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. 10, no. 1, Sept. 29, 1998

Departures

Mitigating Circumstances

D.C. Circuit holds that “criminal history” in § 5K2.13

has “broader meaning” than “criminal history” calculated in § 4A1.1. Defendant pled guilty to one count of

being a felon in possession of a firearm and faced a

sentencing range of 37–46 months. His criminal history

included four other firearms offenses, some of which

involved assaultive or threatening behavior. The district

court found that defendant suffered from post-traumatic

stress disorder (from service in the Vietnam War) and

departed under §5K2.13 to a sentence of five years’ probation. In concluding that “defendant’s criminal history

does not indicate a need for incarceration to protect the

public,” § 5K2.13, the court noted that defendant’s mental condition was treatable, he would not be released

from prison on another, uncompleted sentence until his

middle fifties, his criminal history score was erroneous,

and he had never actually injured any law enforcement

officers during his previous criminal conduct despite

repeated opportunities to do so. On appeal, the government argued that “criminal history” as defined in Chapter 4, Part A of the Guidelines was the only relevant factor

in assessing whether defendant should be incarcerated

to protect the public.

The appellate court disagreed, holding “that the

‘criminal history’ referred to in section 5K2.13 is not limited to the meaning Chapter 4, Part A gives it.” The circuit

previously held that “non-violent offense” in § 5K2.13

should not be equated with “crime of violence” in § 4B1.2.

“The different purposes behind section 5K2.13 and

Chapter 4, Part A likewise suggest that the latter,” designed to impose greater punishment on repeat offenders, “should not control the meaning of ‘criminal history’

as used in the former,” whose purpose is lenity. “Moreover, the [Sentencing] Commission could have provided

that certain repeat offenders are ineligible for a departure

under section 5K2.13. That it chose not to reinforces the

view that ‘criminal history’ means something more in

section 5K2.13 than it does in Chapter 4, Part A.”

“This is not to say, however, that anything is fair game.

Rather, the sentencing court may consider only those

factors that bear on whether ‘the defendant’s criminal

history . . . indicate[s] a need for incarceration to protect

the public.’ U.S.S.G. § 5K2.13. The Ninth Circuit identified

four factors: psychiatric or other medical treatment the

defendant is receiving and its likelihood of success, the

defendant’s likely circumstances upon release, the

defendant’s overall criminal record and the ‘nature and

circumstances’ of the current offense.” See U.S. v. Cantu,

12 F.3d 1506, 1516 (9th Cir. 1993).

In this case, the court agreed with the government’s

alternative claim and concluded that “[t]he sentencing

court here strayed far from these factors.” For example,

although defendant’s stress disorder is treatable, the

court made no findings that defendant would, in fact,

receive treatment. Also, although an individual in his

fifties may be less inclined to commit some forms of

crime, reliance on that supposition “is undermined by

the central role of reduced mental capacity, which suggests that the normally beneficent effects of aging may be

ineffective” and the fact that “defendant’s criminal history involves the use and abuse of firearms, whose exercise requires no youthful vigor.” The appellate court

found that the other factors relied on by the district court

were also inappropriate and remanded for resentencing

in accord with its opinion.

U.S. v. Atkins, 116 F.3d 1566, 1569–71 (D.C. Cir. 1997)

(per curiam) (Henderson, J., dissented). Note: Although

a proposed Nov. 1998 amendment would substantially

revise §5K2.13, the language at issue here would remain

with only slight modification.

See Outline at VI.C.1.b

Aggravating Circumstances

Fifth Circuit holds that non-criminal conduct may be

considered for upward departure. Defendant pled

guilty to several counts related to possessing, transferring, and manufacturing illegal weapons, including three

machine guns and two silencers. As part of one sale,

defendant agreed to show an undercover agent how to

construct a silencer and videotaped that construction so

that others could learn his method. In that tape, he falsely

stated that he was properly licensed to manufacture the

silencer. At another point, defendant was notified by the

manufacturer of some of his weapons (which he had

illegally converted to fully automatic) that they were

about to become illegal and he should return them; defendant wrote back and falsely claimed that he had sold

them. The district court departed upward on several

grounds and used the videotape and the letter to support

the ground that defendant had attempted to conceal his

illegal conduct and to facilitate manufacture and concealment by others. Defendant argued on appeal that

“lying in the letter and on the video and participating in

the video were not, in themselves, criminal activities and
2 Guideline Sentencing Update, vol. 10, no. 1, September 29, 1998 • a publication of the Federal Judicial Center

thus cannot be used as the basis of an upward departure.”

“We are not persuaded that the district court, in contemplating an upward departure, is limited to considering only acts that are criminal or illegal.” Although the

Fifth Circuit had previously held that non-criminal conduct should not be included in relevant conduct when

setting the offense level, see U.S. v. Peterson, 101 F.3d 375,

385 (5th Cir. 1996), that case “is distinguishable from the

present case because Peterson involves calculation of the

base offense level while Arce complains of the district

court’s upward departure. A sentencing court is not limited to ‘relevant conduct’ when considering an upward

departure. The Sentencing Guidelines provide in § 1B1.4:

‘In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is

warranted, the court may consider, without limitation,

any information concerning the background, character

and conduct of the defendant, unless otherwise prohibited by law.’ (emphasis added) . . . . The Guidelines also

specifically provide that conduct which does not constitute an element of the offense may be considered in

determining a departure, even when that conduct cannot

be considered in determining the base offense level under § 1B1.3. USSG § 1B1.2 comment. note 3 . . . . We conclude that a district court can consider conduct that is not

itself criminal or ‘relevant conduct’ under § 1B1.3 in determining whether an upward departure is warranted.”

Although the court remanded for resentencing because one of the other grounds of departure was invalid,

it upheld the conclusion that the actions evidenced by the

videotape and letter “make this case unusual and outside

the heartland of cases governed by the Guidelines.”

U.S. v. Arce, 118 F.3d 335, 340–43 (5th Cir. 1997).

See Outline at I.A.4; generally at I.A.3; I.C; VI.B.1.a; VI.B.1.l

Supervised Release

Revocation

Circuits differ on whether retroactive application of

§ 3583(h), allowing reimposition of supervised release,

is ex post facto violation. Effective Sept. 13, 1994, 18

U.S.C. § 3583(h) authorizes imposition of a new term of

supervised release after a previous term is revoked. “The

length of such a term of supervised release shall not

exceed the term of supervised release authorized by statute for the offense that resulted in the original term of

supervised release, less any term of imprisonment that

was imposed upon revocation of supervised release.”

Before § 3583(h), most circuits had held that supervised

release could not be reimposed once it was revoked.

Some of those circuits have now considered whether

applying § 3583(h) to defendants whose original offenses

occurred before Sept. 13, 1994, violates the Ex Post Facto

Clause of the Constitution.

The Third Circuit has held that applying § 3583(h) may

or may not be an ex post facto violation depending on the

type of felony in defendant’s original offense. The court

found that for a class A felony the maximum penalty was

the same under the old and new law. See U.S. v. Brady, 88

F.3d 225, 228–29 (3d Cir. 1996) (“The only difference is that

now [defendant’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,

. . . and we find no ex post facto violation.”) [8 GSU #9].

Later, however, the court held that §3583(h) could not

be applied retroactively when the original offense was a

class B, C, or D felony because the new maximum penalty

is greater. “For class B, C, and D felonies, there is a discrepancy between the amount of supervised release authorized and the amount of incarceration that can be imposed” under § 3583(e)(3). All allow a longer period of

supervised release than of imprisonment. “Since

§ 3583(h) ties the length of the total package to the length

of supervised release permitted under §3583(b), and

since this length exceeds the length of imprisonment

authorized under § 3583(e), application of § 3583(h) allows imposition of a sentence two years longer than before for class B felonies (five years rather than three) and

one year longer for class C and D felonies (three years as

opposed to two). These lengthier periods of restricted

liberty authorized under § 3583(h) mean that application

of this provision impermissibly increases the punishment for those who commit class B, C, or D felonies. Brady

in no way bars us from recognizing this fact.”

To the government’s argument that defendant’s could

receive more lenient treatment under § 3583(h) because

district courts may give shorter prison terms when a new

supervised release term is available, the court responded:

“Retrospective application of § 3583(h) violates the ex

post facto prohibition if there is the potential that such

application may even once result in a harsher sentence

than previously authorized. The possibility that post

§ 3583(h) sentences may frequently be less onerous than

otherwise is insufficient to redeem the statute.”

U.S. v. Dozier, 119 F.3d 239, 243–44 (3d Cir. 1997) (also

stating that “[a] sentence imposed upon revocation of

supervised release is most properly viewed as a consequence of the original criminal conviction”).

The Fourth Circuit agreed that §3583(h) should not be

applied retroactively when the original offense was a

class C or D felony. The court also agreed that punishment

for violating supervised release is punishment for the

original offense, and that it did not matter whether defendants might be treated more leniently under the new law.

“‘[A]n increase in the possible penalty is ex post facto

regardless of the length of the sentence actually imposed.’” (Emphasis added by court.)

After reviewing what defendant could receive under

the old law, the court determined that “§ 3583(h) empowers a court to do much more. In addition to allowing a

court to sentence a defendant to virtually the same term
Guideline Sentencing Update, vol. 10, no. 1, September 29, 1998 • a publication of the Federal Judicial Center 3

of imprisonment as above, it provides that a new term of

supervised release may also be imposed. . . . The length

of this new supervised release term is capped at the maximum term of supervised release allowed by § 3583(b) for

the original crime with credit given for any prison time

imposed under § 3583(e)(3). . . . Therefore, the maximum

penalty for violating the terms of one’s release under

§ 3583(e)(3) and (h) is, for Class C and D felonies, two

years (less one day) in prison and an additional year and

a day of supervised release. . . . This potential punishment

is greater than that under § 3583(e) alone.” Following

Dozier, the court noted that the same result holds when

the original offense was a class B felony, but for class A or

E felonies, or misdemeanors, there is no disparity in the

maximum terms of release versus imprisonment “and the

application of § 3583(h) cannot disadvantage defendants

guilty of these crimes by increasing the possible sanction

imposed after a single revocation of supervised release.”

U.S. v. Lominac, 144 F.3d 308, 312–15 & n.9 (4th Cir.

1998).

Without specifically discussing the effect of the class of

the original felony, the Ninth Circuit reached the same

result for a pair of class C or D defendants. Both had been

given the maximum three-year term of supervised release, and after revocation were given a combination of

imprisonment and release equal to three years. After

finding that “punishment that follows . . . a violation [of

release] is imposed on the authority of conviction for the

underlying offense,” the court held that “section 3583(h)

subjected [defendants] to greater punishment than did

the prior law,” which for defendants was two years’ imprisonment (the terms of release could not be extended

because they were already serving the maximum).

“Under the later-enacted section 3583(h), however,

the district courts could, and did, impose three years of

restriction . . . [which] may reasonably be viewed on its

face as a more onerous penalty than two years of restriction. More important, section 3583(h) exposes [defendants] to the possibility of further incarceration (up to

their two year maximum) followed by more supervised

release if they violate the conditions of the second supervised releases. This is a penalty that . . . [they] could not

face in our circuit at the time they committed their offenses.” The court also agreed with the Seventh Circuit’s

later-overruled decision in Beals, below, that, even if a

more severe punishment is not initially given under

§ 3583(h), an ex post facto problem arises “from the possibility of repeated violations of the conditions of successive supervised releases” that could lead to greater total

punishment.

U.S. v. Collins, 118 F.3d 1394, 1397–98 (9th Cir. 1997).

The Seventh Circuit originally held that retroactive

application of § 3583(h) was improper because it could

result in greater total punishment. See U.S. v. Beals, 87 F.3d

854, 858–60 (7th Cir. 1996) (also holding that punishment

for supervised release violation arises from original offense) [8 GSU #9]. However, the court later overruled Beals

and determined that the “speculative nature” of a potentially greater punishment was insufficient to preclude

retroactive application of § 3583(h). Defendant had her

five-year term of release revoked and was sentenced to

seven months’ imprisonment and a new term of release

under § 3583(h). The court cited Supreme Court precedent for the proposition that “the Ex Post Facto Clause

does not ‘forbid[] any legislative change that has any

conceivable risk of affecting a prisoner’s punishment’ . .

. . Retroactive application of new legislation violates the

Ex Post Facto Clause only when the statute produces a

sufficient risk of increasing a defendant’s punishment.”

Considering the “‘practical, as opposed to purely theoretical’ effect of § 3583(h)’s application” to defendant, the

court concluded that defendant “has not suffered increased punishment as a result of this application because under both the old and the new law, the district

court could have imposed a prison term for the entire

term of supervised release authorized for her original

offense. The mere possibility” that defendant might face

greater punishment after future violations of release

“does not produce a sufficient risk of increasing her punishment.”

U.S. v. Withers, 128 F.3d 1167, 1170–72 (7th Cir. 1997).

The Sixth Circuit held that § 3583(h) could be applied

to two defendants originally sentenced before Sept. 13,

1994. The court cited an earlier case for the proposition

that punishment for a violation of supervised release

“impose[s] a new sentence for the later misconduct” and

does not add punishment for the original offense. See U.S.

v. Reese, 71 F.3d 582, 590–91 (6th Cir. 1995) (holding that

§ 3583(g) can be applied retroactively). Following the reasoning of that case, “section 3583(h) may be applied to

defendants . . . without violating the Ex Post Facto Clause

because section 3583(h) was passed before they violated

the terms of their supervised release . . . . [S]ection 3583(h)

does not alter the punishment for defendants’ original

offenses; section 3583(h) instead imposes punishment

for defendants’ new offenses for violating the conditions

of their supervised release—offenses they committed after section 3583(h) was passed.” The court acknowledged

that the courts in Beals and Collins, supra, had reached a

different result, but held it was “bound by the holding of

this court in Reese.”

U.S. v. Page, 131 F.3d 1173, 1175–76 (6th Cir. 1997). See

also U.S. v. Evans, 87 F.3d 1009, 1010–11 (8th Cir. 1996)

(same: § 3583(h) “applied to [defendant’s] case in 1995

because the district court did not increase the sentence

for his original [1992] crime but merely punished him for

violating his supervised release” in 1995).

See Outline at VII.B.1
Guideline Sentencing Update, vol. 10, no. 1, Sept. 29, 1998

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Offense Conduct

Calculating Weight of Drugs

Eighth Circuit holds that sentence may be based on type

of drugs agreed to, even if different drug is actually sold.

After several purchases of cocaine from defendant, an

undercover officer (Deist) asked about buying methamphetamine. The first attempted buy failed, but another

was set up by an informant (Rush). Defendant did not

make the sale himself, but arranged for Rush to buy from

his source, Pimentel, who agreed to sell three pounds of

methamphetamine to Rush in two stages. Pimentel was

arrested after selling the first pound. Later analysis

showed that the substance sold was actually amphetamine. Defendant was charged with several drug counts,

and pled guilty to one count of possession with the intent

to distribute cocaine. His sentence was based in part on

the three pounds of methamphetamine.

On appeal, defendant challenged the use of the methamphetamine guideline in calculating the drugs attributable to him as a result of the transaction between

Pimentel and Rush. He did not contest that the agreement was for methamphetamine or that his act of aiding

and abetting the agreement was relevant conduct, but

argued that his sentence should be based on amphetamine, the substance that was actually distributed.

“The Sentencing Guidelines call for the inclusion of

‘types and quantities of drugs not specified in the count

of conviction,’ U.S.S.G. § 2D1.1, comment n. 12, that were

‘part of the same course of conduct or common scheme

or plan as the offense of conviction.’ U.S.S.G.

§ 1B1.3(a)(2). Where a defendant negotiated for or attempted to receive a specific substance but that substance was, unanticipated by and unbeknownst to the

defendant, replaced with a different substance, the

defendant’s culpable conduct is most accurately evaluated by ascribing to the defendant the intended rather

than the unintended substance. See U.S. v. Steward, 16

F.3d 317, 321 (9th Cir. 1994)” (sentence correctly based on

methamphetamine even though substance defendant

sold as methamphetamine was actually ephedrine he

had been duped into purchasing earlier). “The negotiation itself constitutes the defendant’s relevant conduct,

and ‘[t]he nature and seriousness of [the defendant’s]

conduct is the same no matter’ what substance was actually delivered.”

“There is no doubt . . . that [Lopez] intended to aid and

abet a transaction involving methamphetamine. . . . The

fact that the substance Pimentel delivered was amphetamine and not methamphetamine was merely fortuitous. . . . Lopez had previously sold methamphetamine

to Rush and had attempted several times to arrange

methamphetamine transactions with Deist. Amphetamine was never part of Lopez’s scheme or plan. The

district court therefore properly concluded that Lopez’s

sentence should be based on the methamphetamine

guideline.”

U.S. v. Lopez, 125 F.3d 597, 599–600 (8th Cir. 1997).

