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. 11, no. 5 Sept. 3, 2002

Apprendi Issues

Supreme Court holds that failure to allege quantity in

indictment may be subject to plain error review. Following Apprendi v. New Jersey, 530 U.S. 466 (2000), courts

have held that drug quantity is an element of the offense

that must be charged in the indictment and proved beyond a reasonable doubt. Some circuits had held that

failure to charge quantity in the indictment cannot be

harmless error because it deprives a court of jurisdiction

to sentence a defendant to a term greater than the maximum that applies when no specific threshold drug quantity has been charged or proven, even if there are stipulations to or overwhelming evidence of a larger quantity.

See U.S. v. Cotton, 261 F.3d 397, 404–07 (4th Cir. 2001); U.S.

v. Gonzalez, 259 F.3d 355, 360 at n.3 (5th Cir. 2001). The

Supreme Court granted certiorari in Cotton to “address

whether the omission from a federal indictment of a fact

that enhances the statutory maximum sentence justifies

a court of appeals’ vacating the enhanced sentence, even

though the defendant did not object in the trial court.”

The Court unanimously reversed, holding that “defects in an indictment do not deprive a court of its power

to adjudicate a case.” The Court therefore “appl[ied] the

plain-error test of Federal Rule of Criminal Procedure

52(b) to respondents’ forfeited claim.” Although the indictment charged a conspiracy to distribute “a detectable

amount of cocaine and cocaine base,” respondents were

sentenced for more than fifty grams and received sentences above the twenty-year maximum applicable to the

lowest quantities under 21 U.S.C. § 841(b). Under

Apprendi, then, there was plain error that arguably affected respondents’ substantial rights.

However, “the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. . . . The evidence that the conspiracy involved at least

50 grams of cocaine base was ‘overwhelming’ and ‘essentially uncontroverted.’ . . . Surely the grand jury, having

found that the conspiracy existed, would have also found

that the conspiracy involved at least 50 grams of cocaine

base.” The Court added that, in light of the graduated

penalties in § 841(b), “[t]he real threat . . . to the ‘fairness,

integrity, and public reputation of judicial proceedings’

would be if respondents, despite the overwhelming and

uncontroverted evidence that they were involved in a vast

drug conspiracy, were to receive a sentence prescribed for

those committing less substantial drug offenses because

of an error that was never objected to at trial.”

U.S. v. Cotton, 122 S. Ct. 1781, 1783–87 (2002). See also

cases in 11 GSU #3 affirming sentences despite Apprendi

error where there was overwhelming or uncontroverted

evidence of drug quantity.

Mandatory Minimum Sentences

Supreme Court affirms mandatory minimum sentence

imposed by court under preponderance standard,

holds Apprendi did not overrule McMillan. Petitioner

was convicted of carrying a firearm during and in relation

to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). The

sentencing court found that petitioner “brandished” the

firearm and imposed the seven-year mandatory minimum sentence required by § 924(c)(1)(A)(ii). Petitioner

appealed, arguing that brandishing was an element of a

separate offense that had to be charged in the indictment

and proved at trial. He also argued that if brandishing is a

sentencing factor as a statutory matter, the statute is

unconstitutional in light of Apprendi. The Fourth Circuit

affirmed the sentence, holding that the statute makes

brandishing a sentencing factor that, under McMillan v.

Pennsylvania, 477 U.S. 79 (1986), may be used to impose

a mandatory minimum sentence. See U.S. v. Harris, 243

F.3d 806, 809–12 (4th Cir. 2001).

In a sharply divided opinion, the Supreme Court affirmed. Based on the statute’s structure, text, and history,

the majority first held that, “as a matter of statutory interpretation, § 924(c)(1)(A) defines a single offense. The statute regards brandishing and discharging as sentencing

factors to be found by the judge, not offense elements to

be found by the jury.” Therefore, “the statute does just

what McMillan said it could” by imposing minimum

sentences within the statutory maximum.

A four-justice plurality next concluded that McMillan

is not inconsistent with Apprendi (Justice Breyer concurred in the judgment but did not join this part of the

opinion). “Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment,

submitted to the jury, or proved beyond a reasonable

doubt. When a judge sentences the defendant to a mandatory minimum, no less than when the judge chooses a

sentence within the range, the grand and petit juries

already have found all the facts necessary to authorize the

Government to impose the sentence. The judge may impose the minimum, the maximum, or any other sentence

within the range without seeking further authorization

from those juries—and without contradicting Apprendi.”

