Guideline Sentencing Update 

volumes 1 through 6 

prepared by Jefri Wood, Publications & Media Division 

This book collects all issues of the first six volumes of Guideline Sentencing Update, which were 

published between February 26, 1988, and August 19, 1994. Each issue was originally published 

separately. No changes were made when they were collected for reprinting here. For ease of use, 

the pages of this collection are numbered consecutively. Contents are as follows: 

1 

43 

47 

87 

95 

135 

143 

Volume 1 (numbers 1-21) 

Index for Volume 1 

Volume 2 (numbers 1-20) 

Index for Volume 2 

Volume 3 (numbers 1-20) 

Index for Volume 3 

Volume 4 (numbers 1-25) 

(No index was issued for this or subsequent volumes; the Cenler publication Guideline Sentencing 

Outline, which is issued twice a year, supersedes all indexes to Guideline Sentencing Update.) 

193 Volume 5 (numbers 1-15) 

223 Volume 6 (numbers 1-17) 

Guideline Sentencing Update is published in furtherance of the Center's statutory mission to 

conduct and stimulate research and development for the improvement of judicial administration. 

The views expressed are those of the author and not necessarily those of the Federal judicial 

Center. 

FEDERAL]UDICIAL CENTER 

Thurgood Marshall Federal Judiciary Building, One Columbus Cir., N.E., Washington, DC 20002-8003 
For sale by the U.S. Government Printing Oft1ce 

Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328 

ISBN 0-16-045415-8 
Guideline Sentencing Update 

GvideIint Sentmcing UpdIlte will bedistributed periodicallybytheCenterto inform judges and other judicial personnel of selected federalrourt decisions On the 

sentencing reform legislation of 1984 and 1987 and the sentencing guidelines. Although the publication may refer to the sentencing guidelines and policy st~lements 

of the U.s. Sentencing Commission in therontexl 0{ reporting ase holdings. it is not intended to report Sentencing Commission policies or activities. Readers should 

refer to the guidelines. policy statements. commentary. and other rrt:iterials issued by the Sentencing Commission for such information. 

Publication of C; ... idrJinl Smlmcing UpdAte signifies that the Center regards it as a respor>sible and valuable w. ,. '. . ,ho· ,'" .,01 be oonsidered • recommendation 

I or offici. I policy of theL"lIler. On maltersof policy theC~nter speaks only through its Board. 

VOLUMB 1 • NUMBER 1 • FEBRUARY 26,1988 

Constitutionality 

Sentencing Guidelines held invalid on separation of powers grounds. A district court has held the 

Sentencing Guidelines invalid because the Sentencing 

Reform Act of 1984 violates the separation of powers 

doctrine by locating the Sentencing Commission in 

the Judicial Branch and mandating the service of at 

least three article III judges. The court found the 

Commission's duties and powers are executive. not 

judicial. in nature. Moreover. even if the Commission 

were removed from the Judicial Branch. the mandatory participation of judges on the Commission 

"impairs their ability to perform their article III 

duties" and threatens the "actual and apparent imparti. 

ality and independence" of the Judicial Branch by 

excessively mixing the judicial and executive functions. Because "it is impossible to exclude from prior 

actions of the Commission the influence of the three 

judge-Commissioners." the court held. the Guidelines 

are invalid. Defendants had also argued that the Act 

constituted an excessive delegation of legislative 

power. The court rejected this contention. finding that 

"[tJhe Act provides ample statements of policy and 

specific rules to guide the Commission's exercise of 

the delegated authority." 

The decision was on a pretrial motion after the 

two defendants had pled not guilty. Even though 

"[tJhe Guidelines may never be invoked in this case," 

the court held the maller ripe for decision because the 

need for a determination was substantial and the issues 

were purely legal and thus til for judicial action. 

U.S. v. Arnold, No. 87-1279-B. slip op. (S.D. 

Cal. Feb. 18. 1988). 

The motion in Arnold was argued before several 

other judges in the district. sitting in their individual 

capacities. who had similar issues pending in cases 

before them. An order has been issued in one of those 

cases. adopting the reasoning of Arnold. 

U.S. v. Manley, No. 87-1290-R. slip op. (S.D. 

Cal. Feb. 18. 1988). 

Defenders lack standing to challenge Guidelines' constitutionality. A district court has dismissed 

for lack of standing a dt"ciaratory judgment action 

brought by two public defender organizations challenging the constitutionality of the Sentencing Guidelines on non-<ielegation doctrine and separation of 

powers grounds. The court held the assened grounds 

for standing. increased workload and potential ethical 

problems. were insufficient. Any workload effects 

were no greater than those caused to other groups of 

lawyers by other legislative changes. and the potential 

ethical problems were neither certain nor insoluble. 

The court noted "that a prompt resolution" of the 

issues raised by plaintiffs "is crucial," but determined 

"it is neither appropriate nor ... expedient ... to 

stretch traditional standing principles to accommodate 

this particular case." 

Federal Defenders of San Diego v. U.S. Sentencing Commission, No. 87-3 t 8 t, slip op. (D.D.C. Feb. 

22, 1988). 

Not ror Citation. Guideline Sentencing Update is provided for infonnation only. It should nol be cited. either in opinions or otherwise. 

Guideline Sentencing Update GVldtlll"" SDttmci"g UpdRtt will be dlstribuled periodically by the Center 10 inform judges aNi other judicial pm;onnel 01 selected ledenl coWi decisIOns on the 

sentenOl'lg r~orm le81sutian 011984 ind 1967 and the 5ETIlencing Guidelines. Although the publication INy mer 10 the Senlencing Guidelines;ond policy st.ltemenlS 

01 the US Sentencing CcIrul'lission ill the context 01 ~porting use holdings, it is not illtended to ~port 5ETItend1lg Commission polloe'S or .lcti'llitie'S. Readers should 

reler to the Guidelines, policy st.tterMnts, comment.try, INI other INteri.als iS6ued by the Sentencing Commission for such infortNtion. 

Publication of Gwide/;"" Stntmdng UprlRlt s.ignUies thlt the Cl!5'\ter ~lrdS it 1$1 responsible and valuable work. II should not be considered a recotrunenct.tion 

or offical policy of the Center. On tmltten of policy the Center spew only lhrough its Board. 

VOLUME 1 • NUMBEII. 2. MAlta. 2. 1988 

Constitutionality 

Constitutionality of Sentencing Guidelines 

upheld. A district coun decision in the Southern 

District of California has upheld the Sentencing 

Guidelines against a constitutional challenge on 

nondelegation doctrine and separation of powers 

grounds. 1bis decision is contrary to earlier rulings in 

the same district holding the Guidelines invalid 

because the Sentencing Refonn Act of 1984 violates 

separation of powers. See U.S. v. Arnold. No. 87-

1279-B (S.D. Cal. Feb. 18, 1988) (order granting 

motion to invalidate Guidelines); U.S. v. Manley. No. 

87·1290·R (S.D. Cal. Feb, 18. 1988) (order adopting 

reasoning in Arnold). 

Defendants argued that the Guidelines violate the 

nondelegation doctrine because Article I prohibits 

Congress from delegating the task of fixing penalties 

for federal crimes. a "core function" of the legislature. 

and. alternatively. that if Congress could delegate this 

power the delegation was overbroad. Rejecting both 

arguments. the court "decline[d] to find that some 

'core functions' are by nature nondelegable." and even 

if they were "it is impossible for the court to conclude 

that sentenqng is strictly a legislative 'core function'" 

because federal sentencing duties "traditionally have 

been distributed throughout all three branches of government." Moreover, Congress met the standard for a 

proper delegation by "set[ting] out intelligible standards and statements of purpose" to guide the Commission. 

For purposes of its separation of powers inquiry. 

the court concluded that "the Commission is properly 

regarded as an independent commission within the judiciary," finding that "Congress expressly created an 

'independent commission'-a body that ... woUld 

assist in the primarily judicial task of sentencing 

without itself exercising the judicial power." 1bis 

does not exceed the scope of the judicial power. the 

court found. because "it is well settled that Congress 

may authorize judges to perfonn tasks that aid in the 

perfonnance of their judicial functions." 

The coun found that "the Act does not impair the 

functioning of the judiciary." because the 

"[p]lacement of judges on the Commission ... does 

not compromise judicial independence or impartiality." Additionally. "the displacement of the three 

judges from their adjudicative capacities" to serve on 

the Commission "is not a sufficient intrusion upon the 

judiciary as a whole to warrant finding a functional 

impainnent" Judge-Commissioners who return to the 

bench may avoid "[a]ny apparent residual prejudice or 

impartiality ... through recusal and reassignment of 

cases," 

The court rejected the argument that powers 

granted to the President by the Act give "the executive branch an unconstitutional measure of control 

over the Commission." The Act "spread[s] the selection power among all three branches of government." 

the coun found. thereby guarding against "executive 

dominance." Moreover. "the power of the President to 

remove members of the Commission'does not infringe 

upon an exclusively judicial function" because the 

Commission "performs a sentencing function which 

has never been regarded as exclusively judicial," and 

though the Commission is in the Judicial Branch. it 

"is not an exclusively judicial entity." 

Finally. the court held that the presence of nonArticle III members on the Commission does not 

violate separation of powers because "members of the 

Commission ... do nor decide cases or controversies 

and therefore do not partake of the Article III power." 

[Emphasis in original.] 

U.S. v. Ruiz-Villanueva. No. 87-1 296-E (S.D. Cal. 

Feb. 29. 1988) (memorandum decision and order). 

Not for Citation. GllideiillL SeNcflCiltg Update iJ provided for information only. It would not be cited. either in opinions or otherwise. 

3 

Guideline Sentencing Update 

C.iddi"t SmtmciflH Update will be distributed periodicaUy by the Center to Worm judgK and other judicial personnel of Hlected federal.court decisions on the 

sentencing refol'llliegis!alion ,of .1 ~ and 1987 and the Senh!llcing Cuidelil'l~ Although the publication may refer to the Smtendns.Guidelines and policy statements 

of the US. 5en~ang Commission an the contt'"t ol reportIJ'Ig case hol~gs. It IS not intended to report Sentencing COJ:Nn.iaI;Ion policies or activitiK. Readers should 

refer to the Cwdelines. policy st.atet:nents. O()IJU%Ij!nt.ary. and other matenals ISSUed by the Sentencing Commission for such information. 

Publication of GuidtilIU Smtmcmg Upd;N lignifies that the Center n:gards it a$ a responIIible and valuable work.. It should not be conSidered .. recOlrllnenil'.alion 

or of6cia1 policy of the Center. On matters of policy the Cent.er speW only tlU'oUgh ita &ani. 

VOLUME 1 • NUMBI!.R 3 • MARCH 16, 1988 

Constitutionality 

Guidelines upheld against constitutional, 

statutory challenge. A district coun in E.D. La. has 

upheld the validity of the Sentencing Guidelines, 

holding that the statute creating the U,S. Sentencing 

Commission is constitutional, and that the Guidelines 

were adopted in accordance with the statutory mandate. 

CONSnnmONALITY: Defendants attacked the constitutionality of the Sentencing Refonn Act of 1984 on 

three grounds: Congress unlawfully delegated its 

authority to fix criminal penalties; the presence of 

judges on the Commission violates the separation of 

powers doctrine; and the President's power to remove 

Commissioners constitutes an impennissible control 

by the executive over the judiciary. In rejecting the 

delegation doctrine argwnent the coun found that "the 

Act provides ample detail to confine the authority 

delegated to the Commission," and this was not a case 

that compelled revival of the delegation doctrine. 