See Outline generally at II.B.3; II.B.4.a
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. 10, no. 2, Nov. 20, 1998

General Application Principles

Relevant Conduct

Sixth Circuit vacates adjustment and departure based

on conduct that did not have sufficient nexus to offense

of conviction. Defendant was part of a cocaine-selling

operation. On one occasion, he participated with others

in the torture of an acquaintance they thought had stolen

some crack cocaine from the group. Defendant and the

others were initially charged with conspiracy and other

drug offenses, but he pled guilty to only one count of

distributing crack. Based on the torture incident, the

district court increased the offense level under § 3A1.3 for

restraint of victim, and also departed upward under

§ 5K2.2 (physical injury to victim) and 5K2.8 (extreme

conduct). Defendant argued on appeal, and the appellate

court agreed, that his participation in the torture, which

occurred on Feb. 8, 1995, could not be used at sentencing

because it was not sufficiently connected to his Dec. 28,

1994, offense of conviction.

“U.S.S.G. § 1B1.3(a) defines relevant conduct for the

purposes of calculating the base offense level, offender

characteristics, and adjustments such as the one at issue

here under § 3A1.3 for restraint of victim. Section 1B1.3(a)

states in relevant part that these levels shall be determined on the basis of [defendant’s conduct] ‘. . . that

occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that

offense." U.S.S.G. §1B1.3(a)(1)(A) (emphasis added). The

February 8 torture could not have occurred during or in

preparation for the offense of conviction, which took

place six weeks earlier. . . . The court never found, or even

suggested, that the torture was an attempt to hide Cross’s

December 28 offense. . . . We therefore cannot affirm the

sentence under §1B1.3(a)(1)(A). . . . For this same reason,

§ 1B1.3(a)(1)(B), which applies ‘in the case of a jointly

undertaken criminal activity,’ is also inapplicable.”

“The next portion of the relevant conduct provision,

U.S.S.G. § 1B1.3(a)(2), allows the use of acts that are ‘part

of the same course of conduct or common scheme,’ but

applies only to offenses which should be grouped under

§ 3D1.2(d). . . . Although the offense of conviction was a

drug offense, and is thus groupable under this provision,

torture clearly falls outside the scope. . . . Section

1B1.3(a)(2) does not apply to this case.”

“Nor does the conduct fall within the bounds of

§ 1B1.3(a)(3), which includes as relevant conduct ‘all

harm that resulted from the acts and omissions specified

in subsections (a)(1) and (a)(2) above, and all harm that

was the object of such acts and omissions.’ . . . As noted

above, (a)(2) does not apply at all. The acts and omissions

in (a)(1) are those taken in the course of, or in the avoidance of, the offense of conviction, and the court made no

findings linking the events of February 8 with Cross’s

crack cocaine sale on December 28 of the previous year.

. . . Finally, although § 1B1.3(a)(4) allows the consideration of ‘any other information specified in the applicable guideline,’ § 3A1.3 (the applicable guideline for restraint of victim) by its terms applies only when the restraint occurred ‘in the course of the offense.’” The court

therefore concluded that “the torture was not ‘relevant

conduct’ as to Cross’s offense of conviction, and we must

vacate Cross’s sentence and remand for the district court

either to resentence Cross without the enhancement for

restraint of victim under § 3A1.3 or to develop a factual

record to justify the inclusion of the torture as relevant

conduct.”

As for the departure, “district courts may consider

more than just ‘relevant conduct,’ as defined in § 1B1.3.”

However, “[s]ection 1B1.3’s detailed definition of ‘relevant conduct’ demonstrates that the Commission has

considered and rejected the notion that conduct completely unrelated to the offense of conviction should factor into the calculation of the Guideline range . . . . Although the Commission has left open the possibility that

some conduct that does not fall within the technical

definition of ‘relevant conduct’ (because it relates to the

offense of conviction in an unusual way that the Commission did not foresee) may nonetheless be related to the

offense of conviction and may therefore be used in departing from the guidelines, there is nothing in the record

before us to suggest that this is such an unusual case. We

therefore vacate Cross’s four-level upward departure and

remand to the district court for further factual findings

concerning this issue and resentencing.”

The court rejected defendant’s contention that district

courts cannot depart based on conduct in a dismissed

count, that the torture was part of the dismissed conspiracy count, and therefore the torture could not be

used. “[U]nder § 1B1.4 and its commentary, a district

court may depart upwards based on conduct that is covered by a dismissed count.”

U.S. v. Cross, 121 F.3d 234, 238–44 (6th Cir. 1997).

See Outline generally at I.A and II.A; III.A.3; and IX.A.1
2 Guideline Sentencing Update, vol. 10, no. 2, November 20, 1998 • a publication of the Federal Judicial Center

Adjustments

Obstruction of Justice

Ninth Circuit rejects § 3C1.1 enhancement for giving

false name and documents at arrest, distinguishes Application Notes 3(c) and 4(a). Defendant was stopped by

INS agents as he attempted to enter the U.S. He told a

customs officer that he was a U.S. citizen and produced

several identification documents bearing a false name.

For approximately ten hours defendant maintained the

ruse, admitting his real name only after a computer check

and several phone calls revealed his true identity, which

was verified by a fingerprint check. The district court

imposed an obstruction of justice enhancement under

Note 3(c) of § 3C1.1, “producing . . . a false, altered, or

counterfeit document or record during an official investigation or judicial proceeding.” Defendant argued on appeal that his conduct fell under Note 4(a), which states

that enhancement is not warranted for “providing a false

name or identification document at arrest, except where

such conduct actually resulted in a significant hindrance

to the investigation or prosecution of the instant offense.”

The appellate court agreed. “Although these application notes appear to conflict, [we have held that] application note 3(c) ‘anticipate[s] lack of candor toward the

court—including lack of candor in respect to a[n] . . .

investigation for the court,’ while application note 4(a)

anticipates lack of candor toward law enforcement officers. . . . We have explained that ‘application note 3(c)

provides that attempting to produce a false document

“during an official investigation or judicial proceeding”

qualifies for the enhancement, even without a showing of

actual obstruction. We must interpret this application

note’s reference to an “official investigation” narrowly, as

reaching only official investigations closely associated

with judicial proceedings. A broader reading would conflict with application note 4(a), which provides that giving

a false identification document “at arrest” only qualifies

for the enhancement if it significantly impedes an investigation.’ . . . Thus, the application notes distinguish between false statements and documents presented to

judges, magistrates, probation officers and pretrial services officers, which need not impede an investigation or

prosecution to constitute an obstruction of justice, and

those presented to law enforcement officers, in which

circumstance some significant hindrance to an investigation or prosecution must be established.”

Before determining whether defendant’s actions

posed a “significant hindrance,” the court noted that his

lies could also fall under Note 3(g), “providing a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the instant offense.” The court

concluded, however, that the facts did not show that

defendant’s conduct sufficiently hindered or obstructed

the investigation of his offense so as to warrant enhancement. The actions taken by INS officials were either routine or minimal, and the investigation may have taken

much less time if the FBI had not lost defendant’s

fingerprints the first time they were sent.

U.S. v. Solano-Godines, 120 F.3d 957, 962–65 (9th Cir.

1997).

Please note: Because the Nov. 1, 1998, guideline

amendments added new Application Note 1, Notes 3 and

4 are now Notes 4 and 5, respectively.

See Outline at III.C.1 and 2.b

Departures

Criminal History

Eleventh Circuit holds that district court’s belief that

defendant was not actually guilty of prior offense cannot warrant departure. Defendant’s criminal history

warranted sentencing as a career offender, partly because

of a prior state conviction for aggravated assault. Because

defendant had received an unusually light sentence of

probation for that conviction, the district court concluded that, under the charging practices of the county

court in which defendant was convicted (with which the

district court was familiar), defendant had likely committed a less serious offense and only pled guilty to the

aggravated assault charge to avoid lengthy judicial proceedings. Therefore, the court held that the career offender category overrepresented defendant’s criminal

history, see USSG § 4A1.3, and sentenced him to the lower

guideline range that otherwise applied.

On the government’s appeal, the appellate court remanded. “For all intents and purposes, the district court

engaged in a collateral attack on Phillips’ aggravated assault conviction. The court essentially utilized the downward departure to nullify that conviction . . . . It was error

for the district court to do that. Collateral attacks on prior

convictions are allowed in federal sentencing proceedings in one narrow circumstance only: when the conviction was obtained in violation of the defendant’s right to

counsel.” Because defendant was represented by an attorney in the prior proceeding at issue here, the sentencing court “was not free to ignore or discount the aggravated assault conviction based upon its concerns about

the Fulton County criminal justice system . . . . Just as a

district court may not directly negate a prior conviction

because of doubts about the verity of the result, it also

may not do that indirectly by departing downward because of those same doubts.”

The court further held that § 4A1.3 “is concerned with

the pattern or timing of prior convictions, not with doubts

about their validity. . . . When § 4A1.3 is applied, the

validity of the convictions is assumed. . . . Section 4A1.3

does not permit what [prior cases] prohibit: a lower sentencing range resulting from the judge’s doubts about
Guideline Sentencing Update, vol. 10, no. 2, November 20, 1998 • a publication of the Federal Judicial Center 3

whether the defendant was truly guilty or fairly convicted

of a prior crime.”

U.S. v. Phillips, 120 F.3d 227, 231–32 (11th Cir. 1997).

See Outline generally at IV.A.3 and VI.A.2

Mitigating Circumstances

Ninth Circuit holds that lack of knowledge of high purity

of drugs cannot be categorically proscribed as basis for

departure. Defendant, who was acting as a middleman in

a drug sale, pled guilty to possession of methamphetamine with intent to distribute. Because the drug was

unusually pure (over 80%), he was sentenced on the basis

of the weight of the actual methamphetamine rather than

the weight of the entire mixture. See USSG § 2D1.1(c),

n.(B). The district court rejected defendant’s claim that,

because he was just the middleman in the deal, he did not

know that the methamphetamine was so pure and thus

could receive a downward departure.

The appellate court remanded, reiterating that under

Koon v. U.S., 116 S. Ct. 2035 (1996), there are relatively few

factors that may not be considered as potential grounds

for departure. Koon held “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.’ Id. at 2051 (emphasis added). . . .

Applying the Koon analysis, we conclude that the district

court did have legal authority under the Guidelines to

consider a downward departure on the ground that

Mendoza had no control over, or knowledge of, the purity

of the methamphetamine that he delivered. That ground

does not involve one of the few factors categorically proscribed by the Sentencing Commission. . . . We are not at

liberty, after Koon, to create additional categories of factors that we deem inappropriate as grounds for departure

in every circumstance.”

Following the same reasoning, the court rejected the

government’s argument that Application Notes 9 and 14

of § 2D1.1 necessarily precluded departure. “Note 9 provides only that a district court cannot depart upward on

the basis of unusually high purity of methamphetamine;

it says nothing about whether a district court can depart

downward on the ground that the defendant had no

control over, or knowledge of, the purity of the methamphetamine that he was transporting.” Note 14 restricts the

possibility of departing for a defendant who did not reasonably foresee a high quantity of drugs. “Whether application note 14 represents a consideration by the Commission of the degree and kind of circumstances presented by

Mendoza’s case is for the district court in its discretion to

decide on remand,” not for the appellate court to decide

“in the first instance.”

U.S. v. Mendoza, 121 F.3d 510, 513–15 (9th Cir. 1997).

See Outline at II.A.3.e and X.A.1, generally at VI.B.1.a

Seventh Circuit determines when status as deportable alien may allow possibility of departure. In two

cases decided a week apart, the Seventh Circuit distinguished when a defendant’s status as a deportable alien

may be used for downward departure. In the first case,

defendants were all convicted under 8 U.S.C. § 1326,

which prohibits deported aliens from returning to the

U.S. without first gaining permission of the Attorney General. Requesting downward departures, “[t]he defendants

argued that their status as deportable aliens would lead to

harsher conditions of confinement . . . . In addition, they

will face deportation upon completion of their sentences.” The district court rejected the use of their status

as deportable aliens as a proper ground, and the appellate

court affirmed.

“Here, defendants were sentenced under Guidelines

section 2L1.2 . . . . [A]s noted by the Sixth Circuit, ‘[a]ll of

the[ ] crimes [to which section 2L1.2 applies] may be

committed only by aliens, and most, if not all, of those

aliens are deportable. . . .’ U.S. v. Ebolum, 72 F.3d 35, 38 (6th

Cir. 1995). Because deportable alien status is an inherent

element of the crimes to which the guideline applies, this

factor was clearly ‘taken into consideration by the Sentencing Commission in formulating the guideline[ ]’ . . . .

Like the Sixth Circuit, ‘we must assume that the Sentencing Commission took deportable alien status into account when formulating a guideline that applies almost

invariably to crimes, such as 8 U.S.C. § 1326, that may be

committed only by aliens whose conduct makes them

deportable.’ Ebolum, 72 F.3d at 38. . . . The district court

did not err in deeming deportable alien status an inappropriate basis for departure in these cases.”

U.S. v. Gonzalez-Portillo, 121 F.3d 1122, 1124–25 (7th

Cir. 1997).

In the later case, a deportable alien defendant was

convicted of importing heroin into the U.S. He requested

a downward departure on several grounds related to his

alien status. The district court did not directly address

each specific claim but, following U.S. v. Restrepo, 999 F.2d

640 (2d Cir. 1993), and other cases, ruled that conditions

of incarceration that result from a defendant’s status as a

deportable alien do not warrant departure.

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

2035 (1996), “allows the court to take into consideration

any ‘unusual or exceptional’ factor present in the case

that has not already been taken into consideration by the

Guidelines. . . . [W]hen the offense for which the defendant is being sentenced encompasses being present in

the United States after having been deported, we ruled [in

Gonzalez-Portillo] that the Guidelines already took into

consideration the defendant’s status as a deportable

alien. But here, Farouil was charged with importing

heroin into the United States, and we have no reason to

believe that the Guidelines have accounted for a
Guideline Sentencing Update, vol. 10, no. 2, Nov. 20, 1998

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defendant’s status as a deportable alien in setting the level

for that offense. The district court is thus free to consider

whether Farouil’s status as a deportable alien has resulted

in unusual or exceptional hardship in his conditions of

confinement.”

U.S. v. Farouil, 124 F.3d 838, 846–47 (7th Cir. 1997).

See Outline at VI.C.5.b

Guideline Amendments

Several of the Nov. 1, 1998, amendments to the Sentencing Guidelines will affect sections of Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues.

Those sections of the Outline are listed below, along with

a brief summary of the relevant amendments.

III.A.1: Amendment 587 changes the language and structure of § 3A1.1(b) and Application Note 2 while adding an

additional two-level increase if the offense “involved a

large number of vulnerable victims.”

III.B.8.a (Victim’s perspective): Amendment 580 clarifies that an imposter may be given the §3B1.3 adjustment

for abuse of a position of trust.

III.C.2.c: Amendment 582 adds new Application Note

5(e) “to establish that lying to a probation officer about

drug use while released on bail does not warrant an obstruction of justice adjustment under § 3C1.1.”

III.C.4.a: Amendment 581 adds new Application Note 1

“to clarify what the term ‘instant offense’ means” in

§ 3C1.1. Note that the original Application Notes 1 to 7 are

now renumbered 2 to 8, which will affect references to the

notes in the rest of Outline section III.C.

V.C.3: Amendment 584 adds new subdivision (6) to

§ 5D1.3(d) to authorize an order of deportation as a condition of supervised release in certain circumstances. (A

similar provision was added for probation in

§ 5B1.3(d)(6).)

VI.B, VI.C, and X.A.1: Amendment 585 amends § 5K2.0

and its Commentary “to reference specifically in the general departure policy statement the United States Supreme Court’s decision in United States v. Koon, 116 S. Ct.

2035 (1996).”

VI.C.1.b: Amendment 583 replaces § 5K2.13 entirely and

removes the “non-violent offense” language that has

caused a split in the circuits. A new Application Note

provides a definition of “significantly reduced mental

capacity.”

Note to readers: The new edition of Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (Sept.

1998), has been mailed to all recipients of GSU. If you have not received your copy by now, or would like to request

additional copies, please contact the FJC’s Information Services Office by fax at 202-273-4025.
Guideline Sentencing Update

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

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

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

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 10, no. 3, Feb. 26, 1999

Departures

Mitigating Circumstances

Tenth Circuit affirms downward departure under Koon

for career offender based on overstated criminal history and effect of age and infirmity. Defendant, age 64,

pled guilty to a drug felony. With two prior drug convictions, one almost ten years old, he qualified as a career

offender subject to 151–180 months in prison (instead of

37–46 months). The district court granted a downward

departure, to 42 months, finding that defendant’s age, “in

addition to his various infirmities, . . . warrant a downward departure from the career offender category” because those factors made it less likely defendant would

commit future crimes. The court relied on two other

grounds: had defendant’s oldest drug conviction been

handled in a more timely fashion it would have been

more than ten years prior to the instant offense and he

would not be a career offender; and, the previous drug

convictions were “minor offenses” for which he received

“relatively lenient” sentences. USSG § 4A1.3.

