and the

Outline at section VI.F.3 (p.196).

Amended opinion:

U.S. v. Camp, 58 F.3d 491 (9th Cir. 1995) [7 GSU #11],

has been superseded by an amended opinion issued

Oct. 3, 1995. The holding remains largely the same but

has been narrowed, with the court stressing that the grant

of immunity must have been initiated by the state,

thereby making the self-incriminating evidence stateinduced. This distinguishes the holding from U.S. v.

Eliason, 3 F.3d 1149, 1153–54 (7th Cir. 1993) and U.S. v.

Roberson, 872 F.2d 597, 611–12 (5th Cir. 1989), which

allowed such evidence to be used where the defendants

had actively bargained with the state for the immunity.

Please adjust the entries in the Outline for Camp at sections I.C (p.9) and VI.A.1.c (p.148) as necessary, and

change the cite to 66 F.3d 185, 186–87.

Vacated opinion:

U.S. v. Shields, 49 F.3d 707 (11th Cir. 1995), vacated

upon granting of reh’g en banc, 65 F.3d 900 (11th Cir.

1995). Shields was summarized in 7 GSU #9 and the

Outline at section II.B.2 (p.33).

Guideline amendments:

Please delete the note in the Outline at section II.B.3

(p.35) regarding the proposed amendment to lower crack

sentences. Congress has disapproved the amendments

relating to the equalization of crack and powder cocaine

sentences and to sentences for money laundering and

transactions in property derived from unlawful activity.

See P.L. 104-38 (Oct. 30, 1995). All other amendments

noted in the Outline are effective as of Nov. 1, 1995.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 8, number 3, December 20, 1995

gaining. We hold, therefore, that a district court has the

discretion to reward a defendant’s acceptance of responsibility by departing downward when §5G1.1(a) renders

§3E1.1 ineffectual in reducing the defendant’s actual

sentence.”

U.S. v. Rodriguez, 64 F.3d 638, 642–43 (11th Cir. 1995)

(per curiam).

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

Second Circuit affirms, with modification, downward departure to allow defendant to enter special inprison drug treatment program. Defendant pled guilty

to two drug counts and faced a sentence of 130–162

months. At sentencing, however, the district court departed downward to the five-year mandatory minimum,

partly because it felt defendant had committed the offenses largely to feed his drug addiction and because

defendant had participated in a drug education program

before sentencing, wanted to continue treatment in

prison, and “had a genuine desire for rehabilitation.” This

sentence was overturned on appeal in U.S. v. Williams, 37

F.3d 82, 86 (2d Cir. 1994), with the court holding that

defendant’s efforts did not satisfy the test set forth in U.S.

v. Maier, 975 F.2d 944, 946–49 (2d Cir. 1992) (rehabilitative

efforts may be considered but must be “extraordinary”

and admission to treatment program is not “an automatic

ground for” departure).

By the time defendant was resentenced he had completed the drug education program and been accepted

into an intensive, pilot treatment program at the federal

prison in Butner, N.C. One requirement for admission to

the program was that the inmate be 18–36 months away

from a confirmed release date. The district court concluded that defendant’s “admission to the selective drug

treatment program based on objective factors and his

subjective willingness to commit to the program regimen

was a significant changed circumstance” that would allow departure. The court also “noted that 18 U.S.C.

§3553(a)(2)(D) mandates a sentencing court to take account of the defendant’s need for ‘medical care[] or other

correctional treatment in the most effective manner,’”

and that without a departure the pilot program would not

be available to defendant for several years, if at all. The

court imposed the same five-year sentence, which included a 10-year term of supervised release so that “if

even once he goes back to the drug life he led before . . .

[defendant] will go back to prison for a period of time

comparable to that required by the guidelines.”

This time the appellate court affirmed the departure,

although it remanded for stricter conditions of superDepartures

Mitigating Circumstances

Eleventh Circuit holds that departure may be warranted when use of the statutory maximum under

§5G1.1(a) effectively negates the reduction for acceptance of responsibility. Defendant was convicted on two

counts that each carried a statutory maximum sentence

of four years. Because his guideline range was 135–168

months, he was sentenced to eight years pursuant to

§§5G1.1(a) and 5G1.2(d). Defendant argued that the effect of using the statutory maximum as the final sentence

was to deprive him of the benefit of the three-level reduction he had received for acceptance of responsibility,

that his sentence would have been the same whether he

accepted responsibility or not. The district court agreed,

but held that it had no authority to depart and had to

impose the eight-year sentence.

The appellate court remanded, concluding first that “a

district court has the same discretion to depart downward when §5G1.1(a) renders the statutory maximum the

guideline sentence as it has when the guideline sentence

is calculated without reference to §5G1.1(a). Section

5G1.1(a) is simply the guidelines’ recognition that a court

lacks authority to impose a sentence exceeding the statutory maximum. Section 5G1.1(a) was not intended to

transform the statutory maximum into a minimum sentence from which a court may not depart in appropriate

circumstances.” Accord U.S. v. Cook, 938 F.2d 149, 152–53

(9th Cir. 1991); U.S. v. Sayers, 919 F.2d 1321, 1324 (8th Cir.

1990); U.S. v. Martin, 893 F.2d 73, 76 (5th Cir. 1990).

The court then held that departure may be considered

here. “We find no evidence in the sentencing guidelines,

policy statements, or commentary of the Commission

that it considered, or recognized the implications of, the

interaction of §5G1.1(a) and §3E1.1 in cases such as this.

. . . We think that the Commission failed to consider that

§5G1.1(a) might operate to negate the §3E1.1 adjustment

and undermine the ‘legitimate societal interests’ served

by the adjustment.” The court reasoned that “one of the

‘legitimate societal interests’ served by rewarding a

defendant’s acceptance of responsibility is providing an

incentive to engage in plea bargaining. . . . If a defendant

knows that, under §5G1.1(a), he will receive the same

sentence regardless of whether he accepts responsibility,

he will be more likely to shun plea bargaining and go to

trial. . . . Allowing a departure based on acceptance of

responsibility in such circumstances preserves the possibility of some sentencing leniency and thus serves

society’s legitimate interest in guilty pleas and plea barGuideline 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. 8, no. 3, December 20, 1995 • a publication of the Federal Judicial Center

vised release. “To say that admission to a drug treatment

program is not ‘an automatic ground for obtaining a

downward departure’ . . . is not to say that it can never be

the basis for such a departure, provided that there exist

other compelling circumstances not adequately considered by the Commission. . . . On remand, the district court

did not depart from the guidelines sentencing range of

130 to 162 months simply because Williams had entered

a drug treatment program. It departed because, on the

facts of this case, there was effectively no other sentence

that would accord with the requirements of 18 U.S.C.

§3553(a)(2)(D). The district court determined that Williams was an excellent candidate for rehabilitation given

his prior history, demeanor, post-arrest resolve, and acceptance into a ‘special and selective’ treatment program

based on criteria devised by experts in the field.”

“We believe that the district court had the authority to

depart downward in order to facilitate Williams’s rehabilitation given the atypical facts of this case, which place it

outside the ‘heartland’ of usual cases involving defendants who may benefit from drug treatment. . . . We

clarified in Williams I that ‘demonstrated willingness’ to

rehabilitate one’s self must be manifested by objective

indicia of extraordinary efforts to that end. 37 F.3d at 86.

But when a defendant who has been in federal custody

since his arrest has had no opportunity to pursue any

rehabilitation, when he has been admitted to a selective

and intensive inmate drug treatment program, and when

a sentence within the guideline range would effectively

deprive him of his only opportunity to rehabilitate himself while incarcerated, we think a departure is within the

district court’s discretion. If the Sentencing Commission

did not give adequate consideration to the mitigating

circumstance of drug rehabilitation generally, Maier, 975

F.2d at 948, it certainly did not consider the unique constellation of mitigating circumstances in this case.”

However, the court concluded that the supervised release term was unreasonable because defendant “could

simply withdraw from the Butner program at any time

[and] go free at the end of five years while similar defendants who committed similar crimes would serve another six to nine years.” The district court should add two

special conditions: (1) when defendant’s prison term is

over, he must “present to his probation officer certification from a drug treatment program at his place of incarceration that he has entered an available program at the

first opportunity and remained in this program until the

earlier of his release from confinement or the completion

of the program, and that he is currently drug-free,” and (2)

he must submit to drug testing during his supervised

release and, if so directed, must continue to participate in

an approved drug treatment program.

U.S. v. Williams, 65 F.3d 301, 303–09 (2d Cir. 1995).

See Outline at VI.C.4.a.

Offense Conduct

Calculating Weight of Drugs

Tenth Circuit holds that waste by-products should

not be included in weight of methamphetamine mixture for mandatory minimum calculation. Defendant

pled guilty in 1989 to possession with intent to manufacture methamphetamine. He possessed 28 grams of pure

methamphetamine that was combined with waste water

in a mixture weighing 32 kilograms, and his 188-month

sentence was based on the entire weight of the mixture.

In Nov. 1993, §2D1.1, comment. (n.1), was amended to

exclude materials, such as waste water, that must be separated from a drug “mixture or substance” before use.

The amendment was made retroactive, and defendant

filed a motion under 18 U.S.C. §3582(c) for resentencing.

The district court granted the motion and sentenced

defendant to the 60-month mandatory minimum term

required for offenses involving 10 or more grams of

methamphetamine. The government argued that the

amended guideline definition does not control for purposes of 21 U.S.C. §841(b), and that defendant should

receive a 10-year mandatory minimum for possessing

“1 kilogram or more of a mixture or substance containing

a detectable amount of methamphetamine.”

The appellate court affirmed. Although in U.S. v.

Killion, 7 F.3d 927 (10th Cir. 1993), decided before the

1993 amendment, the court had held that the weight of

waste by-products may be used to calculate base offense

levels under §2D1.1, “we have never specifically interpreted [§841(b)] apart from the guideline to require the

inclusion of waste water in its definition of ‘mixture or

substance.’” The court looked to Chapman v. U.S., 500

U.S. 453 (1991), and its finding “that Congress ‘adopted

a “market-oriented” approach to punishing drug trafficking,’ which punished according to the quantity distributed ‘rather than the amount of pure drug involved.’

. . . Chapman’s recognition of Congress’ ‘market-oriented’ approach dictates that we not treat unusable

drug mixtures as if they were usable. . . . This usable/

unusable distinction . . . [in defining] ‘mixture or substances’ for statutory purposes also permits us to refer to

the guideline definition and ‘adopt a congruent interpretation of the statutory term as an original matter.’”

Concluding that there are persuasive reasons to “construe ‘mixture or substance’ in section 841 to be consistent with the guideline commentary as revised,” such as

avoiding “unnecessary conflict and confusion,” the court

held “that section 841 does not include the weight of

waste by-products in the measurement of a ‘mixture or

substance.’”

U.S. v. Richards, 67 F.3d 1531, 1534–38 (10th Cir. 1995)

(Baldock, J., dissenting).

See Outline at II.B.1.
Guideline Sentencing Update, vol. 8, no. 3, December 20, 1995 • a publication of the Federal Judicial Center 3

Sixth Circuit holds that weight of “liquid LSD” should

be calculated under amended guideline method, but

that Chapman still applies to calculation for mandatory

minimum. Defendant was originally sentenced on the

basis of the total weight of 6.2 grams of a “liquid LSD”

mixture, which consisted of 5.1 milligrams of pure LSD

dissolved in a liquid. After the Nov. 1, 1993, amendment to

§2D1.1 changed the way LSD weight was calculated under

the Guidelines (Amendment 488) and was made retroactive, defendant filed a motion for reduction of sentence. The district court denied the motion, holding that

Amendment 488 did not apply because the new method

involved LSD on a carrier medium and defendant’s offense involved liquid LSD without a carrier medium.

The appellate court remanded. Although Amendment

488 does not refer to liquid LSD, “Application Note 18

provides that, in the case of liquid LSD, ‘using the weight

of the LSD alone to calculate the offense level may not

adequately reflect the seriousness of the offense. In such

a case, an upward departure may be warranted.’ Guidelines, §2D1.1. By allowing an upward departure in cases

where a carrier medium is not used, the Sentencing Commission remains consistent with the market-oriented

approach to sentencing for drug crimes. Using the 0.4

milligram standard, rather than the actual weight of

the liquid, to measure dosage seems to be the logical

means to determine the level of departure. Therefore,

Defendant’s sentence under the Guidelines must be

recalculated accordingly.”

Using only the 5.1 milligrams of pure LSD results in a

guideline range for defendant of 10–16 months. “If the

district court finds that this sentence does not reflect

the seriousness of Defendant’s offense, it may depart upward by applying the 0.4 milligram standard of Amendment 488. According to the Drug Enforcement Agency,

the quantity of pure LSD per dose is 0.05 milligrams.

When divided by 0.05 milligrams, the 5.1 milligrams of

LSD involved in Defendant’s case results in 102 doses of

the drug. When the 102 doses are multiplied by Amendment 488’s 0.4 milligram standard weight for each dose,

the resulting weight is 40.8 milligrams. In this case, no

increase in the sentencing level results. The base offense

level for less than 50 milligrams of LSD is level 12, requiring a sentence of 10–16 months.” See also U.S. v. Turner,

59 F.3d 481, 484–91 (4th Cir. 1995) (in light of Amendment 488 and Note 18, use weight of pure LSD in liquid

LSD and depart if appropriate; however, if weight of pure

LSD cannot be adequately proved, calculate weight by

determining number of doses in liquid LSD and multiplying by DEA standardized figure of 0.05 mg of pure

LSD per dose) [8 GSU #1].

However, because the Sixth Circuit has held “that

Amendment 488 does not overrule” Chapman v. U.S., 500

U.S. 453 (1991), “courts should continue to use the entire

weight of LSD and its carrier medium to determine the

mandatory minimum sentence required by statute,

while using the standardized weight to determine the

sentencing range provided in the guidelines. . . . When

Chapman is applied to this case, the weight of the liquid

LSD, 6.2 grams, triggers the five year mandatory minimum sentence for Defendant.”

U.S. v. Ingram, 67 F.3d 126, 128–29 (6th Cir. 1995).

See Outline at II.B.1.

Determining the Sentence

Consecutive or Concurrent Sentences

Seventh Circuit holds that home detention is not a

“term of imprisonment” under §5G1.3. When defendant was sentenced in federal court she had served a 14-

month state prison term and had been in home detention for over a year on the same offense. The federal court

credited the 14-month prison term against her federal

sentence because the state offense had been fully accounted for in determining the sentence for the related

federal charge; however, the court refused to credit the

time spent in home detention. Defendant appealed, arguing that §5G1.3(b) required the court to credit her

home detention as an “undischarged term of imprisonment” attributable to offenses “fully taken into account

in the determination of the offense level for the instant

offense.”

The appellate court affirmed the sentence, concluding

that “term of imprisonment” must be defined under

federal law and that the Guidelines do not treat home

detention as imprisonment. Using state definitions

“would lead to divergent aggregate sanctions depending

on which state the crime occurred in, undermining the

most basic purpose of the Sentencing Reform Act of

1984 and the Guidelines themselves. The meaning of

‘imprisonment’ therefore is a question of federal law, one

depending on what states do rather than on the labels

they attach to their sanctions. . . . ‘Imprisonment’ is a

word used throughout the Guidelines to denote time in a

penal institution. . . . Section 7B1.3(d) permits a judge to

require a recidivist to serve a period of ‘home detention’

in addition to a period of ‘imprisonment,’ showing that

the Guidelines distinguish the two. . . . ‘Home detention’

differs from ‘imprisonment’ throughout the Guidelines’

schema. It is not ‘imprisonment’ but is a ‘substitute for

imprisonment.’ See §5B1.4(b)(20). . . . Unless something

in §5G1.3 overrides this understanding, Phipps’s sentence is just right.” But cf. U.S. v. French, 46 F.3d 710,

717 (8th Cir. 1995) (using state law to hold that parole

term was an “undischarged term of imprisonment” for

§5G1.3(b)).