“Read together, McMillan and Apprendi mean that

those facts setting the outer limits of a sentence, and of

the judicial power to impose it, are the elements of the

crime for the purposes of the constitutional analysis.
2 Guideline Sentencing Update, vol. 11, no. 5, September 3, 2002 • a publication of the Federal Judicial Center

Within the range authorized by the jury’s verdict, however, the political system may channel judicial discretion—and rely upon judicial expertise—by requiring defendants to serve minimum terms after judges make certain factual findings. It is critical not to abandon that

understanding at this late date.”

Four justices dissented, stating that McMillan conflicts

with Apprendi and should be overruled, with Apprendi

being extended to cover facts that increase a defendant’s

mandatory minimum sentence.

Harris v. U.S., 122 S. Ct. 2406, 2412–20 (2002).

Previously, the Sixth Circuit had held that Apprendi

applies generally to the imposition of mandatory minimum sentences. See summaries of Flowal and Ramirez,

and summaries of cases that disagreed, in 11 GSU #3.

Before Harris, the Second Circuit held that “if drug

quantity is used to trigger a mandatory minimum sentence that exceeds the top of the Guideline range that the

district court would otherwise have calculated (based on

the court’s factual findings, with or without departures),

that quantity must be charged in the indictment and

submitted to the jury.” U.S. v. Guevara, 277 F.3d 111, 116–

23 (2d Cir. 2001) (remanded). After Cotton and Harris were

decided, the Second Circuit reheard and amended the

case, finding that Cotton required affirming the sentence

because the evidence of drug quantity was overwhelming

and therefore supported the sentence imposed. The court

“d[id] not consider the impact (if any) of Harris on the

Apprendi analysis set out in” its earlier opinion. U.S. v.

Guevara, 298 F.3d 124, 127–28 (2d Cir. 2002).

See Outline generally at II.A.2.a and c

Departures

Mitigating Circumstances

First Circuit holds that defendant must be “irreplaceable” for departure based on extraordinary family responsibilities. Defendant’s guideline range was 21–27

months. The district court granted a downward departure

under USSG § 5H1.6 for defendant’s extraordinary family

ties and responsibilities, namely, the need for him to

provide care for his elderly parents. Departing six levels,

the court sentenced him to three years’ probation and six

months’ home detention, to be served on weekends.

The appellate court reversed, concluding that

defendant’s situation “falls short of what the caselaw has

defined as ‘extraordinary circumstances.’” Although

defendant’s efforts are “significant and commendable, . . .

it is the unfortunate norm that innocent family members

suffer considerable hardship when a relative is incarcerated.” To remove a case from the “heartland” of the applicable guideline, “[a]t the very least, the caselaw requires a

showing that the defendant is irreplaceable before his

circumstances are considered extraordinary.” Unlike

cases cited by the court that approved departures where a

defendant was shown to be irreplaceable, “the instant

case is replete with evidence demonstrating alternative

sources of care for Pereira’s parents.”

U.S. v. Pereira, 272 F.3d 76, 81–83 (1st Cir. 2001). See also

U.S. v. Sweeting, 213 F.3d 95, 105 (3d Cir. 2000) (vacating

departure based partly on defendant’s care of a son with

Tourette’s Syndrome, stating “there simply is nothing

about the type of care that he requires that suggests to us

that it is so unique or burdensome that another responsible adult could not provide the necessary supervision

and assistance”); U.S. v. Faria, 161 F.3d 761, 762–63 (2d Cir.

1998) (stating that downward departure under § 5H1.6

has been allowed where “the family was uniquely dependent on the defendant’s ability to maintain existing financial and emotional commitments,” but remanding departure here because this defendant’s family was not

“uniquely dependent on the support it currently receives

from him”). But cf. U.S. v. Dominguez, 296 F.3d 192, 195–

200 (3d Cir. 2002) (remanded: distinguishing Sweeting in

holding that district court could have departed for defendant whose elderly and infirm parents “were physically

and financially dependent upon her” and there was “no

[other] family member who could help and there are no

funds to employ outside assistance”).

See Outline at VI.C

Adjustments

Multiple Counts—Grouping

Several Circuits hold that money laundering amendments are not to be applied retroactively. Effective Nov.

1, 2001, Amendment 634 significantly altered the guidelines for money laundering. It merged § 2S1.2 into a revised §2S1.1, tied offense levels more closely to the underlying criminal conduct, and directed courts to group

money laundering counts with the underlying offenses

that generated the laundered funds. Some defendants

sentenced before Amendment 634 took effect have

claimed on appeal that their sentences should be vacated

and the amendment applied at resentencing to allow

them to benefit from an allegedly lower offense level

calculation or by having their offenses grouped.