"which has remained donnant since 1935." The 

presence of judges on the Commission does not 

violate separation of powers because constitutional 

history and prior case law demonstrate that "individual judges may exercise extra-judicial power while 

courts may not." In addition, the service of judges on 

the Commission does not impennissibly impair the 

functioning of the judiciary: the Commission is not 

involved in criminal investigation or enforcement and 

thus "there is no risk of paniality" on the pan of 

judge-Commissioners; any lack of impartiality could 

be resolved through recusal; such recusal would not 

interfere with the work of the courts; and the service 

of judges on the Commission will not adversely affect 

the impartiality of the federal judiciary in construing 

or applying the Guidelines. 

The President's power to remove Commission 

members does not constitute "prosecutorial control 

over the ad judicalOr" in violation of due process, the 

coun held. The Commission's work "is executive in 

nature. rather than judicial." and sentencing is not 

strictly a judicial function. (Emphasis in original.) Nor 

does the removal power violate separation of powers: 

In assessing its constitutionality. "we look to the 

functions perfonned by the Commission. While the 

Commission is situated in the judicial branch. the 

duties imposed on the -Commission are ... executive 

in nature. Hence the removal power is properly vested 

in the Chief Executive." 

STATIJTORY CHALI...ENGES: The coun found the 

Guidelines are not contrary to the enabling statute, 

and submissions to Congress by the Commission and 

the GAO were sufficient under the statute to trigger 

the November I, 1987 effective date. 

STANDING: TIle government contended that defendants lacked standing unless the coun determined initially that defendants would have ~ceived a heavier 

sentence under the new sentencing law than before. 

The coun rejected this argument, finding that even if 

the Guideline sentences would not be longer. defendants had a "personal stake" because the actual time 

served under the Guidelines would likely be greater 

because of the abolition of parole. Moreover. under 

the new sentencing law each defendant "faces a period 

of supervised release to which he would not otherwise 

be subject." 

U.S. v. Chambless, No. 87-609 (E.D. La. March 

9. 1988) (reasons for judgment ). 

Application to Pre-Guidelines Offenses 

Trial courts lack authority to apply Sentencing 

Guidelines to offenses committed before November 

1,1987. A district coun has denied a defendant's 

request to be sentenced under the Sentencing Guidelines for a crime committed before the Guidelines' 

effective date. Defendant asked to be sentenced under 

the Guidelines if the judge intendcd.to impose a term 

of incarceration that exceeded the Guideline calculation that had been prepared in his case for information 

Not for Citation. GllideiiN! Sentencing Updale is provided for information only. It should not be cited, either in opinions or otherwise, 

5 
6 

Guideline Sentencing Update 

and training purposes by the probation deparunent 

The coun denied his request, stating that couns have 

"no inherent power to impose a sentence, absent 

legislative authority," and by stattJte the Guidelines do 

not apply to offenses committed before November I, 

1987. Therefore, "this coun is without power to 

sentence [defendant] under the Guidelines, even if it 

were so to desire." The coun also observed that the 

sentencing legislation and the Guidelines together 

comprise "a new system of sentencing," and therefore 

"it would be impossible to impose the guideline range 

Volwne 1 • Nwnbcr 3· March 16. 1988· Page 2 

sentence ... without applying the rest of the provisions of the new sentencing system." (Emphasis in 

original.) I 

U.S. v. Kelly, No. 87·571 (S.D.N.Y. Feb. 25. 

1988) (order). Cf. U.S. v. Rewald. 835 -F,2d 215, 216 

(9th Cir. 1988) (provisions of Sentencing Refonn Act 

of 1984 do not apply to defendant sentenced prior to 

effective date of Act); U.S. v. Decko.rd, 675 F. Supp. 

1127, 1128-29 (N.D. rn. 1987) (Sentencing Refonn 

Act of 1984 may not be used to seek modification of 

sentence imposed prior to effective date of the Act). 
Guideline Sentencing Update 

Va..ma 1 • NUMBIR 4 • MARal29. 1988 

Constitutionality 

Placement of Sentencing Commission In 

Judicial branch held severable from Sentencing 

Reform Act as Guidelines upheld against constitutional and statutory challenge. A district coon in 

N.D. Ga. has upheld the constitutionality of the 

Sentencing Guidelines, holding that although the 

Sentencing Reform Act (SRA) establishes the Sentencing Commission as a judicial agency in violation 

of the separation of powers docaine, the designation 

provision is severable from the Act. The court found 

Wtthe President's power to remove Commissioners 

under the Act "establishes the Commission as an 

executive agency." Nonetheless. the court concluded 

that the remainder of the Act would be valid if it 

would continue to function in a manner consistent 

with congressional intent after the invalid designation 

provision was stricken. Finding that "[tJhe legislative 

history of the SRA makes it plain that Congress was 

more concerned with sentence reform than with 

'judicial' placement of the Commission," the court 

held that although "the Commission is impermissibly 

designated a judicial agency ... this designation is 

severable from the Act:' 

The court also rejected defendants' contention that 

judicial membership on the Commission violated 

separation of powers: "[lJl is weU-seuled that Article 

m judges may, and do in certain instances, engage in 

nOD- (quasi-) judicial service." The court distinguished 

In re AppUcation of the President'S Comm'n on 

Organized Crirru! (ScadUlO), 763 F.2d 1191 (lIth Cir. 

1985), noting that the judicial members of the organized crime commission "were de facto required to 

adopt a pro-Government stance:' In this case, however, .. there is no equivalent danger that the judicial 

members of the Commission will adopt a partisan 

outlook on sentencing." 

As to defendants' claims that Congress can never 

delegate the task of fixing criminal sanctions and that 

even if it could the delegation in this case was without 

sufficient guidance, the court held that "the delegation 

of power to the Commission is constitutionally valid." 

The coon also rejected various statutory challenges to 

the Guidelines. 

U.S. \I. Erves, No. CR87-478A (N.D. Ga. Mar. 

22. 1988) (order denying motion to preclude application of Sentencing Guidelines). 

Not for CltaUOIl. G .. Uhlil'l.t S~'lun.cill.& Updare is provided for information only. Illhould not be <:ited, either in opinions or otherwise. 

7 

Guideline Sentencing Update 

VOI.llMB 1 • NUMBIIIt S • APtm. 7. 1988 

Constitutionality 

Constitutionality of Commission upheld; another Judge in the district disagrees, finds Guidelines legislatively invalid. A district judge in W.O. 

Mo. has held that "the Guidelines arc not subject to 

valid challenge based on claims that (1) the Sentencing Conunission lacks constitutional status or 

(2) there bas been an unconstitutional delegation of 

l~gislative power." The opinion noted thatlhree other 

judges of the district agreed with this conclusion. One 

other judge issued a written opinion dissenting from 

the conclusion, finding the manner in which Congress 

delegated power to the Conunission to formulate the 

Guidelines violated the constitutional requirements of 

majority passage and prescnunent. Arguments were 

heard by seven judges of the district who are responsible for the processing of criminal cases. 

The coon declined to hold that Congress could 

not lawfully delegate the power to creale the Guidelines, and noted that no other court has accepted a 

non-delegation .challenge. In assessing the constitutional status of the Conunission, the court concluded 

that while "the work of the Conunission in carrying 

out the Congressional mandate can more conventionally be described as executive rather than judicial," 

voluntary service by judges in the executive branch is 

not unconstitutional and that characterizing the Commission as an executive agency "avoids any problem 

that would otherwise exist relating to the Presidential 

power of removal." 

The judge also commented that there "are strong 

policy arguments and possibly constitutional argu- . 

ments against" using preponderance of the evidence 

as the standard of proof for resolving contested facts 

in sentencing, and stated that he expects to continue 

using the clear and convincing evidence standard. 

The dissenting judge found the Guidelines 

"should properly be categorized as 'legislation' rather 

than validly promulgated administrative rules." As 

such, the Guidelines are "constitutionally inflCJD" 

because they were not. as required by Article I, §§ 1 

and 7 of the Constitution, passed by a majority of both 

houses of Congress and presented to the President. 

Moreover. Congress cannot delegate to an independent agency or commission the power to '''regulate' 

federal judges by enacting binding sentencing guidelines which restrict the sentencing discretion of Article 

III judges and which have the force and effect of law." 

Such a restriction could only be enacted through 

legislation. 

U.s. v. Johnson, No. 87-00276-01 (W.D. Mu. 

Apr. I, 1988) (memorandum and order);,U.S. Y. 

Johnson, No. 87-00276-01 (W.O. Mo. Apr. 5, 1988) 

(Wright, CJ., dissenting from resull). 

Guidelines held unconstitutional on due 

process, separation of powers grounds. A district 

court in W.O. Pa. has held that the Sentencing Guidelines violate the due process clause of the fifth amendment by mandating a procedure that unduly limits a 

defendant's right to present relevant evidence for a 

sentencing court's consideration. The court also held 

that the Sentencing Retorm Act of 1984 violates the 

separation of powers doctrine. 

Defendant contended that the guideline sentencing 

procedure would prevent the district court from 

according proper weight at sentencing to the individual circumstances of his case. The court agreed, 

finding that the "mechanical sentencing procedure" in 

the Guidelines "severely restrict[s] a district court's 

ability to individualize a defendant's sentence." Once 

the facts are found. the court noted, "the guidelines 

eslablish the sentencing range. not the judge." The 

court then found that the defendant has a due process 

right to "affect a court's assessment of a proper 

sentence," and that this right invoJvefllot just the 

"determination of the existence of facts," but also the 

Not for CltatloD. Gui.cUliM SIINIIIIC;fll UpdJllli is provided for information only. It Ihould nOI be ciLed. either in opinions or otherwise 

9 
10 

Guideline Sentencing Update 

opponunity to influence "the weighing of facts as a 

whole to determine the appropriate sentence." 

In determining what process was due the defendant. and whether the guideline procedW'CS satisfied 

Ibis right, the court applied the four-factor balancing 

test of Mathews v. Eldridge. 424 U.S. 319. 335 

(1976). The court found that all four factors favored 

defendant, and held that the "guideline procedures 

applicable here do not adequately protect the due 

process right of defendant to present evidence and to 

challenge the basis of his sentence before a court 

which has the authority to weigh the evidence and 

determine an appropriate sentence." 

On the separation of powers claim. the court 

adopted the reasoning of U.s. v. Arnold. 678 F. Supp. 

1463 (S.D. Cal. 1988) (see GSU no. I, Feb. 26. 1988), 

finding that the location of the Commission in the 

judicial branch is unconstirutional because the 

Commission's powers and duties are primarily 

executive. Moreover. even if tbe language placing the 

Commission in the judicial branch could be severed 

from the remainder of the Act, the mandatory service 

of three judges on tbe Commission "renders unconstitutional the Sentencing Reform Act of 1984 and the 

work product of the Commission. namely, the Sentencing Guidelines." 

U.s. v. Frank. No. 87-226 (W.D. Pa Mar. 30. 

1988) (opinion and order). 

Volume I • Number S. April 7. 1988· Page 2 

Structure of Commission violates separation of 

powers. A district court in D. Colo. has held the 

Sentencing Guidelines invalid because the structure of 

the Sentencing Commission "mandates' the constant 

involvemeul of Anicle In judges in an ongoing and 

continuous executive process" in violation of separation of powers. The court examined at length the 

separation of powers principle. the distribution of the 

sentencing power among the three branches of government. and the Commission's composition and functions. The court reasoned that by requiring judicial 

membership on a commission that ·'is clearly executive in nanue," the Sentencing Reform Act of 1984 

"radically undermines the concept of an impartial 

judiciary. free from executive or legislative interference." The "collaboration between the judiciary and 

the other branches of government the Act creates not 

only serves to tarnish the reputation of the judiciary as 

independent of and completely divorced from those 

other arms of government. but also in fact compromises its very independence." The court also considered and rejected a challenge to the Guidelines on 

delegation of powers grounds and added some "observations" on "a number of further problems with this 

Act which must be highlighted. but which have not 

been raised by defendant" 

u.s. v. Smith. No. 87-CR-374 (D. Colo. Mar. 25. 