The appellate court affirmed, after an extensive overview of Koon v. U.S., 116 S. Ct. 2035 (1996). The court noted

that “circumstances making up a defendant’s criminal

history cannot be used as a basis for an offense-level

departure and circumstances surrounding the instant

offense cannot be used as a basis for a criminal history

category departure.” However, “in considering a departure under section 4A1.3, a district court may rely on

offender characteristics such as age and infirmity [USSG

§ 5H1.1] that are logically relevant to a defendant’s criminal history or likelihood for recidivism, but only in combination with other circumstances of a defendant’s criminal history. . . . Although the terms ‘elderly’ and ‘infirm’ are

difficult to define, and more difficult to measure in degree, we cannot say that the district court abused its

discretion in concluding that the factors of age and infirmity are present in this case to an exceptional degree.”

“Similarly, we conclude that the district court properly

relied upon the circumstances surrounding Collins’s

1986 conviction. . . . [T]he Guidelines recognize that a

prior conviction close to the ten-year time limit may be

relevant in determining whether a departure is appropriate under section 4A1.3. . . . Thus, a district court properly

could conclude that a defendant with a predicate conviction close to ten years prior to the instant offense is not as

likely to recidivate as a career offender whose predicate

convictions occurred closer to the instant offense. . . . A

district court also could conclude that a defendant who

received a ‘relatively lenient’ sentence for a predicate

conviction has a less serious criminal history than a career offender whose predicate convictions resulted in

lengthy periods of incarceration. . . . Finally, a district

court could conclude that delay in the prosecution of a

defendant who committed the conduct underlying a

predicate conviction more than ten years prior to the

instant offense, under some circumstances, may warrant

a departure.”

“[W]e now move to the second inquiry in our departure analysis: whether the combination of factors identified by the district court warrants a downward departure

from the career offender guideline. . . . The district court’s

ultimate determination that Collins’s age, infirmity, and

the circumstances surrounding his 1986 conviction remove him from the career offender heartland is ‘just the

sort of determination that must be accorded deference by

the appellate courts.’ Koon, . . . 116 S. Ct. at 2053. Accordingly, we conclude that the district court did not abuse its

discretion in concluding that the various departure factors it relied upon warranted a departure.” The court also

found the degree of departure reasonable, holding that

sentencing within the non-career offender range was

justified in this situation.

U.S. v. Collins, 122 F.3d 1297, 1300–09 (10th Cir. 1997).

See Outline at VI.A.2, VI.C.1.f, and X.A.1

Third Circuit holds that “significantly reduced mental

capacity” includes inability to control conduct defendant knows is wrong. Defendant pled guilty to one count

of possession of child pornography. While defendant admitted that he knew his conduct was wrong, he requested

a departure under § 5K2.13 based on his inability to control his urges to view pornography because of childhood

sexual abuse (and presented extensive expert opinion on

this issue). However, the district court denied the departure, concluding that defendant’s mental capacity was

not “significantly reduced,” as required by §5K2.13, because he was “able to absorb information in the usual way

and to exercise the power of reason.”

The appellate court concluded that was too narrow a

reading of “significantly reduced mental capacity,” and

held that “a defendant’s ability to control his or her own

conduct is a relevant consideration when determining

the defendant’s eligibility for a downward departure pursuant to section 5K2.13.” Reviewing case law, the Model

Penal Code, and the Insanity Defense Reform Act of 1984,

the court concluded “that the Sentencing Commission
2 Guideline Sentencing Update, vol. 10, no. 3, February 26, 1999 • a publication of the Federal Judicial Center

intended to include those with cognitive impairments

and those with volitional impairments within the definition of ‘reduced mental capacity.’” The court set forth a

two-part test. “A person may be suffering from a ‘reduced

mental capacity’ [under] section 5K2.13 if either:

“(1) the person is unable to absorb information in the

usual way or to exercise the power of reason; or

“(2) the person knows what he is doing and that it is wrong

but cannot control his behavior or conform it to the law.

“The first prong permits sentencing courts to consider

defects of cognition. The second prong permits sentencing courts to consider defects of volition. Sentencing

courts must consider both prongs before making a determination about a defendant’s ‘reduced mental capacity.’”

The court emphasized that “a mere reduction in mental capacity is not sufficient to warrant a departure . . . .

Taken together, the requirements of section 5K2.13 are

not easily met. In addition, the district courts retain their

discretion to deny a downward departure even when a

defendant does satisfy his burden. We therefore believe

that our decision will not open the floodgates to every

defendant who ‘felt compelled’ to commit a crime.”

The court added that, “although a defendant must be

suffering from something greater than mere ‘emotional

problems’ to obtain a downward departure, . . . certain

emotional conditions may be the cause of a defendant’s

significantly reduced mental capacity.” The court agreed

with U.S. v. Cantu, 12 F.3d 1506, 1512 (9th Cir. 1993), that

§ 5K2.13 “applies to both mental defects and emotional

disorders . . . . As the court concluded in Cantu, ‘[t]he focus

of the guideline provision is reduced mental capacity, not

the cause—organic, behavioral, or both—of the reduction.’ Id. (emphasis in original).”

Along these lines, the court noted that the district court

here properly refused to consider defendant’s “troubled

childhood” as a reason for departure in and of itself. See

USSG § 5K2.12. “On remand, however, the sentencing

court may look to that childhood to inform its determination regarding whether McBroom suffered from a significantly reduced mental capacity at the time of the offense.”

U.S. v. McBroom, 124 F.3d 533, 540–51 (3d Cir. 1997).

See Outline at VI.C.1.b

Note: Effective Nov. 1, 1998, USSG § 5K2.13 and its commentary were significantly amended. New Application

Note 1 defines “significantly reduced mental capacity” to

mean that “the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the

defendant knows is wrongful.” (Emphasis added.) The

“Reason for Amendment” explains that the new definition is “in accord with the decision in United States v.

McBroom, 124 F.3d 533 (3d Cir. 1997).”

Eighth Circuit holds that low purity of methamphetamine cannot warrant downward departure. Defendants, convicted of methamphetamine distribution, requested downward departure based on the low purity of

their mixture, which was less than one percent pure

methamphetamine. The district court held that it did not

have the authority to depart on this basis. The appellate

court agreed, concluding that “the Sentencing Commission adequately took into consideration the purity level of

methamphetamine in formulating the Guidelines.”

“‘In the case of a mixture or substance containing . . .

methamphetamine, use the offense level determined by

the entire weight of the mixture or substance, or the

offense level determined by the weight of the . . . methamphetamine (actual), whichever is greater.’ [§ 2D1.1(c),

Note (B)] (emphasis added). The Sentencing Guidelines

further provide that trafficking in drug mixtures with

unusually high purity levels may warrant an upward departure, ‘except in the case of PCP or methamphetamine

for which the guideline itself provides for the consideration of purity.’ USSG § 2D1.1, comment. (n.9) (emphasis

added).” Thus, district courts may consider purity only

“in instances where the purity of the methamphetamine

results in a greater offense level than the offense level

resulting from the weight of the entire substance or mixture. A departure below this ‘greater’ offense level solely

on the basis of a mixture’s low methamphetamine purity

would directly contradict and effectively eviscerate the

Commission’s explicit formula directing courts to sentence methamphetamine violations by the method yielding the greatest base offense level.” Low purity of a methamphetamine mixture “is a ‘forbidden factor’ under

Koon, . . . 116 S. Ct. at 2045, which cannot be used as a basis

for a downward departure.”

U.S. v. Beltran, 122 F.3d 1156, 1159 (8th Cir. 1997).

See Outline at II.A.3.e

General Application Principles

Relevant Conduct

Seventh Circuit holds that rejected drug shipment

should not be included in relevant conduct. Defendants

arranged a marijuana purchase from a confidential informant. However, defendants deemed the quality of the

marijuana unsatisfactory and declined to take delivery of

the 500-pound load. A few months later the parties

reached agreement on another deal, and this time defendants accepted 700 pounds of marijuana. The district

court included the rejected load as relevant conduct

when sentencing defendants, a decision they appealed.

The appellate court reversed. “Here, the defendants

were charged with, and pleaded guilty to, a single count of

conspiracy to possess with intent to distribute marijuana.

The evidence established that Mr. Mankiewicz negotiated . . . for the delivery of a single load of marijuana. As the
Guideline Sentencing Update, vol. 10, no. 3, February 26, 1999 • a publication of the Federal Judicial Center 3

government points out in its brief, there is no question

that, throughout the charged conspiracy, his intent, and

that of Mr. Zawadzki, was to acquire only that load. No

other quantity was foreseeable to them.”

The court held that “this result is the one most compatible with the intent of the Guidelines. . . . [T]he commentary to U.S.S.G. § 2D1.1 states that, ‘in a reverse sting, the

agreed-upon quantity of the controlled substance would

more accurately reflect the scale of the offense because

the amount actually delivered is controlled by the government, not the defendant.’ U.S.S.G. § 2D1.1 comment.

(n.12). As counsel pointed out at oral argument, this section is intended to ensure that unscrupulous law enforcement officials do not increase the amount delivered to the

defendant and therefore increase the amount of the

defendant’s sentence. Although there is absolutely no

evidence that such a motivation actually existed in this

case, the facts demonstrate the danger. At oral argument,

we were informed that the marijuana that was supplied

was the government’s. It would have been possible for the

confidential informant to supply low-grade marijuana in

the expectation of its being rejected and in that way to

increase the amount received, but never retained for distribution, by the defendants.”

U.S. v. Mankiewicz, 122 F.3d 399, 402 (7th Cir. 1997).

See Outline at II.B.4.a, generally at I.A and II.A

Sentencing Procedure

Waiver of Appeal

Second Circuit holds that broad waivers of right to appeal require careful, fact-specific scrutiny. Defendant’s

plea agreement stated: “The defendant agrees not to file

an appeal in the event that the Court imposes a sentence

within or below the applicable Sentencing Guidelines

range as determined by the Court.” (Emphasis added.) The

agreement estimated that defendant’s sentencing range

would be 15–21 months. However, as the appellate court

noted, defendant “retains no right of appeal unless the

court upwardly departs from the range which it determines to be proper, a range which could bear little to no

resemblance to the predicted range. No provision for

appeal exists simply because the ultimate sentence

proves to be beyond, or even considerably beyond, the

anticipated range.” In fact, the sentencing court determined that the proper range was 27–33 months, and

imposed a 27-month term.

The appellate court noted that “[a]n ordinary appeal

waiver provision waives the defendant’s right to appeal a

sentence falling within a range explicitly stipulated

within the agreement itself.” Because this waiver agreement contained no such stipulation, “the defendant assumes a virtually unbounded risk of error or abuse by the

sentencing court,” leading the court to determine that

such agreements require careful scrutiny. “A request for

appeal arising from such a plea bargain will not be summarily denied, as are many such requests arising from

standard plea agreements. Instead, such a request will

cause us to examine carefully the facts of the case and to

look at the manner in which the agreement and the sentence were entered into and applied to determine

whether it merits our review. In particular, . . . we will focus

upon 1) the extent to which the defendant actually understood both the scope of the waiver provision and the

factors at work which encompass his risk of a sentence

exceeding the predicted range, and 2) the extent of actual

discrepancy between the predicted range and the ultimate sentence.”

Despite its “serious concerns with the plea bargain

waiver provision,” the court found that under the facts of

the case there was “nothing unconstitutional and nothing

so unfair or erroneous as to warrant our refusal to uphold

the agreement.” Defendant “secured considerable benefits” from the agreement, the final sentence was only six

months above the top end of the predicted range, and,

“although it is possible that Rosa did not foresee what

actually occurred at sentencing, we can see no fundamental unfairness in that result.”

U.S. v. Rosa, 123 F.3d 94, 99–102 (2d Cir. 1997). See also

U.S. v. Martinez-Rios, 143 F.3d 662, 668–69 (2d Cir. 1998)

(following Rosa, rejecting similar waiver and allowing

appeal where there was no colloquy concerning waiver at

plea allocution and sentencing judge indicated at least

some issues would not be covered by waiver). Cf. U.S. v.

Goodman, 165 F.3d 169, 174–75 (2d Cir. 1999) (same, for

“even broader” waiver that only limited sentence to statutory maximum—defendant “received very little benefit

in exchange for her plea of guilty” and during plea allocution judge suggested she would retain right to appeal in

some circumstances, contrary to language of agreement).

But cf. U.S. v. Atterberry, 144 F.3d 1299, 1301 (10th Cir. 1998)

(upholding waiver of “right to appeal any sentence that

does not exceed the maximum penalty provided by the

statute of conviction on any ground”; although district

court made passing, “routine” reference to defendant’s

general right to appeal sentence, that “could not have

affected Mr. Atterberry’s waiver decision” and nothing

indicated waiver was not knowing and voluntary).

See Outline at IX.A.5

Probation and Supervised Release

Revocation of Probation

Fourth Circuit holds that, although substantial assistance departure was granted at original sentencing,

such departure may not be considered at revocation

sentencing unless government makes new § 5K1.1 motion. Defendant was sentenced for fraud offenses in 1993.

Although his guideline range was 46–57 months, he was

sentenced to five years of probation after a substantial
Guideline Sentencing Update, vol. 10, no. 3, Feb. 26, 1999

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One Columbus Circle, N.E.

Washington, DC 20002-8003

assistance departure, § 5K1.1. His probation was revoked

in 1995 and he was sentenced to 46 months. Between the

time of his original sentencing and revocation, 18 U.S.C.

§ 3565(a)(2) was amended. Courts had held that the earlier version of § 3565(a)(2) limited a revocation sentence

to the sentence available at the time of original sentencing, and that departures could not be based on postsentencing conduct. The amended version allows sentencing under the usual statutory and guideline factors

without being limited by the original guideline range.

Here, the district court used the earlier version of

§ 3565(a)(2). Defendant argued that the later version

should have been used and, alternatively, that the court

could have departed downward under the earlier version.

The first claim failed under the “savings clause,” 1

U.S.C. § 109, which provides in pertinent part that “[t]he

repeal of any statute shall not have the effect to release or

extinguish any penalty . . . incurred under such statute,

unless the repealing Act shall so expressly provide, and

such statute shall be treated as still remaining in force for

the purpose of sustaining any proper action or prosecution for the enforcement of such penalty . . . .” “Following

the amendment to § 3565(a)(2), the district court was

permitted to consider post-sentencing factors as a basis

for departure, a situation that Schaefer acknowledges

may lead to a less severe sentence than the one that

otherwise would be required. Accordingly, § 109 prevents

the district court from applying the amended provisions

of § 3565(a)(2) to impose a sentence lower than that allowed under the former version of § 3565(a)(2).”

The court also rejected defendant’s second claim. Although the prior version of § 3565(a)(2) would normally

allow a court to consider departure at a revocation sentencing for a ground that was present at the original

sentencing, “a departure under § 5K1.1, p.s. is different

from the typical basis for departure, and this difference

dictates a different result. Unlike all other grounds for

departure, in order for a district court to base a departure

upon a defendant’s substantial assistance . . . , the Government must first move the district court to do so. . . . Thus,

although a sentence based on substantial assistance may

have been available at the initial sentencing based on the

Government’s motion, it cannot be considered to be

available at resentencing following a probation revocation absent a renewed motion by the Government. . . .

Accordingly, at the sentencing hearing following the probation revocation, because the Government did not move

for a departure based on substantial assistance, and because the parties agree that there was no other proper

basis for departure brought to the attention of the court

during the initial sentencing hearing, the district court

properly concluded that it was constrained to sentence

Schaefer within the applicable guideline range.”

U.S. v. Schaefer, 120 F.3d 505, 507–09 (4th Cir. 1997).

See Outline at VII.A.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.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 10, no. 4, May 12, 1999

Sentencing Procedure

Supreme Court holds that defendant retained Fifth

Amendment rights at sentencing and that adverse inference may not be drawn from silence. Defendant pled

guilty to four drug counts, but reserved the right to contest the amount of drugs at sentencing. At the plea hearing, the district court warned her that by pleading guilty

she would waive various rights, including “the right to

remain silent under the Fifth Amendment.” At sentencing, the government presented evidence on the amount

of drugs defendant sold. Defendant challenged the adequacy of that evidence, but did not testify or present any

evidence of her own. The district court found the government’s evidence on quantity credible, partly by drawing an adverse inference from defendant’s silence, and

sentenced her to a ten-year mandatory minimum term.

The court held that defendant, after pleading guilty, had

no right to remain silent on the details of her offenses.

The Third Circuit affirmed, concluding that “although

Mitchell faced the possibility of a harsher sentence . . .

because of her failure to testify at the sentencing hearing,

. . . in light of the fact that she does not claim that she

exposed herself to future federal or state prosecution, the

Fifth Amendment privilege no longer was available to

her.” U.S. v. Mitchell, 122 F.3d 185, 189–91 (3d Cir. 1997).

The Supreme Court remanded, rejecting the government’s argument that defendant’s guilty plea waived her

privilege against compelled self-incrimination and ruling “that petitioner retained the privilege at her sentencing hearing. . . . There is no convincing reason why the

narrow inquiry at the plea colloquy should entail such an

extensive waiver of the privilege. Unlike the defendant

taking the stand, . . . the defendant who pleads guilty puts

nothing in dispute regarding the essentials of the offense.