The circuits to decide the issue have concluded that

Amendment 634 did not merely clarify the guideline, so as

to allow retroactive application, but imposed substantive

changes that are not to be applied retroactively. The

Eighth Circuit, for example, stated that “considering the

amendment’s language, its effect and purpose, and the

earlier version, we conclude amendment 634 substantively changes the Guidelines.” The court added that the

Commission “did not include amendment 634 in the list

of amendments to be applied retroactively. See USSG

§ 1B1.10(c) (2001). Also, the amendment’s commentary

does not state the amendment is intended to clarify, but
Guideline Sentencing Update, vol. 11, no. 5, September 3, 2002 • a publication of the Federal Judicial Center 3

instead reflects substantive intent.” U.S. v. King, 280 F.3d

886, 891 (8th Cir. 2002). Accord U.S. v. Descent, 292 F.3d

703, 707–09 (11th Cir. 2002); U.S. v. McIntosh, 280 F.3d 479,

485 (5th Cir. 2002); U.S. v. Sabbeth, 277 F.3d 94, 96–99 (2d

Cir. 2002) (also rejecting claim that direction to group

offenses was merely clarifying). Cf. U.S. v. Martin, 278 F.3d

988, 1003–04 (9th Cir. 2002) (where defendant’s sentence

is remanded for other reasons, decision whether to group

money laundering and mail fraud offenses on resentencing should be determined under amended § 2S1.1).

See Outline at III.D.1

Using Minor to Commit Crime

Courts address several issues arising under § 3B1.4.

USSG § 3B1.4 calls for an increase of two offense levels if

defendant “used or attempted to use a person less than

eighteen years of age to commit the offense or assist in

avoiding detection of, or apprehension for, the offense.”

Some circuits have held that §3B1.4 does not require that

a defendant know that the minor is, in fact, under age

eighteen. The Eleventh Circuit looked to the similarly

worded 21 U.S.C. § 861(a), which has been held to not

contain a scienter requirement. “We see no reason why

section 3B1.4 of the Sentencing Guidelines should be

interpreted to give less protection to minors than similarly worded federal statutes, absent a showing of

Congress’s contrary intent. . . . We find no qualifying

language in section 3B1.4 reserving the enhancement for

defendants who knew that the person drawn into their

criminal activity was a minor.”

The court also held that a defendant need not be the

one to actually involve the minor in the offense. “Any

defendants who could have reasonably foreseen the use

of a minor . . . are culpable under the plain language of

sections 3B1.4 and 1B1.3(a)(1)(B).” The enhancement

was affirmed here because defendant was a leader of the

conspiracy and the recruitment of minors by an underling was reasonably foreseeable to defendant.

U.S. v. McClain, 252 F.3d 1279, 1285–88 (11th Cir. 2001).

Accord U.S. v. Gonzalez, 262 F.3d 867, 870 (9th Cir. 2001)

(affirmed: “plain language of the guideline does not require that a defendant have knowledge that the individual

is under eighteen”). See also U.S. v. Patrick, 248 F.3d 11, 27–

28 (1st Cir. 2001) (affirmed: “because [defendant] was

convicted of conspiracy, his sentence could be enhanced

based on his co-conspirators’ reasonably foreseeable use

of juveniles to further the [conspiracy’s] activities”).

The Fourth Circuit rejected a claim by an eighteenyear-old defendant that the Sentencing Commission exceeded its authority in making § 3B1.4 apply to all defendants when the legislation directing the Commission to

act referred to “a defendant 21 years of age or older.” The

court reasoned that, “because Congress did not direct

that only defendants over age 21 receive the enhancement, it actually did not require the Commission to limit

the application of § 3B1.4 to defendants of a certain age.”

U.S. v. Murphy, 254 F.3d 511, 513 (4th Cir. 2001). Accord

U.S. v. Ramsey, 237 F.3d 853, 855–58 (7th Cir. 2001). Contra

U.S. v. Butler, 207 F.3d 839, 849–52 (6th Cir. 2000) (remanded: “Commission failed to comport with a clear

Congressional directive when it eliminated the requirement that the defendant be at least twenty-one years old

to be subject to . . . § 3B1.4”; however, defendant was not

shown to “use” minor and thus § 3B1.4 did not apply).

The circuits have disagreed on whether defendant

must take some action beyond merely partnering with a

minor in committing the offense. The Sixth Circuit determined that § 3B1.4 did not apply where a defendant committed a bank robbery with a minor but there was no

evidence that it was not a simple partnership. “A consideration of the definitions of ‘use’ supports the notion that

§3B1.4 would require more affirmative action.” For example, placement of §3B1.4 in the “Adjustments” section,

and the legislation’s use of the term “solicitation of a

minor,” implies that a defendant must “play a particular

role in the offense” and “do more than simply participate

in crime with a minor. . . . Congress likely imagined an

offender who actually exercised some control or took

some affirmative role in involving the minor. . . . Thus, . . .