U.S. v. Phipps, 68 F.3d 159, 161–62 (7th Cir. 1995).

See Outline generally at V.A.3.
Guideline Sentencing Update, vol. 8, no. 3, December 20, 1995

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Supervised Release and Probation

Ninth Circuit holds that courts may not order repayment of court-appointed attorney’s fees as condition of

supervised release, later holds same for probation. In

the first case, the district court ordered as a condition of

defendant’s supervised release that he repay the Criminal

Justice Act attorney’s fees expended on his behalf within

one year of his release from prison; failure to comply

would result in reincarceration. The appellate court reversed. Supervised release is governed by 18 U.S.C.

§3583(d), which sets mandatory conditions and “then

states that a court may impose additional supervised

release conditions that meet the following criteria. First,

they must be reasonably related to the factors set forth in

§§3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). These factors are: consideration of ‘the nature and circumstance of

the offense and the history and characteristics of the

defendant;’ ‘to afford adequate deterrence to criminal

conduct;’ ‘to protect the public from further crimes of the

defendant;’ and ‘to provide the defendant with needed

[training], medical care, or other correctional treatment

in the most effective manner.’ . . . The recoupment order

simply bears no relationship to any of these goals. It is not

related to Eyler’s underlying criminal conduct—unlawful

possession of firearms—and has no rehabilitative effects.

Nor does it further any deterrence goals, protect the public from future crimes, or provide Eyler with any training

or treatment. . . . The discretion of a district court to

impose conditions of supervised release that it considers

appropriate is limited by the express provisions of

§3853(d). A condition that a defendant repay CJA attorneys fees violates these provisions and, accordingly, exceeds the district court’s authority.”

U.S. v. Eyler, 67 F.3d 1386, 1393–94 (9th Cir. 1995).

See Outline at V.C.

In the later case, defendant was sentenced to probation with the condition that he repay his CJA attorney’s

fees within one year. The appellate court reversed. “The

statute governing probation, 18 U.S.C. §3563, . . . allows

for the imposition of discretionary conditions as long as

they are reasonably related to the purposes of sentencing

in 18 U.S.C. §3553(a)(1) & (2).” Reimbursement of

attorney’s fees is not a mandatory condition of probation, and in the case above the court held that it is not

reasonably related to the goals of §§3553(a)(1) and

(a)(2)(B)–(D). “Therefore, the question before us is

whether the repayment of attorney’s fees is reasonably

related to [the purposes of] 18 U.S.C. §3553(a)(2)(A), and

whether it involves only such deprivation of liberty or

property as is reasonably necessary to accomplish the

purposes of sentencing. We conclude that repayment of

attorney’s fees is not a valid condition of probation because it is not reasonably related ‘to the need for the

sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense,’ 18 U.S.C. §3553(a)(2)(A).

We also conclude that because the government has a

number of other less drastic means by which it can enforce a court order to repay attorney’s fees, conditioning

probation on repayment of fees is not reasonably necessary to any legitimate sentencing objective.”

U.S. v. Lorenzini, No. 94-30409 (9th Cir. Dec. 13, 1995)

(Reinhardt, J.) (Fernandez, J., dissenting). Cases before

the Sentencing Reform Act of 1984 took effect split on

whether former 18 U.S.C. §3561 authorized repayment of

attorney’s fees as a condition of probation. Compare U.S.

v. Gurtunca, 836 F.2d 283, 287–88 (7th Cir. 1987) (authorized, but lack of funds would be defense against revocation for nonpayment) and U.S. v. Santarpio, 560 F.2d

448, 455–56 (1st Cir. 1977) (same—“the condition cannot

be enforced so as to conflict with Hamperian’s sixth

amendment rights; if Hamperian is unable to pay the

fees, revocation of probation for nonpayment would be

patently unconstitutional”) with U.S. v. Jimenez, 600 F.2d

1172, 1174–75 (5th Cir. 1979) (§3561 does not allow for

reimbursement as condition of probation).

See Outline generally at V.B.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 8, number 4, January 31, 1996

Offense Conduct

Calculating Weight of Drugs

Supreme Court reaffirms Chapman, holds that LSD

carrier medium is included in weight calculation for

mandatory minimum. In Chapman v. U.S., 500 U.S. 453,

468 (1991), the Supreme Court held that the weight of the

carrier medium is included when determining the weight

of LSD for mandatory minimum sentences under 21

U.S.C. §841(b)(1). After Chapman, the Guidelines were

amended to provide a new method of establishing the

weight of LSD based on the number of doses and an

assigned weight per dose, rather than using the actual

weight of whatever carrier medium was used. See

§2D1.1(c)(H) & comment. (n.16) (formerly n.18, effective

Nov. 1, 1993). Petitioner in this case was originally sentenced to 192 months before the Guidelines were

amended and was subject to a mandatory 10-year minimum term because the combined weight of the LSD and

blotter paper exceeded 10 grams. After the amendment

was made retroactive, he petitioned for resentencing

under the new guideline method and argued that this

method should also be used for the §841(b)(1) calculation. His guideline range was reduced to 70–87 months

(based on 4.58 grams of LSD under the new method), but

the district court held that Chapman still applied for the

mandatory minimum and sentenced petitioner to 10

years. The Seventh Circuit affirmed. See U.S. v. Neal, 46

F.3d 1405, 1408–11 (7th Cir. 1995) (en banc).

The Supreme Court unanimously affirmed. “While

acknowledging that the [Sentencing] Commission’s expertise and the design of the Guidelines may be of potential weight and relevance in other contexts, we conclude

that the Commission’s choice of an alternative methodology for weighing LSD does not alter our interpretation of

the statute in Chapman. In any event, principles of stare

decisis require that we adhere to our earlier decision. . . .

Entrusted within its sphere to make policy judgments,

the Commission may abandon its old methods in favor of

what it has deemed a more desirable ‘approach’ to calculating LSD quantities . . . . We, however, do not have the

same latitude to forsake prior interpretations of a statute.

True, there may be little in logic to defend the statute’s

treatment of LSD; it results in significant disparity of punishment meted out to LSD offenders relative to other

narcotics traffickers. . . . Even so, Congress, not this Court,

has the responsibility for revising its statutes. . . . We hold

that §841(b)(1) directs a sentencing court to take into

account the actual weight of the blotter paper with its

absorbed LSD, even though the Sentencing Guidelines

require a different method of calculating the weight of an

LSD mixture or substance.”

Neal v. U.S., No. 94-9088 (U.S. Jan. 22, 1996) (Kennedy, J.).

See Outline at II.B.1.

Possession of Weapon by Drug Defendant

Ninth Circuit holds that §2D1.1(b)(1) enhancement

cannot be given to defendant acquitted on §924(c)

charge. Defendant was convicted of a drug offense but

acquitted on a charge of using or carrying a firearm in

relation to that offense, 18 U.S.C. §924(c). At sentencing,

he received the §2D1.1(b)(1) enhancement for possessing a weapon during a drug offense. He appealed, arguing

that acquittal on a §924(c) charge precludes application

of §2D1.1(b)(1), a claim rejected by all circuits that have

considered the issue. See cases in Outline at section II.C.4.

However, the appellate court agreed with defendant

and reversed, reasoning that in U.S. v. Brady, 928 F.3d 844,

851 (9th Cir. 1991), it had held that “a district court sentencing a criminal defendant for the offense of conviction

cannot reconsider facts that the jury necessarily rejected

by its acquittal of the defendant on another count.” The

court rejected the government’s argument that “the district court’s determination that Watts possessed a firearm

is not a reconsideration of facts rejected by the jury,

because the jury could have acquitted Watts on the section 924(c) charge because it believed that Watts possessed a firearm during the offense but that the firearm

was not connected to the offense. . . . The connection of a

firearm to the offense of conviction, although not an

element of the weapon enhancement under the Guidelines, is nonetheless relevant. The commentary to

U.S.S.G. §2D1.1(b)(1) provides an exception to the enhancement if the defendant can show that ‘it is clearly

improbable that the weapon was connected with the

offense.’ . . . Thus, the connection between the firearm

and the predicate offense is relevant under both the sentencing enhancement and section 924(c); the only difference between U.S.S.G. §2D1.1(b)(1) and section 924(c) is

the assignment and standard of the burden of proof regarding this connection. We held in Brady that a sentencing judge may not, ‘under any standard of proof,’ rely on

facts of which the defendant was acquitted.”

U.S. v. Watts, 67 F.3d 790, 796–98 (9th Cir. 1995). Cf.

Bailey v. U.S., 116 S. Ct. 501, 506 (1995) (“conviction for

‘use’ of a firearm under §924(c)(1) requires more than a

showing of mere possession”).

See Outline at I.A.3 and II.C.4.

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. 8, no. 4, January 31, 1996 • a publication of the Federal Judicial Center

reached a contrary decision . . . , we acknowledge that

there are grounds on which his violation of [these laws]

are distinguishable from classic instances of fraud. We

thus defer to Judge Mishler’s view of the case.”

U.S. v. Broderson, 67 F.3d 452, 458–59 (2d Cir. 1995).

See Outline at VI.C.3, 5.a, and X.A.1.

Criminal History

Career Offender Provision

First Circuit upholds amendment to definition of

“Offense Statutory Maximum.” The career offender

guideline, §4B1.1, uses a defendant’s “Offense Statutory

Maximum” sentence for the offense of conviction in determining the applicable offense level. The phrase was

first defined in a Nov. 1989 amendment to §4B1.1’s commentary as “the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense.” Some circuits

held that the maximum included applicable statutory

enhancements that increased the statutory maximum

sentence, like those in 21 U.S.C. §841(b)(1). Amendment

506, effective Nov. 1, 1994, changed the definition to specify that the maximum does “not includ[e] any increase in

that maximum term under a sentencing enhancement

provision that applies because of the defendant’s prior

criminal record.” See §4B1.1, comment. (n.2). This

amendment was made retroactive under §1B1.10(c).

Ruling in four cases that were consolidated for this

appeal, the appellate court upheld the changed definition, concluding that it is a reasonable interpretation of

the statute that authorized the career offender guideline,

28 U.S.C. §994(h). That section instructs the Sentencing

Commission to “assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum

term authorized for [career offenders].” Looking at the

language of the statute and the legislative history, the

court found “no clear congressional directive regarding

the meaning of the term ‘maximum’ as that term is used in

section 994(h).” In such a case, “an interpretation by the

agency that administers it will prevail as long as the interpretation is reasonable under the statute. . . . We believe

that the Commission’s act in defining ‘maximum’ to refer

to the unenhanced maximum term of imprisonment . . .

furnishes a reasonable interpretation of section 994(h).

The statute explicitly refers to ‘categories of defendants,’

namely, repeat violent criminals and repeat drug offenders, and does not suggest that each individual offender

must receive the highest sentence available against him.

The Career Offender Guideline, read through the prism

of Amendment 506, adopts an entirely plausible version

of the categorical approach that the statute suggests.”

In one of the cases on appeal, the district court agreed

that the new definition was valid but declined to apply it

retroactively to reduce defendant’s sentence. The appellate court held that the district court properly acted

Departures

Mitigating Circumstances

Second Circuit affirms downward departure in “close

case,” deferring to district court’s “better feel” for the

circumstances. Defendant was convicted of 22 counts

involving fraudulent conduct against the government. A

vice president of Grumman Data Systems Corp., he negotiated a contract with NASA. However, he violated federal

contracting law by not truthfully disclosing certain pricing data that led to a significant—and illegal—financial

benefit to Grumman. The sentencing judge departed

downward by seven levels, partly because the calculated

loss “significantly . . . overstate[d] the seriousness of the

defendant’s conduct.” See §2F1.1, comment. (n.7(b)). The

judge also concluded that there were mitigating circumstances that warranted departure under §5K2.0, namely

that “(i) Broderson had sought only to benefit his employer, Grumman, and had received no personal benefit

from the fraud; (ii) under existing market conditions, the

contract was favorable to the government; and (iii) the

government received restitution from Grumman.”

Although the appellate court remanded on another

sentencing issue, it rejected the government’s challenge

to the downward departure and concluded that the circumstances here fell “outside the ‘heartland’ of fraud

cases. In addressing that issue, we adopt then-Chief Judge

Breyer’s analysis in U.S. v. Rivera, 994 F.2d 942 (1st Cir.

1993). . . . The departure in the present case can be justified, if at all, only as a ‘discouraged departure.’ Ordinarily,

payment of restitution is not an appropriate basis for

downward departure under Section 5K2.0 because it is

adequately taken into account by Guidelines Section

3E1.1, dealing with acceptance of responsibility. . . . Nor is

lack of personal profit ordinarily a ground for departure,

because the Commission generally took that factor into

account in drafting the Guidelines. . . . Finally, the fact that

the contract was favorable to NASA given existing market

conditions arguably does not mitigate Broderson’s failure

to observe [federal contract] obligations.”

“Nevertheless, we also recognize the district court’s

‘better “feel” for the unique circumstances of the particular case before it,’ Rivera, 994 F.2d at 951, and ‘special

competence’ in determining whether that case falls within the ‘heartland.’ Id. . . . Judge Mishler concluded that this

confluence of circumstances was not taken into account

by the Guidelines . . . and that the loss calculation . . . overstated the seriousness of Broderson’s offense . . . . Although

we regard the case as a close one, we believe that Judge

Mishler was within his discretion in downwardly departing and that the departure was reasonable. We agree with

Rivera that courts of appeals should recognize that they

hear relatively few Guidelines cases compared to district

courts and that district courts thus have a ‘special competence’ in determining whether a case is outside the

‘heartland.’ 994 F.2d at 951. Although we might have
Guideline Sentencing Update, vol. 8, no. 4, January 31, 1996 • a publication of the Federal Judicial Center 3

within the discretion granted under §1B1.10(a) and 18

U.S.C. §3582(c)(2) in choosing not to reduce the sentence.

Another sentence that had been reduced was affirmed,

and the two where the district court held that Amendment 506 was invalid were remanded.

U.S. v. LaBonte, 70 F.3d 1396, 1403–12 (1st Cir. 1995)

(Stahl, J., dissenting).

See Outline at IV.B.3.

Sentencing Procedure

Plea Bargaining

Eighth Circuit holds that district court may not defeat

purposes of plea agreement by departing upward based

on dismissed charge. Under a plea agreement, defendant

pled guilty to both conspiracy to transfer and aiding and

abetting the transfer of stolen property in interstate

commerce. The parties anticipated the guideline range

would be 24–30 months, with a total offense level of 13,

and the government agreed to file a §5K1.1 motion. However, they discovered that defendant’s guilty plea to conspiracy would lead to a significantly longer sentence

because the plea included a stipulation that defendant

participated in an armed robbery related to the offense—

that would require use of the guideline for armed robbery

(level 26) and a guideline range of 70–87 months. Defendant and the government reached a new agreement

whereby defendant would withdraw his plea to the conspiracy and the government would dismiss that count

at sentencing. The district court followed the parties’ calculations in reaching a 24–30 month range, but departed

upward under §5K2.0 on the ground that defendant’s

participation in the armed robbery was relevant conduct

that was not adequately reflected in the guideline sentence. The court also departed downward on the

government’s §5K1.1 motion and, without explaining

how it apportioned the two departures, sentenced defendant to 30 months.