Rather, the defendant takes those matters out of dispute

. . . . Under these circumstances, there is little danger that

the court will be misled by selective disclosure.”

The Court further reasoned that nothing in a colloquy

under Fed. R. Crim. P. 11 “indicates that the defendant

consents to take the stand in the sentencing phase or to

suffer adverse consequences from declining to do so.

Both the Rule and the District Court’s admonition were to

the effect that by entry of the plea petitioner would surrender the right ‘at trial’ to invoke the [Fifth Amendment]

privilege. As there was to be no trial, the warning would

not have brought home to petitioner that she was also

waiving the right to self-incrimination at sentencing. The

purpose of Rule 11 is to inform the defendant of what she

loses by forgoing the trial, not to elicit a waiver of the

privilege for proceedings still to follow. A waiver of a right

to trial with its attendant privileges is not a waiver of the

privileges which exist beyond the confines of the trial.”

The Court also rejected the idea that the district court

could draw an adverse inference from defendant’s silence. “The normal rule in a criminal case is that no

negative inference from the defendant’s failure to testify

is permitted. . . . [A] sentencing hearing is part of the

criminal case—the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth

Amendment, we must accord the privilege the same protection in the sentencing phase of ‘any criminal case’ as

that which is due in the trial phase of the same case.”

The Court added that “[w]hether silence bears upon

the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward

adjustment provided in § 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not

before us, and we express no view on it.”

Four justices dissented from the adverse inferences

holding, but they agreed that defendant “had the right to

invoke her Fifth Amendment privilege during the sentencing phase of her criminal case.”

Mitchell v. U.S., 119 S. Ct. 1307, 1311–16 (1999).

See Outline generally at III.E.2; IX.B and D.3

Departures

Mitigating Circumstances

D.C., Second, and Ninth Circuits hold that rehabilitation following original sentencing may be considered

for downward departure at resentencing after remand;

Eighth Circuit disagrees. In the first two circuits, defendants were convicted on drug charges and also received a

consecutive sentence under 18 U.S.C. § 924(c). After beginning their sentences, each filed a successful motion to

have the § 924(c) conviction overturned in light of Bailey

v. U.S., 516 U.S. 137 (1995). Both defendants were resentenced, and both requested a downward departure to

account for their rehabilitative efforts while serving their

original sentences. Both district courts concluded they

did not have authority to depart for post-conviction rehabilitation, and both defendants appealed.

The appellate courts remanded, concluding that under Koon v. U.S., 116 S. Ct. 2035 (1996), such a departure

could not be categorically excluded. The D.C. Circuit

found that “postconviction rehabilitation is not one of the
2 Guideline Sentencing Update, vol. 10, no. 4, May 12, 1999 • a publication of the Federal Judicial Center

[listed] prohibited factors [in the Sentencing Guidelines],

nor have we found any other provision of the Guidelines,

policy statements, or official commentary of the Sentencing Commission prohibiting its consideration. We therefore hold . . . that sentencing courts may consider postconviction rehabilitation at resentencing.” However, the

court also found that because “‘post-offense rehabilitative efforts,’ . . . a concept linguistically broad enough to

cover post-conviction rehabilitation,” are covered in

§ 3E1.1’s commentary, post-conviction rehabilitation

should be treated as “already taken into account” by the

Guidelines. Therefore, it “must be present ‘to such an

exceptional degree that the situation cannot be considered typical of those circumstances in which the acceptance of responsibility adjustment is granted.’”

The Second Circuit had already held that post-offense

drug rehabilitation could be considered for departure

because it was not adequately considered in the Guidelines. See U.S. v. Maier, 975 F.2d 944, 948 (2d Cir. 1992). “We

see no significant difference between the post-offense

rehabilitation that we [approved] in Maier . . . and rehabilitation achieved in prison between imposition of the

original sentence and resentencing. When the trial court

undertook to resentence Reyes after vacating his

§924(c)(1) conviction, it was required to consider him as

he stood before the court at that time. . . . [I]f the defendant

achieved a rehabilitation sufficiently impressive to be

considered ‘atypical’ and to take his case out of the heartland, we see no reason why this should not be considered,

as in Maier, a basis for departure.”

In the Ninth Circuit case, the district court had departed downward at resentencing after a remand caused

by an improper departure. The appellate court concluded

that, after Koon, “post-sentencing rehabilitative efforts

may be a basis for a downward departure. . . . Like the

Second Circuit, we cannot ascertain any meaningful distinction between post-offense and post-sentencing rehabilitation. Nor is there support in the Guidelines for the

proposition that a court is forbidden from looking at a

defendant’s rehabilitative efforts upon resentencing.

Given the intervening Supreme Court decision in Koon,”

post-sentencing rehabilitation cannot be categorically

precluded as a basis for departure. The court went on to

affirm the departure for defendant’s rehabilitative efforts.

U.S. v. Green, 152 F.3d 1202, 1207–08 (9th Cir. 1998) (per

curiam); U.S. v. Rhodes, 145 F.3d 1375, 1379–84 (D.C. Cir.

1998) (Silberman, J., dissented); U.S. v. Core, 125 F.3d 74,

77–79 (2d Cir. 1997). Accord U.S. v. Sally, 116 F.3d 76, 79–82

(3d Cir. 1997). Cf. U.S. v. Whitaker, 152 F.3d 1238, 1239 (10th

Cir. 1998) (holding that Koon effectively overruled circuit

precedent that precluded using post-offense/presentencing rehabilitation efforts as basis for departure).

The Eighth Circuit—also in a Bailey resentencing

case—reached the opposite conclusion. The court reasoned, first, that “Koon addressed the matters that a district court may properly consider in departing from the

guideline at an original sentencing . . . , [not] whether

post-sentencing events might support a departure at a

resentencing because that matter was not before it. We

therefore do not think that Koon should be read to require

district courts to consider a defendant’s post-sentencing

rehabilitative conduct as a basis for downward departure

at resentencing.” Second, allowing such a departure

would increase sentencing disparity by providing a

“windfall” for “a few lucky defendants, simply because of

a legal error in their original sentencing,” that is not

available to other prisoners. The court was also concerned that rewarding “exemplary conduct in prison . . .

may interfere with the Bureau of Prisons’s statutory power

to award good-time credits to prisoners.”

Finally, the court noted it had previously limited matters that may be considered for departure at resentencing

after remand to “any relevant evidence on that issue that

it could have heard at the first hearing.” Thus, rehabilitative efforts before the original sentencing may be considered, see U.S. v. Kapitzke, 130 F.3d 820, 823–24 (8th Cir.

1997), but “[r]ehabilitation that takes place behind the

prison walls after the original sentencing . . . is not relevant, since the sentencing court obviously could not

have considered it at the time of the original sentencing.”

U.S. v. Sims, No. 98-2287 (8th Cir. Apr. 9, 1999) (Arnold, J.).

See Outline at VI.C.2.a

Sixth Circuit holds that disparity built into guidelines

did not provide basis for downward departure. Defendant pled guilty to mail theft and credit card fraud

charges. The amount of loss for sentencing purposes was

over $13,000, and she faced a sentence of 12–18 months.

The district court departed, however, after finding that

the sentence for defendant’s “relatively minor white-collar” crime was “disproportionate” compared to the sentence that could result from a more serious white-collar

crime, using the example of thirty months for a bank fraud

that resulted in a $360,000 loss. The court concluded that

the Sentencing Commission had not considered this type

of disparity in formulating the Guidelines. The government appealed and the appellate court reversed, holding

that defendant’s situation is not unusual under the

Guidelines and was, in fact, deliberate.

“For theft and fraud offenses, the Commission reasoned that severity would be based, in part, on the

amount of loss due to the theft or fraud . . . . In ordinary

circumstances, a person who steals credit cards from the

mail and makes eleven-thousand dollars of unauthorized

charges should receive a sentence below, but not necessarily far below, that of a person who cheats a bank out of

hundreds of thousands of dollars. . . . [T]he Commission

did not establish a uniform margin of increase. . . . This

progressive margin of increase results in fraud offenders

at the low end receiving sentences that appear harsh
Guideline Sentencing Update, vol. 10, no. 4, May 12, 1999 • a publication of the Federal Judicial Center 3

when compared with high-level fraud offenders. The

Commission, however, explicitly classified as ‘serious’

low-level fraud and other white-collar offenders . . . [and]

deliberately prescribed a relatively high sentencing level

for low-level white-collar offenders. . . . That this arrangement produces disproportionate results between high

and low-level offenders cannot serve as the legal basis for

a downward departure absent unusual circumstances in

the particular situation.” Finding no unusual circumstances here, the court reversed.

U.S. v. Weaver, 126 F.3d 789, 792–94 (6th Cir. 1997).

See Outline generally at VI.C.5.b

Criminal History

First Circuit allows departure for serious uncharged

conduct that was dissimilar to offense of conviction.

After defendant was arrested on a domestic violence

charge, police discovered firearms in his house. Defendant was then charged in federal court with three firearms

offenses and pled guilty to all three. Although he faced a

sentence of 33–41 months, the district court departed

under § 4A1.3 by increasing defendant’s criminal history

category from III to V and imposed a 63-month prison

term. The court based the departure on two grounds:

seven prior convictions that were not counted because

they were too old; and a 17-year “history of persistent and

vicious domestic violence,” for which there was ample

evidence but no criminal convictions. Together, these

facts indicated that defendant’s criminal history score

“does not adequately reflect the seriousness of

defendant’s past criminal conduct or the likelihood that

the defendant will commit other crimes,” USSG § 4A1.3.

On appeal, defendant argued that, because § 4A1.3(e)

expressly invites courts to consider “prior similar conduct

not resulting in a criminal conviction” (emphasis added),

courts should not consider dissimilar, uncharged conduct. The appellate court disagreed, finding that, because

§ 4A1.3(e) was merely part of a nonexhaustive list of possible departure grounds, “to infer that the guideline’s

explicit authorization to consider similar misconduct as a

basis for departure precludes any consideration of dissimilar misconduct for that purpose not only would frustrate the ‘included, but not limited to’ caveat that the

Sentencing Commission deliberately inserted in the text

of section 4A1.3, but also would run counter to a fundamental principle of departure jurisprudence: that, in the

absence of an explicit proscription, courts generally

should not reject categorically any factor as a potential

departure predicate. . . . Accordingly, we hold that, in an

appropriate case, a criminal history departure can be

based upon prior dissimilar conduct that was neither

charged nor the subject of a conviction.” Finding this “an

appropriate case,” the court affirmed the departure.

U.S. v. Brewster, 127 F.3d 22, 25–28 (1st Cir. 1997). But cf.

U.S. v. Chunza-Plazas, 45 F.3d 51, 56 (2d Cir. 1995) (vacating upward departure based on dissimilar foreign criminal conduct that had not resulted in conviction: “Even

assuming that [§ 4A1.3(e)] might reasonably be extended

to include criminal conduct in a foreign country, a court

might properly consider that conduct only if it is ‘similar’

to the crime of conviction.”).

See Outline generally at VI.A.1.c

Criminal History

Career Offenders

Eleventh Circuit finds that “guilty but mentally ill” plea

can count toward career offender status. Defendant was

convicted of bank robbery. He had three previous felony

convictions, two of which were based on pleas of “guilty

but mentally ill” (GBMI) under Georgia law. The sentencing court held that the GBMI plea was analogous to a plea

of nolo contendere, which made it a conviction under

§ 4A1.2(a)(4) that could be used under § 4B1.1 as a “prior

felony conviction.” See § 4B1.2(c) & comment. (n.3). Defendant was sentenced as a career offender and appealed,

arguing that § 4B1.1 should be strictly interpreted to exclude consideration of the GBMI pleas.

The appellate court affirmed, concluding that, under

Georgia law, “a conviction based on the GBMI plea has the

same operation at law as a conviction based on a plea of

guilty. . . . The sole substantive distinction between a

conviction based on a GBMI plea and one based on a guilty

plea relates to the incarceration and treatment of the

defendant after sentencing.” As the Georgia Supreme

Court held, a verdict based on a GBMI plea “has the same

force and effect as any other guilty verdicts, with [the]

additional provision that the Department of Corrections

or other incarcerating authority provide mental health

treatment for a person found guilty but mentally ill.”

(Emphasis added by Eleventh Circuit.) “We therefore hold

that a plea of ‘guilty but mentally ill’ is a ‘guilty plea’ within

the meaning of section 4A1.2(a)(4) of the sentencing

guidelines, and that the convictions at issue qualify as

‘prior felony convictions’ under section 4B1.1.”

U.S. v. Bankston, 121 F.3d 1411, 1414–16 (11th Cir.

1997).

See Outline generally at IV.B.3

Determining the Sentence

Restitution

Most circuits to decide issue hold that Mandatory Victims Restitution Act cannot be applied retroactively;

two disagree. The Mandatory Victims Restitution Act of

1996 (MVRA), effective Apr. 24, 1996, added 18 U.S.C.

§ 3663A and substantially amended the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663–3664.

Among other things, the MVRA mandates an order of full

restitution for certain offenses regardless of the defen-
Guideline Sentencing Update, vol. 10, no. 4, May 12, 1999

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

dant’s ability to pay (which is only to be considered in

setting up a schedule of payments). See § 3664(f)(1)(A)

and (f)(2). Under former § 3664(a), a defendant’s financial

circumstances were considered in determining the

amount of restitution to be paid, if any.

Most circuits to rule on the issue have held that applying the MVRA’s mandatory restitution requirement to defendants who committed their crimes before Apr. 24,

1996, would violate the Ex Post Facto Clause of the Constitution. SeeU.S. v. Edwards, 162 F.3d 87, 89–92 (3d Cir. 1998)

(remanded: specifically disagreeing with Newman, infra,

and holding that “retrospective application of the MVRA

violates the Ex Post Facto Clause because restitution imposed as part of a defendant’s sentence is criminal punishment, not a civil sanction, and the shift from discretionary to mandatory restitution increases the punishment meted out to a particular defendant”); U.S. v. Siegel,

153 F.3d 1256, 1259–60 (11th Cir. 1998) (same); U.S. v.

Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997) (remanded:

“amended VWPA . . . had the potential to increase the

amount of restitution [defendants] would have to pay”);

U.S. v. Thompson, 113 F.3d 13, 14 n.1 (2d Cir. 1997) (agreeing with parties’ conclusion that applying MVRA retroactively would be ex post facto violation). See also U.S. v.

Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997) (without

discussion, applying pre-MVRA provisions on review).

The Eighth Circuit agreed that the MVRA cannot be

applied retroactively, but concluded that, because

defendant’s offense of conviction occurred May 30, 1996,

applying the MVRA to order restitution for related conduct

that occurred before the MVRA’s effective date was not an

ex post facto violation. U.S. v. Williams, 128 F.3d 1239,

1241–42 (8th Cir. 1997) (affirmed: defendant “had fair

warning his criminal conduct could trigger mandatory

restitution under § 3663A(a)(3) to persons other than the

victims of his May 30 offense”).

However, the Seventh Circuit held that the MVRA can be

applied retroactively because “we do not believe that

restitution qualifies as a criminal punishment. . . . It is

separate and distinct from any punishment visited upon

the wrongdoer and operates to ensure that a wrongdoer

does not procure any benefit through his conduct at

others’ expense.” Thus, because defendant’s criminal

punishment was not increased, applying the MVRA to his

pre-MVRA offense did not violate the Ex Post Facto Clause.

U.S. v. Newman, 144 F.3d 531, 538–42 (7th Cir. 1998).

Most recently, the Tenth Circuit agreed with the Seventh while “reject[ing] the views of the Second, Third,

Eighth, Ninth, Eleventh and D.C. circuits to the contrary.”

The court reasoned that earlier circuit decisions had held

that a restitution order under a previously amended version of the VWPA did not implicate the Ex Post Facto Clause

because it “does not inflict punishment,” and “the logic of

these cases is patently applicable to the MVRA.” U.S. v.

Nichols, 169 F.3d 1255, 1279–80 & nn.8–9 (10th Cir. 1999).

See Outline generally at section V.D
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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. 10, no. 5, Aug. 31, 1999

Departures

Substantial Assistance

Third Circuit holds that, even though plea agreement

did not specify it, government retained sole discretion

to decide whether to file § 5K1.1 motion. Defendant

entered into a plea agreement whereby the government

agreed to make a § 5K1.1 departure motion if defendant

“fully complies with this agreement prior to his sentencing, [and] provides substantial assistance in the investigation or prosecution of one or more persons who have

committed offenses.” The government did not move for

departure, claiming that defendant did not meet his obligations under the agreement. The district court denied

defendant’s motion to require the government to move

for departure or, alternatively, to withdraw his plea.