1988) (memorandum opinion and order). 
Guideline Sentencing Update 

G"iddiN SmIt>tJ:ittK Updllte will be- distributed periodiaUy by the Center to I.n!orm judges and other judidal personnel of selected federal court decisions an the 

sentencing reform legiaI.adcn 011 SI84 and 1987 and the Sente:ndnsCuldeli:na. Although thepu.b!ladon may refer to the Sentencing Cl.Iidellneund policyltatements 

01 the US. Sentencing Conunlsstonln the context 01 reporting cue holdings.ltls notlntended to report Sentencing Conunlssian policies or adivides. Readersshould 

refer to the Culdelinef,. policy states:nmts, COOIIlIC!fttary, and other materials illued. by the Sentencing Conunlssion (or such infon:nation. . 

Publiadcn 01 GllidtiliN Stntrndng updllte apes th.1t the Center regards it as a responslble and valuable work. It should not be-amsidered a fl!COIl'IInmdalion 

or officW policy of the Center. On matters 01 policy the Center spealca only thn!ugh ita Boanl. 

VOUM! 1 • NUMIIl!Il6 • APIuL 13, 1988 

Constitutionality 

Guideline sentencing provisions unconstitutional but severable. A district court in D. Minn. has 

held the Sentencing Guidelines unconstitutional on 

separation of powers grounds. but has detennined that 

the Guidelines provisions are severable from the 

remainder of the Sentencing Refonn Act and that 

other sections of the Act governing sentencing should 

be followed. 

The court found the guideline sentencing provi. 

sions of the Act unconstitutional "both because they 

impermissibly grant substantive legislative power to 

the judicial branch ... and because they require 

federal judges to peJfonn duties which would substan· 

tially impair the ability of the judiciary to function in 

an impartial manner." TIlrough the Sentencing Commission. "the judicial branch is directly given the au· 

thority to legislate. A review of the Sentencing 

Reform Act reveals Congress intended the Commis· 

sion, in fonnulating the guidelines. to proceed in a 

non-judicial manner in peJfonning what has historically been considered a uniquely legislative fonction-prescribing the punishment for crime." Furthermore. while the judicial branch may be granted nonjudicial powers within the ='carefully limited exception 

allowing the judiciary to exercise certain delegated authority to fashion rules of practice and procedure in 

the federal courts," the Guidelines are not limited to 

procedural rulemaldng but constitute "an invalid 

exercise of substantive legislative power." 

Characterizing the Commission as part of another 

branch would not save it, the court found, because 

judges may not peJform non-judicial functions in 

either their judicial or individual capacities. Moreover, 

even if they could, the service of Article III judges on 

the Commission "seriously threatens the impartiality 

of the judicial branch because it could impennissibly 

bias. not only a judge who served on the Commission, 

but also other federal judges," thereby substantially 

impairing the function of the judiciary. 

. The court held, however, that the Guidelines are 

"severable from other sections of the Sentencing Reform Act and important sections remain valid" The 

court reasoned that "[t]he question of severing an 

unconstitutional provision tums largely on legislative 

intent, with a presumption favoring severability:' and 

that by preserving the remainder of the Act uimponant 

purposes and goals relating to sentencing refonn 

which Congress intended to advance will remain in 

effect." Accordingly, the coun concluded it must 

follow the detailed sentencing standards and principles 

set forth in the Act, "must impose a 'real time sentence' and must state its reasons for imposing that 

sentence. Moreover, provisions of the Act providing 

for appellate review remain applicable." 

This is the first decision reported in Guideline 

Sentencing Update in which the court,severed the 

Guidelines and applied other sections of the Act in 

sentencing. Other judges who found the Guidelines 

invalid and have dealt with the issue of which sentencing law to apply have stated they would sentence defendants as if their conduct occurred prior to the 

effective date of the Guidelines. See, e.g., U.s. \I. 

Arnold. 678 F. Supp. 1463 (S.D. Cal. 1988); U.S. v. 

Tolbert, No. 81-10091-01 (D. Kan. Apr. 8, 1988) 

(summarized below). 

U.S. \I. Estrada. No. CR 5-87-22 (D. Minn. Mar. 

31, 1988) (memorandum opinion and order) (Heaney. 

J., sitting by designation). 

Guidelines invalid on separation of powers 

grounds. A district court in D. Kan. has held the 

Guidelines invalid because they "were promulgated by 

a constitutionally flawed commission." Placement of 

the Commission in the judicial branch violates separation of powers "because it gives the judiciary substantive rulemaking ability beyond its limited authority to 

detennine 'cases' and 'controversies'''''and to fonnulate procedural rules. Furthermore, the Sentencing I Refonn Act "improperly gives the President removal 

Not ror Citation. GuidelifU! Sel'lulICiltg Upd4.te is provided for infonnalion only. Il should nOl be cited, either in opinions or otherwise. 
12 

Guideline Sentencing Update 

power over the commissioners in violation of the 

principles enunciated in" Bowsher v. Synar, 418 U.S. 

114 (1986). 

The court also "decline[d] to rewrite the Sentencing Reform Act in order to place the commission 

within the executive branch." Congress clearly intended the Commission to be in the judicial branch. 

the coun found, and placing it in another branch 

would still present separation of powers problems 

because of the composition of the Commission. The 

mandatory panicipation of three judges "threatens the 

Volume I • Numbct 6· April 13, 1988 • Page 2 

. impartiality of judges on the commission as well as 

other federal judges:' and thus "potentially impairs the 

proper functioning of the judiciary." Moreover, "service by any Article m judge on any COIiimission. whose 

duty it is to legislate. offends Article m of the 

Constitution." (Emphasis in original.) 

The coun stated that defendant will be sentenced 

as if his criminal conduct occurred prior to the effective date of the Guidelines. 

U.s. v. Tolbert, No. 81-10091-01 (D. Kan. Apr. 8. 

1988) (memorandum and decision) (Kelly. J.). 
Guideline Sentencing Update 

VOI.tIMB 1 • NUMBI!R7 • APRlL28, 1988 

Constitutionality 

Sentencing Reform Act unconstitutional, but 

Guidelines will be used pending final decision on 

Act's validity. The district court of Maryland has held 

the Sentencing Reform Act of 1984 unconstitutional 

on separation of powers and due process grounds. but 

stayed the effect of its holding and will sentence defendants under the Guidelines pending a fmal determination of the Act's constitutionality. This appears to 

. be the first instance of a court's fmding the Act 

unconstitutional but deciding to apply the Guidelines. 

Oral argument in the case was heard by six judges of 

the court, and the opinion was signed by all judges 

silting in the district. This also appears to be the first 

decision regarding the Act joined by all the judges of 

a district court. 

The court began its separation of powers analysis 

by reasoning that when Congress sets "a range of 

potential sentences. it has created a sphere of discretionary power which is inherently judicial in nature. 

The Sentencing Reform Act and the mandatory 

guidelines promulgated thereunder so narrowly restrict 

the exercise of the courts' discretion that they effectively negate it." Thus. the court held. "the effect of 

the Act and the guidelines is to violate the separation 

of powers doctrine by transferring judicial power from 

the federal courts. wh~se independence of judgment is 

constitutionally secured. to the Sentencing Commission. whose fealty to Congress and the President is 

statutorily prescribed." 

The court found that U[f]ormal placement of the 

Commission within the judicial branch •.. cannot 

alone save its constitutionality ...• [T]he fact that at 

least one non-Article In Commissioner must concur in 

the promulgation of the guidelines and the other 

actions of the Commission" violates separation of 

powers. This conclusion contrasts with that in U.s. v. 

Ruiz-Villanueva, 680 F. Supp. 1411 (S.D. Cal. 1988) 

(see GSU no. 2. Mar. 2, 1988). where the court held 

the presence of non-Article m members does not 

violate separation of powers because Commissioners 

do not exercise Article m powers. 

The court also noted that placing the Commission 

in the executive branch. as urged by the Department of 

Justice. would not resolve the separation of pOwers 

problem. There is "no theory under which the executive branch has any proper role in the establishment of 

statutory penalties or the imposition of individual sentences. 1be,former is a legislative function. the latter a 

judicial one and neither may be performed by an executive agency." (Emphasis in original.) 

The court found that a "related and equal concern" 

to separation of powers was "a broader problem of due 

process--a concern for the fair treatment of each defendant." Without finding a constifutional right to 

"individualized sentencing." the court Slated that "a 

defendant being.deprived of his libeny pursuant to a 

statute which sets a sentencing range is constitutionally entitled to an articulated exercise of discretion by 

the judge before whom he appears rather than to the 

mechanical application of formulae adopted by nonconstitutional commissioners invisible to him and to 

the general public." The due process rights ofuaccountability. reason and a fair opponunity to be heard 

... cannot be replaced by any administrative code. 

however extensively considered or precisely drawn. ~, 

Another court previously found a similar due process 

problem. See U.S. v. Frank, No. 87-226 (W.D. Pa. 

Mar. 30. 1988) C'mechanical sentencing procedure" 

which "severely restrlct[s] a district court's ability to 

individualize a defendant's sentence" violates due 

process) (see GSU DO. 5, Apr. 7, 1988). 

Despite bolding the Sentencing Reform Act unconstitutional. the court concluded it would. "out of 

respect for a Congressional-enactment of such magnitude. stay the effect of this holding\intil The constitutionality of the Act has been fmany decided. In the 

Not for Citation. GwideliM StlNtll'lCi"l Updau is provided for infonnation only. II should not be ciled, either in opiniOl'ls or otherwise. 

13 
14 

Guideline Sentencing Update 

interim we will sentence defendants committing 

offenses on or after November 1. 1987. under the 

Act:' 

Volume 1 • Number 7 • April 28. 1988 • Page 2 

u.s. v. Bolding, No. JFM-87-0540 (D. Md. Apr. 

14. 1988) (opinion signed by all sitting judges of the 

coun). 

The first six issues of Guideline Sentencing Update were prepared and distributed on an expedited 

basis in order to disseminate information quicldy on initial district court decisions reaching constitutional 

issues concerning the Guidelines. We recognize that there will continue to be significant decisions requiring immediate dissemination, and in those instances will continue to publish Update on an expedited basis. 

Beginning with this issue. however. Update will be distributed on a regular publication schedule every two 

weeks. subject to occasional expedited issues. 
Guideline Sentencing Update 

VOLllMl! 1 • NUMBER 8· MAy 12.1988 

Constitutionality 

C.D. CaL bolds Guidelines unconstitutional. Sitting 

en banc, the Central District of Califomia ruled 14-10 

"that the Sentencing Refonn Act of 1984 and Guidelines 

promulgated thereunder are unconstitutional because they 

violate both the doctrine of separation of powers and 

defendants' Fifth Amendment right of due process." The 

court authorized the en banc proceeding to determine the 

issue of facial constibltionality of the Act and the Guidelines in twenty-two cases pending before individual 

judges. The majority opinion stated, and the dissenting 

judges agreed, that the decision is binding upon all 

members of the court until there is a contrary ruling from 

the Ninth Circuit or the Supreme Coon. 

In its separation of powers analysis, the court largely 

followed the reasoning of U.s. v. Arnold. 678 F. Supp. 

1463 (S.D. Cal. 1988). and U.s. v. Estrada. 680 F. Supp. 

1312 (D. Minn. 1988). The court concluded that "the Act 

violates the expansion of powers branch of the separation 

of powers doctrine by placing the [Sentencing] Commission in the judicial branch and by requiring service of three 

Article m judges on the Commission," and that the 

"quantitative and qualitative impainnent of the judiciary 

by judges' senoice on the Commission .... violate[s] the 

impainnent branch of the doctrine of separation of 

powers. .. On the due process issue, the court foUowed the 

reasoning of U.s. v. Frank. No. 87-226 (W.D. Pa. Mar. 30, 

1988) and found "the Guidelines as formulated are 

substantively invalid. Quite simply, the mechanical 

formulas and resulting narrow ranges of sentences presaibed by the Guidelines violate defendants' rightlO due 

proce$S ••• by divesting the Court of its traditional and 

fundamental function of exercising its discretion in 

imposing individualized sentences according to the 

panicular facts of each case." 