The appellate court remanded. “The sentencing court

erred in considering conduct from the dismissed count as

the basis for an upward departure under section 5K2.0 in

clear opposition to the intentions of the parties as embodied in their plea agreement. A contrary rule would

allow the sentencing court to eviscerate the plea bargaining process that is vital to the courts’ administration. . . .

Permitting sentencing courts to accept a defendant’s

guilty plea and yet disavow the terms of and intent behind

the bargain . . . would bring an unacceptable level of

instability to the process. Unquestionably, the district

courts may consider conduct from uncharged or dismissed counts for certain purposes under the guidelines,” such as adjustments and other specific offense

characteristics, and for criminal history departures under

§4A1.3(e). “The circuit courts are divided, however, on the

question of whether conduct from dismissed counts may

be used as a basis for an upward departure under section

5K2.0. Although we note that each case implicates a different constellation of variables under the guidelines, our

holding is generally consistent with the Third and Ninth

Circuits.” See U.S. v. Thomas, 961 F.2d 1110, 1120–22 (3d

Cir. 1992); U.S. v. Castro-Cervantes, 927 F.2d 1079, 1082

(9th Cir. 1990). “The court was not entitled to defeat the

parties’ expectations by imposing a more severe sentence

using Harris’s role in the armed robbery that preceded the

offense of conviction to depart upward pursuant to

§5K2.0. For that reason, we remand the case to the district

court with instructions either to resentence Harris in a

manner consistent with this opinion or to reject the plea

agreement and allow Harris the opportunity to withdraw

his plea as directed by [Fed. R. Crim. P.] 11(e)(4).”

U.S. v. Harris, 70 F.3d 1001, 1003–04 (8th Cir. 1995).

See Outline at IX.A.1.

Violation of Supervised Release

Sixth Circuit holds that court may consider need

for drug rehabilitation in setting length of revocation

sentence, but may not order defendant to participate in intensive in-prison drug treatment program.

Defendant was originally sentenced to three years’ probation. His probation was revoked for drug use and he

was sentenced to six months’ imprisonment, followed by

three years of supervised release. His supervised release

was revoked under 18 U.S.C. §3583(g) because he possessed cocaine; he had also failed to complete a required

drug treatment program. By the time he was sentenced

for the revocation, defendant had been jailed for six

months, and his recommended sentence under USSG

§7B1.4 was only 3–9 months. “The District Court expressed concern that if defendant were sentenced to a

term of nine months he would only be incarcerated an

additional three months, a period not long enough to insure his completion of a prison drug treatment program.”

Therefore, because of defendant’s extensive history of

drug use and drug-related problems, the court “imposed

a sentence of sixteen months with the requirement that

defendant participate in an intensive drug treatment

program while in custody.” Defendant appealed the

length of sentence and the required treatment.

The appellate court upheld the length of sentence but

not the order for treatment. “Unlike the statutory provisions governing initial sentencing and sentencing upon

permissive revocation of supervised release, the statutory

provisions governing mandatory revocation of supervised release neither instruct nor prohibit the sentencing

court from considering rehabilitative goals in determining the length of a sentence upon mandatory revocation

of supervised release. [See 18 U.S.C. §§3553(a), 3583(e),

and 3583(g).] However, we can identify no reason that a

court sentencing a defendant upon mandatory revocation of supervised release should not be able to consider

rehabilitative goals in arriving at the length of a sentence
Guideline Sentencing Update, vol. 8, no. 4, January 31, 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

while a court imposing either an initial sentence [within

the guideline range] or a sentence upon permissive revocation of supervised release may properly consider that

need.” Therefore, “a district court may properly consider

a defendant’s rehabilitative needs in setting the length of

imprisonment within the range prescribed by statute.”

However, the drug treatment requirement was not

authorized. “Although statute and federal regulations do

not squarely address whether it is within the sentencing

court’s authority to order a defendant’s participation in a

drug rehabilitation program, they do indicate that it is

solely within the authority of the Federal Bureau of Prisons (‘Bureau’) to select those prisoners who will be best

served by participation in such programs. . . . Therefore,

we conclude that it was beyond the District Court’s authority to order defendant’s participation in a drug treatment program while incarcerated.” However, the district

court “may recommend that a prisoner receive drug

rehabilitation treatment while incarcerated,” and on remand it may “amend its order to recommend rather than

mandate defendant’s participation.”

U.S. v. Jackson, 70 F.3d 874, 877–81 (6th Cir. 1995).

See Outline at VII.B.1 and 2.

General Application

Sentencing Factors

Ninth Circuit supersedes prior decisions in Camp,

holds that state-immunized testimony that was not

compelled may be used for departure. In a state proceeding unrelated to the instant federal offense, defendants were granted transactional immunity for all

offenses relating to a 1979 shooting death. When defendants were later sentenced in federal court, the district

court found that defendants’ roles in the 1979 death warranted upward departure under §4A1.3. The appellate

court originally remanded, holding that defendants’

state transactional immunity required there be “an independent, legitimate source” regarding defendants’ role in

the death before that evidence could be used for federal

sentencing. See U.S. v. Camp, 58 F.3d 491, 492–93 (9th Cir.

1995). That opinion was later amended, with the court

stressing that the grant of immunity must have been

initiated by the state so that the self-incriminating information was state-induced. U.S. v. Camp, 66 F.3d 185 (9th

Cir. 1995), withdrawn, 66 F.3d 187 (9th Cir. 1995).

The court has now amended the original opinion to

affirm the sentence, holding that “a federal court may

consider information revealed by a defendant in exchange for state transactional immunity.” The court concluded that the rule of Murphy v. Waterfront Comm’n, 378

U.S. 52, 79 (1964), limiting the use of incriminating information given by a state witness, “applies only if the witness [was] compelled to testify. Otherwise, there are no

Fifth Amendment implications. . . . It does not appear

that the Camps were constrained in any way to accept

the state’s offer of immunity.” They “had the option to

remain silent,” and “the record does not suggest that any

negative consequences would have followed if [they]

had invoked the privilege. . . . Absent any Fifth Amendment implications, the Camps’ immunity agreement had

the same effect as a cooperation agreement. A sentencing judge has discretion to depart upward when the

defendant’s criminal history category is inadequate

because ‘for appropriate reasons, such as cooperation . . .

[he] had previously received an extremely lenient sentence for a serious offense.’ USSG §4A1.3, p.s. An upward

departure is similarly appropriate here. Because they

were never charged in connection with [the] death, the

Camps’ criminal history categories do not reflect gravely

serious criminal conduct. The court did not err in taking

that conduct into account at sentencing.”

U.S. v. Camp, No. 94-30292 (9th Cir. Dec. 22, 1995)

(Wright, J.).

See Outline at I.C and VI.A.1.c.

Note: Readers should delete the entries for Camp in the

Outline at sections I.C (p. 9) and VI.A.1.c (p.148), 7 GSU

#11 (p.3), and 8 GSU #2 (p.4).
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 8, number 5, February 29, 1996

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.

Determining the Sentence

“Safety Valve” Provision

Tenth Circuit holds that §3553(f)(5) requires a defendant to divulge all known information about the offense

and related conduct, not just defendant’s own conduct.

Defendant was convicted of conspiracy to possess cocaine with intent to distribute. The district court departed

downward from the 10-year mandatory minimum after

concluding that, because defendant wrote a letter detailing his own involvement in the conspiracy, he qualified

for the “safety valve” departure under 18 U.S.C. §3553(f),

USSG §5C1.2. The government appealed, arguing that

defendant’s refusal to talk about others involved in the

conspiracy violated the requirement in §3553(f)(5) to

“truthfully provide to the Government all information

and evidence the defendant has concerning the offense

or offenses that were part of the same course of conduct

or of a common scheme or plan.” The government

claimed that a defendant must “tell the government all he

knows about the offense of conviction and the relevant

conduct, including the identities and participation of

others,” but defendant argued that he need only detail his

own personal involvement in the crime.

The appellate court agreed with the government and

remanded. “The phrase ‘all information and evidence’ is

obviously broad. The Application Notes to §5C1.2 define

‘offense or offenses that were part of the same course of

conduct or of a common scheme or plan’ to mean ‘the

offense of conviction and all relevant conduct.’ USSG

§5C1.2, comment. (n.3). ‘Relevant conduct’ has in turn

been defined to include ‘in the case of a jointly undertaken criminal activity . . . all reasonably foreseeable acts

and omissions of others in furtherance of the jointly

undertaken criminal activity.’ USSG §1B1.3(a)(1)(B).

Thus, the guidelines appear to require disclosure of ‘all

information’ concerning the offense of conviction and

the acts of others if the offense of conviction is a conspiracy or other joint activity. As applied to Mr. AcostaOlivas, the guideline would therefore require disclosure

of everything he knows about his own actions and those

of his co-conspirators.” The court rejected defendant’s

argument that this interpretation essentially duplicates

USSG §5K1.1, noting that under §3553(f) the decision is

made by the court and does not require a government

motion, and the information does not have to be “relevant or useful” to the government.

“We therefore hold that the district court erred in interpreting §3553(f)(5) to require a defendant to reveal only

information regarding his own involvement in the crime,

not information he has relating to other participants. . . .

If, at resentencing, the court makes a factual finding that,

in deciding what information to disclose to the government, Mr. Acosta-Olivas relied upon the district court’s

interpretation of §3553(f)(5), the court shall allow him

the opportunity to comply with the statute as this court

has interpreted it in this opinion.”

U.S. v. Acosta-Olivas, 71 F.3d 375, 377–80 (10th Cir.

1995).

Seventh Circuit holds that §3553(f) requires affirmative offer of information by defendant, does not duplicate USSG §3E1.1, and does not violate Fifth Amendment rights. Defendant pled guilty to conspiracy to distribute crack cocaine and was sentenced to a 10-year

mandatory minimum term. He argued that he qualified

for a lower term under 18 U.S.C. §3553(f) because he

stipulated to the facts of the offense in his plea agreement

and the government never requested additional information. The district court denied his §3553(f) motion, however, because defendant made no further attempts to

cooperate with the government and reveal additional

details of the offense.

The appellate court affirmed, concluding that

“§3553(f) was intended to benefit only those defendants

who truly cooperate. Thus, to qualify for relief under

§3553(f), a defendant must demonstrate to the court

that he has made a good faith attempt to cooperate with

the authorities. . . . Although he stipulated to the basic

details of his offense conduct, he made no further efforts

to cooperate. He failed to respond to a proffer letter sent

by the government outlining the terms that would apply

(e.g., limited immunity) if he provided additional information. Furthermore, he did not initiate any contact

with government officials offering to provide details of

his involvement in drug dealing. Specifically, the government notes that [defendant] could have at least provided the name of the ‘source’ who sold him the crack

cocaine. Before granting relief under §3553(f), the court

may reasonably require a defendant to reveal information regarding his chain of distribution. . . . [I]t is

[defendant’s] duty to satisfy the court that he has ‘truthfully provided to the Government all [of the] information

and evidence . . . [that he] has concerning the offense.’ . . .

Although [defendant] is not required to provide information that the government expressly states that it does

not want, he at least must offer what he has.” See also

U.S. v. Wrenn, 66 F.3d 1, 3 (1st Cir. 1995) (§3553(f) “con-
2 Guideline Sentencing Update, vol. 8, no. 5, February 29, 1996 • a publication of the Federal Judicial Center

templates an affirmative act of cooperation with the government”) [8 GSU #1].

The court also rejected defendant’s claim that it was

inconsistent to deny his §3553(f) motion after granting

him the three-level reduction for acceptance of responsibility under §3E1.1, which required him to “truthfully

admit[] the conduct comprising the offense(s) of conviction.” “Although §3E1.1(a) forbids a defendant from

falsely denying relevant conduct, . . . it imposes no duty

on a defendant to volunteer any information aside from

the conduct comprising the elements of the offense. . . . In

contrast, §3553(f) states that a defendant must disclose

‘all information’ concerning the course of conduct—not

simply the facts that form the basis for the criminal

charge. Accordingly, the district court correctly held that

§3553(f)(5) requires more than §3E1.1(a).”

Defendant’s final argument, that requiring him to volunteer information of his criminal conduct beyond the

offense of conviction violates his Fifth Amendment right

against self-incrimination, also failed. “[R]equiring defendants to admit past criminal conduct in order to gain

relief from statutory minimum sentences does not

implicate the right against self-incrimination. In a similar line of cases, we have held that requiring a defendant

to admit criminal conduct related to but distinct from the

offense of conviction in order to gain a reduction for

acceptance of responsibility does not implicate the Fifth

Amendment” because it does not penalize defendants

but denies a benefit. “The same is true of §3553(f), which

requires a defendant to provide complete and truthful

details concerning his offense in order to qualify for a

sentence below the statutory minimum.”

U.S. v. Arrington, 73 F.3d 144, 148–50 (7th Cir. 1996).

Second and Ninth Circuits hold that downward criminal history departure for defendant with more than one

criminal history point cannot qualify defendant for

§3553(f). In the Second Circuit, defendant faced a fiveyear mandatory minimum on a cocaine charge. He had

four criminal history points, but the district court concluded that overrepresented his criminal history and departed under §4A1.3 to criminal history category I, which

resulted in a guideline range of 57–71 months. The court

imposed a 60-month sentence after rejecting defendant’s

argument that he qualified for a departure under 18

U.S.C. §3553(f) because the departure effectively left him

with only one criminal history point.

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

that the safety-valve provision is to apply only where ‘the

defendant does not have more than 1 criminal history

point, as determined under the sentencing guidelines.’”

The relevant guideline, §5C1.2, has commentary that “interprets this passage to mean ‘more than one criminal

history point as determined under §4A1.1 (Criminal History Category).’ U.S.S.G. §5C1.2 comment. (n.1). Section

4A1.1 is the schedule that specifies how a sentencing

court should calculate a defendant’s criminal history

points. It is not disputed that Resto has four criminal

history points, as determined under §4A1.1. Notwithstanding that the sentencing judge elected to depart by

treating Resto as falling in Criminal History Category I,

rather than Category III where his four points originally

placed him, he nonetheless has four criminal history

points. He is thus ineligible for the safety valve provision

of §3553(f).”

U.S. v. Resto, 74 F.3d 22, 27–28 (2d Cir. 1996).

The Ninth Circuit defendant was convicted of a

methamphetamine offense and faced a 10-year mandatory minimum. He had two criminal history points under

§4A1.2(c)(1) for two offenses of driving with a suspended

license, and was thus ineligible for departure under

§3553(f). The district court held that criminal history

category II overrepresented defendant’s criminal history

and departed under §4A1.3 to category I and a guideline

range of 108–135 months, but concluded that this did not

make defendant eligible for a §3553(f) departure and

sentenced him to 120 months.

The appellate court agreed and affirmed. Under

§3553(f)(1) the district court “must find inter alia that

‘the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines.’ . . . Section 3553(f) is not ambiguous. It explicitly

precludes departure from the mandatory minimum provisions of 21 U.S.C. §841 if the record shows that a defendant has more than one criminal history point. . . . Assuming arguendo that there is merit to [defendant’s] argument that a mandatory minimum sentence should not

be imposed where the criminal history category overrepresents the seriousness of a defendant’s prior criminal

history, only Congress can provide a remedy.”

U.S. v. Valencia-Andrade, 72 F.3d 770, 773–74 (9th Cir.

1995).

See Outline generally at V.F for all cases above.