“On appeal, the central question that concerns us is

whether the district court erred in its interpretation that

the plea agreement required the defendant to satisfy the

Government that he complied with its terms and provided substantial assistance to the Government . . . . [The

district court] examined the law pertaining to plea agreements and focused on the absence in this plea agreement

of any provision in which the Government expressly reserved the sole discretion to determine whether the defendant is entitled to a motion for a section 5K1.1 departure. The Government [argues] . . . that the plea agreement

should be interpreted similarly to those agreements

which expressly reserve to the Government ‘sole discretion’ in the matters of 5K1.1 motions and the exercise of

that discretion by the Government on a subjective basis.

We are constrained to agree.”

The plea agreement “must be interpreted in the context of the circumstances under which it was formulated

and general principles of the interpretation of contracts.

. . . [A]lthough the agreement did not specifically reserve

to the Government the sole discretion to evaluate

whether the defendant has rendered substantial assistance, it ‘contemplate[d] that any downward departure

motion must be made “pursuant to” 18 U.S.C. §3553(e)

and Guidelines 5K1.1.’ . . . Thus, the plea agreement was

implicitly subject to the statute and the Sentencing

Guidelines and both expressly lodge the decision to make

the motion in the Government’s discretion, regardless of

whether the Government expressly reserved such decision in the plea agreement. . . . The negotiations between

the parties to the agreement are consistent with this

conclusion. The district court found that it was undisputed that during the plea negotiations, the defendant’s

counsel demanded that if the Government decided not to

move for a downward departure, it would have to justify

that decision in court under an objective standard. The

Government rejected that proposal.”

“Thus, the district court had a very limited role in

reviewing the Government’s refusal to move for a downward departure. . . . We, therefore, agree with the district

court and hold that the Government’s decision not to

move for a departure is reviewable only for bad faith or an

unconstitutional motive.” Defendant did not allege either, so the decision was affirmed.

U.S. v. Huang, 178 F.3d 184, 187–89 (3d Cir. 1998).

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

Second and Eighth Circuits hold that wording of plea

agreement may limit government’s ability to withhold

§ 5K1.1 motion for reasons unrelated to substantial assistance. In the Second Circuit case, the government had

filed motions for downward departure under § 5K1.1 and

18 U.S.C. § 3553(e), advising the district court that defendant had provided substantial assistance. However, defendant failed to appear at his original sentencing hearing and later was arrested for and pled guilty in state court

to selling crack cocaine. After this the government successfully moved to withdraw its earlier motions and defendant was sentenced without benefit of a departure. He

argued on appeal that he had cooperated as promised in

his plea agreement and the district court had the power to

depart without a government motion.

The appellate court remanded for resentencing. “The

district judge’s ruling that the motion could be withdrawn

gave no consideration to the plea agreement, which was

the basis on which the Government filed the motion.” The

agreement provides that the government is released from

its obligation to file a motion if defendant “has not provided substantial assistance” or “has violated any provision of this Agreement,” and included a provision obligating defendant to refrain from committing further crimes.

“The agreement, however, is silent with regard to the

withdrawal of a Section 5K1.1 and 18 U.S.C. § 3553(e)

motion. Further, it specifically recites the consequences

if Padilla committed further crimes or otherwise violated

the agreement, but the right to withdraw the Section

5K1.1 and 18 U.S.C. § 3553(e) motion is not enumerated

as one of such consequences.”

“Reading the agreement strictly against the Government, as our precedent requires, we conclude that it

prohibits the Government from withdrawing the Section

5K1.1 and 18 U.S.C. § 3553(e) motion because it failed to

enumerate specifically the right to withdraw the motion

in the several specific and serious consequences that
2 Guideline Sentencing Update, vol. 10, no. 5, Aug. 31, 1999 • a publication of the Federal Judicial Center

would follow if Padilla committed further crimes or otherwise violated the agreement. . . . ‘The Government [is]

responsible for imprecisions or ambiguities in the agreement.’ . . . We therefore hold that allowing the Government

to withdraw the motion violated the plea agreement and

was erroneous.” The court noted that its holding “is necessarily a narrow one because of the limited nature of the

issue raised by the attempted withdrawal of the motion.”

U.S. v. Padilla, No. 98-1411 (2d Cir. July 14, 1999)

(Gibson, J.).

In the Eighth Circuit, the plea agreement provided that

“[a]ny cooperation provided by [defendant] will be considered by the government under . . . § 5K1.1.” Defendant

did provide assistance, but the government refused to file

a motion and defendant moved to compel its filing. Although the government agreed that defendant could

make a substantial threshold showing that he had provided substantial assistance, the government argued that

defendant had recently used and possessed controlled

substances, which violated his agreement to “not commit

any additional crimes whatsoever.” The district court

agreed and denied the motion.

The appellate court found a “fundamental defect in the

government’s position. Its refusal to file a substantial

assistance motion was based entirely upon a reason unrelated to the quality of Anzalone’s assistance in investigating and prosecuting other offenders. But § 5K1.1 and the

related statute . . . 18 U.S.C. § 3553(e), do not grant prosecutors a general power to control the length of sentences. Because sentencing is ‘primarily a judicial function,’ . . . the prosecutor’s virtually unfettered discretion

under § 5K1.1 is limited to the substantial assistance issue, which is a question best left to the discretion of the

law enforcement officials receiving that assistance. ‘The

desire to dictate the length of a defendant’s sentence for

reasons other than his or her substantial assistance is not

a permissible basis for exercising the government’s power

under § 3553(e) [or § 5K1.1].’ U.S. v. Stockdall, 45 F.3d 1257,

1261 (8th Cir. 1995).”

“Therefore, ‘the government cannot base its [§ 5K1.1

motion] decision on factors other than the substantial

assistance provided by the defendant.’ U.S. v. Rounsavall,

128 F.3d 665, 669 (8th Cir. 1997). Once the government

concludes that a defendant has provided substantial assistance, and has positively assessed in that regard ‘the

cost and benefit that would flow from moving,’ . . . it

should make the downward departure motion and then

advise the sentencing court if there are unrelated factors

. . . that in the government’s view should preclude or

severely restrict any downward departure relief. The district court may of course weigh such alleged conduct in

exercising its downward departure discretion.”

Although the plea agreement provided that the government could refuse to make a motion “which it is otherwise

bound by this agreement to make” if defendant violated

the agreement, that did not change the result. That provision “by its plain language does not apply to a substantial

assistance downward departure motion, because the

government was never ‘bound’ to make such a motion,”

having agreed to merely “consider” any cooperation by

defendant.

U.S. v. Anzalone, 148 F.3d 940, 941–42 (8th Cir. 1998)

(note: the decision was vacated and rehearing en banc

granted, but was then reinstated and rehearing en banc

denied, 161 F.3d 1125; Murphy, J., dissented from the

original opinion, and five judges would have granted

rehearing en banc).

The Eighth Circuit later distinguished Anzalone in a

case involving a defendant who claimed to be in the same

position. He had provided information to the government and agreed to testify as part of his plea agreement,

but before sentencing he failed to appear for drug testing

and on four occasions tested positive for cocaine. The

government declined to file a § 5K1.1/§ 3553(e) motion

and the district court denied defendant’s motion to compel the government to do so.

The appellate court affirmed, based on the plea agreement and the district court’s finding that the refusal to file

was related to defendant’s assistance. “The [plea] agreement gave the government the sole right to judge whether

Wilkerson continued to provide substantial assistance.

The record of the sentencing hearing supports the court’s

finding that the decision not to make the motion was

based on the prosecutor’s judgment that Wilkerson had

not continued to provide substantial assistance because

he did not keep the government apprised of his ongoing

drug involvement or his sources and because he had

undermined his usefulness as a potential witness, a role

he had agreed to play. The government’s decision here

was based on its evaluation of the quality of Wilkerson’s

assistance, in contrast to Anzalone where it raised no

criticism of the assistance provided. The plea agreements

are also different, and Wilkerson’s created a continuing

duty to provide substantial assistance. . . . On this record

Wilkerson has not shown that the government’s reason

for not filing a § 5K1.1 motion was irrational or based on

bad faith or unconstitutional motive.”

U.S. v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999).

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

Aggravating Circumstances

Fourth Circuit holds that § 5K2.3 departure may be

based on injury to indirect victims of offense, but only if

they have “some nexus or proximity to the offense.”

Defendant was convicted of involuntary manslaughter,

the result of a reckless driving incident in which three

people died. The district court departed upward under

§ 5K2.3 for extreme psychological injury to the families of
Guideline Sentencing Update, vol. 10, no. 5, August 31, 1999 • a publication of the Federal Judicial Center 3

two of the deceased, concluding that they were “victims”

within the meaning of that term in § 5K2.3. Defendant

appealed, arguing that § 5K2.3 is limited to direct victims

of the offense of conviction.

The appellate court held that, although the families in

this case do not qualify as victims, § 5K2.3 can cover

indirect victims. The court reasoned that “the context in

which the term ‘victim’ is used in § 5K2.3 is nearly identical to the context in which it is used in §§ 3A1.1 and 3A1.3,”

under which the court has upheld enhancements for

indirect victims.

“Although a victim need not be the direct victim of the

offense of conviction, we do not believe, as the Government contends, that every individual adversely affected

by the offense of conviction is an indirect victim. Rather,

an indirect victim must have some nexus or proximity to

the offense. Put simply, an individual is an indirect victim

because of his relationship to the offense, not because of

his relationship to the direct victim. Bank tellers and

patrons are indirect victims in a bank robbery, see U.S.S.G.

§ 3A1.1, comment. (n.2), credit card holders are indirect

victims in a scheme to defraud their credit card issuers

. . . , and patients are indirect victims in a plan to defraud

their insurance carrier . . . , because of their nexus or

proximity to the offense of conviction. Here, however,

there is no evidence that the families in question had any

relationship to the offense beyond their relationship to

the direct victims. Because we conclude that the families

of [the deceased] are not victims of the offense of conviction, the district court abused its discretion in departing

upward by three levels under § 5K2.3, p.s.”

U.S. v. Terry, 142 F.3d 702, 711–12 (4th Cir. 1998). See also

U.S. v. Morrison, 153 F.3d 34, 35 (2d Cir. 1998) (affirming

§ 5K2.3 departure of 14 offense levels based in part on

injury to “secondary victims” who had direct contact with

defendant, although they were not direct victims of offenses of conviction); U.S. v. Haggard, 41 F.3d 1320, 1327–

28 (9th Cir. 1994) (where defendant deliberately lied to

authorities about having information on long-missing

child’s whereabouts and directed some comments to

child’s family, “family was a direct victim of [the] criminal

conduct” and § 5K2.3 departure was proper). Cf. U.S. v.

Hoyungawa, 930 F.2d 744, 747 (9th Cir. 1991) (remanded:

“§ 5K2.3 applies only to direct victims of the charged

offense,” and does not apply to family of police officer

who was killed on duty by defendant).

See Outline at VI.B.1.d; see also cases in III.A.1.b

Tenth and Sixth Circuits hold that vulnerable victim

enhancement does not preclude departure under

SCAMS Act. In both cases, defendants were convicted of

telemarketing fraud against elderly victims. Both received enhancements under § 3A1.1(b) for harming vulnerable victims, plus an upward departure based on the

Senior Citizens Against Marketing Scams Act of 1994

(SCAMS Act). Both defendants appealed, claiming that

§ 3A1.1 adequately accounted for their conduct and that

a departure was improper double counting. The appellate courts rejected that argument.

The Tenth Circuit found that “the vulnerable victim

enhancement and the SCAMS Act differ on two key dimensions. The SCAMS Act is directed toward criminal telemarketing conduct targeted at or actually victimizing a

certain class of individuals, statutorily defined as those

over the age of fifty-five. . . . The Act requires the offense

target the elderly as a class. In contrast, [§ 3A1.1(b)] does

not require a finding the defendant targeted the victim

because of his vulnerability. . . . Moreover, the vulnerable

victim enhancement cannot be based solely on the

victim’s membership in a certain class; the sentencing

court is required to make particularized findings of vulnerability, focusing on the individual victim and not the

class of persons to which the victim belonged. . . . A single

vulnerable victim is sufficient to support application of

the enhancement. . . . Thus, the focus of the SCAMS Act and

that of the vulnerable victim enhancement differ in key

respects and are sufficiently distinct to avoid double

counting the same offense conduct.”

The Sixth Circuit “agree[d] with the analysis of the

Tenth Circuit. The SCAMS Act is specifically designed to

combat and punish severely the conduct in which Brown

engaged, conduct which falls outside of the ‘heartland’ of

cases addressed by the vulnerable victim guideline,

U.S.S.G. § 3A1.1(b). In this case, the SCAMS Act authorized

the district court to impose an additional ten-year sentence upon Brown. Instead of imposing a ten-year sentence under the SCAMS Act, the district court noted that

the SCAMS Act signaled Congress’s view that U.S.S.G.

§ 3A1.1(b) did not adequately address Brown’s conduct. . . . We conclude that the district court could properly depart upward based on the SCAMS Act even though

Brown also received a two-level enhancement for vulnerable victims under § 3A1.1(b).”

U.S. v. Brown, 147 F.3d 477, 487–88 (6th Cir. 1998); U.S.

v. Smith, 133 F.3d 737, 749 (10th Cir. 1998). Accord U.S. v.

Scrivener, No. 98-50513 (9th Cir. Aug. 30, 1999) (Wardlaw,

J.) (agreeing with Brown and Smith in affirming § 3A1.1(b)

enhancement and two-level upward departure under

§5K2.0 for fraud defendant who targeted elderly victims).

See Outline generally at III.A.1.a and c and VI.B.1.a

Mitigating Circumstances

Tenth Circuit holds that extreme remorse may be

ground for departure. Defendant pled guilty to three

unarmed bank robberies and was sentenced to 41

months, the bottom of the guideline range. The district

court denied his request for a downward departure on

account of his exceptional remorse, specifically ruling

that it did not have discretion to consider that factor so

that defendant could appeal. [Note: The specifics of
Guideline Sentencing Update, vol. 10, no. 5, Aug. 31, 1999

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One Columbus Circle, N.E.

Washington, DC 20002-8003

defendant’s remorse are not mentioned in the appellate

court’s opinion, but it notes that “[t]he record contains

evidence supporting Fagan’s claim that his remorsefulness was extreme and the government conceded as much

during the sentencing hearing.”]

The appellate court remanded, concluding that

“[b]ecause remorse is not one of the factors specifically

forbidden by the Sentencing Guidelines, it may be a permissible departure factor in certain circumstances. . . .

The government argues that even if remorse is a permissible factor, Fagan is not entitled to an additional downward departure because remorse is an element of acceptance of responsibility,” and defendant already received a

§ 3E1.1 reduction. Although the court agreed that remorse is taken into account by the Guidelines, an accounted for factor can still be “a permissible factor for

departure if it is present to some exceptional degree.”

Therefore, “a sentencing court may depart downward if it

finds that remorse is present to an exceptional degree.”

U.S. v. Fagan, 162 F.3d 1280, 1284–85 (10th Cir. 1998).

Accord U.S. v. Jaroszenko, 92 F.3d 486, 490–91 (7th Cir.

1996) (remanded: “Although the guidelines may discourage the consideration of a defendant’s remorse in most

decisions about downward departures, they do not contain an absolute ban on a district court’s indulging in such

a consideration.”).

See Outline generally at VI.C.5.c

Determining the Sentence

Safety Valve Provision

Sixth Circuit holds that safety valve may not be denied

for defendant’s refusal to testify at coconspirators’ proceedings. The government did not contend that defendant failed to truthfully provide all information he had

concerning the offense of conviction and related conduct, and he otherwise met the requirements of 18 U.S.C.

§ 3553(f) and USSG § 5C1.2. However, defendant told the

government that he would refuse to testify before a grand

jury or at a trial concerning his coconspirators. The government claimed, and the sentencing court agreed, that

“defendant’s refusal to testify mean[t] that he has not

provided the government with ‘all information and evidence’ as required by 18 U.S.C. § 3553(f)(5).”

The appellate court reversed, concluding that “[t]he

government’s position is contradicted by the clear language of the statute—the defendant’s obligation is to

provide information and evidence to the government, not

to a court. . . . Given the phrase ‘to the Government,’ it is

our view that a common-sense reading of the statute

leads to the conclusion that evidence is limited to those

things in the possession of the defendant prior to his

sentencing, excluding testimony, that are of potential

evidentiary use to the government.”

U.S. v. Carpenter, 142 F.3d 333, 335–36 (6th Cir. 1998).

See Outline at V.F.2.c and e
Guideline Sentencing Update

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

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

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

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 10, no. 6, Sept. 30, 1999

General Application Principles

Sentencing Factors

Several circuits examine scope of resentencing after

remand. When an appellate court remands a guidelines

case for resentencing and does not expressly delineate

the issues to be examined on remand, should resentencing be conducted de novo or be limited to the issues the

appellate court found needed correction? The circuits

have split on this question, and recent cases have added

to that split.

The Sixth Circuit concluded that, given the nature of

the sentencing guidelines, a presumption of de novo

resentencing is preferable in order to “give the district

judge discretion to consider and balance all of the competing elements of the sentencing calculus.” Sentencing

under the guidelines “requires a balancing of many related variables. These variables do not always become

fixed independently of one another.”