The dissenting judges reasoned that "[w]hether the 

Commission is tagged with the "judicial branch,' 'executive branch,' or 'independent agency'labe1 is an irrelevancy in determining whether its functions impair or 

expand judicial powers," and concluded that "[s]ince 

regulation or guideline writing does not involve the 

decision of cases or controversies. nor does it impinge on 

the power of the judiciary to decide the same, the mere 

creation of a Commission that creates sentencing guide· 

lines does not violate the separation of powers doctrine." 

In addition, the presence of judges on the Commission is 

acceptable, the dissenlCl'S concluded, because any ccimpair_ 

ment" of the judiciary is minor, and the required presence 

of three judges does not impermissibly "expand[ ] the 

powers of the judiciary into the area of law making" 

because the judge-commissioners do not perform judicial 

work on the Commission. The dissenters also determined 

that the Guidelines do not violate substantive due process: 

"Congress can eliminate all discretion in sentencing, or 

place all discretion in an executive department body; a 

fortiori. it can specify the weight to be given the various 

factors normally considered." 

U.s. v. lJJpez. No. CR 88-05D-R (C.D. Cal. May 5. 

1988) (en bane) (memorandum opinion and order, Hauk, 

Sr. Dist. Judge) (dissenting lJ'Iemorandum, Hupp, I.). 

Other recent decisions finding the Guidelines unconstitutional: 

A district court in D. Colo. has held the Guidelines 

unconstibltiOnai on separation o( powers and due process 

grounds, and ordered that the defendant's sentence "be determined in accordance with pre-existing law." 

The court held that the membership of the Sentencing 

Commission and its placement in the judici:al branch 

violate separation of powcn. Placement of the Commission in the executive branch would not resolve the problem: "The ..• Guidelines are designed lO control the 

discretion given lO Article III judges by 18 U. S. C. 

§ 3553(a) in sentencing particular defendants. If this statute 

explicitly placed the Sentencing Commission in the 

Department of Justice, its unconstitutionality would be 

manifest: the executive department responsible (or prose;. 

cution of crimes cannot control the exercise of discretion 

in dcttnnining punishment granted to Article UI judges by 

Section 3SS3(a). Placement of the Commission anywhere 

in the executive branch is likewise unconstitutional 

because the President is the chief prosecutor." 

On the due process issue the court noted thai. under 

the Guidelines, while a defendant may contest facts 

relevant to sentencing, once the court resolves such a 

dispute the sentence is automatically fIXed within a very 

narrow range. The coun reasoned that "Cons.ress cannot 

combine a grant of discretion to the courts with such 

restrictions that the results of the adjudicnti veprocess are 

dictated .... This is not an interference with judicial 

Not ror Citation. GIli.thIi~ Sellwlcillg Update is provided (or infonnation only. il should nol be tiled. either in opinions or olherwise. 

15 
16 

Guideline Sentencing Update 

discretion, it is a denial of due process in that the defendant has no opponunity to convince the sentencing judge 

that there are circwnsWlCeS which override these point 

allocations. The question is whether Congress may 

substitute for constitutional courts, holding the judicial 

power, an adminisb'adve agency of any kind, independent 

or otherwise, to make determinations of the factual 

components of the sentencing criteria established in 

Section 3553(a)." 

U.s. v. Elliott. No. 87-CR-393 (D. Colo. Apr. 13, 

1988) (memorandum opinion and order, Matsch, J.). 

A dislricl coon in N.D. Ga. has held that the place· 

ment and membership of the Sentencing Commission 

violate the separation of powers doclrine. The coon 

declined to foUow U.s. v. Estrada. 680 F. Supp. 1312 (D. 

Minn. 1988), which had severed the Guidelines and 

sentenced pursuant to the surviving provisions of the 

Sentencing Reform ACL "In this Coon's view, severance 

of the guidelines and the portion of the Act that creates the 

Commission effects such a radical change in the legisla-

'tion that it becomes an entirely new bill. This Court would 

prefer to leave the task of rewriting the Act to Congress." 

U.s. v. Rwstll. No. 88-cr-7-MHS (ND. Ga. Apr. 29, 

1988) (order, Shoob, J.). 

A district court in S.D.N.Y. has held the Guidelines 

unconstitutional on separation of powers grounds, concluding: "Either because the Sentencing Reform Act gives the 

President power to remove Article m judges serving on a 

commission in the judicial branch, or because the Sentencing Reform Act requires judges to perform non-judicial 

functions not authorized by Article III of the Constitution, 

the United States Sentencing Commission, and the SentenCing Guidermes it has promulgated, are unconstirutional." The coun also concluded that "because the 

Guidelines are a central element of the sentencing reform 

which became effective on November I, 1987," defendant 

would, if necessary, be sentenced in accordance with prior 

law. 

U.s. v. Olivencia, No. 88-Cr-64 (SD.N.Y. April 20, 

1988) (opinion and order, Leisure, J.) -

A district coon in W D. Wis. has Ifld that the placement and membership of the Sentencing Commission 

violate separation of powers and the Guidelines are 

therefore invalid. 

U.s. v. Molander. No. 88-CR·2·S (W.O. Wis. Apr. 15, 

1988) (order, Sbabaz, J.). 

Guidelines upheld as constitutional. A dislrict coon 

in D. Mass. has upheld the Guidelines against separation of 

powers, delegation doctrine. and due process challenges. 

Volume 1· Number &. May 12.19&&· Page 2 

The coon stated that it was "in substantial agreement wilh 

the conclusions" in U.s. v. Ruiz-Villanueva. 680 F. Supp. 

1411 (S.D. Cal. 1988) and U.S. v. Chambless. 680 F. Supp. 

793 (B.D. La. 1988). but was writing "to press an analysis 

of the separation of powers issue in terms of the challenge 

presented., namely. the power of Congress to address 

comprehensively the growing and intractable problem of 

unfair disparity in sentencing with legislation compatible 

with constitutional principles." 

The court held that placing the Commission in the 

judicial branch did not unconstitutionally expand the 

powers of the judiciary. "Since early on," the court wrote, 

.. Article m courts have been authorized to promulgate rules 

affecting their administration. procedures and operations." 

The Sentencing Commission "fits within these standards ... 

• Assigning judges to promulgate rules. pursuant to Congress' direction, to guide federal judges in their sentencing 

discretion does not expand the judicial function. It recognizes the relationship between the branches, the roles each 

play in the sentencing process and the need for the partici· 

pation of the judiciary to provide against the domination of 

one branch over another." 

Addressing the claim that the presence of Article III 

judges on the Commission impairs the judiciary by 

"intermingl[ing] the judicial and executive function." lhe 

coon fU'St noted that the judges "serve as commissioners, 

not judges .••. [W]here individual judges voluntarily 

accept an extrajudicial appointment that serves a nonjudicial purpose, there is no conflict with the constitution." 

Funhermore, the President's removal power "is irrelevant 

to the function of the judiciary in performing lts constitutionally mandated tasks of deciding cases. The power of the 

President over the judge-commissioners extends over them 

only in their role as commissioners; the President has no 

power to affect them in their role as judgeS." 

In rejecting the due process challenge, the court ciIed 

the "established principle" that a defendant has a legitimate 

interest in the nature of the sentencing procedure and the 

right to be sentenced on the basis of accurate and reUable 

information. The court then found, however, that "it does 

not follow dlat onl, with completely unfettered judicial 

discretion in sentencing can the due process rights of a 

criminal defendant be prot.ected. This argument not only 

cuts too broadly. it also ignores the fact that discretion is 

not destroyed by the guidelines. it is merely channelled." 

(Emphasis in original.) Moreover, under the Guidelines "a 

defendant maintains the right to participate in all phases of 

the pre-judgment process." and thus "is left with a mean· 

ingful opponunity to be heard." 

The coon also rejected the defendants' "core function" 

and improper delegation arguments. 

U.S. v. Alvts. No. 88-11-MA (D. Mass. May 3, 1988) 

(memorandum and order, Mazzone, J.). 
Guideline Sentencing Update 

C"idamc SmUnci"g U"t~ will be distributed periodically by th4P CArlt« to Worm judg4PS Ind othe judicial personnti or selected rederal court dedsions on th4P 

sent.ncing f4PrOnn l4Psis1.ltion or 1964 Ind 1987,nd th4P Smtendng Guidetinft. Although th4P publication may M4PTtO th4PSmtcmdng Guid4Plinft and policy at.afA!merlts 

of the u.s. Smtcmdng ~ in tM CCll'Iwld or reporting cue holdlnga. it III not intended. to report Semendng Co:aImlJsion polideI or activities. Radenllhould 

mer to tM GuidellMs. policy alit_III, IlOIJUrIeftllry. and other materia. t.ud by tbeSemendng Commission !or sud! In!orINtion. 

Publiation of GliiddiM Smtmcing U~ signifies that th4P Center ""I.rds it II. responsible.nd valuable work. It should not be considered. rt'Couune~tion 

or official policy of 1M Cent«. On mltt4Pn of policy the Center spea1ts cmly through ill Board. 

VOLUME 1 • NlJMBEJt 9 • JUNE, 1. 1988 

Constitutionality 

u.s. seeks certiorari for expedited review of Guidelines' constitutionality. The Solicitor General bas flied a 

"petition for a writ of certiorari before judgment" in an appeal 

of a Guidelines case pending in the Eighth Circuit. The 

petition requests that arguments be held in the fust session of 

the October 1988 Term. and that if the Court strikes down the 

Guidelines. "it should also reach the question of the severability" of other provisions of the Sentencing Reform ACL 

U.S. v. Mistretta. 682 F. Supp. 1033 (W.D. Mo. 1988). 

petition/or cert.filed (U.S. May 19. 1988) (No. 87-1904) 

(underlying case summarized in GSU # 5, U.S. v. Johnson). 

Decisions bolding Guidelines unconstitutional but 

staying orders pending appellate review: 

A disuict coun in D.D.C. has held that the Sentencing 

Reform Act unconstitutionally delegates legislative authority, fmding that "Congress has given 10 the SentenCing Commissionamandateofsuch vagueness that it constitutes no real 

direction at all." This appears to be the fmt Guidelines 

decision 10 find such an improper delegation. The court also 

held that the Act violates separation of powers and due 

process. 

In rejecting!he argument that the Commission should be 

assigned 10 the executive branch. the coun noted that such a 

move would, among other things, subject the Commission to 

various laws applicable to executive agencies. The court also 

noted that ". number of the procedures prescribed by the 

Constitution or by the Federal Rules 0 f Criminal Procedure in 

implementation of due process standards are infringed or 

largely rendered useless by the new Act.·· such as the rights of 

allocution and 10 be present at sentencing. 

Nonetheless. the court "stay[ed] the effect of its ruling 

until the constitutionality of the Sentencing Act has been 

finally decided.·f and will sentence defendants in accordance 

with the ACL U.s. 'I. Brodie. No. 87-0492 (D.D.C. May 19. 

1988) (opinion. Greene, J.). 

U.S. v. Martinez-Ortega. No. 87-40023 (D. Idaho May 

6, 1988) (memorandum decision, Callister, J.) (Guidelines 

"constitutionally flawed and must be struck down" on separation of powers and due process grounds. Coun stayed order 

and will sentence defendants under both Guidelines and preexisting law.). 