Departures

Mitigating Circumstances

First Circuit holds departure may be considered when

enhancement based on acquitted conduct mandates life

sentence. Defendant was tried in state court for murder

and was acquitted. Later he was indicted in federal court

on firearms and other charges arising out of the murders.

Convicted on two counts, defendant was sentenced

under §2K2.1 (Nov. 1990) for the firearms offense. Section

2K2.1(c)(2) directed that if defendant “used or possessed

the firearm in connection with the commission or attempted commission of another offense, apply §2X1.1 . . .

in respect to that other offense, if the resulting offense

level is greater than that determined above.” The court
Guideline Sentencing Update, vol. 8, no. 5, February 29, 1996 • a publication of the Federal Judicial Center 3

found that the murders were “another offense,” that defendant had committed the murders, and that the “object

offense” for purposes of §2X1.1 was first degree murder.

That gave defendant an offense level of 43, which, because

he qualified for no reductions, mandated a sentence of

life imprisonment. (Later versions of the Guidelines give

the same result.) Defendant’s sentence on the firearms

count without applying §2K2.1(c)(2) would have been

30–37 months, but his total sentence would have been

262–327 months because he qualified as an armed career

criminal on the other count.

The appellate court rejected defendant’s claim that the

method by which the sentence was reached violated due

process, but held that the district court erred in thinking

it did not have discretion to consider downward departure in this situation. Noting that the Supreme Court “has

cautioned against permitting a sentence enhancement

to be the ‘tail which wags the dog of the substantive offense,’” the court concluded that this was such a case.

“The effect here has been to permit the harshest penalty

outside of capital punishment to be imposed not for

conduct charged and convicted but for other conduct as

to which there was, at sentencing, at best a shadow of the

usual procedural protections such as the requirement of

proof beyond a reasonable doubt. . . . When put to that

proof in state court, the government failed. The punishment imposed in view of this other conduct far outstripped in degree and kind the punishment Lombard

would otherwise have received for the offense of conviction.” Under §2K2.1 “the cross-reference to the firstdegree murder guideline essentially displaced the lower

Guidelines range that otherwise would have applied. As a

result, the sentence to be imposed for Lombard’s firearms

conviction was the same as the sentence that would have

been imposed for a federal murder conviction: a mandatory term of life. Despite the nominal characterization of

the murders as conduct that was considered in ‘enhancing’ or ‘adjusting’ Lombard’s firearms conviction, the reality is that the murders were treated as the gravamen of

the offense.” The court also noted that “in no circumstances under Maine law would Lombard have been subject to a mandatory life sentence. . . . We would be hard put

to think of a better example of a case in which a sentence

‘enhancement’ might be described as a ‘tail which wags

the dog’ of the defendant’s offense of conviction.”

Following the principles governing departure set forth

in U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993), the court held

that “the district court had authority to avoid any unfairness in Lombard’s sentence through the mechanism of

downward departure. . . . The facts and circumstances of

this case present a whole greater than the sum of its parts

and distinguish it, from a constitutional perspective,

from other cases that have involved facially similar issues.

The specific question from the perspective of the Guidelines and under U.S.S.G. §5K2.0 is whether these features

of the case—e.g., the state court acquittal and the fact that

the federal sentence may exceed any state sentence that

would have attached to a murder conviction; the paramount seriousness of the ‘enhancing conduct’; the magnitude of the ‘enhancement’; the disproportionality between the sentence and the offense of conviction as well

as between the enhancement and the base sentence; and

the absence of a statutory maximum for the offense of

conviction—taken in combination, make this case ‘unusual’ and remove it from the ‘heartland’ of the guideline

(§2K2.1) that yielded the mandatory life sentence. This

case is outside the ‘heartland.’”

U.S. v. Lombard, 72 F.3d 170, 174–87 (1st Cir. 1995).

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

Sixth Circuit remands to consider downward departure based on coercion or duress. Defendant and her

husband committed bank fraud in several states. She pled

guilty to bank fraud, conspiracy, and firearms violations,

and was sentenced to 46 months. The record indicated

that defendant “has significant emotional problems and

a history of drug and alcohol abuse associated with her

experience of sexual and emotional abuse as a child. She

also appears to have suffered serious physical and emotional abuse at the hands of Mr. Hall (her husband). Her

reports of violence and gun-threats by Mr. Hall were corroborated by him in letters he wrote to her from prison.”

The appellate court noted that “[i]t would not be unreasonable to conclude that her husband beat and cajoled

her into submission to his will,” and a psychological

evaluation of defendant described her as suffering from

“post traumatic stress disorder” and “Battered Person

Syndrome.” On appeal, defendant argued that the district

court failed to recognize its discretion to consider these

circumstances as a basis for downward departure.

The appellate court agreed and remanded, holding

that “there is overwhelming evidence that the Defendant’s criminal actions resulted, at least in part, from the

coercion and control exercised by her husband. On the

record before us, she had not been involved in any bank

fraud schemes before she met Mr. Hall, and, according to

the forensics evaluation of the Bureau of Prisons, she

continued her criminal activity only after he threatened

to kill himself, to kill her, to hurt their friends and pets, and

to commit bank robbery using violent means. . . . His own

letters to Ms. Hall from prison describe scenes from the

past in which he threatened her with a gun. . . . These circumstances indicate that a departure may be appropriate

under U.S.S.G. §5K2.12, which permits departure because of serious coercion not amounting to a complete

defense . . . . The failure of the probation report and the

district court to take note of these circumstances or to

discuss this issue indicates that it was not aware of the

applicability of §5K2.12 and of its discretion to depart

downward. It must consider coercion as a basis for depar-
Guideline Sentencing Update, vol. 8, no. 5, February 29, 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

ture. We therefore remand to the district court to make

findings of fact and conclusions of law as to whether

downward departure is appropriate for this Defendant,

noting in particular the coercive effect of her husband’s

abuse in light of her related emotional problems.”

U.S. v. Hall, 71 F.3d 569, 570–73 (6th Cir. 1995).

See Outline at VI.C.4.a.

D.C. Circuit rejects sentencing entrapment claim.

Defendants were convicted on charges relating to four

crack cocaine sales to undercover agents and, because of

the amount involved and prior convictions, received

mandatory life sentences under 21 U.S.C. §841(b). They

argued that they should have been sentenced as if they

sold powder cocaine rather than crack because the

agents had insisted that the cocaine be in the form of

crack and, at the first sale, refused to buy the powder

cocaine defendants tried to sell until defendants found

someone to “cook” it into crack. At trial, when one of the

agents was asked why they insisted on crack rather than

powder, he stated: “Well, crack cocaine is less expensive

than [powder] cocaine, and we felt like through our

investigation, that it takes fifty grams of crack cocaine to

get any target over the mandatory ten years.” Defendants

claimed this demonstrated sentencing entrapment by

the government.

The appellate court rejected defendants’ claims and

indicated that it did not view sentencing entrapment as a

viable defense. “The theory appears to be that if the government induces a defendant to commit a more serious

crime when he was predisposed to commit a less serious

offense, the defendant should be sentenced only for the

lesser offense. . . . But the Supreme Court has warned

against using an entrapment defense to control law enforcement practices of which a court might disapprove.

. . . The main element in any entrapment defense is rather

the defendant’s ‘predisposition’—‘whether the defendant was an “unwary innocent” or, instead, an “unwary

criminal” who readily availed himself of the opportunity

to perpetrate the crime.’ . . . Persons ready, willing and

able to deal in drugs—persons like [defendants]—could

hardly be described as innocents. These defendants

showed no hesitation in committing the crimes for which

they were convicted. Alone, this is enough to destroy

their entrapment argument.”

The court also rejected the possibility of an “outrageous-conduct defense” to reduce a statutorily-mandated sentence. If the government’s conduct were so outrageous as to violate due process it would preclude prosecution. If the conduct was not that outrageous—“if, in other

words, there was no violation of the Due Process Clause—

it follows that those actions cannot serve as a basis for a

court’s disregarding the sentencing provisions.”

U.S. v. Walls, 70 F.3d 1323, 1328–30 (D.C. Cir. 1995). See

also U.S. v. Miller, 71 F.3d 813, 817–18 (11th Cir. 1996)

(remanded: reiterating earlier holding “that sentencing

entrapment is a defunct doctrine” and rejecting theory of

“partial entrapment,” holding district court could not

sentence defendant as if he had sold powder instead of

crack cocaine—defendant was clearly disposed to sell

cocaine and arranged sale of crack after initial deal for

powder fell through). But see U.S. v. McClelland, 72 F.3d

717, 725–26 (9th Cir. 1995) (affirming “imperfect entrapment” departure for defendant convicted in murder-forhire attempt—although defendant initiated plan to kill

his wife, he repeatedly expressed reluctance to carry it

out and only went forward after the undercover informant defendant had asked to do the killing “repeatedly

pushed McClelland to go forward”).

See Outline at VI.C.4.c.

Note to Readers:

Beginning this year the Center will publish Guideline

Sentencing: An Outline of Appellate Case Law on Selected

Issues once per year, instead of twice as we have in the

past. We anticipate that the next issue will be distributed

in July or August.
Guideline Sentencing Update

a publication of the Federal Judicial Center volume 8, number 6, May 9, 1996

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.

Determining the Sentence

“Safety Valve” Provision

Fourth, Fifth, Sixth, and Eighth Circuits hold that

defendant has burden of providing information to government to qualify for §3553(f) departure. The Fourth

Circuit defendant was denied a downward departure

under 18 U.S.C. §3553(f) and USSG §5C1.2 because he

never “truthfully provided to the Government all information and evidence” he had about the marijuana conspiracy he pled guilty to. He argued on appeal that he was

entitled to the departure because he was ready to provide

information, but the government never asked for it.

The appellate court disagreed and affirmed. “Section

3553(f)(5) requires more than accepting responsibility

for one’s own acts; rather, satisfaction of §3553(f)(5) requires a defendant to disclose all he knows concerning

both his involvement and that of any co-conspirators.”

Even if the information would be of no use to the government, “§3553(f)(5) requires a defendant to ‘truthfully provide to the Government all information . . . concerning the

offense.’ 18 U.S.C. §3553(f)(5) (emphasis added). We believe this plain and unambiguous language obligates defendants to demonstrate, through affirmative conduct,

that they have supplied truthful information to the Government.” Accord U.S. v. Arrington, 73 F.3d 144, 148–50

(7th Cir. 1996) [8 GSU #5]. See also U.S. v. Wrenn, 66 F.3d 1,

3 (1st Cir. 1995) (§3553(f) “contemplates an affirmative

act of cooperation with the government”) [8 GSU #1].

The court rejected defendant’s contention that the

burden should be on the government, finding that “such

a construction is not supported by §3553(f)(5)’s plain

language, and it would lead to an absurd result. Under

Ivester’s proffered construction, those defendants facing

statutorily-mandated minimum sentences for drug convictions who were not approached and debriefed by the

Government could qualify for the reduction even though

they never provided the Government with any information. Ivester’s construction of §3553(f)(5) would essentially obviate the requirement that defendants ‘provide’

information.”

The court also rejected the claim “that our construction of §3553(f)(5) is illogical because it requires defendants to become government informants and, as such,

renders redundant substantial assistance departures under §3553(e) or its companion sentencing guidelines provision, U.S.S.G. §5K1.1,” agreeing with the Tenth Circuit

that the substantial assistance provisions have different

requirements and procedures. See U.S. v. Acosta-Olivas,

71 F.3d 375, 379 (10th Cir. 1995) [8 GSU #5]. Accord U.S. v.

Thompson, No. 95-50162 (9th Cir. Apr. 17, 1996) (Nelson,

J.) (affirmed: two provisions differ).

U.S. v. Ivester, 75 F.3d 182, 184–85 (4th Cir. 1996)

(Hall, J., dissenting). Cf. U.S. v. Thompson, 76 F.3d 166,

168–71 (7th Cir. 1996) (rejecting government claim that

defendant did not truthfully provide all information:

defendant “suffered from a diminished capacity to understand complex situations” and had “a low level of

cognitive functioning,” but she “provided the government all information and evidence she had concerning

the offense” and “was forthright within the range of her

ability,” thus satisfying §5C1.2(5)’s requirements).

The Eighth Circuit rejected a defendant’s claim that he

had provided enough information to warrant departure,

agreeing with the cases cited above that the burden is on

defendant to truthfully provide all information about the

offense. “To satisfy §3553(f)(5), Romo was required to

disclose all the information he possessed about his involvement in the crime and his chain of distribution,

including the identities and participation of others. . . .

Romo had the burden to show, through affirmative conduct, that he gave the Government truthful information

and evidence about the relevant crimes before sentencing. . . . Although Romo gave the Government some limited information about his crime, the presentence report

indicated Romo did not tell the Government the whole

story about his role in the distribution chain and his

gang’s involvement.”

U.S. v. Romo, 81 F.3d 84, – (8th Cir. 1996). See also U.S.

v. Thompson, No. 95-50162 (9th Cir. Apr. 17, 1996)

(Nelson, J.) (affirmed: “we hold that a defendant must

give the Government all the information he has concerning the offense, including the source of his drugs, to avail

himself of the benefit of §5C1.2”).

The Sixth Circuit, citing Ivester and Wrenn, held that

“defendant did not carry his burden of proving that he

was eligible for sentencing below the prescribed mandatory minimum. . . . The defendant’s statement that he gave

the government ‘all they asked,’ if true, does not satisfy his

burden of proof under §3553(f)(5) and §5C1.2(5). These

provisions clearly require an affirmative act by the defendant truthfully disclosing all the information he possesses that concerns his offense or related offenses.”

U.S. v. Adu, No. 95-1488 (6th Cir. Apr. 15, 1996) (Lively, J.).
2 Guideline Sentencing Update, vol. 8, no. 6, May 9, 1996 • a publication of the Federal Judicial Center

The Fifth Circuit also followed Ivester in holding that it

was error to give defendant a §5C1.2 departure when he

had made no effort to provide any information to the

government. “Likewise, we conclude that the language of

the safety valve provision indicates that the burden is on

the defendant to provide the Government with all information and evidence regarding the offense. There is no

indication that the Government must solicit the information. Further, the provision explains that if the information is not useful to the Government or if the Government

is already aware of the information, the court is not precluded from finding that the defendant has sufficiently

complied with subsection five, thus illustrating that the

focus of subsection five is on the defendant’s providing

information, rather than on the Government’s need for

information.”

U.S. v. Flanagan, 80 F.3d 143, 146–47 (5th Cir. 1996).

Eighth Circuit holds that defendant may not lie to

government in interview and then satisfy §3553(f)(5) by

admitting truth under cross-examination at sentencing

hearing. Defendant, convicted on a cocaine conspiracy

charge, had been arrested at an airport with a coconspirator who was posing as her husband. In an interview with

the government after she pled guilty, defendant said that

the man had posed as her husband (who was an airline

employee) because he wanted her to obtain airline tickets

available to airline employees and their families, but she

denied that she had done so. At the sentencing hearing,

however, the government produced several such tickets

purchased by defendant and she admitted on crossexamination that she had obtained tickets on four occasions for the coconspirator, and that she lied to the government because she feared retribution from her employer. Although she otherwise qualified for a “safety

valve” departure under 18 U.S.C. §3553(f), the district

court sentenced her to the mandatory minimum after

concluding she did not satisfy the requirement to truthfully provide all information to the government.