To determine whether a remand is limited, a district

court must first determine “what part of this court’s mandate is intended to define the scope of any subsequent

proceedings. The relevant language could appear anywhere in an opinion or order, including a designated

paragraph or section, or certain key identifiable language. . . . The key is to consider the specific language used

in the context of the entire opinion or order. However, ‘[i]n

the absence of an explicit limitation, the remand order is

presumptively a general one.’” The court added that an

appellate court “should leave no doubt in the district

judge’s or parties’ minds as to the scope of the remand.

The language used to limit the remand should be, in

effect, unmistakable.”

U.S. v. Campbell, 168 F.3d 263, 265–68 (6th Cir. 1999).

The Fifth Circuit joined those rejecting the de novo

resentencing presumption. The court had remanded a

case “for sentencing consistent with this opinion.” At the

resentencing, defendant wanted to present evidence relating to his previous enhancement for obstruction of

justice, an issue he had not appealed. The district court

declined to hear evidence on that issue.

The appellate court affirmed. “This court specifically

rejects the proposition that all resentencing hearings following a remand are to be conducted de novo unless

expressly limited by the court in its order of remand. This

case was remanded for resentencing. The fact that the

appellate court did not expressly limit the scope of the

remand order did not imply that a full blown sentencing

hearing was permissible for a second time, allowing evidence on all issues that would affect the sentencing

guidelines. . . . The only issues on remand properly before

the district court are those issues arising out of the correction of the sentence ordered by this court. In short, the

resentencing court can consider whatever this court directs—no more, no less. All other issues not arising out of

this court’s ruling and not raised before the appeals court,

which could have been brought in the original appeal, are

not proper for reconsideration by the district court.”

U.S. v. Marmolejo, 139 F.3d 528, 530–31 (5th Cir. 1998).

Accord U.S. v. Parker, 101 F.3d 527, 528 (7th Cir. 1996)

(same, adding that “the scope of the remand is determined not by formula, but by inference from the opinion

as a whole. If the opinion identifies a discrete, particular

error that can be corrected on remand without the need

for a redetermination of other issues, the district court is

limited to correcting that error.”).

The Eighth Circuit similarly rejected attempts by both

defendant and government to open a resentencing to

additional issues. “Although the [appellate] court’s opinion in its conclusion recited that we ‘vacate his sentence

and remand his case to the district court for resentencing,’ that statement must be read with the analysis offered

in the opinion,” which focused on two particular drug

matters. Other issues should not have been in contention

at resentencing or in another appeal. The court acknowledged, however, that “an appeals court can avoid the

problem of multiple appeals by issuing specifically limited remands . . . , leaving open for resolution only the

issue found to be in error on the initial sentencing.”

U.S. v. Santonelli, 128 F.3d 1233, 1237–39 (8th Cir.

1997).

The First Circuit also held that resentencing should not

be presumed to be de novo, but agreed with a D.C. Circuit

decision that new matters may be raised if they are “made

newly relevant” by the appellate court’s decision. Defendant challenged several issues on appeal, but not drug

quantity because the alleged difference would not have

affected his sentence. After winning a related issue on his

appeal, however, the difference could have reduced his

offense level and he tried to challenge the quantity at

resentencing. The district court ruled that defendant had

waived the issue and declined to hear evidence.

The appellate court had not specified the issues to be

considered on remand, so it had to determine whether

resentencing should be de novo or limited. It was “persuaded by the reasoning of” U.S. v. Whren, 111 F.3d 956,
2 Guideline Sentencing Update, vol. 10, no. 6, September 30, 1999 • a publication of the Federal Judicial Center

959–60 (D.C. Cir. 1997), and held, “as it did, that ‘upon a

resentencing occasioned by a remand, unless the court of

appeals [has expressly directed otherwise], the district

court may consider only such new arguments or new facts

as are made newly relevant by the court of appeals’ decision—whether by the reasoning or by the result.’ . . . In

addition, we hold, along with Whren, that: ‘A defendant

should not be held to have waived an issue if he did not

have a reason to raise it at his original sentencing; but

neither should a defendant be able to raise an issue for the

first time upon resentencing if he did have reason but

failed nonetheless to raise it in the earlier proceeding.’”

“Whether there is a waiver depends . . . on whether the

party had sufficient incentive to raise the issue in the prior

proceedings. . . . This approach requires a fact-intensive,

case-by-case analysis. Using such an analysis, we conclude there was no waiver and it was error not to consider

the proffer as to the weight issue on remand. . . . Our

waiver doctrine does not require that a defendant, in

order to preserve his rights on appeal, raise every objection that might have been relevant if the district court had

not already rejected the defendant’s arguments.”

U.S. v. Ticchiarelli, 171 F.3d 24, 30–33 (1st Cir. 1999).

See Outline at I.C.

Adjustments

Role in the Offense

Third and Eleventh Circuits differ on scope of conduct

that may be considered in mitigating role determination for drug courier. The Third Circuit defendant transported to the United States 800 grams of heroin, which

had been given to him by two men in Colombia. He was

arrested at the airport on arrival, and he unsuccessfully

tried to call his U.S. contact in an attempt to cooperate

with customs officials. The government agreed with defendant that he was entitled to a reduction under

§3B1.2(b), but the district court denied it, stating that “I

find that his role is essential for the commission of the

crime and that he is not a minor participant.” The appellate court remanded for a clearer statement of the basis of

the district court’s ruling, and set out standards for considering a §3B1.2 reduction for drug couriers.

The court first noted that, because this determination

“is highly dependent on the facts of particular cases, . . . a

mechanical application of the guidelines by which a court

always denies minor role adjustments to couriers because they are ‘essential,’ regardless of the particular facts

or circumstances, would be inconsistent with this guidance.” And because §3B1.2 “is ultimately concerned with

the defendant’s relative culpability, a district court should

consider the defendant’s conduct . . . in relation to the

other participants,” examining such factors as “the

defendant’s relationship to the other participants, the

importance of the defendant’s actions to the success of

the venture, and the defendant’s awareness of the nature

and scope of the criminal enterprise. . . . [T]he other

participants must be criminally responsible[, but] need

not have been charged with any offense.”

In the same vein, the adjustment “must be made on the

basis of all relevant conduct—namely, all conduct within

the scope of §1B1.3—and not simply on the basis of the

elements and acts referenced in the count of conviction.”

Thus, a courier who is not charged with conspiracy can

still play a minor role in the charged importation if other

participants were involved in the relevant conduct. “It is

the nature of the relevant conduct shown, and all the

participants’ roles in it, that is determinative—not the

nature or name of the offense charged as such.”

The court also rejected the argument that §3B1.2

should not be applied to a defendant who is charged with

only the amount of drugs that was actually carried, as in

this case. “The scope of the relevant conduct that a court

should consider . . . is broader than merely the conduct

required by the elements of the offense of conviction.

Even if a courier is charged with importing only the quantity of drugs that he actually carried, there may still be

other participants involved in the conduct relevant to that

small amount or that one transaction. . . . Accordingly,

although the amount of drugs with which the defendant

is charged may be an important factor which weighs

heavily in the court’s view of the defendant’s relative

culpability, it does not necessarily preclude a minor role

adjustment with one exception,” that being where a defendant “received a lower offense level by virtue of being

convicted of an offense significantly less serious than

warranted by his actual criminal conduct.” See USSG

§3B1.2, comment. (n.4).

“A courier’s role can vary widely, and we reject any per

se rule regarding the applicability of the minor role adjustment. Rather, there is no limit to the extent of a court’s

factual inquiry and assessment of the defendant’s relative

culpability.”

U.S. v. Isaza-Zapata, 148 F.3d 236, 238–42 (3d Cir. 1998).

The Eleventh Circuit, sitting en banc, reversed a panel

opinion that the Third Circuit had cited as support for its

holding that the minor participant reduction is not automatically excluded when defendant is only charged with

the amount of drugs actually carried. In that case, defendant was arrested upon arrival in the United States with

512.4 grams of heroin she had ingested. The district court

denied a §3B1.2 reduction, but the original appellate

panel remanded, holding that the district court had not

undertaken a broad enough inquiry into the relevant

conduct surrounding the importation scheme—including the roles of other participants who supplied the

heroin, who would receive it, and who would distribute it.

The panel was also concerned that the district court’s

stated belief that couriers play an “essential role” would
Guideline Sentencing Update, vol. 10, no. 6, September 30, 1999 • a publication of the Federal Judicial Center 3

supersede the required fact-specific inquiry and deny the

reduction for any courier. U.S. v. De Varon, 136 F.3d 740,

744–46 (11th Cir. 1998).

The en banc court reversed the panel and affirmed the

district court’s decision. While the court agreed that the

inquiry should focus on defendant’s role “as compared to

that of other participants in her relevant conduct,” it

emphasized that the relevant conduct is limited to that

“attributed to the defendant in calculating her base offense level. . . . Otherwise, a defendant could argue that

her relevant conduct was narrow for the purpose of calculating base offense level, but was broad for determining

her role in the offense.” While citing several other circuits

that agree, the court cited Isaza-Zapata as “holding that a

court must examine all relevant conduct even if defendant is sentenced only for his own acts.”

The court held, therefore, that “when a drug courier’s

relevant conduct is limited to her own act of importation,

a district court may legitimately conclude that the courier

played an important or essential role in the importation

of those drugs. . . . We further note . . . that the amount of

drugs imported is a material consideration in assessing a

defendant’s role in her relevant conduct. . . . Indeed,

because the amount of drugs in a courier’s possession—

whether very large or very small—may be the best indication of the magnitude of the courier’s participation in the

criminal enterprise, we do not foreclose the possibility

that amount of drugs may be dispositive—in and of itself—in the extreme case.”

As for comparison to other participants, “the district

court may consider only those participants who were

involved in the relevant conduct attributed to the defendant. The conduct of participants in any larger criminal

conspiracy is irrelevant.” The court specifically rejected

“defendant’s alternate suggestion that the district court

was obligated to investigate and make detailed findings

concerning the relative roles of all who may participate in

a far-flung narcotics enterprise—that may stretch from

the grower, to the manufacturer in a foreign land, through

the distribution mechanism, to the final street-level distributor in the United States.”

Following the foregoing analysis, “[t]he record amply

supports the district court’s finding that De Varon did not

play a minor role in her offense of heroin importation.”

Defendant “played an important or essential role in her

relevant conduct of importing 512.4 grams of 85 percent

pure heroin from Colombia into the United States . . .

[and] knowingly and intentionally entered the United

States with the entire amount of drugs in her possession.”

Although someone else supplied the heroin, “it was

within the trial court’s discretion to conclude that her

participation was central to the importation scheme.”

U.S. v. De Varon, 175 F.3d 930, 939–47 (11th Cir. 1999)

(en banc) (one judge dissented).

See Outline at III.B.1, 2.d, and 5.

Departures

Substantial Assistance

Three circuits hold that Koon did not give district courts

authority to depart for substantial assistance under

§5K2.0 in absence of government motion. The Third

Circuit, as most circuits, had already ruled that “district

courts have no authority, in the absence of either a government motion or extraordinary circumstances, to depart downward on the basis of substantial assistance

under either §5K1.1 or §5K2.0.” However, “we must address this question anew because of the sea change in the

departure area effected by Koon” v. U.S., 518 U.S. 81

(1996).

The question in this case is “whether §5K2.0, as interpreted in Koon, gives a district court any additional authority to consider a downward departure for substantial

assistance.” Defendant argued that, because “the Guidelines do not mention substantial assistance without a

government motion as a sentencing factor,” it is an “unmentioned” factor under Koon and may provide a basis

for departure. The court, however, concluded that “the

existence vel non of a government motion concerning

assistance . . . is not a sentencing factor. . . . The requirement of a government motion under §5K1.1 is a condition

limiting a court’s authority to grant a defendant a substantial assistance departure.”

What defendant is actually “proposing the district

court should take into account under §5K2.0 is his alleged

substantial assistance to the government. But this proposed factor has already been taken into account in the

Sentencing Guidelines.” Under Koon, then, “a district

court can consider substantial assistance outside of the

explicit terms of §5K1.1 only if a case falls outside of the

‘heartland’ of cases implicating that provision.”

“We believe that departures are permissible under

§5K2.0 for substantial assistance without a government

motion only in those cases in which a departure is already

permitted in the absence of a government motion under

§5K1.1. The heartland of §5K1.1 is where the defendant

substantially assists the government. We think that the

only cases falling outside this heartland are those in

which the government improperly—either because it has

an unconstitutional motive or because it has acted in bad

faith with regard to a plea agreement—refuses to offer a

motion, and possibly those in which the assistance is not

of the sort covered by §5K1.1.”

“We therefore conclude that the district courts have no

more authority to grant substantial assistance departures

under §5K2.0 in the absence of a government motion

than they do under §5K1.1.” The court also concluded

that “the substantial practical and policy problems that

would arise if we adopted the approach proposed by”

defendant supported its holding.

U.S. v. Abuhouran, 161 F.3d 206, 210–17 (3d Cir. 1998).
Guideline Sentencing Update, vol. 10, no. 6, Sept. 30, 1999

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Washington, DC 20002-8003

The D.C. and Fifth Circuits joined the Third, but only

after replacing earlier panel opinions to the contrary. A

D.C. Circuit panel originally remanded a district court’s

decision that it had no authority to grant defendant’s

request for a §5K2.0 departure based on his substantial

assistance when the government did not file a §5K1.1

motion. The panel concluded that a substantial assistance departure without a government motion is an unmentioned factor under Koon that could provide a proper

basis for departure. In re Sealed Case, 149 F.3d 1198, 1203–

04 (D.C. Cir. 1998).

The en banc court vacated the panel opinion and

unanimously held that there is no authority to depart

under §5K2.0 in this situation. The court agreed with the

Third Circuit that substantial assistance with or without a

government motion is not “the relevant departure factor

here,” but rather the substantial assistance itself is. “Once

the factor actually at issue here is identified, its place in

the Koon taxonomy becomes clear. Substantial assistance

to authorities cannot be an unmentioned factor since it is

specifically mentioned in section 5K1.1.” And “it is clear

that by authorizing departures with government motions, the Commission did intend to preclude departures

without motions.”

The court also rejected defendant’s claim that §5K2.0

provides an independent source of departure authority.

“[I]f we read section 5K1.1 as saying that a substantial

assistance departure is permissible only upon motion of

the government, then we cannot read section 5K2.0 as

countermanding that injunction.” As in Abuhouran, the

court concluded that departure may only occur in the

absence of a government motion if the refusal to file was

based on an unconstitutional motive, was not rationally

related to any legitimate government end, or was attributable to bad faith or other breach of a plea agreement.

In re Sealed Case, 181 F.3d 128, 131–42 (D.C. Cir. 1999)

(en banc).

The Fifth Circuit also originally considered substantial

assistance without a government motion to be an unmentioned factor under the Koon analysis and affirmed a

district court’s departure under §5K2.0 despite the lack of

a §5K1.1 motion. U.S. v. Solis, 161 F.3d 281, 284 (5th Cir.

1998). Upon the government’s motion for reconsideration, however, the court vacated its opinion and remanded for resentencing.

“We are persuaded by the Third Circuit’s reasoning in

Abuhouran and, therefore, hold that §5K2.0 does not

afford district courts any additional authority to consider

substantial assistance departures without a Government

motion. Because the Government did not bargain away

its discretion to refuse to offer a §5K1.1 motion and Solis

has not alleged that the Government refused to offer the

motion for unconstitutional reasons, the district court

erred by granting a five-level downward departure.”

U.S. v. Solis, 169 F.3d 224, 227 (5th Cir. 1999).

See Outline at VI.F.1.a and b.
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. 10, no. 7, Mar. 22, 2000

Determining the Sentence

Supervised Release

Supreme Court resolves circuit split, holds that supervised release term should not be shortened to give

credit for excess time in prison. While in prison, defendant had two of his multiple felony convictions overturned. As a result, his revised sentence was shorter than

the time he had already spent in prison. He was released

and moved to have his term of supervised release shortened by the excess period of imprisonment. The district

court denied the motion, but the Sixth Circuit reversed,

holding that “the date of his ‘release’ for purposes of

§3624(a) was the date he was entitled to be released rather

than the day he walked out the prison door,” and the extra

time defendant served in prison should be credited toward his supervised release term. Johnson v. U.S., 154 F.3d

569, 571 (6th Cir. 1998). Accord U.S. v. Blake, 88 F.3d 824,

825 (9th Cir. 1996) [9 GSU #1]. Contra U.S. v. Jeanes, 150

F.3d 483, 485 (5th Cir. 1998); U.S. v. Joseph, 109 F.3d 34, 36–

39 (1st Cir. 1997) [9 GSU #7]; U.S. v. Douglas, 88 F.3d 533,

534 (8th 1996) [9 GSU #1].

The Supreme Court unanimously reversed. “On the

issue presented for review—whether a term of supervised

release begins on the date of actual release from incarceration or on an earlier date due to a mistaken interpretation of federal law—the language of 18 U.S.C. § 3624(e)

controls.” That statute “directs that a supervised release

term does not commence until an individual ‘is released

from imprisonment.’ . . . [T]he ordinary, commonsense

meaning of release is to be freed from confinement. To say

respondent was released while still imprisoned diminishes the concept the word intends to convey.”