Guidelines unconstitutional but severable; repeal of 

Parole Commission and amendment to rule 35 must also 

be severed. A district court in D. Conn. bas held "that the 

portion of the Sentencing [Reform] Act which authorizes the 

CommissiontopromulgatetheGuidelines .•• contravenesthe 

separation of powers doctrine. It follows ... that the Guidelines •.. are themselves n~ll and void. Those portions of the 

Sentencing Act that require courts to impose the Guidelines 

mustalso fall as null and void," but are severable. Without implementation of the Guidelines. the court found that to be 

"consistent with the legislature's intent" the Parole Commission should remain operative and thus its repeal must be 

severed. and that the amendment to rule 35 of the Fed. R. 

Crim. P. should be nuJlified. U.S. v. Molina. No. N 88-17 (D. 

Conn. May 16,1988) (memorandum of decision, Daly, C.J.). 

Other recent cases bolding Guidelines unconstitutional but severable: 

U.S. v. Diaz, No. 87-00159 (S.D. Ala. May 11, 1988) 

(order, Howard. J.) (Sentencing Reform Act violates separation of powers. Guidelines invalid but other sections of Act 

making substantive changes in federal criminal sentencing 

law "are severable and shall remain valid."). 

U.S. v.Fonseca. No. 87-00159 (S.D. Ala. May 11.1988) 

(order. Hand. C.J.) (same). 

u.s. v. DiBiase. No. N-88-4 (D. Conn. May 6, 1988) 

(opinion and order. Cabranes. J.) (Act violates separation of 

powers and thus Guidelines are "null and void." Provisions 

authorizing Commission and requiring application ofGui~­

lines are severable, but "remainder of the Act is 'fully 

operative as law'" and defendant will be sentenced accordingly.). 

U.S. 'I. Harris, No. 88-CR-6-B (N.D. Okla Apr. 29. 

1988) (opinion. as amended, Brett. J.) (Sections of Act 

authorizing Commission and Guidelines violate separation of 

powers but are severable. Defendant, if found guilty. would 

be sentenced accordingly.). 

U.s. v.Nordall.No.CR87-067TB cw..D. Wash. Apri121. 

1988) (order incorporating oral opinion. Bryan, J.) (Sections 

of Act lhat mandate use oflhe Guidel ines. 18 U.S .C. § 3553(b) 

and lhe second sentence of § 3553(e). are unconstitutional. 

I"ot (or Citation. Guiderlfle SelllellCillg Updllle is provided for infonn.1tion only. II should not be cited. either in opinions or otherwise. 

17 
18 

Guideline Sentencing Update 

However, "the constitutionally repugnant part or the guideline scheme is severable and can be cured by the simple device 

of removing the offending mandatory application language 

from the statute:' allowing remainder of ActIO stand. Court 

will "consider" Guidelines in imposing sentence. but not trear 

them as binding.). 

Decisions bolding Guidelines invalid and Dot 

severable: 

Sitting en banco the judges of N.D. Ala. concluded "that 

the provisions of the [Sentencing Reform] Act creating and 

empowering the [Sentencing] Commission impennissibly 

violate the principle of separation of powers" and that "de 

facIO validity" should not be given to past acts oftheCommission. such as the promulgation of the Guidelines. The court 

held that the unconstitutional parts of the Act should not be 

severed from the remaining provision~xcept for the section effecting repeal of the Youth Corrections Act-and that 

"defendants hereafter ... will be sentenced in this court 

without regard to the mandates of the Act." 

U.s. v.Allen. No. CR 88-H-4-S (N.D. Ala. May 18,1988) 

(opinion, per curiam) (en banc). 

u.s. v. Horlon. No. 4-87-128 (D. Minn. May 20, 1988) 

(memorandum opinion and order, Murphy, J.) (Act violates 

separation of powers because of function. placement, and 

composition of Commission. and Guidelines are therefore 

invalid. Unconstitutional provisions cannot be severed. and 

defendant should be sentenced under preexisting law.). 

u.s. v. Wilson. No. CR-88-67-W (W.O. Okla. Apr. 19, 

1988) (order, West, J.) (Act violates separation of powers and 

the "plain intent of Congress" precludes severance of unconstitutional provisions.). 

ReceDt decisions upholding tbe Guidelines: 

Si!ting en banco the judges of D. Ariz. held. '-I, that the 

Guidelines do not violate separation of powers. The majority 

held that placement of the Sentencing Commission in the 

judicial branch was proper and the funclion of the judiciary 

was not impaired. The court found that judges serve as 

individuals and the President's powers of appointment and 

removal do not "control" the judiciarf, Moreover, the removal power is adequately circumscribed by the "good 

cause" standard and would not affect a Commissioner's 

Article III status. The court also rejected challenges to the 

Guidelines based on due process concerns. 

U.S. v. Macias-Pedroza, No. 88·13 (D. Ariz. April 18, 

1988) (Bilby. CJ.) (en banc). 

U.s. v. Smith, No. 87-20219-4 (W.O. Tenn. May 20, 

1988) (memorandum decision, McRae, Sen. Dist. 1.) (Act 

does not violate separation of powers: Commission "is in ract 

in the executive branch; ... work of the Commission is a 

Volume I·Nl.I1lber9 • June 1.1988.Plce 2 

proper method of pursuing sentencing refonn;" presence of 

Article III judges on Commission "is sensible and not unlawfu;" Act's placement of Commission in judicial branch is 

"harmless error" and "erroneous provision should be elided 

froin the Act, tl'lereby salvaging the long sought after sentencing reforms."). . 

U.S. v. Childress. No. 87-263-N (M.D. Ala. May 16. 

1988) (order, Varner. J.) (Guidelines are "constitutionally 

pennissible invasion of the Slatutory power of trial courts to 

sentence convicted criminals within the limits provided by 

statute either hecause: (1) theguidelinesareprovided by a past 

act of the Commission and are, therefore, a valid de facto 

action or (2) the statute creating the Commission and the 

various results thereof are not constitutionally unsound. j. 

Guidelines Application 

Court may consider relevant conduct Dot included in 

offense or conviction. A C.D. Cal. coun has rejected a 

defendant's claim that, in considering relevant conduct for 

purposes of detennining a Guideline range, the court cannot 

consider facts outside those inherent in the count of conviction or stipulated to in a plea agreement 

The defendant and two codefendants were charged in an 

eight-count indictment, and defendant pled guilty to one 

count; the other counts were dropped. The court found that 

defendant's offense of conviction fell under Guideline 

§ 3D1.2(d), which requires grouping of multiple counts. Offenses of this nature are governed by Guideline § 1 B 1.3(a)(2), 

which states that detennination of the Guideline range shall 

be based on "all such acts and omissions that ~ere part of the 

same course of conduct or common scheme or plan as the 

offense of con vic lion." The Commentary to this section states 

that "multiple convictions are not required." 

Thus, in calculating the Guideline sentence, the court 

considered all of defendant's conduct listed in the indictmenL 

Defendant argued that his plea bargain on one count should 

preclude consideration of conduclrelating to theotheralleg~ 

offenses. The court found that the Commentary "does nOl 

suppon this position,"and held that"whilethe(other] conduct 

•.• is not contained in the count of conviction, that absence 

is not a bar to its consideration." The coun also rejected 

defendant's contention that using additional infonnalion in 

this manner would destroy a defendant's incentive to plea 

bargain, finding that in most cases the Guidelines leave courts 

"a considerable range of discretion" to be lenient toward a 

cooperative derendant. 

This case was decided prior to U.S. v. Lopez. No. CR 88-

050-R (C.D. Cal. May 5, 1988) (en)wlc) {holding the 

Guidelines are unconstitutional and will not be used in C.D. 

Cal.), which has not been given retroactive effect 

U.S. v. Ruelas-Armenta. No. CR 87·1027-PAR (C.D. 

Cal. May 2. 1988) (memorandum of decision, Rymer. J.). 
Guideline Sentencing Update 

GaitlllliMSmtmcingUpdItU will bedlstributecl perIodlcallybytheCenterto lnIormjudgflll andoth« judldal penonnel of Mlectecllecleral oourtdedsiontonlhe 

senlenclngrelonn IepIaticm 011984 and 1987 and theSeneftClnS CukHiIn& AIlhougIthepublica&n IN)' '*totheSatttndns Cuidelinesand poIky .... emaa 

of the US. Sentl\dnt CommisIon In the context 01 repon~ _ hold •• It not intended to npoIt Senenclns CommIIIion policies or 1K1iv1t1e11. R.dentbould 

reiIII' to the CuJdeUllel. polic:y .atemenbI, commentary, and other materials IiIIIIIecI by the Senttl\dnt CocnmIaIion f« IIUCh Information. 

Publlclltioft 01 GlliWIM ~ ~ = tNt the Center ......... NIIpoI.aM and wluabIe work.llhoWd not be consIde:ed a recommend.atkn,l 

oroffldalpolkyoilheCert.ter.Onmatt .. ofpo theCenterspeabonlythrouahiuBoard. . 

VOIJ.lNE 1 • NUMBER 10 • JUNB IS, 1988 

Constitutionality 

Certiorari granted in Guidelines' constitutionality case. The Supreme Court has granted the 

government's and defendant's petitions for writs of 

certiorari. before judgment in a case pending in the 

Eighth Circuit (see GSU #9,6/1/88). Oral argument 

will be held during the October 1988 term. 

U.s. v. Mistretta. 682 F. Supp. 1033 (W.O. Mo. 

1988), cert. granted (U.S. June 13, 1988) (Nos. 87-

1904 and 87-7028). 

Two courts hold President's power to remove 

Commissioners unconstitutional but severable: 

A coun in N.D. Cal. held that the presidential removal power provision of the Sentencing Reform Act, 

28 U.S.C. § 991(a), is unconstitutional, but severed 

the provision from the remainder of the statute and 

upheld the Act and the Sentencing Guidelines against 

constitutional and statutory challenges. The conn 

found that the removal power provided even more 

opponunity for undue executive influence and control 

than the removal power held unconstitutional in 

Bowsher v. Synar. 106 S. Ct. 3181 (1986). "Bowsher 

controls this case, and compels the conclusion that 

presidential removal power over members of a judicial 

commission is unconstitutional," the coun held. The 

removal provision may be: severed, however, because 

the remainder of the statute will IUfunction in a 

mDnMr consistent with the intent of Congress. '" 

(Emphasis in original.) 

U.S. v. Myers. No. CR 87...()9()2 (N.D. Cal. Apr. 

11. 1988) (order. Henderson. J.). 

A district court in E.D. Mich., also following 

B(lWsher, held that the removal power is "an lUlconstitutional asswnption of power by the executive" but 

may be severed from the rest of the Sentencing 

Reform Act The court rejected other constitutional 

and statutory challenges in upholding the Guidelines. 

U.S. v. Sparks, No. 88-CR-20019-BC (E.D. Mich. 

June 7. 1988) (memorandum opinion and order. 

Churchill. J.). 

Guidelines upheld as constitutional: 

NIN'llI ClRcurr 

U.s. v. Amesquita-Padilla. No. CR87-264R (W.O. 

Wash. Apr. 20, 1988) (Rolbstein, CJ.) (opinion upholding Guidelines against constitutional and statutory 

challenges). 

Guidelines held unconstitutional: 

SECX>ND ClRaJIT 

U.s. v. Smith, No. 88 Cr. 49 (S.D.N.Y. May 31, 

1988) (Stanton, J.) (order indicating Guidelines will 

be used, if at all, only as non-binding reference 

materials). 

NINlH ClRcurr 

U.s. v. Harrington. No. CR-88-34-1 (liD. Wash. 

Apr. 13, 1988) (McNichols, J.) (memorandum decision holding Guidelines violate separation of powers). 

TEN1H ClRcurr 

U.s. v. Rivas-Hernandez. No. CR-88-S6-T (W.O. 

Olda. May 16, 1988) (Thompson, C.J.) (order holding 

that placement of Commission in judicial branch 

violates article m and separation of powers and that 

neither designating language nor Guidelines are 

severable). 