The appellate court affirmed, rejecting defendant’s

claim that “she provided all truthful information ‘not later

than the time of the sentencing hearing’ under

§3553(f)(5) because she admitted she provided [the coconspirator] with [employee] tickets at the sentencing

hearing. Under Long’s reading, defendants could deliberately mislead the government about material facts, yet

retain eligibility for relief under §3553(f) by ‘curing’ their

misstatement at the sentencing hearing. Although this

would serve a sentencing court’s interest in full disclosure

for purposes of sentencing, we think Long overlooks the

government’s interest in full truthful disclosure when it

interviews defendants. This interest is reflected in the text

of §3553(f)(5) in the clause requiring the defendant’s information be ‘truthfully provided to the Government.’

Only if Long had provided truthful information could

the government have avoided the further investigation

required to discover the airline ticket receipts.”

U.S. v. Long, 77 F.3d 1060, 1062 (8th Cir. 1996) (per

curiam).

Third Circuit holds that the safety valve provision

cannot be applied to 21 U.S.C. §860, the “schoolyard”

statute. Defendant was convicted on several drug

charges, including four counts of distribution within

1,000 feet of a school, 21 U.S.C. §860. Defendant qualified

for a safety valve departure on some of the drug counts,

but the district court ruled that 18 U.S.C. §3553(f) could

not be applied to §860 and sentenced defendant to a fiveyear mandatory minimum sentence. Defendant appealed, arguing that §860 is not a substantive offense

but merely an enhancement of the penalty for §841, to

which the safety valve provision may be applied.

The appellate court rejected defendant’s argument

and affirmed the sentence. “By its terms, 18 U.S.C.

§3553(f) applies only to convictions under 21 U.S.C.

§§841, 844, 846, 961 and 963. Section 860 is not one of

the enumerated sections. It is a canon of statutory construction that the inclusion of certain provisions implies

the exclusion of others. . . . In clear and unambiguous

language, . . . 18 U.S.C. §3553(f) does not apply to convictions under 21 U.S.C. §860, the ‘schoolyard’ statute.”

The court also held that “§860 is a separate substantive

offense, not a sentence enhancement provision. . . . [T]he

language of the statute specifies §860 is a separate offense. Although §860 refers to §841, . . . it requires a

separate and distinct element—distribution within 1,000

feet of a school. Distribution within 1,000 feet of a school

must be charged and proven beyond a reasonable doubt

in order to obtain a conviction under §860.”

U.S. v. McQuilkin, 78 F.3d 105, 108–09 (3d Cir. 1996).

See Outline generally at V.F for all cases above.

Criminal History

Career Offender Provision

Seventh and Tenth Circuits hold that amendment to

definition of “Offense Statutory Maximum” conflicts

with statute; Ninth Circuit upholds amendment. The

Tenth Circuit defendant was sentenced in 1989 as a career

offender to 262 months. The maximum sentence he could

have received under 21 U.S.C. §841(b)(1)(C) was 30 years

because he had a prior felony drug conviction; without

that enhancement the maximum was 20 years. For

defendant’s Offense Statutory Maximum under §4B1.1,

the court used the 30-year maximum sentence. Effective

Nov. 1, 1994, Amendment 506 redefined Offense Statutory Maximum as “not including any increase in that

maximum term under a sentencing enhancement provision that applies because of the defendant’s prior criminal record,” such as the one defendant received under
Guideline Sentencing Update, vol. 8, no. 6, May 9, 1996 • a publication of the Federal Judicial Center 3

§841(b)(1)(C). See §4B1.1, comment. (n.2). Under the

amendment, which was made retroactive, defendant’s

Offense Statutory Maximum would have been 20 years

and his offense level reduced from 34 to 32. He filed a

motion to be resentenced under the amendment, but the

district court held that Amendment 506 “clearly conflicts”

with 28 U.S.C. §994(h) and denied the motion.

The appellate court upheld the district court’s conclusion. “We are compelled by the clear directive of §994(h)

to hold that Amendment 506 is inconsistent with that

statute, and is therefore invalid as beyond the scope of

the Commission’s authority delegated to it by Congress.

. . . The statute directs the Commission to assure that the

guidelines specify a sentence ‘at or near the maximum

term authorized for categories of defendants in which

the defendant is eighteen years old or older and [has

been convicted of a crime of violence or enumerated

drug offense and has two such prior convictions].’ . . .

Because the ‘maximum term authorized’ for categories

of defendants in which the defendant has two prior qualifying felony convictions is necessarily the enhanced

statutory maximum, we find no ambiguity in the statute.

It would make no sense for the statute to require the

‘maximum term authorized’ to be considered in the context of defendants with two or more prior qualifying

felony convictions unless it was intended that that phrase

mean the enhanced sentence resulting from such a pattern of recidivism. . . . Under the reading urged by Novey,

§994(h) would provide that qualifying recidivist violent

felons or drug offenders would only receive sentences at

or near the maximum term authorized for defendants

without such prior criminal history—that is, the

unenhanced maximum. This would negate those provisions in 21 U.S.C. §841(b)(1)(A)–(D) which clearly provide that qualifying recidivist criminals may receive penalties substantially above the maximum penalties authorized for first-time offenders of the same offense. We

cannot agree that by expressing an intent to punish repeat drug offenders ‘at or near the maximum term authorized,’ Congress in fact intended that express statutory

sentence enhancements for qualifying recidivist offenders be disregarded.”

“In holding that Amendment 506 is invalid, we recognize that we stand in disagreement not only with the

Commission, but with the only other appellate court to

address the issue. See U.S. v. LaBonte, 70 F.3d 1396, 1400

(1st Cir. 1995) (“Although the call is close, we hold that

Amendment 506 is a reasonable implementation of the

statutory mandate.”)” [8 GSU #4].

U.S. v. Novey, 78 F.3d 1483, 1487–91 (10th Cir. 1996).

A few days after Novey was decided, the Seventh Circuit

also invalidated Amendment 506 and held that “Offense

Statutory Maximum” includes enhancements. “A pragmatic reading of section 994(h) thus leads us to this conclusion: When Congress directed the Sentencing Commission to provide for sentences ‘at or near the maximum

term authorized’ for persons who qualify as career offenders, it meant the highest penalty for which a given

defendant is eligible. For a person who is subject to the

enhanced statutory penalties due to her prior convictions

and the filing of a section 851(a) notice, that is the enhanced maximum. . . . To treat the unenhanced statutory

maximum as the maximum term authorized for purposes

of section 994(h), even when the defendant is eligible for

a higher penalty, ignores the common meaning of the

word ‘maximum,’ abrogates the enhanced maximums

Congress has provided for in statutes like section 841(b),

and, we are convinced, underestimates the severity of the

penalties Congress had in mind for these defendants.”

U.S. v. Hernandez, 79 F.3d 584, 595–601 (7th Cir. 1996).

The defendant in the Ninth Circuit was sentenced

under Amendment 506 and the government appealed.

The appellate court affirmed and, agreeing with the conclusion of the First Circuit in LaBonte, held that Amendment 506 was valid. “Plainly the words ‘at or near’ create a

range in which the Commission is free to act. If Congress

intended all sentences to be at the maximum it could have

said so. Congress specified that it was for the Commission

to determine by the Guidelines whether the term of imprisonment should be at the maximum or near it and to

do so in terms of categories of defendants, not in terms of

enhancements for particular defendants. . . . The legislative history of [§994(h)] suggests that the phrase ‘maximum term authorized’ should be construed as the maximum term authorized by statute. . . . Application Note 2,

added to §4B1.1 of the Guidelines, accurately carries out

the intention of Congress. It is not for the Department of

Justice nor for this court to deny the Commission’s carrying out of its statutory function in this way.”

U.S. v. Dunn, 80 F.3d 402, 404–05 (9th Cir. 1996) (Rymer,

J., dissenting).

See Outline at IV.B.3.

Departures

Aggravating Circumstances

First Circuit holds that attempt to hide assets to avoid

restitution may warrant departure. Defendant was

convicted of interstate theft offenses and received a

§3C1.1 enhancement for perjury. The district court also

departed upward two levels because “after conviction

but before sentence [defendant] created an irrevocable

trust for his six year old daughter and transferred to it,

without consideration, his real estate and business assets.

The trial judge found after a hearing at which [defendant]

testified that the purpose of the transfer was to frustrate

collection of a likely fine or restitution and that [defendant] himself regarded the trust as ‘a sham.’”
Guideline Sentencing Update, vol. 8, no. 6, May 9, 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

The appellate court affirmed. Although defendant

argued that the purpose of the trust was simply to provide for his daughter, the evidence showed that he “created the trust shortly after his wife had been ordered to

pay over $400,000 in restitution; that [he] had been

warned by his lawyer that the trust might be viewed as

an attempt to avoid payment of restitution or fines; and

that [he] intended to return to operate his business after

release and expected to be able to use the real estate as

well. . . . [T]he attempt to frustrate a fine or restitution

order is a permissible basis for a departure.”

The court also concluded that, although an “attempt

to frustrate the actual or anticipated judgment by secreting assets is closely akin to obstruction of justice,” the

fact that defendant had already received an obstruction

enhancement did not make departure for additional

obstructive conduct double counting. “Here, [defendant]’s attempt to frustrate restitution was not just

additional perjury but a new and different act of misbehavior with a different victim; and the sum of the two is

greater than either standing alone. Even if both are treated

as forms of obstruction and are within section 3C1.1—a

matter we need not decide—section 5K2.0 permits departure for an aggravating circumstance ‘of a kind, or to a

degree, not adequately’ considered by the guidelines.”

U.S. v. Black, 78 F.3d 1, 5–6 (1st Cir. 1996).

See Outline at VI.B.1.h.

Mitigating Circumstances

First Circuit holds that “lesser harms” provision,

§5K2.11, may allow departure despite §5H1.4’s prohibition on considering drug dependence or abuse. Defendant, a 50-year-old farmer, was sentenced to 70 months

for manufacturing marijuana. The evidence showed that

defendant had suffered from severe depression for 30

years, that the depression made him suicidal, that medication was either ineffective or made him ill, and that, on

a doctor’s advice, he tried marijuana and found that it

helped his depression and kept him from feeling suicidal.

When defendant was released from custody pending

sentencing on the condition that he not use marijuana,

he became depressed and suicidal. He was admitted to a

medical center for treatment and therapy and was given

medication that worked. He testified at sentencing that

“the only reason I used marijuana was to keep from being

suicidal, and that now that I have found a proper medication that really works . . . I don’t believe that I would ever

be tempted . . . in breaking the law to treat my depression.”

The district court found that defendant’s story was credible and wanted to depart under §5K2.11, but concluded

it could not because of §5H1.4’s prohibition of departures

for “[d]rug or alcohol dependence or abuse.”

The appellate court disagreed and remanded. “We

hold that a district court has authority to consider a downward departure under section 5K2.11, provided there is

an appropriate factual predicate, even if that predicate

subsumes particular facts that would be precluded by

section 5H1.4 from forming a basis for departure. . . .

Section 5K2.11 provides that ‘[w]here the interest in punishment or deterrence is not reduced, a reduction in

sentence is not warranted.’ U.S.S.G. §5K2.11,p.s. Here,

where the record clearly demonstrates that the alternative to Carvell’s marijuana use might well have been the

taking of his own life, the interest in punishment or deterrence of drug ‘manufacturing’ could reasonably be

thought to be reduced. In contrast, in the ordinary drug

dependence case, it is difficult to see how that limitation

in section 5K2.11 could be avoided. . . . This is not a case

where the defendant’s drug dependence is the very element driving the applicability of the ‘lesser harms’ provision. The risk of suicide for Carvell was not a byproduct of

his drug dependence: the district court credited Carvell’s

testimony that fear he would take his own life led him to

use drugs, not vice versa. The avoidance of suicide, not

drug use, drives the ‘lesser harms’ analysis here.”

U.S. v. Carvell, 74 F.3d 8, 9–12 (1st Cir. 1996).

See Outline at VI.C.2.a and 5.d.
Guideline Sentencing Update

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 8, no. 7, June 25, 1996

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. Any views expressed are those

of the Center staff who prepare the summaries.

Appellate Review

Departures

Supreme Court holds that decision to depart should be

reviewed for abuse of discretion, not de novo; Court also

states that courts cannot categorically reject a factor as

basis for departure. In sentencing two police officers for

civil rights violations in the Rodney King beating case, the

district court departed downward eight offense levels.

The court departed five levels under §5K2.10, concluding

that “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” It also departed three levels for a combination of circumstances

that, individually, would not warrant departure: Defendants were “particularly likely to be targets of abuse”

in prison; defendants would suffer administrative sanctions and loss of employment; defendants had

been “significantly burden[ed]” by successive state and

federal prosecutions; and defendants were not “violent,

dangerous, or likely to engage in future criminal conduct,” so there was “no reason to impose a sentence that

reflects a need to protect the public.”

Reviewing the departure de novo, the Ninth Circuit

reversed. The court held that the victim misconduct departure was invalid because misbehavior by a suspect in

an excessive use of force case is taken into account in the

statutes and Guidelines. The court rejected the other four

factors as being accounted for in the Guidelines or inappropriate to consider at all. See U.S. v. Koon, 34 F.3d 1416,

1452–60 (9th Cir. 1994) [7 GSU #2].

The Supreme Court “granted certiorari to determine

the standard of review governing appeals from a district

court’s decision to depart from the sentencing ranges in

the Guidelines. The appellate court should not review the

departure decision de novo, but instead should ask

whether the sentencing court abused its discretion.” The

Court concluded that the Sentencing Reform Act and the

Guidelines reduced but “did not eliminate all of the district court’s discretion,” and it adopted then-Chief Judge

Breyer’s opinion that “a sentencing court considering a

departure should ask the following questions: ‘1) What

features of this case, potentially, take it outside the Guidelines’ “heartland” and make of it a special, or unusual,

case? 2) Has the Commission forbidden departures based

on those features? 3) If not, has the Commission encouraged departures based on those features? 4) If not, has the

Commission discouraged departures based on those features?’ U.S. v. Rivera, 994 F.2d 942, 949 (C.A.1 1993).”

“We agree with this summary. If the special factor is a

forbidden factor, the sentencing court cannot use it as a

basis for departure. If the special factor is an encouraged

factor, the court is authorized to depart if the applicable

Guideline does not already take it into account. If the

special factor is a discouraged factor, or an encouraged

factor already taken into account by the applicable

Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes

the case different from the ordinary case where the factor

is present. . . . If a factor is unmentioned in the Guidelines,

the court must, after considering the ‘structure and

theory of both relevant individual guidelines and the

Guidelines taken as a whole,’ id., at 949, decide whether it

is sufficient to take the case out of the Guideline’s heartland. The court must bear in mind the Commission’s

expectation that departures based on grounds not mentioned in the Guidelines will be ‘highly infrequent.’”

As for the standard of review on appeal, the Court

agreed that the creation of sentencing guidelines showed

“that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not

intend, by establishing limited appellate review, to vest in

appellate courts wide-ranging authority over district

court sentencing decisions.”

“A district court’s decision to depart from the Guidelines . . . will in most cases be due substantial deference,

for it embodies the traditional exercise of discretion by a

sentencing court. . . . Before a departure is permitted, certain aspects of the case must be found unusual enough

for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make

a refined assessment of the many facts bearing on the

outcome, informed by its vantage point and day-to-day

experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by

the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some

unusual or exceptional way, are matters determined in

large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. . . . [A] district court’s

departure decision involves ‘the consideration of unique

factors that are “little susceptible . . . of useful generalization,”’ . . . and as a consequence, de novo review is

‘unlikely to establish clear guidelines for lower courts.’”
2 Guideline Sentencing Update, vol. 8, no. 7, June 25, 1996 • a publication of the Federal Judicial Center

To the government’s argument that whether a particular factor is within the “heartland” is a question of law, the

Court answered that the relevant inquiry is “whether the

particular factor is within the heartland given all the facts

of the case. For example, it does not advance the analysis

much to determine that a victim’s misconduct might justify a departure in some aggravated assault cases. What

the district court must determine is whether the misconduct which occurred in the particular instance suffices to

make the case atypical. The answer is apt to vary depending on, for instance, the severity of the misconduct, its

timing, and the disruption it causes. These considerations are factual matters.”