‘using’ a minor to carry out criminal activity entails more

than being the equal partner of that minor.”

U.S. v. Butler, 207 F.3d 839, 847–49 (6th Cir. 2000) (remanded because court did not find that defendant “directed, commanded, intimidated, counseled, trained,

procured, recruited, or solicited” the minor). Accord U.S.

v. Parker, 241 F.3d 1114, 1120–21 (9th Cir. 2001) (agreeing

with Butler in remanding: “The district court’s finding was

that Parker and [the minor] were merely co-conspirators.

The fact that Defendant was the minor’s partner and

profited from his participation in the crime does not show

that he acted affirmatively to involve” the minor). See also

U.S. v. Suitor, 253 F.3d 1206, 1210 (10th Cir. 2001) (although

facts showed that defendant did in fact “use” minors in his

offense, court cited Parker for proposition that evidence

“must demonstrate more than the simple fact that Suitor

was involved in a conspiracy with the minors”).

However, the Seventh Circuit disagreed, concluding

that a defendant “uses” minors “if his affirmative actions

involved minors in his criminal activities. . . . This test can

be met when the minor is a partner in the criminal offense. . . . By forming a partnership with a minor, a criminal defendant is undeniably encouraging that minor to

commit a crime. The fact that the minor is a voluntary

participant and equal does not make the act socially

acceptable. . . . Thus, regardless of whether the minor is a

partner or a subordinate, the enhancement will be applied where the defendant affirmatively involved the minor in the commission of a crime.” The court held that
Guideline Sentencing Update, vol. 11, no. 5, Sept. 3, 2002

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defendant not only encouraged the minor, but also directed and commanded him during the offense.

U.S. v. Ramsey, 237 F.3d 853, 859–62 (7th Cir. 2001).

Several circuits have held that the minor does not have

to be an active, knowing, or willing participant in the

crime. For example, the Ninth Circuit upheld the enhancement for using a child as a decoy to reduce the

chance of detection, rejecting defendant’s argument that

“‘active involvement or employment of the minor person

in the offense’ is required.” Although the enabling statute

directs the Sentencing Commission to enhance the sentences of defendants who use a minor “with the intent

that the minor would commit a Federal offense,” other

wording that calls for enhancement “ ‘if the defendant

involved a minor in the commission of the offense,’ is

broad enough to cover intentionally using a minor as an

innocent decoy. . . . [A] minor’s own participation in a

federal crime is not a prerequisite to the application of

§3B1.4. It is sufficient that the defendant took affirmative

steps to involve a minor in a manner that furthered or was

intended to further the commission of the offense.” Here,

the evidence supported the finding that defendant “used”

his three-year-old son—by having him with him in his

truck as he tried to bring a load of marijuana from Mexico

into the United States—to “assist in avoiding detection of,

or apprehension for, the offense.”

U.S. v. Castro-Hernandez, 258 F.3d 1057, 1059–60 (9th

Cir. 2001). Accord U.S. v. Alarcon, 261 F.3d 416, 423 (5th Cir.

2001) (affirmed: using children as decoys while attempting to drive marijuana into United States warranted

§ 3B1.4 enhancement).

Along similar lines, some courts have held that the

minor need not have knowledge that he or she is participating in a crime for § 3B1.4 to apply. The Tenth Circuit

affirmed the enhancement for a defendant who, without

explaining why, paid a sixteen-year-old to pick him up at

the airport and drive him and others around town to cash

counterfeit checks. The court relied on the “clear and

unambiguous” language of § 3B1.4 to reject the argument

that “defendant must inform the minor of the criminal

purpose for which the minor’s services are wanted and

induce, or try to induce, the minor to commit the federal

offense in question.”

U.S. v. Tran, 285 F.3d 934, 937–38 (10th Cir. 2002). See

also U.S. v. Anderson, 259 F.3d 853, 864 (7th Cir. 2001)

(affirmed for embezzler who directed seventeen-year-old

bank teller to unknowingly make improper withdrawals—§ 3B1.4 “focuses on whether the defendant used a

minor in the commission of a crime, not whether the

minor knew that he was being used to commit a crime”).

Cf. U.S. v. Warner, 204 F.3d 799, 800–01 & n.2 (8th Cir. 2000)

(finding enhancement appropriate for defendant who

brought his eight-year-old daughter to drug deal with

undercover officers and, when they balked at paying him

before he went to get drugs, offered to leave his daughter

with undercover agents as guarantee he would return).

[To be put in next Outline at new section III.B.10]