“The phrase ‘on the day the person is released,’ in the

second sentence of § 3624(e), suggests a strict temporal

interpretation, not some fictitious or constructive earlier

time. The statute does not say ‘on the day the person is

released or on the earlier day when he should have been

released.’ Indeed, the third sentence admonishes that

‘supervised release does not run during any period in

which the person is imprisoned.’”

The Court found further support in § 3583(a), “which

authorizes the imposition of ‘a term of supervised release

after imprisonment.’ This provision, too, is inconsistent

with respondent’s contention that confinement and supervised release can run at the same time. The statute’s

direction is clear and precise. Release takes place on the

day the prisoner in fact is freed from confinement.”

The Court noted that defendant does have other avenues of relief. “The trial court, as it sees fit, may modify

an individual’s conditions of supervised release. 18 U.S.C.

§ 3583(e)(2). Furthermore, the court may terminate an

individual’s supervised release obligations ‘at any time

after the expiration of one year . . . if it is satisfied that such

action is warranted by the conduct of the defendant

released and the interest of justice.’ § 3583(e)(1). Respondent may invoke § 3583(e)(2) in pursuit of relief; and,

having completed one year of supervised release, he may

also seek relief under § 3583(e)(1).”

U.S. v. Johnson, 120 S. Ct. 1114, 1117–19 (2000).

See Outline at V.C.1

Safety Valve

Several circuits examine when “not later than the time

of the sentencing hearing” is, along with the effect of

previously lying or withholding information. Can a defendant provide an untruthful or incomplete version of

his or her offense conduct until just before the sentencing

hearing, or even during it, and still qualify for the safety

valve reduction under § 5C1.2 and 18 U.S.C. § 3553(f)?

The Seventh Circuit reversed a reduction to a defendant

who continually lied or withheld information in a presentence interview and at the sentencing hearing. He did not

“truthfully provide” all information until three continuances of the sentencing hearing had been granted to

allow him to “come clean” after being confronted by the

government with evidence that he had lied.

Although the phrase “is somewhat ambiguous,” the

appellate court concluded that “not later than the time of

the sentencing hearing” in § 5C1.2(5) should be construed to mean “by the time of the commencement of the

sentencing hearing,” not during the hearing. “Because

the statute requires that the defendant truthfully provide

all information ‘to the Government’ rather than to the

sentencing court, an interpretation of the safety valve

which would allow a defendant to deliberately mislead

the government during a presentencing interview and

wait until the middle of the sentencing hearing to provide

a truthful version to the court runs contrary to the plain

language of the statute” and would be inconsistent with

its purpose. The court also noted that allowing a defendant to drag out his story can impede the government’s

efforts to investigate the involvement of others.

U.S. v. Marin, 144 F.3d 1085, 1091–95 (7th Cir. 1998). See

also U.S. v. Long, 77 F.3d 1060, 1062–63 (8th Cir. 1996)

(defendant who lied in presentence interview and only

admitted truth under cross-examination during sentencing hearing did not satisfy §3553(f)(5)).
2 Guideline Sentencing Update, vol. 10, no. 7, March 22, 2000 • a publication of the Federal Judicial Center

The Second Circuit distinguished Marin in a case that

also involved repeated instances of lying or withholding

information. Over the course of almost four years, defendant had been given several opportunities to provide

information at proffer sessions with the government, but

he either lied or refused to attend. Eventually, defendant

twice requested new proffer sessions with the government in order to qualify for the safety valve. The government refused, and defendant ultimately provided a letter

to the probation department one month before his sentencing hearing, and an affidavit one day before the hearing, that he claimed contained complete and truthful

information about his offense. Without deciding whether

the information was indeed truthful, the district court

refused to apply the safety valve, holding that a defendant

who deliberately provides false information and refuses

other chances should not be given a final opportunity to

make up for previous lies and omissions.

The appellate court remanded to allow defendant to

show that his last proffers were complete and truthful.

“[W]e find that appellant complied with subsection five

by coming forward ‘not later than the time of the sentencing hearing.’ 18 U.S.C. § 3553(f)(5). The plain words of the

statute provide only one deadline for compliance, and

appellant met that deadline. Nothing in the statute suggests that a defendant is automatically disqualified if he

or she previously lied or withheld information. Indeed,

the text provides no basis for distinguishing among defendants who make full disclosure immediately upon

contact with the government, defendants who disclose

piecemeal as the proceedings unfold, and defendants

who wait for the statutory deadline by disclosing ‘not later

than’ sentencing. Similarly, the text provides no basis for

distinguishing between defendants who provide the authorities only with truthful information and those who

provide false information before finally telling the truth.”

“We agree with Marin that the deadline for compliance

should be set at the time of the commencement of the

sentencing hearing. In essence, however, the government

urges us to rely on the policy concerns expressed in Marin

to move the deadline earlier in time. According to the

government, the defendant’s good faith cooperation is to

be evaluated, as a whole, from the start of the criminal

proceeding. We decline to stretch the meaning of

§ 3553(f)(5) in such a manner. . . . [W]e are convinced that

the concerns identified in Marin, and now pressed by the

government, are largely theoretical and do not present a

significant risk to the integrity of the safety valve so long as

the deadline set by Marin is enforced.” The court noted

that defendant’s behavior “prior to allegedly telling the

complete truth will be useful in evaluating whether [his]

final proffers were complete and truthful.”

U.S. v. Schreiber, 191 F.3d 103, 106–09 (2d Cir. 1999). See

also U.S. v. Gama-Bastidas, 142 F.3d 1233, 1243 (10th Cir.

1998) (remanded: because a defendant “may present information relating to subsection 5 to the government

before the sentencing hearing, . . . Defendant’s attempt to

furnish information to the court and the government in

the Judge’s chambers prior to the sentencing hearing is

not ‘too late’”).

The Eleventh Circuit similarly held that it was error to

deny consideration of a safety valve reduction for a defendant who waited until the day of his sentencing hearing,

a year after his arrest, to finally disclose the source of his

cocaine. The court rejected the government’s attempt to

require defendants “to disclose all information in good

faith,” holding that “[t]he plain language of 18 U.S.C.

§ 3553(f) and U.S.S.G. § 5C1.2 provides only one deadline

for compliance, ‘not later than the time of the sentencing

hearing.’ . . . It is undisputed that Brownlee met this

deadline. Nothing in the statute suggests that a defendant

who previously lied or withheld information from the

government is automatically disqualified from safetyvalve relief. . . . We follow those circuits who have held that

lies and omissions do not, as a matter of law, disqualify a

defendant from safety-valve relief so long as the defendant makes a complete and truthful proffer not later than

the commencement of the sentencing hearing.”

The court agreed with the Second Circuit, however, in

warning defendant that “the evidence of his lies becomes

‘part of the total mix of evidence for the district court to

consider in evaluating the completeness and truthfulness

of the defendant’s proffer.’”

U.S. v. Brownlee, No. 98-2106 (11th Cir. Feb. 29, 2000)

(Strom, Sr. Dist. J.).

The Eighth Circuit affirmed a reduction for a defendant

who “repeatedly lied to government interviewers about

aspects of the offense and did not truthfully cooperate

until just before her sentencing hearing.” The court rejected the government’s argument that “we should construe § 3553(f)(5) to prohibit sentencing courts from applying the safety valve to defendants who wait until the

last minute to cooperate fully. The government also suggests that § 3553(f)(5) must be denied to those whose

tardy or grudging cooperation burdens the government

with a need for additional investigation. These factors are

expressly relevant to other sentencing determinations,

such as the third level of reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1(b), and substantial

assistance motions under U.S.S.G. § 5K1.1. But they are

not a precondition to safety valve relief.”

The court distinguished its decision in Long, supra,

which had affirmed a denial of the safety valve reduction

for a defendant who only admitted the full truth during

cross-examination at her sentencing hearing. “In contrast, Tournier’s full and truthful cooperation, though

grudging and fitful, was completed before the sentencing

hearing. The two cases may present only a difference in

degree, not in kind, but subtle distinctions are important
Guideline Sentencing Update, vol. 10, no. 7, March 22, 2000 • a publication of the Federal Judicial Center 3

in fact finding, and they are for the sentencing court, not

this court, to draw.”

U.S. v. Tournier, 171 F.3d 645, 647–48 (8th Cir. 1999).

What about the opposite situation, where a defendant

is truthful at first but then changes his or her version of

events? The Ninth Circuit affirmed a safety valve reduction for a defendant who provided full information concerning his offense shortly after his arrest, but changed

his story at his trial and sentencing and denied that he

knew he was carrying drugs. Defendant’s “recantation

does not diminish the information he earlier provided.”

U.S. v. Shrestha, 86 F.3d 935, 939–40 (9th Cir. 1996) [8 GSU

#9]. The court later distinguished Shrestha and affirmed

the denial of a reduction for a defendant who seemed to

tell the truth at first, but then changed his story about the

involvement of other individuals in the offense. The court

found it significant that “in Shrestha the defendant did

not recant as to the information he had provided about

others involved in the transaction,” and noted that

defendant’s “recantation casts doubt on his truthfulness.”

U.S. v. Lopez, 163 F.3d 1142, 1143–44 (9th Cir. 1998).

In a similar case the Tenth Circuit affirmed a safety

valve denial for a defendant who implicated another

when he was first interviewed by a DEA agent, then later

denied the other individual was involved and disputed

the DEA agent’s report on that issue. The appellate court

distinguished Shrestha as “involv[ing] the need to apply

the safety valve statute so as not to interfere with a

defendant’s right to testify at trial, a factor not involved in

this case,” and noted that Lopez affirmed a denial

“[o]utside the trial context.”

“Leaving aside the trial testimony question posed by

Shrestha,” the court held that a defendant who “initially

tells the government the whole truth but later recants . . .

is no more entitled to safety valve relief than the defendant who never discloses anything about the crime and

its participants. In this type of case, if the sentencing court

finds that the initial recanted story was truthful, or that in

recanting the defendant has been untruthful, the court’s

ultimate finding that defendant has not ‘truthfully provided to the Government all information and evidence

the defendant has concerning the offense’ is not clearly

erroneous.”

U.S. v. Morones, 181 F.3d 888, 890–91 (8th Cir. 1999).

See Outline at V.F.2.f

Eleventh Circuit holds that coconspirator’s possession of weapon does not necessarily preclude application of safety valve. Defendant received an enhancement

under § 2D1.1(b)(1) because a coconspirator owned a

shotgun found in one of the marijuana grow houses defendant had worked in. The district court held that defendant therefore could not benefit from the safety valve

provision because of § 5C1.2(2), which states that a defendant cannot “possess a firearm . . . (or induce another

participant to do so) in connection with the offense.” The

appellate court reversed, however, based on the language

of § 5C1.2(2) and Application Note 4.

“Two reasons compel our conclusion that ‘possession’

of a firearm does not include reasonably foreseeable possession of a firearm by co-conspirators. First, the commentary to the pertinent section adds that ‘[c]onsistent

with §1B1.3 (Relevant Conduct), the term “defendant,” as

used in subdivision (2), limits the accountability of the

defendant to his own conduct and conduct that he aided

or abetted, counseled, commanded, induced, procured,

or willfully caused.’ U.S.S.G. § 5C1.2, comment. (n.4). This

commentary, which tracks the language of section

1B1.3(a)(1)(A), implicitly rejects the language of section

1B1.3(a)(1)(B) which holds defendants responsible for ‘all

reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.’ It

is this ‘reasonably foreseeable’ language that allows a

defendant to be held responsible for a firearm under

section 2D1.1(b)(1) even when he physically possessed

no firearm.”

“Second, the plain language of section 5C1.2 requires

that the defendant ‘possess a firearm . . . or induce another

participant to do so. . . .’ If ‘possession’ in section 5C1.2

encompassed constructive possession by a co-defendant, then ‘induce another participant to [possess]’

would be unnecessary. Mere possession by a co-defendant, therefore, while sufficient to trigger section

2D1.1(b)(1), is insufficient to knock a defendant out of the

safety-valve protections of section 5C1.2.”

U.S. v. Clavijo, 165 F.3d 1341, 1343 (11th Cir. 1999) (per

curiam). Accord U.S. v. Wilson, 114 F.3d 429, 432 (4th Cir.

1997); In re Sealed Case, 105 F.3d 1460, 1462–63 (D.C. Cir.

1997) [9 GSU #3]; U.S. v. Wilson, 105 F.3d 219, 222 (5th Cir.

1997) [9 GSU #5]. Contra U.S. v. Hallum, 103 F.3d 87, 89–90

(10th Cir. 1996) [9 GSU #3].

See Outline at V.F.1.c

Adjustments

Vulnerable Victim

Several circuits hold that repeated calls to previously

defrauded victims evidences targeting of “vulnerable”

victims. In some telemarketing fraud schemes, victims

who send money to the telemarketers are retargeted for

further fraud, a process sometimes called “reloading.”

The Ninth Circuit agreed with the Seventh that because

individuals who are defrauded again in the “reloading”

process have shown themselves to be “particularly susceptible” to the fraud, defendants merited a § 3A1.1 enhancement. “While recognizing that a person involved in

a scheme to defraud will usually direct his activities toward those persons most likely to fall victim to the scheme

and that not all such defendants will deserve the vulner-
Guideline Sentencing Update, vol. 10, no. 7, Mar. 22, 2000

Federal Judicial Center

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One Columbus Circle, N.E.

Washington, DC 20002-8003

able victim sentence enhancement, . . . we agree with the

Seventh Circuit’s conclusion in” U.S. v. Jackson, 95 F.3d 500

(7th Cir. 1996).

“The ‘reloading’ scheme at issue here seeks out people

who have a track record of falling for fraudulent schemes.

As the Seventh Circuit stated, ‘[w]hether these persons

are described as gullible, overly trusting, or just naive, . . .

their readiness to fall for the telemarketing rip-off, not

once but twice . . . demonstrated that their personalities

made them vulnerable in a way and to a degree not typical

of the general population.’ Jackson, 95 F.3d at 508 (emphasis in original). Because the victims of this scheme were

particularly susceptible, and it is uncontested that [defendant] knew or should have known that the persons

‘reloaded’ had previously fallen for the scheme, we find

that the district court did not clearly err in applying the

vulnerable victim enhancement in this case.”

U.S. v. Randall, 162 F.3d 557, 560 (9th Cir. 1998). See also

Jackson, 95 F.3d at 508 (emphasizing that not “all of the

victims of the defendants’ scheme were unusually vulnerable, just those who were successfully reloaded”).

The Sixth Circuit reached the same result for a defendant who purchased “leads lists” of people who were

“identified as willing to send in money in the hope of

winning a valuable prize. These people were predisposed

to the very scam [defendant] was running; indeed, that is

why he bought the ‘leads lists.’ . . . The vulnerability of

these people is also evident from the ‘reloading’ process.

Through the reloading process, those known to have already succumbed to the [fraud] scheme were contacted

again and again, thereby further honing the original list.

. . . The susceptibility of the victims here was a known

quantity from the start, only to be refined into a verified

‘suckers’ list through the reloading process.”

U.S. v. Brawner, 173 F.3d 966, 973 (6th Cir. 1999). See also

U.S. v. Robinson, 152 F.3d 507, 511–12 (6th Cir. 1998)

(affirmed: “when the defendant targeted a person or persons who had been previously victimized four or five

times, this amounted to targeting an individual who can

be deemed ‘particularly susceptible’ under Guideline

§ 3A1.1”).

The Second Circuit affirmed the enhancement in a

scheme that repeatedly targeted elderly victims. “Although being elderly is alone insufficient to render an

individual unusually vulnerable, . . . many of the leads

given to the sales staff were the names and phone numbers of individuals who previously had done business

with a telemarketing company, indicating their susceptibility to criminal conduct that utilizes telemarketing

methods. Finally, an important part of the scheme was the

reloading process, whereby individuals who already had

been victimized by the scheme were contacted up to two

more times and defrauded into sending more money to

[defendants].”

U.S. v. O’Neil, 118 F.3d 65, 75–76 (2d Cir. 1997).

See Outline at III.A.1.a and d
Guideline Sentencing Update

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

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

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

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 10, no. 8 Aug. 15, 2000

Offense Conduct

Drug Quantity

Following recent Supreme Court cases, Eighth Circuit

rules that courts may determine facts that increase

defendant’s sentence, or set mandatory minimums,

within the statutory range that is authorized by the

jury’s verdict; however, the jury must find any facts that

increase the sentence beyond that range. In Apprendi v.

New Jersey, 120 S. Ct. 2348, 2262–63 (2000), the Supreme

Court concluded that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum [for the offense of conviction] must be submitted to a jury, and

proved beyond a reasonable doubt.” The Court reversed

a New Jersey defendant’s twelve-year sentence because

the sentencing court, not the jury, found that the state’s

“hate crime” law should be applied to increase

defendant’s sentence for possession of a firearm for an

unlawful purpose, an offense with a maximum prison

term of ten years.