“This does not mean that district courts do not confront questions of law in deciding whether to depart. In

the present case, for example, the Government argues

that the District Court relied on factors that may not be

considered in any case. The Government is quite correct

that whether a factor is a permissible basis for departure

under any circumstances is a question of law, and the

court of appeals need not defer to the district court’s

resolution of the point. Little turns, however, on whether

we label review of this particular question abuse of discretion or de novo, for an abuse of discretion standard

does not mean a mistake of law is beyond appellate correction.”

As to the specific grounds for departure in this case,

the Supreme Court held that the victim’s conduct and

two of the four “combination” factors were valid reasons

for departure. On the first, “[t]he Court of Appeals misinterpreted the heartland of §2H1.4 by concentrating on

whether King’s misconduct made this an unusual case

of excessive force. . . . [T]he same Guideline range applies

both to a Government official who assaults a citizen

without provocation as well as instances like this where

what begins as legitimate force becomes excessive. The

District Court did not abuse its discretion in differentiating between the classes of cases, nor did it do so in

concluding that unprovoked assaults constitute the relevant heartland. Victim misconduct is an encouraged

ground for departure. A district court, without question,

would have had discretion to conclude that victim misconduct could take an aggravated assault case outside

the heartland.”

On the other factors, the government argued that “each

of the factors relied upon by the District Court [are] impermissible departure factors under all circumstances.”

The Court responded that “[t]hose arguments, however

persuasive as a matter of sentencing policy, should be

directed to the Commission. Congress did not grant federal courts authority to decide what sorts of sentencing

considerations are inappropriate in every circumstance.

Rather, 18 U.S.C. §3553(b) instructs a court that, in determining whether there exists an aggravating or mitigating

circumstance of a kind or to a degree not adequately

considered by the Commission, it should consider ‘only

the sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission.’ The Guidelines, however, ‘place essentially no limit on the number

of potential factors that may warrant departure.’ . . . The

Commission set forth factors courts may not consider

under any circumstances but made clear that with those

exceptions, it ‘does not intend to limit the kinds of factors,

whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an

unusual case.’ . . . Thus, for the courts to conclude a factor

must not be considered under any circumstances would

be to transgress the policymaking authority vested in the

Commission. . . . We conclude, then, that a federal court’s

examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether

the Commission has proscribed, as a categorical matter,

consideration of the factor. If the answer to the question

is no—as it will be most of the time—the sentencing court

must determine whether the factor, as occurring in the

particular circumstances, takes the case outside the

heartland of the applicable Guideline.”

The Court then concluded that two of the factors could

not be used for departure in this case. “[T]he District

Court abused its discretion by considering petitioners’

career loss because the factor, as it exists in these circumstances, cannot take the case out of the heartland of 1992

USSG §2H1.4. . . . Although cognizant of the deference

owed to the district court, we must conclude it is not

unusual for a public official who is convicted of using his

governmental authority to violate a person’s rights to lose

his or her job and to be barred from future work in that

field.” (Note: Justice Stevens dissented on this point.) The

Court also found that “the low likelihood of petitioners’

recidivism was not an appropriate basis for departure.

Petitioners were first-time offenders and so were classified in Criminal History Category I, . . . [which] ‘is set for a

first offender with the lowest risk of recidivism. Therefore,

a departure below the lower limit of the guideline range

for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate.’”

“The two remaining factors are susceptibility to abuse

in prison and successive prosecutions. The District Court

did not abuse its discretion in considering these factors.

The Court of Appeals did not dispute, and neither do we,

the District Court’s finding that ‘[t]he extraordinary notoriety and national media coverage of this case, coupled

with the defendants’ status as police officers, make Koon

and Powell unusually susceptible to prison abuse’ . . . . The

District Court’s conclusion that this factor made the case

unusual is just the sort of determination that must be

accorded deference by the appellate courts.”

“As for petitioners’ successive prosecutions, it is true

that consideration of this factor could be incongruous

with the dual responsibilities of citizenship in our federal
Guideline Sentencing Update, vol. 8, no. 7, June 25, 1996 • a publication of the Federal Judicial Center 3

system in some instances. Successive state and federal

prosecutions do not violate the Double Jeopardy Clause.

. . . Nonetheless, the District Court did not abuse its discretion in determining that a ‘federal conviction following a state acquittal based on the same underlying conduct . . . significantly burden[ed] the defendants.’ . . . The

state trial was lengthy, and the toll it took is not beyond the

cognizance of the District Court.” (Justices Souter,

Ginsburg, and Breyer dissented on these last two points.)

The Court remanded for the district court to reconsider

the extent of departure in light of this opinion. The Court

then added: “It has been uniform and constant in the

federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every

case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the

punishment to ensue. We do not understand it to have

been the congressional purpose to withdraw all sentencing discretion from the U.S. District Judge. Discretion is

reserved within the Sentencing Guidelines, and reflected

by the standard of appellate review we adopt.”

Koon v. U.S., No. 94-1664 (U.S. June 13, 1996) (Kennedy, J.).

See Outline at VI.C.3 and 4.b, X.A.1

Departures

Substantial Assistance

Supreme Court holds that separate motion under 18

U.S.C. §3553(e) is required for substantial assistance

departure below mandatory minimum. Defendant was

charged with cocaine offenses and faced a ten-year mandatory minimum sentence. He pled guilty under a plea

agreement that stated the government would move under

§5K1.1 for a departure from the applicable guideline

range if he cooperated, but there was no agreement to

move under 18 U.S.C. §3553(e) for departure below the

mandatory minimum. The government did make a motion “pursuant to §5K1.1” for departure from the guideline sentence, which was 135–168 months, but did not

mention §3553(e) or the mandatory minimum. The district court granted the motion and imposed a ten-year

term after ruling that, in the absence of a §3553(e) motion,

it could not depart below the mandatory minimum.

Defendant appealed, but the Third Circuit affirmed,

holding 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.” U.S. v. Melendez, 55 F.3d 130,

135–36 (3d Cir. 1995) [7 GSU #10]. The Eighth Circuit

agrees, but four circuits have held that a separate §3553(e)

motion is not required. See cases in Outline at VI.F.3.

The Supreme Court granted certiorari to resolve the

circuit split and concluded that a §5K1.1 motion “does not

authorize a departure below a lower statutory minimum.”

The Court rejected petitioner’s argument that §5K1.1 creates “a ‘unitary’ motion system,” agreeing with the government that “nothing in §3553(e) suggests that a district

court has power to impose a sentence below the statutory

minimum to reflect a defendant’s cooperation when the

Government has not authorized such a sentence, but has

instead moved for a departure only from the applicable

Guidelines range. Nor does anything in §3553(e) or [28

U.S.C.] §994(n) suggest that the Commission itself may

dispense with §3553(e)’s motion requirement, or alternatively, ‘deem’ a motion requesting or authorizing different

action—such as a departure below the Guidelines minimum—to be a motion authorizing the district court to

depart below the statutory minimum.”

“Moreover, we do not read §5K1.1 as attempting to

exercise this nonexistent authority. Section 5K1.1 says:

‘Upon motion of the government stating that the defendant has provided substantial assistance . . . the court may

depart from the Guidelines,’ while its Application Note 1

says: ‘Under circumstances set forth in 18 U.S.C. §3553(e)

and 28 U.S.C. §994(n) . . . substantial assistance . . . may

justify a sentence below a statutorily required minimum

sentence,’ §5K1.1, comment., n.1. One of the circumstances set forth in §3553(e) is, as we have explained

previously, that the Government has authorized the court

to impose a sentence below the statutory minimum.”

The Court also found unpersuasive petitioner’s arguments “that §3553(e) requires a sentence below the statutory minimum to be imposed in ‘accordance’ with the

Guidelines,” that §994(n) required the Commission to

draft a provision covering reduction below a mandatory

minimum for substantial assistance, and that the language

of the policy statement and various application notes

indicate that §5K1.1 authorizes departure from the mandatory minimum. “We agree with the Government that

the relevant parts of the statutes merely charge the Commission with constraining the district court’s discretion in

choosing a specific sentence after the Government moves

for a departure below the statutory minimum. Congress

did not charge the Commission with ‘implementing’

§3553(e)’s Government motion requirement, beyond

adopting provisions constraining the district court’s discretion regarding the particular sentence selected.

“Although the various relevant Guidelines provisions

invoked by the parties could certainly be clearer, we also

believe that the Government’s interpretation of the current provisions is the better one. Section 5K1.1(a) may

guide the district court when it selects a sentence below

the statutory minimum, as well when it selects a sentence

below the Guidelines range. The Commission has not,

however, improperly attempted to dispense with or

modify the requirement for a departure below the statutory minimum spelled out in §3553(e)—that of a Government motion requesting or authorizing a departure below the statutory minimum.”
Guideline Sentencing Update, vol. 8, no. 7, June 25, 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

The Court left one issue unresolved. “Although the

Government contends correctly that the Commission

does not have authority to ‘deem’ a Government motion

that does not authorize a departure below the statutory

minimum to be one that does authorize such a departure, the Government apparently reads §994(n) to

permit the Commission to construct a unitary motion

system by adjusting the requirements for a departure

below the Guidelines minimum—that is, by providing

that the district court may depart below the Guidelines

range only when the Government is willing to authorize

the court to depart below the statutory minimum, if

the court finds that to be appropriate. . . . We need not

decide whether the Commission could create this second

type of unitary motion system, for two reasons. First,

even if the Commission had done so, that would not help

petitioner, since the Government has not authorized a

departure below the statutory minimum here. Second,

we agree with the Government that the Commission

has not adopted this type of unitary motion system.”

(Note: Justices Breyer and O’Connor dissented on this

issue.)

Melendez v. U.S., No. 95-5661 (U.S. June 17, 1996)

(Thomas, J.).

See Outline at VI.F.3.

Determining the Sentence

Fines

Fourth Circuit holds that district courts may not

delegate final decisions concerning amount of fine

and schedule of payments. Defendant was ordered to

pay a $3,000 fine and $50 in restitution. Payments toward

those amounts were to be made at such times and in

such amounts as the Bureau of Prisons and/or the Probation Office may direct. In another case after this

sentencing, the Fourth Circuit held that district courts

could not delegate to probation officers final decisions

about the amount and schedule of restitution payments.

See U.S. v. Johnson, 48 F.3d 806, 808–09 (4th Cir. 1995)

[7 GSU #8].

The appellate court in this case concluded that the

reasoning of Johnson “equally applies when the delegation involves a fine. Title 18 U.S.C.A. §3572(d) (West

Supp.1995) provides that a ‘person sentenced to pay a

fine or other monetary penalty shall make such payment immediately, unless, in the interest of justice, the

court provides for payment on a date certain or in installments.’ This section as well as §3663(f)(1), setting forth

the district court’s statutory duty to fix the terms of restitution, both impose upon the ‘court’ the responsibility

for determining installment payments. Like restitution,

the statutory duty imposed upon district courts to fix

the terms of a fine must be read as exclusive because the

imposition of a sentence, including the terms of probation or supervised release, is a core judicial function.

Accordingly, we hold a district court may not delegate

its authority to set the amount and timing of fine payments to the Bureau of Prisons or the probation officer.

See U.S. v. Kassar, 47 F.3d 562, 568 (2d Cir. 1995) (holding

that a district court may not delegate its responsibility

under 18 U.S.C.A. §3572 for determining installment payments with regard to a fine).”

U.S. v. Miller, 77 F.3d 71, 77–78 (4th Cir. 1996). Note: 18

U.S.C. §3572(d) was amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (effective Apr. 24,

1996), and new subsection (2) states: “If the judgment, or,

in the case of a restitution order, the order, permits other

than immediate payment, the length of time over

which scheduled payments will be made shall be set by

the court, but shall be the shortest time in which full

payment can reasonably be made.”

See Outline at V.D.1, generally at V.E.1.
Guideline Sentencing Update

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

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

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

Departures

Substantial Assistance

Fourth Circuit holds that departure may be warranted

where district court prohibited defendant from actively

cooperating with the government in order to obtain

substantial assistance departure. Defendant was arrested for possession of child pornography materials. He

soon entered a plea agreement that, among other things,

called for him to cooperate with an investigation of criminal activity by others in exchange for a downward departure for substantial assistance under USSG §5K1.1. However, after defendant entered his plea, as a condition of

release “the district court ordered Goossens to cease his

active cooperation in investigative operations. The result

of this prohibition was that Goossens was unable to assist

the Government personally or to participate in an operation planned by the United States Customs Service. The

parties subsequently requested that the district court

allow Goossens to resume his active cooperation with law

enforcement officials.” The district court refused to lift

the ban, and the government subsequently did not file a

§5K1.1 motion. Defendant requested a downward departure on the ground that the Sentencing Commission did

not consider a situation where a district court order prevented a defendant from assisting the government to

qualify for a §5K1.1 departure. The district court denied

that request, but sua sponte departed downward under

§5K2.13 for diminished capacity. The government appealed that departure.

The appellate court remanded. First, it held that the

facts did not support a finding that defendant suffered

from diminished mental capacity such as would justify

departure under §5K2.13. Because the sentence would

have to be reconsidered on remand, the court

“address[ed] the prohibition on Goossens’ active cooperation with law enforcement authorities and the appropriateness of departing downward from the properly calculated guideline range on the basis of this prohibition.”

“The district court committed a clear abuse of discretion by imposing the prohibition on cooperation with law

enforcement officials as a condition of Goossens’ release.

Although we have difficulty imagining factual circumstances in which the imposition of such a condition

might be appropriate, we do not foreclose the possibility

that such a condition might in some extraordinary circumstances properly be imposed by a district court when

truly necessary to assure a defendant’s appearance or to

protect the public safety. There is no genuine argument,

however, that the condition was necessary in this instance. Indeed, the district court did not even attempt to

justify its imposition on this basis. Instead, the court

based its decision on its view of what would best benefit

the rehabilitation of the defendant, a factor that is conspicuously absent among those specified in [18 U.S.C.]

§3142(c)(1)(B),” the provision that prescribes conditions

of release that may be imposed on a convicted defendant.

“Furthermore, in so doing, the district court improperly frustrated Goossens’ desire to cooperate in order to

qualify for more favorable sentencing treatment and the

Government’s legitimate hope that he would aid in law

enforcement authorities’ investigative efforts. See U.S. v.

Vargas, 925 F.2d 1260, 1265 (10th Cir. 1991) (holding that

‘inflexible practice’ by district court of refusing to permit

criminal defendants to cooperate was error); U.S. v.

French, 900 F.2d 1300, 1302 (8th Cir. 1990) (same).”

The court concluded that “the Sentencing Commission did not consider the possibility that a district court

might affirmatively prohibit a defendant from cooperating with law enforcement authorities in an effort to

qualify for a departure based upon substantial assistance. And, it is undisputed that Goossens was so prohibited by the district court in this instance. Accordingly, we

conclude that on remand the district court should determine whether, under the circumstances of this case, this

factor is sufficiently important such that a sentence outside the guideline range should result. In weighing

whether the facts presented by situations such as this

warrant a sentence outside the guideline range, a court

should consider whether a defendant’s cooperation likely

would have been such that the Government would have

moved for a departure based upon substantial assistance

had the defendant’s cooperation not been foreclosed

improperly.”