U.s. v. Bigger. No. 88-10-CR and U.s. v. Scott, 

No. 88-11-CR <B.D. Olda. May 26, 1988) (Suy, J.) 

(orders adopting .. the fmdings and opinion" of RivasHernandez). 

Challenges to Guidelines' Provisions 

GuideUnes' Criminal Livelihood provislon 

upheld. A district court in W.D. Pa. held that the 

Oiminal Uvelihood provision of the Sentencing 

Guidelines, § 481.3. does not violate equal protection 

or due process by discriminating against indigents, nor 

does it lUloonstitutionally deprive the sentencing judge 

of discretion. The defendants argued that an offender 

with no or few non-crirninal sources-ef income is 

more harshly treated under this section of the Guidelines than one who engaged in the same criminal 

Not for Citation. GlluuliM Senuncing Updau is provided for information only. It should not be cited, either in opinions or otherwise. 

19 
20 

Guideline Sentencing Update 

conduct but has other sources of income. Thus. 

defendants claim. poverty functions as the sole 

justification for a longer prison term. One defendant 

also argued that this provision violates the stabltory 

mandate of 28 U.S.c. f 994(d). which commands the 

Sentencing Commission to "assure that the guidelines 

and policy statements are entirely neutral as 10 the . . . 

socioeconomic status of offenders." 

The colD1 found that the Criminal Livelihood provision does not violate the mandate of 28 U.S.C. 

f 994(d) because it is derived directly from another 

subsection of the same stablte. § 994(i)(2). which 

directs the Commission 10 "assure that the guidelines 

specify a sentence 10 a substantial term of imprisonment for categories of defendants in which the defendant committed the offense as pan of a panern of 

criminal conduct from which he derived a substantial 

portion of his income." 

On the constibltional issues. the court noted that 

poverty "is not a suspect classification:' and laws that 

discriminate on this basis "are not subject to strict 

scrutiny." Nevertheless, the Supreme Court "has been 

more demanding of laws that disadvantage the indigent within the criminal justice system," and thus· 

judges "are commissioned to strike down treatment of 

the indigent that is fundamentally unfair." The court 

reasoned, however, that "viewed in the context of a 

Volume I • Number 10 • June IS, 1988· Page: 2 

pattern of criminality. the lack of employment and of 

-legitimately obtained fmancial resources does indicate 

that the defendant is likely to commit further crimes. 

and the deprivatico of liberty may be ~ upon iL" 

Moreover. "indigency is not the sole justifICation for 

the harsh treatment of offenders ... under the guidelines. Rather. their pattern of criminality. a pattern 

upon which they depend for their livelihood, demonstrates a need for their incapacitation." Thus. .. the 

Criminal Livelihood provisioo furthers a legitimate 

governmental purpose"--iDcapacitatiDg professional 

criminals-and alternatives to achieving this purpose 

are "inadequate," 

The coon also rejected the argument that the 

Criminal Livelihood provision's restriction of judicial 

discretion violates due process. Case law shows that 

"individualized sentencing is not a constitutional 

imperative outside capital cases," and "federal courts 

have upheld mandatory sentences that eliminate 

judicial discretion." Therefore, the court held. "from 

Congress' power to eliminate entirely judicial discretion in sentencing follows the power to limit discretion and assign specific values to sentencing factors. to 

The court also found that the guidelines as a whole 

provide a sentencing judge with suffi!=ient discretion. 

U.S. Y. Kerr, No. 87-255 (W.D. Pa. June 3. 1988) 

(opinion. Diamond. J.). 

The fIrSt nine issues of Guideline Sentencing Update reported extensively on district court decisions concerning constitutional challenges 10 the Sentencing Reform Act of 1984 and the Sentencing Guidelines. 

Because of the growing volwne of district court cases co these constibltional issues. future issues of Updtue 

will simply provide circuit-by-circuit citations of recent district coun decisioos on constibltionality. 

District court decisions from circuits in which appellate decisions on constitutionality have been reached 

will not be included in this listing. Appellate decisions. and district court decisioos that break: new ground 

in the treatment of constitutional issues, will be reported in greater detail. 
Guideline Sentencing Update 

GtritlllirlI ~ IlJItIIrk will be diatributed periodlally by the Calter to I.nfonn juda~ and other jud.idal penonne.l of Mlecte<! feden! court dedsions 00 the 

MJltenc:IJIi moan iepbltioo of 1984 and 1 SI81and tM Sentertc:ina Cuidllirla Althotlgh tM puDllcatioo IN 'f rtf« to the Sllntendn& Culdell.t\eulnd policy IltAternenta 

of IN U.5.Sllntll.'lCllla Ccmurdar.ion In tM contrrld ci rwportin& c::ue hoIdinp.lt. not intended to l'I!pOI't Satenc:ingCoImnIISion poUcI.eI or activilie$. RMdAn IhoWd 

rtf«to IN Caldtllnel. poUcy ItIttDII!fttI" CICJINnI!I'ltaty, and other INtedUI ~ecl by the ~ Coa1mIIIion _NCb tnIonnatton. 

PubUcatioo ci GIIitUIiNt SorUItt:iIt, Upf.dr lipUla that tM Ceterrepnil it AI a ~ and YIluablewod.:.lt IhoWd not beocn.ld«ed a ~tIarI 

or olfida1 poUcy ci the Calter. On 1Ntt«a of poJicy the Ceterllpelb cady through ita Board. 

VOLlJMB 1 • NlJMBER 11 • JUNE 29.1988 

Constitutionality 

E.D. Ark. to use dual sentencing approach 

pending resolution of Guidelines' constitutionality. 

A dual sentencing policy for E.O. Ark. was announced 

in an opinion by one judge holding the Sentencing 

Commission and Guidelines unconstitutional on 

improper delegation. Article I presenunent. separation 

of powers. and due process grounds. In addition. the 

court found that the provisions of the Sentencing 

Reform Act regarding "the detailed set of principles or 

sentencing standards which narrow the judge' s 

discretion" and "the requirement that judges state their 

reasons for imposing particular sentences" are severable and should remain in effect, but that the provisions for appellate review of sentences and for "real 

time" sentencing should not survive. 

'The court detennined that because of the uncertainty over whether the Guidelines will ultimately be 

upheld it would, "at the time of sentencing. state and 

explain what its sentence would be assuming the 

Guidelines are upheld. And it will also state and 

explain what its sentence would be if the Guidelines 

are struck down as unconstitutional." 'The sentence 

entered in judgment "will be the laneronly. because 

that will be the only lawful sentence under the opinion 

of the Court. However. if the Court is reversed and the 

Guidelines upheld. a new Judgment and Commiunent 

will have to be entered. but this may be done without 

any further sentencing hearing." 

The court stated that all but one of the other 

judges of the district agreed that the Guidelines are 

unconstitutional. that the two previously mentioned 

provisions are severable. and that they will follow the 

dual sentencing approach. The remaining judge is "not 

convinced that the Guidelines are unconstitutional." 

but has agreed to employ the dual sentencing approach. 

U.S. v. Brittman. No. LR-CR-87-194 (E.O. Ark. 

May 27. 1988) (memorandum opinion. Eisele. C.J.). 

Decisions upholding the Guidelines: 

SBCOND ClRcurr: 

U.S. v. Etienne, No. 87 CR 791 (E.O.N.Y. May 5, 

1988) (Nickerson, J.) (memorandum and order upholding Guidelines against constitutional challenge). 

'fHIRD ClRcurr: 

U.S. v. Hodge, No. 88-04 (D.V.1. May 31, 1988) 

(Christian. Sr. 0.1.) (order dismissing defendant's motion to declare the Guidelines invalid because 

"[w]hether or not The Congress may properly legislate 

as it did. and the constitutionality vel non of such 

legislation respecting Article III courts. it is certainly 

within the constitutional powers of TIle Congress to so 

provide as to the courts of its own creation. as is the 

District Court of the Virgin Islands"). 

FOURTH ClRcurr: 

U.S. v. Richardson. No. 88-8 .. 01-CR-3 (E.O.N.C. 

May 13, 1988)(Boyle. J.)(orderupholding the 

Guidelines against constitutional and statutory challenges). 

Decisions invalidating the Guidelines: 

SECOND ClRcurr: 

U.S. v. Mendez. No. 88 CR 78 (S.ON.Y. June 16. 

1988) (Mukasey. J.) (opinion rejecting statutory challenges but holding that Act violates separation of 

powers and Guidelines are invalid), 

FIFTH CIRcurr: 

U.S. v. Perez, No. A-87-CR-116(1) (W.O. Tex. 

May 23, 1988) (Nowlin. J.) (order holding Sentencing 

Reform Act violates separation of powers and presentment requirement of article I and Guidelines violate 

due process. but finding that Guidelines are severable 

and other parts of Sentencing Reform Acnemain 

valid). 

/ltot for Citation. Guide/j~ SelilellCing Update is provided for information only. It should not be cited. either in opinions or otherwise. 

21 
22 

Guideline Sentencing Update 

SEVEN'IH CIRCUIT: 

U.s. v. Rosorlo. No. 87 CR 968 (N.D. W. June 

23. 1988) (Bua, J.) (order holding Lhe Guidelines 

invalid because structure of the Sentencing Commission violates separation of powers). 

EKnmI CIRcurr: 

U.s. v. TerriU, No. 88-OOO13-06-CR-W (W.D. 

Mo. June 13, 1988) (Oliver, Sr. D.J.) (memorandum 

and orders holding "Guidelines are not constitutionally valid',). 

TENnI CIRcurr: 

U.s. v. Scott, No. 88-031-JB (D.N.M. June 3, 

Volume I • Number 11 • June 29. 1988· Pa&e 2 

1988) (Burciaga. J.) (memorandum opinion and order 

adopting reasoning of U.S. v. Arnold, 678 F. Supp. 

1463 (S.D. Cal. 1988) and holding the,Guidelines 

invalid because composition and placement of the 

Sentencing Commission violate separation of powers). 

F'J.BvENTH CIRcm: • 

U.S. v. Bogle. No. 87-856-CR (S.D. F1a. J1Dle IS, 

1988) (Marcus, J.) C'en banc" opinion holding, 12-4, 

that the Guidelines are invalid and "will not be 

applied in this district" because placement and membership of the Sentencing Commission violate 

separation of powers). 
Guideline Sentencing Update 

GMMIUw ~,.,.IICi", UptIalll will be di.t.triblllCd peliodica1lr by the CcnIC:f lO warm )Id,e. and oIbc:r judicial ~ of IClocIod federal caw:t cIociaiana on !he _cin, ft'lmm Icplolioa of 1984 and 1917 and lhc Scntmci.ne 0uideIincs. Ahhoush !he publicalioa .... y ft'ler 10 the s-cncin, Ouidcllna ... d p:>Iiocr au_II of the U.S. Senlalocin, Commiuioa ill the CQUUt of ICpCIIIin& _IIaW.iDp, it is DOl iIlt.cnded 10 n:pcrt Senll:lncin, CIlIIImiai. poIicica or adivili.ea. Rcedcn dlould mer 10 the Guidelines, p:>Iiocy 

IUlIanCDtS, _1&17, aDd oIbc:r mataiala iuued by the ~ Comrniaion tot: cw:h WcmnMioo. .' 

Public:atiGa f6 GwlMIiM ~ U,,-.1Iipi&a that Ibo CaMr reauU ilu alWpOGlible and valuablo WOIt. It Ihould aot be ~ a recommcndatiGa or afti.cia1 

pcIicy #II the Caner. OIlmallCft of pcIicy die Ccmtc IJlCIoka oaly Ibrouah iu Board. 

VOl.lJN& 1 • NUMBER 12 • JIlLY 21,1988 

Guidelines Applications 

Ninth Circuit clarifies arson Guideline. The 

N'mth Circuit held that the 7-level enhancement for 

arson during the commission of another felony 

applies only to defendants convicted under 18 U.S.C. 