The Apprendi Court also stated that “we endorse the

statement of the rule set forth in the concurring opinions

in [Jones v. U.S., 119 S. Ct. 1215, 1228–29 (1999)]: ‘[I]t is

unconstitutional for a legislature to remove from the jury

the assessment of facts that increase the prescribed range

of penalties to which a criminal defendant is exposed. It

is equally clear that such facts must be established by

proof beyond a reasonable doubt.’” Id. at 2363. Jones held

that the federal carjacking statute, 18 U.S.C. § 2119, established three separate offenses, with different maximum

penalties, that must be charged and found by a jury

beyond a reasonable doubt. It reached that decision in

part to avoid the “serious constitutional questions” that

would arise by treating the statute as one offense with

different sentencing enhancements, found by the court

rather than a jury, that increased the maximum statutory

penalty. 119 S. Ct. at 1228.

The Eighth Circuit applied Apprendi and Jones in the

case of a defendant who was convicted of conspiring to

distribute methamphetamine, 21 U.S.C. § 846, and sentenced under § 841(b), which imposes a range of maximum and minimum sentences depending on drug quantity and prior criminal history. Neither the indictment nor

the jury verdict specified the amount of methamphetamine involved, but the sentencing court determined

defendant was responsible for “more than 3 but under 15

kilograms.” After adjustments, defendant’s guideline

range was 235–293 months. However, in light of the

court’s quantity finding and defendant’s prior felony drug

conviction, he was subject to a mandatory minimum

sentence of twenty years and a maximum of life under

§ 841(b)(1)(A). The court sentenced him to twenty years,

plus a mandatory ten-year term of supervised release.

The appellate court noted that the district court followed the usual sentencing procedure of making the drug

quantity determination, a practice that it, and several

other circuits, had reaffirmed after the Jones decision last

year. See, e.g., U.S. v. Jackson, 207 F.3d 910, 920–21 (7th Cir.

2000) (citing cases). Jones stated as a principle, but not a

holding, “that ‘any fact (other than prior conviction) that

increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.’ Jones, 526 U.S. at 243 n.6.”

The Eighth Circuit now concluded that the holding in

Apprendi, quoted above, “made it clear that the principle

discussed in Jones is a rule of constitutional law.”

After Apprendi, “when a statutory ‘sentencing factor’

increases the maximum sentence beyond the sentencing

range otherwise allowed given the jury’s verdict, then the

sentencing factor has become the ‘“tail which wags the

dog of the substantive offense.”’ . . . A fact, other than prior

conviction, that increases the maximum punishment for

an offense is the ‘functional equivalent of an element of a

greater offense than the one covered by the jury’s verdict.’

. . . Thus, if the government wishes to seek penalties in

excess of those applicable by virtue of the elements of the

offense alone, then the government must charge the facts

giving rise to the increased sentence in the indictment,

and must prove those facts to the jury beyond a reasonable doubt. . . . To the extent that [our precedents] are

inconsistent with that principle, Apprendi requires that

we abandon them.”

Applying the new approach to the case at hand, the

appellate court affirmed the sentence. Because defendant had a prior felony drug conviction, he faced up to

thirty years’ imprisonment and “at least” six years of

supervised release under § 841(b)(1)(C). His sentence

was therefore “within the statutory range allowable for

conspiracy to distribute methamphetamine regardless of

drug quantity, considering his prior drug conviction.”

The court also rejected defendant’s claim that it was

improper for the sentencing court, rather than the jury, to

make the drug quantity finding that, combined with his

prior conviction, subjected him to the twenty-year mandatory minimum sentence under § 841(b)(1)(A). “The

rule of Apprendi only applies where the non-jury factual

determination increases the maximum sentence . . . . If

the non-jury factual determination only narrows the sentencing judge’s discretion within the range already autho-
2 Guideline Sentencing Update, vol. 10, no. 8, August 15, 2000 • a publication of the Federal Judicial Center

rized by the offense of conviction, such as with the mandatory minimums applied to Aguayo-Delgado, then the

governing constitutional standard is provided by

McMillan [v. Pennsylvania, 477 U.S. 79 (1986)]. As we have

said, McMillan allows the legislature to raise the minimum penalty associated with a crime based on non-jury

factual findings, as long as the penalty is within the range

specified for the crime for which the defendant was convicted by the jury. Apprendi expressly states that

McMillan is still good law.”

U.S. v. Aguayo-Delgado, No. 99-4098 (8th Cir. July 18,

2000) (Bowman, J.). See also U.S. v. Sheppard, No. 00-1218

(8th Cir. July 18, 2000) (affirming twenty-year sentence

based on more than 500 grams of methamphetamine

despite refusal to submit drug quantity to jury as element

of offense—“any error was harmless in this case because

the indictment charged Sheppard with conspiring to distribute more than 500 grams, and the jury made a special

finding of that quantity”). Cf. U.S. v. Sustache-Rivera, No.

99-2128 (1st Cir. July 25, 2000) (affirming dismissal of

request to file second § 2255 petition in part because

Apprendi has not been made retroactive to cases on collateral review). Note that at least one case has been remanded by the Supreme Court for reconsideration “in

light of Apprendi.” See U.S. v. Jones, 194 F.3d 1178, 1183–86

(10th Cir. 1999) (finding “Supreme Court’s recent decision

in Jones . . . does not require us to alter our interpretation

of § 841(b)(1)” and rejecting defendant’s claim that he

could not be sentenced to thirty years on district court’s

finding of 165.5 grams of cocaine base when the indictment charged defendant with violating § 841(b)(1)(C),

which limits a sentence to twenty years), remanded for

reconsideration, 120 S. Ct. 2739 (2000).

See Outline at II.A.3.a and c

Violation of Supervised Release

Revocation

Supreme Court holds that 18 U.S.C. § 3583(h) cannot be

applied retroactively, but earlier statute authorized reimposition of supervised release after revocation. Originally, § 3583 did not specify whether a term of supervised

release could follow a prison sentence imposed after revocation of the original term of release. Section 3583(e)(3)

authorized a court to “revoke a term of supervised release,

and require the person to serve in prison all or part of the

term of supervised release.” The circuits split on whether

§ 3583(e) allowed reimposition of supervised release

once it had been “revoked,” with most holding it did not.

See Outline at VII.B.1 for cases. Effective Sept. 13, 1994,

§ 3583(e) was amended and a new subsection (h) was

enacted that specifically authorized reimposition of supervised release after revocation.

The circuits then split on whether § 3583(h) could be

applied retroactively. See 10 GSU #1 for cases. In the

instant case, defendant committed his original offense

before, and violated his conditions of supervised release

after, enactment of § 3583(h). The district court revoked

release and imposed a prison term with a new term of

release to follow. The Sixth Circuit held that § 3583(e) did

not authorize reimposition of supervised release after

revocation, but found that § 3583(h) could be applied

because revocation of supervised release was punishment for defendant’s violation of release. Thus, there was

no ex post facto violation and the court affirmed the new

term of supervised release. See U.S. v. Johnson, 181 F.3d

105 (6th Cir. 1999) (unpublished table opinion).

The Supreme Court affirmed, but for virtually the opposite reasons. First, violations of supervised release

should not be treated as separate offenses. Doing so raises

serious constitutional questions, and “[t]reating

postrevocation sanctions as part of the penalty for the

initial offense . . . (as most courts have done), avoids these

difficulties.” The Court held, however, that it did not have

to determine whether § 3583(h) could be applied retroactively because, absent clear congressional intent to do so,

“we do not give retroactive effect to statutes burdening

private interests. . . . [T]here being no contrary intent, our

longstanding presumption directs that § 3583(h) applies

only to cases in which that initial offense occurred after

the effective date of the amendment.”

“Given this conclusion, the case does not turn on

whether Johnson is worse off under § 3583(h) than he

previously was under § 3583(e)(3) . . . . The case turns,

instead, simply on whether § 3583(e)(3) permitted imposition of supervised release following a recommitment.”

The Court concluded that it did. By using the word “revoke” instead of “terminate” as it had in § 3583(e)(1),

Congress “left the door open to a reading of subsection (3)

that would not preclude further supervised release after

the initial revocation.” The Court reasoned that, although

it is an “unconventional” usage, “revoked” does not have

to mean nothing is left after revocation, and thus “a ‘revoked’ term of supervised release [may] retain vitality

after revocation.” This reading “also enjoys the virtue of

serving the evident congressional purpose,” to provide a

term of release as a transition from prison to society,

whether that prison term is for the original offense or

follows a revocation sentence.

Finally, supervised release is very comparable to the

former parole system, which “revoked” parole when conditions were violated. “[T]here seems never to have been

a question that a new term of parole could follow a prison

sentence imposed after revocation of an initial parole

term . . . , and it is fair to suppose that in the absence of any

textual bar ‘revocation’ of parole’s replacement, supervised release, was meant to leave open the possibility of

further supervised release, as well.”

Johnson v. U.S., 120 S. Ct. 1795, 1800–07 (2000).

See Outline at VII.B.1
Guideline Sentencing Update, vol. 10, no. 8, August 15, 2000 • a publication of the Federal Judicial Center 3

General Application Principles

Relevant Conduct

Circuits examine whether foreign criminal conduct can

be considered in setting offense level. The Seventh and

Tenth Circuits affirmed the use of relevant conduct that

occurred outside the United States to increase child pornography defendants’ offense levels. Both defendants

were convicted of possessing child pornography, covered

by USSG § 2G2.4, and the Seventh Circuit defendant was

also convicted of receiving child pornography, covered by

§ 2G2.2. Both sections contain a cross-reference to

§ 2G2.1, which sets a higher offense level for production of

child pornography. Each defendant had produced the

films they were convicted of possessing, one in Honduras

and the other in Thailand. The district courts used the

production as relevant conduct and sentenced defendants under the stricter guideline. The defendants appealed, claiming that § 2G2.1 should not be applied to

conduct that occurred wholly outside the U.S.

The Seventh Circuit held that defendant’s “exploitation

of minors in Honduras created the very pornography that

he received and possessed here in the United States. In a

literal sense, then, Dawn’s domestic offenses were the

direct result of his relevant conduct abroad; pragmatically speaking, they are inextricable from one another.”

The court rejected defendant’s arguments about improperly applying U.S. laws extraterritorially, noting that

defendant’s “creation of the films . . . is relevant because it

sheds light on the gravity of his conduct as a receiver and

possessor of the films,” the conduct for which he was

convicted and sentenced.

The Tenth Circuit reasoned that defendant “was held

criminally culpable only for his conduct (possession of

child pornography) that occurred within the territorial

jurisdiction of the United States.” The court added that

“18 U.S.C. § 3661 clearly states . . . that, ‘No limitation shall

be placed on the information concerning the background, character, and conduct of a person convicted of

an offense which a court of the United States may receive

and consider for the purpose of imposing an appropriate

sentence.’ (emphasis added) . . . . Thus, we hold it appropriate for courts, when applying the cross-reference to

§ 2G2.1 from § 2G2.4, to consider the relevant conduct

that occurs wholly outside of the United States.”

In a similar case involving possession of child pornography, the Third Circuit remanded because the district

court departed upward under § 4A1.3, instead of using

the cross-reference to § 2G2.1 in § 2G2.4, for a defendant

who shot the pornographic pictures while in the Philippines. The court first found that “§ 2G2.4 implements the

Protection of Children Against Sexual Exploitation Act,”

18 U.S.C. §§ 2251–2257, through which Congress intended to allow “punish[ment of] the wrongful conduct of

its citizens, even if some of that conduct occurs abroad,”

and that “extraterritorial application of the Act in this case

does not violate international law.”

The court went on to find that, although foreign criminal activity has been assigned “a rather limited role” under the Guidelines, the Sentencing Commission “included no ‘foreign conduct’ limitation in § 2G2,” and “we

believe the Commission must have been aware that child

pornography is often distributed internationally . . . . [I]f a

U.S. citizen, having been convicted under 18 U.S.C.

§ 2252 for possession of child pornography in the United

States, lured a child into sexually explicit activity in order

to produce the pornography, the cross reference applies

regardless of where the defendant’s conduct occurred.”

U.S. v. Wilkinson, 169 F.3d 1236, 1238–39 (10th Cir.

1999); U.S. v. Dawn, 129 F.3d 878, 882–85 (7th Cir. 1997);

U.S. v. Harvey, 2 F.3d 1318, 1326–30 (3d Cir. 1993).

These circuits disagreed with a Second Circuit case

that held that drug activity occurring completely on foreign soil should not have been included as relevant conduct. That defendant was part of a conspiracy that imported into New York one kilogram of heroin , which it was

unable to sell. Defendant then delivered three kilograms

of heroin from Pakistan to Cairo, and later sold 200 grams

of heroin in the Philippines. When he then went to New

York to attempt to sell the earlier kilogram of heroin, he

was arrested and convicted of importing heroin into the

U.S. The district judge included all of the heroin as relevant conduct in sentencing defendant.

While agreeing that the foreign drug deals were part of

the “same course of conduct” as the offense of conviction,

the Second Circuit reversed. The relevant conduct guideline “does not explicitly address the issue of foreign crimes

and activities. . . . However, the Guidelines elsewhere note

that foreign sentences may not be used in computing a

defendant’s criminal history category, but may be used

for upward departures from the otherwise applicable

range. See U.S.S.G. §§ 4A1.2(h), 4A1.3(a).”

“From these provisions, it follows that Congress, while

it has not remained entirely silent, has chosen to assign to

foreign crimes a rather limited role. We decline to find that

Congress intended to require that foreign crimes be considered when calculating base offense levels simply because Congress did assign foreign crimes a role in fixing

upward departures, while remaining silent on their role in

calculating base offense levels.” The court did indicate,

however, that foreign criminal activity could be used in

determining where to sentence within the otherwise applicable guideline range.

U.S. v. Azeem, 946 F.2d 13, 16–18 (2d Cir. 1991). See also

U.S. v. Chunza-Playas, 45 F.3d 51, 56–58 (2d Cir. 1995)

(following Azeem in rejecting use of alleged drug crimes

committed in Colombia to impose upward departure on

defendant convicted of possessing fraudulent alienregistration card: although foreign sentences or
Guideline Sentencing Update, vol. 10, no. 8, Aug. 15, 2000

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One Columbus Circle, N.E.

Washington, DC 20002-8003

convictions may be used for departure, “nowhere do the

guidelines specifically authorize the use of unrelated,

uncharged foreign criminal conduct, or even foreign

arrests, for a departure in the criminal history category”;

and, although § 4A1.3(e) allows departure for “prior

similar adult criminal conduct not resulting in a criminal

conviction,” which “might reasonably be extended to

include criminal conduct in a foreign country,”

defendant’s alleged prior acts were not “similar” to his

offense of conviction). But cf. U.S. v. Farouil, 124 F.3d 838,

844–45 (7th Cir. 1997) (distinguishing Azeem in affirming

use of heroin seized in Belgium from defendant’s

travelling companion—drugs were part of same scheme

to import heroin of which defendant was convicted, it was

“mere fortuity” that defendant was arrested in U.S. and

his companion in Belgium, and seized heroin was part of

crime “directed against the United States, unlike Azeem

. . . where the foreign crimes did not affect the United

States”).

The Fifth Circuit held that related foreign criminal

conduct that did not meet the Guidelines’ definition of

relevant conduct may be used for departure. Defendant

committed several crimes in Mexico, including murder

and assault on law officers, shortly before crossing into

the U.S., where he was arrested. He was convicted of

illegal importation of a firearm into the U.S. and illegal

entry. The district court used defendant’s Mexican offenses to increase his sentence under §2A2.1(a)(1) for the

murder and § 3A1.2(b) for the assaults.

Without ruling specifically on whether foreign offenses

may be considered as relevant conduct, the appellate

court held that defendant’s “foreign offenses do not literally fall within the definition of ‘relevant conduct’” under

either § 1B1.3(a)(1)(A) or (B). The court also held that the

cross-reference provision of § 2K2.1, which allows another guideline to be used if the firearm was possessed in

connection with another offense and led to the use of

§2A2.1, should not be read to include foreign offenses.

“Under the unusual circumstances of the present case,

however, the district court could well have departed to

impose similar sentences. . . . [T]his is an extraordinary

illegal entry and illegal firearm importation case that . . .

‘differs significantly from the “heartland” cases covered

by the guidelines.’” Because defendant’s acts “closely resembled and were analogous to” relevant conduct, “the

sentencing court would have been justified in departing

upward and applying U.S.S.G. §§ 2K2.1(c)(1)(A); 2X1.1;

and 2A2.1 by analogy,” and may consider doing so on

remand.

The court also found § 3A1.2(b) inapplicable because

defendant’s assault on the police officers occurred before

his offenses of conviction, not during the offenses or in

immediate flight therefrom as required by § 3A1.2. Any

analogy for departure purposes would also be improper.

U.S. v. Levario-Quiroz, 161 F.3d 903, 906–08 (5th Cir.

1998).

See Outline at I.A.4, Other issues