U.S. v. Goossens, 84 F.3d 697, 699–704 (4th Cir. 1996).

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

Mitigating Circumstances

First Circuit holds that “aberrant behavior” is determined by viewing the totality of the circumstances.

Defendant pled guilty to one count of mail fraud. He

requested departure based on “aberrant behavior,” and

the government agreed. The district court, however, ruled

that it could not depart on this basis because defendant’s

conduct did not fall within the court’s definition of aberrant behavior, which included “spontaneity or thoughtlessness in committing the crime of conviction.”

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 8, no. 8, Oct. 22, 1996
2 Guideline Sentencing Update, vol. 8, no. 8, October 22, 1996 • a publication of the Federal Judicial Center

The appellate court remanded. Rejecting the approach

of some circuits that require “a spontaneous and seemingly thoughtless act,” the court opted for the broader

view of aberrant behavior taken by the Ninth and Tenth

Circuits. It held that “determinations about whether an

offense constitutes a single act of aberrant behavior

should be made by reviewing the totality of the circumstances. District court judges may consider, inter alia, factors such as pecuniary gain to the defendant, charitable

activities, prior good deeds, and efforts to mitigate the effects of the crime in deciding whether a defendant’s conduct is aberrant in terms of other crimes. . . . Spontaneity

and thoughtlessness may also be among the factors considered, though they are not prerequisites for departure.”

“That aberrant behavior departures are available to

first offenders whose course of criminal conduct involves

more than one criminal act is implicit in our holding. . . .

We think the Commission intended the word ‘single’ to

refer to the crime committed and not to the various acts

involved. As a result, we read the Guidelines’ reference to

‘single acts of aberrant behavior’ to include multiple acts

leading up to the commission of a crime. . . . Any other

reading would produce an absurd result. District courts

would be reduced to counting the number of acts involved in the commission of a crime to determine

whether departure is warranted. Moreover, the practical

effect of such an interpretation would be to make aberrant behavior departures virtually unavailable to most

defendants because almost every crime involves a series

of criminal acts.”

The court added that, “[w]ithout more, first-offender

status is not enough to warrant downward departure.

District courts are not, however, precluded from considering first-offender status as a factor in the departure

calculus. Departure-phase consideration of a defendant’s criminal record does not, we think, wrongly duplicate the calculations involved in establishing a

defendant’s criminal history category under the Guidelines. . . . The Guidelines explain that ‘the court may depart

. . . even though the reason for departure is taken into

consideration . . . if the court determines that, in light of

unusual circumstances, the guideline level attached to

that factor is inadequate.’ U.S.S.G. §5K2.0.”

U.S. v. Grandmaison, 77 F.3d 555, 562–64 (1st Cir. 1996).

But see U.S. v. Withrow, 85 F.3d 527, 531 (11th Cir. 1996)

(aberrant behavior “is not established unless the defendant is a first-time offender and the crime was a spontaneous and thoughtless act rather than one which was

the result of substantial planning”); U.S. v. Dyce, 78 F.3d

610, 619 (D.C. Cir. 1996) (following circuits that require

“a spontaneous and seemingly thoughtless act rather

than one which was the result of substantial planning”),

as amended on denial of rehearing, 91 F.3d 1462, 1470

(D.C. Cir. 1996).

See Outline at VI.C.5.c.

Seventh Circuit holds that “sentencing manipulation” is not a valid defense. Over a three-week period

defendant made four separate sales of heroin to an undercover agent, the last one being the largest at one kilogram.

Defendant claimed on appeal that the government manipulated his sentence by waiting to arrest him so that the

additional heroin sold would increase his sentence.

The appellate court rejected this claim. “Sentencing

manipulation occurs when the government engages in

improper conduct that has the effect of increasing a

defendant’s sentence. . . . This claim is distinct from a

claim of sentencing entrapment which occurs when the

government causes a defendant initially predisposed to

commit a lesser crime to commit a more serious offense”

(a claim defendant did not make). “We now hold that

there is no defense of sentencing manipulation in this

circuit. A suspect has no constitutional right to be arrested when the police have probable cause. . . . It is within

the discretion of the police to decide whether delaying the

arrest of the suspect will help ensnare co-conspirators, as

exemplified by this case, will give the police greater understanding of the nature of the criminal enterprise, or

merely will allow the suspect enough ‘rope to hang himself.’ Because the Constitution requires the government

to prove a suspect is guilty of a crime beyond a reasonable

doubt, the government ‘must be permitted to exercise its

own judgment in determining at what point in an investigation enough evidence has been obtained.’”

U.S. v. Garcia, 79 F.3d 74, 75–76 (7th Cir. 1996).

See Outline at VI.C.4.c.

Tenth Circuit holds that claim of sentencing entrapment or manipulation will be reviewed under outrageous conduct standard. Defendant was suspected of

cocaine distribution. After the government made three

half-kilogram purchases from a coconspirator by an undercover operative, they arranged a larger purchase that

resulted in the seizure of five kilograms of cocaine that

defendant and another were transporting, plus five more

kilograms from a farm where government agents had suspected defendant stored drugs. Defendant was sentenced

on the basis of all 11.5 kilograms of cocaine but argued

that the last ten kilograms should have been excluded

because the government engaged in “sentence factor manipulation” by continuing its investigation and negotiating the multikilogram purchase after it had sufficient

evidence against defendant and his coconspirators.

The appellate court disagreed and affirmed the sentence. “This Circuit never has addressed squarely a defense claim of ‘sentencing factor manipulation’ under

that rubric. However, we have addressed the same concept under the appellation of ‘outrageous governmental

conduct’ . . . [and] suggested that sufficiently egregious

government conduct may affect the sentencing determination. . . . [W]e believe that arguments such as Lacey’s,
Guideline Sentencing Update, vol. 8, no. 8, October 22, 1996 • a publication of the Federal Judicial Center 3

whether presented as ‘sentencing factor manipulation’ or

otherwise, should be analyzed under our established outrageous conduct standard. . . . [T]he relevant inquiry is

whether, considering the totality of the circumstances in

any given case, the government’s conduct is so shocking,

outrageous and intolerable that it offends ‘the universal

sense of justice.’” Looking at the circumstances of the

case, the court concluded that the multikilogram transaction “was in furtherance of legitimate law enforcement

objectives and not, as a matter of law, outrageous.”

U.S. v. Lacey, 86 F.3d 956, 963–66 (10th Cir. 1996).

See Outline at VI.C.4.c.

Determining the Sentence

“Safety Valve” Provision

First Circuit holds that submitting to debriefing by government is advisable, but not required, under safety

valve provision. Defendant requested application of 18

U.S.C. §3553(f) on the basis of “an eight-page letter setting forth what purported to be Montanez’ ‘information’

concerning the crimes charged in the case” that his attorney sent to the government. However, the letter “was

drawn almost verbatim from an affidavit filed by one of

the federal agents early in the case.” In finding that defendant had not satisfied §3553(f)(5)’s requirement to “truthfully provide to the Government all information” about

the offense, the district court indicated that defendants

must submit to debriefing by the government to qualify

for the safety valve provision. On appeal, defendant argued that there is no debriefing requirement and that the

letter complied with the statute. The government argued

that debriefing is required but, alternatively, that defendant had not made the required disclosures anyway.

 “[T]he issue before us is whether the statute requires

the defendant to offer himself for debriefing as an automatic pre-condition in every case, and it is hard to locate

such a requirement in the statute. All that Congress said is

that the defendant be found by the time of the sentencing

to have ‘truthfully provided to the Government’ all the

information and evidence that he has. Nothing in the

statute, nor in any legislative history drawn to our attention, specifies the form or place or manner of the disclosure.” Although debriefing is not required, “[a]s a practical

matter, a defendant who declines to offer himself for a

debriefing takes a very dangerous course. It is up to the

defendant to persuade the district court that he has

‘truthfully provided’ the required information and evidence to the government. . . . And a defendant who contents himself with a letter runs an obvious and profound

risk: The government is perfectly free to point out the

suspicious omissions at sentencing, and the district court

is entitled to make a common sense judgment, just as the

district judge did in this case. . . . The possibility remains,

however rare, that a defendant could make a disclosure

without a debriefing (e.g., by letter to the prosecutor) so

truthful and so complete that no prosecutor could fairly

suggest any gap or omission.” This was not such a case,

however, and the court concluded that “[t]he failure to

disclose is so patent in this case that no reason exists for

extended discussion.”

U.S. v. Montanez, 82 F.3d 520, 522–23 (1st Cir. 1996). See

also U.S. v. Jimenez Martinez, 83 F.3d 488, 495–96 (1st Cir.

1996) (agreeing with U.S. v. Rodriguez, 60 F.3d 193 (5th Cir.

1995) [8 GSU #1], that statements to probation officer do

not satisfy requirement of §3553(f)(5) to provide information “to the Government”).

See Outline at V.F and cases in 8 GSU #’s 1,5, and 6.

Criminal History

Career Offender Provision

Eighth Circuit holds that amended definition of

“Offense Statutory Maximum” conflicts with statute.

Effective Nov. 1, 1994, Amendment 506 states that “Offense Statutory Maximum,” used to determine a career

offender’s offense level, “refers to the maximum term of

imprisonment authorized for the offense of conviction . . .

not including any increase in that maximum term under

a sentencing enhancement provision that applies because of the defendant’s prior criminal record.” See

USSG §4B1.1, comment. (n.2). Defendant was subject to

such an enhancement, but the district court followed the

amendment and used the unenhanced statutory maximum. The government appealed, claiming that the Sentencing Commission exceeded its authority in enacting

the amendment.

The appellate court agreed and remanded. “Based

upon the plain language of [28 U.S.C. §]994(h), we conclude that the amendment conflicts with the statute and

is therefore invalid. . . . Section 994(h) requires that ‘[t]he

Commission shall assure that the guidelines specify a

sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in

which the defendant is eighteen years old or older’ and

has been convicted of a crime of violence or enumerated

drug offense and has at least two prior such convictions.

. . . The controverted language is the phrase ‘at or near the

maximum term authorized.’ The question becomes the

maximum term of what—the enhanced sentence or the

unenhanced sentence? . . . In our view, the statute is a

recidivist statute clearly aimed at the category of adult

repeat violent felons and adult repeat drug felons. . . .

Because the ‘maximum term authorized’ for categories of

recidivist defendants is necessarily the enhanced statutory maximum, there is no ambiguity in the statute.”

U.S. v. Fountain, 83 F.3d 946, 950–53 (8th Cir. 1996).

Accord U.S. v. Hernandez, 79 F.3d 584, 595–601 (7th Cir.

1996) [8 GSU #6]; U.S. v. Novey, 78 F.3d 1483, 1487–91 (10th

Cir. 1996) [8 GSU #6]. Contra U.S. v. Dunn, 80 F.3d 402, 404–
Guideline Sentencing Update, vol. 8, no. 8, Oct. 22, 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

05 (9th Cir. 1996) [8 GSU #6]; U.S. v. LaBonte, 70 F.3d 1396,

1403–12 (1st Cir. 1995) [8 GSU #4], cert. granted, 116 S. Ct.

2545 (U.S. June 24, 1996).

See Outline at IV.B.3.

Sentencing Procedure

Fed. R. Crim. P. 35(a) and (c)

Second Circuit holds that complete failure to consider

supervised release revocation policy statement was

“clear error” allowing correction of sentence under Rule

35(c). Before defendant’s supervised release was revoked,

he was held for eight months in pretrial detention on a

related state charge. The district court sentenced him to

six months in prison without considering USSG

§7B1.3(e), which states that a revocation sentence should

be increased “by the amount of time in official detention

that will be credited toward service of the term of imprisonment under 18 U.S.C. §3585(b).” Within seven days

after sentencing, the court was informed that the Bureau

of Prisons intended to credit defendant for the eight

months in state custody, which would lead to his immediate release, and that the court had overlooked §7B1.3(e).

On the seventh day the court held another sentencing

hearing and resentenced defendant to fourteen months.

The court reasoned that its failure to consider §7B1.3(e)

was error and that it had the authority under Fed. R. Crim.

P. 35(c) to “correct a sentence that was imposed as a result

of arithmetical, technical, or other clear error.”

The appellate court affirmed the resentencing. “A district court’s concededly narrow authority to correct a

sentence imposed as a result of ‘clear error’ is limited to

‘cases in which an obvious error or mistake has occurred

in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for

further action under Rule 35(a),’ . . . which authorizes the

correction of a sentence on remand when the original

sentence results from ‘an incorrect application of the

sentencing guidelines.’” Although the policy statements

on revocation of release are advisory rather than mandatory, “district courts are required to consider them when

sentencing a defendant for a violation of probation or

supervised release. . . . Because courts are required to

consider the policy statements in Chapter 7 of the Guidelines, we find that the district court’s failure to do so here

constituted an ‘incorrect application of the sentencing

guidelines’ within the meaning of Rule 35(a). Accordingly,

it properly exercised its authority to correct its error

within seven days after the imposition of the original

sentence, pursuant to Rule 35(c).”

The court distinguished U.S. v. Abreu-Cabrera, 64 F.3d

67 (2d Cir. 1995) [8 GSU #2], where it reversed a district

court attempt to use Rule 35(c) to give defendant a downward departure on resentencing. In that case, “the court’s

resentencing ‘represented nothing more than a district

court’s change of heart as to the appropriateness of the

sentence,’” which is not authorized by the rule.

U.S. v. Waters, 84 F.3d 86, 89–90 (2d Cir. 1996).

See Outline at IX.F.

Certiorari Granted:

U.S. v. LaBonte, 70 F.3d 1396 (1st Cir. 1995) [8 GSU #4], cert.

granted, 116 S. Ct. 2545 (U.S. June 24, 1996). Question

presented: “Does Sentencing Commission’s implementation of Career Offender Guideline [Offense Statutory

Maximum] conflict with commission’s obligation under

Section 994(h) to ‘assure that the guidelines specify a

sentence to a term of imprisonment at or near the

maximum term authorized for categories of’ career

offenders?”

See Outline at IV.B.3 and summary of Fountain above.

Note to readers

The next revision of Guideline Sentencing: An Outline of

Appellate Case Law on Selected Issues will be completed in

November for distribution in December.
Guideline Sentencing Update

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

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

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

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 8, no. 9, Nov. 20, 1996

Violation of Supervised Release

Revocation

Third and Seventh Circuits disagree on whether supervised release may be reimposed after revocation when

original offense occurred before law changed. Before

enactment of the 1994 Crime Bill on Sept. 13, 1994, 18

U.S.C. § 3583 did not specifically allow reimposition of a

term of supervised release after revocation and imprisonment. Most circuits, including the Third and Seventh,

held that release could not be reimposed. The 1994 Crime

Bill added new § 3583(h), which authorized reimposition

of supervised release to follow imprisonment after revocation. Defendants here committed their offenses and

were sentenced before Sept. 13, 1994. In 1995 both violated the terms of their supervised release, had release

revoked, were sent to prison, and were given a new term

of supervised release to follow incarceration.

The Seventh Circuit held that application of § 3583(h)

to defendant violated the Ex Post Facto Clause of the

Constitution because it could result in greater punishment than the old law. “Assume that Defendant A is

convicted of a Class C felony and sentenced to a term of

imprisonment followed by three years of supervised release. . . . He serves his prison time and is released under

supervision. One year into his supervised release period, he violates the terms of the release. Prior to Subsection (h), because an additional term of supervised release

was not permitted, the maximum penalty the court

could impose was two years’ imprisonment. 18 U.S.C.