§ 844(h). The defendant pled guilty to an arson 

offense under 18 U.S.C. § 844(i). The district court 

increased the offense level following Guideline 

§ 2K1.4(b)(4), which reads: "If the defendant used 

fire ... to commit another offense that is a felony 

under federal law, or carried explosives during the 

commission of any offense that is a felony under 

federal law (i.e .• the defendant is convi~ted under 18 

U.S.C. § 844 (h»,. increase by 7 levels." The circuit 

court held that the parenthetical clause. by usin~ the 

tenn i.e., "strongly indicates that the Sentencing 

Commission intended the guideline to apply only 

where the defendant has violated § 844(h)," and it 

was therefore improper to increase the offense level 

for a violation of § 844(i). 

U.s. v. King, No. CR 88-1161 (9th Cir. July I, 

1988) (per curiam opinion). 

District court finds defendant's circumstances 

warrant downward departure. A coun in D. Minn. 

detennined that a defendant's "unique, unstable 

upbringing and childhood" and "unique and substantial family ties and responsibilities," along with other 

factors. were "special circumstances" that warranted, 

under 18 U.S.C. § 3553(b), a downward depanure 

from the Guideline sentence. The Guideline range for 

defendant's offense was 97-121 months. TIle court 

concluded that an 84-month sentence was sufficient, 

finding that "the 97-month minimum is excessive and 

that the 84-month sentence is more appropriate in 

achieving the four basic purposes [of the Sentencing 

Reform Act], considering all factors and circumstances described herein." 

The coun also decided not to impose a fme because of the defendant's inability to pay. Further, 

following Guideline·§ 5E4.2(f), the court "considered 

all alternative sanctions in lieu of all or a portion of 

the fine" and found that the "total 84-month sentence 

is punitive" and that any alternative to a fine is 

unnecessary. 

U.S. \I. Haigler, No. 3-87 CRlM 135(2) (D. Minn. 

May 19, 1988)(Staternent of Reasons for Imposing 

Sentence, Alsop, C.J .). 

Constitutionality 

Decisions upholding the Guidelines: 

FIRST CIRcurr: 

. U.s. \I. Seluk, No. 88-107-K (0. Mass. July 5, 

1988) (Keeton, J.) (opinion upholding Guidelines 

against constitutional challenge). 

FOUR11I Cntcurr: 

U.S. v. Stokley, No. 2:87-00206 (S.D.W. Va. July 

8. 1988) (Copenhaver, 1.) (memorandum opinion and 

order of "en banc" coun upholding Guidelines; coun 

severed as unconstitutional provision pla~ing Sentencing Commission in judicial branch). 

SIXlH Cntcurr: 

U.S. v. Landers, No. 88-20022-TU (W.O. Tenn. 

June 24, 1988) (Turner. 1.) (order upholding Guidelines against constitutional and statutory challenges 

and fmding designation of Sentencing Commission as 

judicial agency may be severed from the statute). 

Decisions invalidating the Guidelines: 

FIFIlf Cntcurr: 

U.S. v. Coburn, No. C-88-05 (S.D. Tex. July 13, 

1988) (Head, J.) (order invalidating proviSiOns of 

Sentencing Refonn Act, 18 U.S.C. § 3553(b) and the 

last sentence of § 3553(e), that mandate use of the 

Guidelines; coun "will continue to adbere to all other 

sentencing provisions" of the Act and will use the 

Not for Citation. Guidi!lilUl Senle"cj"g Updatt is provided lor informalion only. It should not be cited. either in opinions or otherwise. 

23 
24 

Guideline Sentencing Update 

Guidelines "as a product of generally persuasive 

force'}. 

SDmI Oacurr: 

U.S. v. Williams, No. 3-88-00014 (M.D. Tenn. 

June 23) (per curiam) (memorandum opinion of "en 

banc" court holding Guidelines "unconstitutional and 

unenforceable on the ground that they were promulgated by a body to which Congress. consistent with 

the Constitution. could not delegate such a function"; 

certain provisions of the Sentencing Reform Actincluding "real time" sentencing. elimination of 

parole. and statement of reasons for imposing sentence-remain valid aDd defendants will be sentenced 

accordingly). 

U.S. v. Thomas, No. 87-20218 G (W.D. Tenn. 

June 7. 1988) (Gibbons, J.) (order holding Guidelines 

invalid on separation of powers grounds and that 

"there are no severable parts of the Act that may be 

given effect"; coun will announce two sentencesone under prior law and one under Guidelines-and 

defendants will commence serving prior law sentence 

with Guideline sentence to take effect if Act is ultimately held constitutional). 

Volume 1 • Number 12. July 21,1988. Page 2 

EJGHI'H CIReun-: 

U.S. v. Serpa, No. CR87-L-44 (D. Neb. July 12. 

1988) (per curiam) (memorandum and order of "en 

banc" coun holding Guidelines invalid on separation 

of powers grounds, but severable; "defendants shall 

be sentenced in accordance with the remaining 

provisions of the Sentencing Reform Act and, where 

necessary, in reference to" prior law). 

F'..LEvENm 0Rcurr: 

U.S. v. Kane, No. CR87-37R (N.D. Ga. June 28. 

1988) (Murphy, J.) (order holding Guidelines invalid 

on nondelegation and separation of powers grounds, 

and imposing sentence as if crime 'committed prior to 

November 1. 1987). 

U.S. v. Bogle, No. 87-856-CR (S.D. Aa. June 30, 

1988) (per curiam) (order of "en banc" coun. after 

prior ruling that Guidelines are invalid, holding 

provisions of Sentencing Reform Act eliminating 

parole are not severable from Guidelines and therefore shall not apply to sentences imposed in this 

district, but that provision modifying computation of 

"good time" credits is severable from Guidelines and 

shall be applied). 
Guideline Sentencing Update 

VOUlMB 1 • NUWBfR 13 • Au0UST3.1988 

Guidelines Applications 

District court holds exceptional military 

service record warrants departure. A court in D. 

Md. held "that a person's military record is a relevant 

sentencing factor that was not considered by the 

Sentencing Commission and should be considered as 

an aggravating or a mitigating factor at sentencing" 

under 18 U.S.C. § 3SS3(b). The defendant pled guilty 

to a mail theft offense, with a resulting Guideline 

sentence of 1-7 months. The coun determined that 

probation was a permissible sentence, and that under 

Guideline § SB1.I(a)(2) the defendant would be 

required to serve some period of intermittent or 

community confinement The coun found, however; 

"that the defendant's exceptional military record is a 

mitigating factor that warrants departure from Guideline Section SB1.1(a)(2). Therefore, the defendant 

will be sentenced to a period of probation. without a 

condition or combination of conditions requiring 

intermittent confinement or community confinement." (Emphasis in original.) 

U.S. v. Pipich. No. S 88-097 (D. Md. July 20, 

1988) (Smalkin. J.) (memorandum opinion). 

Constitutionality 

Probation officers' role, specific Guidelines 

provisions upheld against constitutional attack. A 

coon in D. Or. rejected challenges to the role of 

probation officers under the Sentencing Reform Act, 

and to the acceptance of responsibility and career 

offender sections of the Guidelines. The defendants 

argued that the "fundamental change in the role of the 

probation officer" under the Act violates separation 

of powers and due process. The coun considered the 

role of the probation officer before and after the 

effective date of the Guidelines and concluded that 

"while the duties and role are significantly changed, 

in their essentials they are still the same," and there is 

no constitutional vi01ation. 

The coun rejected the claim that Guideline 

§ 3E 1.1. which provldes a reduction in offense level 

for acceptance of responsibility. "chills the exercise" 

of the sixth amendment right to jury trial and the fifth 

amendment privilege against self-incrimination. 1ltis 

provision "is not constitutionally objectionable on its 

face" because it "is not designed for the purpose of 

inducing involuntary incriminating statements or 

involuntary guilty pleas" and "a guilty plea, as such, 

is neither a prerequisite to receiving the benefit of the 

reduction nor sufficient in itself to entitle a defendant 

to reduction." Nor is it unconstitutional. the coun 

found, to encourage a guilty plea with a promise of 

leniency, or to impose a stiffer sentence on defendants who do not accept responsibility for their 

actions. The court also held that § 3E 1.1 was not 

unconstitutional as applied in this case. 

One defendant challenged the constitutionality of 

the career offender provision, Guideline § 4B 1. 1. The 

court held that the provision is not an "impermissible 

delegation oflegislative authority," is not "a new 

crime 'legislated' by the [Sentencing Commission] in 

violation of the separation of powers doctrine," does 

not exceed the authority granted the Commission by 

the Sentencing Reform Act, and is not a "status 

offense" but rather "a permissible sentence enhancement provision:' 

The coun also rejected a challenge to Guideline 

§§ 4A1.2 and 4A1.3(a). which allow consideration of 

"tribal convictions" for departure purposes, and 

challenges to the Guidelines as a whole based on 

unlawful delegation, separation of powers, and due 

process grounds. 

U.S. v. Belgard. No. 88-S-PA (D. Or. June 3D, 

1988, as amended July 2S, 1988) (Bums, J.) (opinion 

and order). 

Decisions upholding the Guidelines: 

SECOND CIRCUIT: 

U.S. v. Hickernell. No. 88 Cr. 8T(S.DN.Y. July 

27, 1988) (Brieant, c.J.) (memorandum and order 

upholding Guidelines against constitutional and 

Not rOf' Citation. GuiiU/i1l4! StnJ,flcv.g Upda/t is provided for information only. It should not be cited, either in opinions or Otherwise. 

25 
26 

Guideline Sentencing Update 

statutory challenges; defendant will be sentenced 

under Guidelines. but U[e]xecution will be stayed 

until ten (10) days following issuance of the mandate 

of the Coun of Appeals in United States v. Carlos 

Martinez, 87 Cr. 1020 (KTD), unless the Coun of 

Appeals shall direct otherwise"). 

THIRD Cntcurr: 

U.S. v. Schwartz. No. 87-103 (0. Del. July 8, 

1988) (Schwanz, CJ.) (opinion holding: "(1) there is 

no excessive delegation to the [Sentencing] Commission; (2) the creation of the Commission does not 

breach separation of powers; and (3) the placement of 

the Commission in the Judicial Branch does not 

violate Article Dr,. 

EIGfm{ Cntcurr: 

U.S. v. Whitfield, No. 3-88-7 (0. Minn. July 27. 

1988) (Devitt, Sr. D.1.) (order upholding Guidelines 

against separation of powers challenge). 

Decisions invalidating the Guidelines: 

SECOND ClRcurr: 

U.S. v. Alafriz. No. S 88 CR. 0002 (S.D.N.Y. July 

6, 1988) (Sweet, J.) (opinion holding that the Sentencing Reform Act violates separation of powers. 

due process, and the non-delegation doctrine. that the 

Guidelines "prevent couns from performing their 

Article III function" to consider defendants as individuals for sentencing purposes, and that defendants 

"will be sentenced under pre-guideline standards''). 

U.S. v. Sumpter, No. 88 CR. 275 (S.D.N.Y. July 

5, 1988) (Conboy, J.) (opinion and order holding that 

the presidential removal power over the Sentencing 

Commission's judges violates separation of powers 

and that the defendant wilt be sentenced under prior 

law), 

Volume 1 • NU11Ibet 13 • Augull 3, 1988 • Page 2 

Thnm Cntcurr: 

U.S. v. Brown. No. 88-00010-01 (E.D. Pa. July 

21. 1988) (Newcomer, Sr. D.1.) (memorandum and 

order holding Guidelines invalid on seParation of 

powers grounds, but coon will ··stay the effect of this' 

memorandum and order and sentence defendant 

under the 1984 Act and guidelines until the constitutionality of the Act has been decided''). 