§ 3583(b)(3). At the end of two years the government’s

supervision of A is extinguished. After Subsection (h),

the district court, perhaps believing itself more lenient,

may order A to serve two years on a combination of

imprisonment and supervised release, say one year in

prison and one year on supervised release. If A then

violates the terms of that second supervised release six

months into it, the court has the power to send him back

to prison again, this time for up to one year (the two-year

maximum minus the one-year term of imprisonment he

has already served). Under this scenario, A’s punishment

totals two and a half years from the time of his initial

revocation (one year in prison, six months on supervised

release, and then another year in prison)—six months

longer than that allowed prior to Subsection (h). And the

potential exists for even greater discrepancies.”

The court also had to determine if application of

§ 3583(h) to defendant would be retroactive, a question

the court framed as “whether the punishment imposed

upon Beals’ revocation ‘should be considered the continuing “legal consequence” of [Beals’] original crimes, or

viewed instead as the independent “legal consequence”

of [Beals’ later] misconduct.’” Following cases that held

that changes treating parole violations more severely

may not be applied retroactively, the court concluded

that punishment under § 3583(h) would arise from

defendant’s original offense. “Conduct that violates the

terms of supervised release, like that of parole violations,

is often not criminal. . . . Therefore, the government

punishes that conduct only because of the defendant’s

original offense. For that reason, we must link the punishment imposed for the subsequent conduct to the original

offense for ex post facto purposes. . . . Any law enacted

after the original offense that increases the total amount

of time he can spend in [imprisonment and post-imprisonment release] violates the Ex Post Facto Clause.” The

court “remanded [the case] to the district court for it to

amend its revocation order by eliminating the requirement that Beals serve a second term of supervised release

following his term of imprisonment.”

U.S. v. Beals, 87 F.3d 854, 858–60 (7th Cir. 1996).

In the Third Circuit, the appellate court affirmed, holding that applying the new law was not an ex post facto

violation because it did not impose greater punishment

than the old law. “Before the enactment of subsection (h),

a defendant who violated supervised release could be

sentenced to imprisonment under 18 U.S.C. § 3583(e)(3)

for up to the maximum term of supervised release for a

given offense, without any credit for the time spent on

supervised release.” Defendant had committed a Class A

felony and faced a maximum of five years in prison if he

violated his supervised release. “Under the new subsection (h), . . . the new term of supervised release may not

exceed the maximum term of supervised release authorized for the offense, minus the term of imprisonment

imposed upon revocation of the original term of supervised release. Thus, under the new law, Brady could have

been sentenced to a combination of imprisonment and

supervised release that was no greater than five years.

Accordingly, the maximum period of time that a

defendant’s freedom can be restrained is the same.”

“The only difference is that now Brady’s liberty can be

restrained with a mix of imprisonment and supervised

release. In either event, the legal consequences of his

criminal conduct are identical, i.e., he faces the possibility
2 Guideline Sentencing Update, vol. 8, no. 9, November 20, 1996 • a publication of the Federal Judicial Center

of a 5-year term of loss of freedom both before the enactment of subsection (h) and after the enactment of subsection (h). Therefore, the availability of supervised release in

no way increased the amount of time that Brady was

exposed to incarceration. Thus, we fail to see how subsection (h) increased the penalty for his original offense, and

we find no ex post facto violation.”

U.S. v. Brady, 88 F.3d 225, 228–29 (3d Cir. 1996).

See Outline at VII.B.1

Offense Conduct

Calculating Weight of Drugs

En banc Eleventh Circuit holds that previously harvested marijuana plants may be used when sentencing by number of plants with weight-per-plant ratio.

Defendant grew marijuana in the basement of a house.

When he was arrested there were 27 live plants. Law enforcement officers also found what they later determined

to be the remains of 26 previously harvested marijuana

plants. The district court concluded that the remains

could be counted as “plants” under the “equivalency

provision” of USSG §2D1.1, n.* (1993), which considered

each plant to equal one kilogram of marijuana (changed

in 1995 to 100 grams) for sentencing purposes when the

offense involved 50 or more plants.

“The primary issue in this appeal is whether, under 21

U.S.C. § 841 and U.S.S.G. §2D1.1, a marijuana grower who

is apprehended after his marijuana crop has been harvested should be sentenced according to the number of

plants involved in the offense or according to the weight

of the marijuana. A panel of this court held that, under our

precedents, a grower who is apprehended after harvest

may not be sentenced according to the number of plants

involved. U.S. v. Shields, 49 F.3d 707, 712–13 (11th Cir.

1995). We vacated the panel opinion and granted rehearing en banc. U.S. v. Shields, 65 F.3d 900 (11th Cir. 1995). We

hold that a defendant who has grown and harvested marijuana plants should be sentenced according to the number of plants involved, and affirm the district court.”

“By its own terms, the equivalency provision applies

to ‘offense[s] involving marijuana plants.’ Similarly, the

statute sets mandatory minimum sentences for violations of §841(a) ‘involving’ a specified number of ‘marijuana plants.’ Nothing in the text of §2D1.1 or §841(b)

suggests that their application depends upon whether

the marijuana plants are harvested before or after

authorities apprehend the grower.”

“An interpretation of §2D1.1 that is not supported by

the text of the guideline and depends on a state of affairs

discovered by law enforcement authorities is contrary to

the principle that guideline ranges are based on relevant

conduct. See U.S.S.G. § 1B1.3. The guidelines broadly define ‘relevant conduct,’ which includes, among other

things, ‘all acts and omissions committed . . . by the

defendant . . . that occurred during the commission of the

offense of conviction.’ Id. (emphasis added). We hold that,

where there is sufficient evidence that the relevant conduct for a defendant involves growing marijuana plants,

the equivalency provision of §2D1.1 applies, and the offense level is calculated using the number of plants.”

U.S. v. Shields, 87 F.3d 1194, 1195–97 (11th Cir. 1996)

(en banc).

See Outline at II.B.2

En banc Tenth Circuit holds that full weight of methamphetamine “mixture” is used to calculate statutory

minimum sentence. Defendant was originally sentenced

to 188 months on the basis of the 32-kilogram weight of

the methamphetamine mixture he produced. After

§ 2D1.1, comment. (n.1), was amended in 1993 to exclude

unusable materials from a drug “mixture or substance”

for sentencing purposes, he was resentenced to 60

months based on the weight of the pure methamphetamine, 28 grams, that remained after excluding

waste water. The government appealed, arguing that the

amended guideline does not control drug weight for the

purpose of calculating the mandatory minimum sentence under 21 U.S.C. § 841(b), and that defendant was

subject to a ten-year minimum for possessing more than

one kilogram of a “mixture or substance containing a

detectable amount of methamphetamine.” The appellate

panel did not agree and affirmed the sentence. U.S. v.

Richards, 67 F.3d 1531 (10th Cir. 1995) [8 GSU #3].

The en banc court reversed, holding that “the plain

language of § 841(b)” and Chapman v. U.S., 500 U.S. 453

(1991), requires using the weight of the mixture. In Neal

v. U.S., 116 S. Ct. 763 (1996) [8 GSU #4], “the Court reaffirmed that Chapman sets forth the governing definition

of ‘mixture or substance’ for purposes of § 841. In Neal,

the Sentencing Commission amended the guidelines

post-Chapman to revise the method of calculating the

weight of LSD for purposes of sentencing under the guidelines. . . . The Court held that Chapman’s plain meaning

interpretation of ‘mixture or substance’ governs the determination of a defendant’s statutory mandatory minimum sentence under § 841, even where the Sentencing

Commission adopts a conflicting definition in the sentencing guidelines.”

“Although the Court in Chapman specifically interpreted ‘mixture or substance’ in 21 U.S.C.

§841(b)(1)(B)(v), its interpretation is not limited to that

subsection. Under settled canons of statutory construction, we presume that identical terms in the same statute

have the same meaning. . . . Accordingly, the plain meaning of ‘mixture or substance’ governs Defendant’s mandatory minimum sentence calculation under §841(b).”

“Applying the plain meaning of ‘mixture,’ the methamphetamine and liquid by-products Defendant possessed constitute ‘two substances blended together so
Guideline Sentencing Update, vol. 8, no. 9, November 20, 1996 • a publication of the Federal Judicial Center 3

that the particles of one are diffused among the particles

of the other.’ . . . Liquid by-products containing methamphetamine therefore constitute a ‘mixture or substance

containing a detectable amount of methamphetamine’

for purposes of §841(b).” The court rejected defendant’s

“invitation to define the statute in accord with the Sentencing Commission’s amendment under a ‘congruent’

approach” or to follow cases which held that only “marketable” portions of a drug mixture should be used.

U.S. v. Richards, 87 F.3d 1152, 1156–57 (10th Cir. 1996)

(en banc) (three judges dissented).

See Outline at II.B.1

Ninth Circuit holds that amended Note 12 of § 2D1.1

should be applied retroactively to set offense level by

weight of drugs actually delivered, not larger amount

negotiated. Defendants negotiated to sell five kilograms

of cocaine to undercover FBI agents but actually delivered somewhat less. They were sentenced for the five

kilograms they negotiated. On appeal, defendants argued

they should have been sentenced for the amount actually delivered, which would reduce their offense levels by

two. While the appeals were pending, Note 12 of §2D1.1

was amended to specify that the offense level should be

determined by the amount of drugs negotiated “unless

the sale is completed and the actual amount delivered

more accurately reflects the scale of the offense.” The

appellate court concluded that, under amended Note 12,

the amount actually delivered here would be used: “[A]s

the amount of cocaine actually present and under negotiation is determinable by the court and as no further

delivery was contemplated . . . , the amount of cocaine

actually seized (4,643 grams) more accurately reflects the

scale of the offense than the promised five kilograms.”

The court then held that the amendment should apply

retroactively and remanded. “Amendments to Guidelines

that occur between sentencing and appeal that clarify the

Guidelines, rather than substantively change them, are

given retroactive application. . . . The prior version of

Application Note 12 was silent as to the amount of cocaine

to be considered in a completed transaction. . . . In short,

until Application Note 12 was amended, the appropriate

weight of drugs to consider in a completed transaction

was ambiguous; a court might sentence on the amount

under negotiation or the amount delivered. Although this

court twice addressed the proper interpretation of old

version of Application Note 12, we never squarely answered the question of the appropriate weight to consider

when sentencing a defendant for a completed transaction. . . . We therefore hold that by specifying the weight to

consider in a completed transaction, the current version

of Application Note 12 clarifies the Guidelines, and

should be given retroactive effect.”

U.S. v. Felix, 87 F.3d 1057, 1059–60 (9th Cir. 1996).

See Outline at II.B.4.a

Determining the Sentence

“Safety Valve” Provision

Ninth Circuit affirms safety valve reduction for defendant who, at trial and sentencing, denied earlier admissions. Defendant was arrested for importing heroin. In an

interview after his arrest, defendant told federal agents

what he knew of the importation scheme, including the

identity of his supplier, and admitted that he knew he was

carrying drugs. At his trial, however, defendant claimed

that he had no knowledge of the drugs before their discovery by customs agents and thought he was merely returning a suitcase to a friend of the man he had earlier identified as the supplier. He stuck to that story in a presentence

interview and at the sentencing hearing. The district

court denied defendant a § 3E1.1 reduction for acceptance of responsibility but concluded that, despite his

later denials, the information he provided to the government agents in the post-arrest interview qualified him

for a safety valve reduction from the mandatory minimum, see 18 U.S.C. § 3553(f); USSG § 5C1.2.

The appellate court affirmed, rejecting the

government’s urging to analogize to § 3E1.1. “[W]e see no

reason to require a defendant to meet the requirements

for acceptance of responsibility in order to qualify for

relief under the safety valve provision. . . . The safety valve

statute is not concerned with sparing the government

the trouble of preparing for and proceeding with trial, as

is §3E1.1, or . . . with providing the government a means

to reward a defendant for supplying useful information,

as is §5K1.1. Rather, the safety valve was designed to allow

the sentencing court to disregard the statutory minimum in sentencing first-time nonviolent drug offenders

who played a minor role in the offense and who ‘have

made a good-faith effort to cooperate with the government.’ . . . We hold that the district court did not clearly err

in finding that Shrestha met the safety valve requirements. The fact that Shrestha denied his guilty knowledge

at trial and at sentencing after his confession to the customs agents does not render him ineligible for the safety

valve reduction as a matter of law. The safety valve provision authorizes district courts to grant relief to defendants who provide the Government with complete information by the time of the sentencing hearing. Shrestha’s

recantation does not diminish the information he earlier

provided.” But cf. U.S. v. Long, 77 F.3d 1060, 1062–63 (8th

Cir. 1996) (affirming denial of §3553(f) reduction to defendant who lied to government about material fact in

presentence interview and admitted it only on crossexamination during sentencing hearing) [8 GSU #6].

The court added that the initial burden of proof “is

incontestably on the defendant to demonstrate by a preponderance of the evidence that he is eligible for the

reduction. . . . Once he has made this showing, however, it

falls to the Government to show that the information he
Guideline Sentencing Update, vol. 8, no. 9, Nov. 20, 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

has supplied is untrue or incomplete. Apart from contending that Shrestha’s denial of guilty knowledge at trial

rendered him untruthful, which we have deemed irrelevant, the Government did not do so.”

U.S. v. Shrestha, 86 F.3d 935, 939–40 (9th Cir. 1996). See

also U.S. v. Ramirez, 94 F.3d 1095, 1100–01 (7th Cir. 1996)

(affirmed: agreeing with other circuits that defendant

“had the burden of proving, by a preponderance of the

evidence, his entitlement to the reduction under

§ 5C1.2”).

See Outline generally at V.F and cases in 8 GSU #6

Departures

Mitigating Circumstances

Seventh Circuit holds that discovery of offense must

objectively be unlikely to warrant § 5K2.16 departure

for voluntary disclosure. Section 5K2.16 states that if a

defendant “voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior

to the discovery of such offense, and if such offense was

unlikely to have been discovered otherwise, a departure

below the applicable guideline range for that offense may

be warranted.” Defendant here, vice president of a bank,

voluntarily revealed that he had misapplied bank funds.

Because defendant confessed out of remorse, not because he feared discovery, the district court departed

from the guideline range of 18–24 months to impose a

sentence of nine months. The government appealed,

claiming the district court failed to make a necessary

finding that discovery of the offense would have been

unlikely absent defendant’s disclosure.

The appellate court agreed and remanded, rejecting

defendant’s argument that the district court should make

a subjective inquiry into defendant’s belief as to the likelihood of discovery, rather than an objective inquiry into

the actual likelihood of discovery. “[T]he guideline sets

forth two requirements for a downward departure: (1) the

defendant voluntarily disclosed the existence of, and

accepted responsibility for, the offense prior to discovery of the offense; and (2) the offense was unlikely to

have been discovered otherwise. . . . [A] downward departure is only awarded where the defendant is motivated

by guilt and the Government receives information it likely would not have acquired absent the disclosure. The

plain language yields this result, and we thus need not

inquire further into the drafters’ intent.” Remand is required because the district court “did not make particularized findings regarding the likelihood of discovery.”

U.S. v. Besler, 86 F.3d 745, 747–48 (7th Cir. 1996). Cf. U.S.

v. Brownstein, 79 F.3d 121, 122–23 (9th Cir. 1996) (affirmed: “plain language” of § 5K2.16 shows that it does not

apply to bank robber who voluntarily notified police and

confessed—offenses were already known to authorities

even if identity of robber was not).

See Outline generally at VI.C.5