EiGlDll Cntcurr: 

U.S. v. Buter, No. S-88-08 (0. MinD. July 19, 

1988) (Magnuson, J.) (memorandum and order 

adopting "the reasoning and holding" of U.5. v. 

Horton, No. 4-87-128 (D, Minn. May 20,1988) (see 

GSU II 9), holding that .. .the Sentencing Reform Act 

of 1984 and Guidelines promulgated thereunder are 

unconstitutional" and defendant will be sentenced 

under prior law), 

TENtH ClRcurr: 

U.S. v. Swapp, No. 88-CR-006J (D. Utah July 18, 

1988) (Jenkins, C.1.) (memorandum opinion of "en 

banc", coon holding Guidelines invalid because "the 

Sentencing Refonn Act of 1984 violates the separation of powers doctrine, the nondelegation doctrine 

and the procedural requirements of a,nicle 1"; defendants in this district will be sentenced under prior 

law, but the U.S. Probation Office is directed '"to 

process its presentence investigation repons under 

both the old and the new systems in case a defendant 

may have to be resentenced at a later date'). 

U.S. v. Brown. No. 88-10036-01 (0. Kan. July 

14, 1988) (Crow, J.) (memorandum and order holding 

Guidelines invalid on separation of powers grounds; 

coun will "state and explain the appropriate sentence 

for defendants" under both Guidelines and prior law. 

entering only the latter on judgmeau and commi1ment 

with Guideline sentence to be entered in the future if 

Guidelines are ultimately upheld). 
Guideline Sentencing Update 

a..u.1iNI SMMIICbt, UpdIIU will be di.mibulecl periodically bJ!he c.u.1O Waaa judsOi &ad ocher jIadicial pcnanocl 01 tclecIocI fodonl COW\ dec:iaiGao GD the -....ciq 

rel_~ 01 1914 IDd 19171Dd Ibe s---. (]QWeIjpM AlIbaIlJ,IltllepablicatiGama, •• 101be ScIalCiIll ~1Dd poIicJ __ 0I1be u.s. Sea&tacina 0.-; ...... iIIlbeamtalol..,.uaa_lIoW.iIIp.lr.iII ....... 10 1!IIpCIll ......... ,c-illiGD poIida ... activida .... 1houlcI .... 1DIbe~poIicJ ___ • ~.1Dd GtJ.1IIIteIiala .... b)'1be~ 0--;";'" _-a ____ . JI\iIb1i,caIioo oIGtIi4diM ~ U,.,. ~ IbutlleC-..... I& •• ~.IDd .... bIe wact.111baa1d •• -.ddcnd.,.. & y'aliaa ... aIJic:W 

p<IIi.c:J 0I1be c.u.. 0II1111111a1 01 poIioJlbe C-ipDIb Gal, ......... ill Boant. 

VClI.UWII 1 • NUIof.IIIIt 14 • AoousT 26. 1988 

Constitutionality-Appellate Courts 

Ninth Circuit invalidates GuidellDes. In the first appelIaIecourtqJinion on the constitutionality of the Sentencing 

Refonn Act of 1984, a divided panel oftheNmth Circuit held 

that provisions of the Act establishing the Sentencing Commission and awhorizing the promulgation of the Sentencing 

Guidelines violalc separation of powers. The court also held 

that the Act's modification of "good time" credits may not be 

severed from the guideline sentencing system and is thus invalid. 

The court began its analysis "by considering whether 

federaljudges serving as commissioners may constitutionally 

pezfonn the m1emaking functions Congress bas assigned to 

them." Reviewing the Commission's wodt and statutory 

mandate. the court concluded "that the Commission is assigned the function of promulgating substantive rules and 

policies governing primary conduct and having the force and 

effect of law. tasks that only the legislative or executive 

branches. not the judicial branch, may constitutionally perfonn." The Commission's functions. in the court's view, are 

"quintessentially political in nature. requiring substantive. 

policy decisions that are intended to affect all future fedeml 

criminal defendants-a far cry from Article W' s limited grant 

of judicial power to decide cases and controversies." 

The court refused torecharacterize the Commission as an 

executive branch agency, finding that Congress clearly intended it to be in the judiciary. Moreover, "[t] he Commission 

is constirutionally infum not merely because it resides in the 

judicial branch, but, independently, because its principal 

offICerS include federal judges, while its function is political 

and not judicial in nature." 

As to wheth« the Act "woIts a substantial and unjustified interference with the operation of the judicial branch and 

its officers," thecoun found that "service by fedcnljudges on 

the Sentencing Commission has signiflCallt collateral effects 

ontheoperationofthejudicialbranch."Themis"acontinuous 

and fairly significant entanglement between the judicial and 

executive branches," a possibility of undue executive influence from the President's powers of appointment and removal, and a threat to the impartiality of the judiciary and the 

public's perception of impartiality. Such effects are notjustifled by any overriding need, the court concluded. Congress 

could have "secure[d] the contributions of individuals with 

expertise in sentencing and judicial administration" by using 

former or retired judges or informal input from the judiciary. 

Thecounalso held that the Acl's revision of "good time" 

credits was invalid. The SWUUXy scheme and legislative 

history indicate this change wasclosdy connected toimpJementation of the Guidelines as part of "a 'comprehensive' 

approach to making sentencing more deImninate. .. and the 

court refused to implement it separately. The dissent contended that Congress could and prop«ty did dclegatc to the 

Commission the power to jX'e5Cribe senrences, and that in 

practice the placement, SbUCture. and functions of ~ Commission nei cher expand nor infringe upon the constitutionally 

assigned duties of any of the three brandles. 

Gubil!n.sio-Ortiz v. Kanahelt.No. 88-5848{9ch Cir.Aug. 

23.1988) (Kozinski. J.) (Wiggins, l .• dissenting). 

Guidelines Application 

Second Circuit holds dispute over which guideline 

range applies IDay be left unresolved it lentence is 

uaaft'ected. The Second Circuit has answered the question 

"whether, and under what circumstances, a dispute as to 

which of two guideline ranges should apply to a defendant 

may be left unresolved where the sentence imposed falls 

within both the guideline range deemed applicable by the 

Government and a lower guideline range deemed applicable 

by the defendant" The court held that such disputes need not 

be resolved when the same sentence would be imposed under 

either guideline range, but must be resolved if the sentencing 

judge applied the range urged by the govemmentand selected 

the sentence because it is at m- near the low end of that range. 

1be dispute in this case arose over the application of a 

Guideline section to defendant's crime. and which offense 

level and guideline range should apply. Under the 

government's interpn:tation the applicable range was 9-15 

months, wbi1c in defendant', view a range of 4 to 10 months 

applied.. 1be sentencing c:oun agreed with the government, 

and gave defendant a 9·month SCDtence. 

The appeUate court detamined from the suucture of the 

sentencing table and policy statements of the Sentencing 

Commission that overlapping ranges were c:k'mgned. in part. 

to avoid litigation over minor differences in offense kMeI.s. 

From this. the court concluded that"disputesaboulapplicable 

guidelines need not be resolved where the sentenc:c falls 

within either of two arguably applicable guideline ranges and 

the same sentence would have been imposed under either 

guideline range .... It makes litde sense--m hold. and review 

the outcomes of. all the hearings necessary to make these 

precise detenninations in those instances where the sentence 

is unaffected by the outcome .... As long as the sentencing 

Not 'Of' Citation. GukUliM Sf!lIlt!lU;iIlg Updatf! is provided for infonnation only. It should not be cited. diller in opinions or ocherwise. 

27 
28 

Guideline Sentencing Update 

judge is satisfied that the same sentence would have been imposed no matter which of the two guideline ranges applies. the 

sentence should stand" 

A dispute over sentencing ranges may not be left unresolved, however, in the situation "'where a sentencing judge 

determines that &be applopriale sentence is whatever number 

of months are at or near the boUom of the appl.i.cable guideline 

range .••• If the judge's intention is not clear, the appeUate 

court will face the choice ofeilheradjudicatingaguidelineapplication dispute that might in fact be of DO consequence or 

remanding so that the judge' s intention may be clarified."Jn 

this case, the coon remanded "for c1ari.f:ic:ation of the Judge's 

intenL" The COUIt also obsenred dial "'[a]rticulation of the 

judge's intentions at the time of senteDcingwill contributesignificandy to the efficient functioning of the guideline system." and that it would "be helpful if prosecUlOrS and probalion officers alen district judges to this mauer in all cases 

where a sentence falls within the overlapping area of disputed 

guideline ranges." 

u.s. v.Bumingham,No. 88·1025 (2dCir. Aug. 11.1988) 

(Newman, I.). 

Good time penalty warrants downward departure, 

W.D. Tenn. holds. Defendant pled guilty to escape from 

custody after failure to return to a halfway house. As a result 

of the incident. Bureau of Prison officials tookaway sixty days 

of good time. The coon concluded that this action warranted 

a departUre from the Guideline sentence imposed for the 

escape offense: uThe Court . . . finds that the sentence shouJd 

be imposed below the guidelines in the amount of two months 

because the Bureau of Prisons has penalized the defendant for 

this conduct by depriving him of sixty days good time. This is 

done pursuant to 18 U.s.C. § 3553 as rhe Court's explanation 

for sentencing below the guidelines. " 

U.s. v. Ho.m.er, No. 88-2006()..4 (W.D. Tenn. Aug. 8, 

1988) (McRae.. Sr. OJ.) (order on Guideline variance). 

Constitutionality-District Courts 

S.D. Fla. provides reasons tor earlier ruling denyiDg 

governmeat request to stay order iavalidatiog Guidelines. 

On Iune IS, 1988, the judges of S.D. Fla., sitting "en bane," 

held the Guidelines invalid on separation of powers grounds 

(see GSU II 11). The court denied the government's motion to 

stay that order on lune 30, and also determined that the 

Sentencing Reform Act's modification of "good time .. c::redi1s 

survived and remained in effect. but the provisions abolishing 

parole did nOl (see GSU II 12). 

In a recent opinion detailing the reasons for the June 30 

order, the court stated it denied the request fora stay because: 

(l) the government "is without a 'fair prospect' of prevailing 

in the Supreme Court"; (2) developments in the law subsequent to that ruling, including Morrison v. Olson, lOS S. CL 

2597 (1988). do [lot compel a different result; (3) imposition 

Volume I • Number 14· Augult 26, 1988. Page 2 

of a stay would result in irreparable injury to defendants who 

would receive prison tenns under the Guidelines but not under 

prior law; (4) exceptions for such defendants on a case-bycase basis would require use of a dual sentencing system, 

which would be overly burdensome; and., (5) if the Supeme 

Court finds the Guidelines uncon.stilUtional it will not be 

easier 10 change from a Guideline to non-Guideline system 

than vice-versa if the Guidelines are upheld. 

U.s. v. Bogle. No. 87-856-CR (S.D. Fla. Aug. 11, 1988) 

(Marcus. I.). 

Decisions upboldiDa the Guidelines: 

SECOND 0Jtcurr: 

U.s. v. Schender, No. CR-87-00806-02 (E.D.N.Y. July 

13, 1988) (Sifton, 1.) (memorandum and order rejecting 

constilUtional challenges and claims that Guidelines are in· 

consistent with enabling stalUte and that effective date of 

Sentencing Reform Act should be Dec. 18, 1987). 

ThDm Cutcurr: 

U.s. v. HI/!. No. 88-72 (W.D. PI. Aug. 17, 1988) (Diamond,J .) (opinion rejecting c:onstilUtional chaUenges, includ· 

ingarguments that usc of uncharged conduct,evidencc not admissible to prove guilt. and facts not proven beyond reasonable doubt in calculating Guideline sentence violate due 

process). 

SEVENrH CIRcurr: 

U.s. v. Wei.dner, No. sCr. 88-15 (N.D. Ind. Aug. 11, 

1988) (MiUer, I.) (memorandum and order upholding Guidelines against separation of powers and due process chal· 

lenges). 

Decisions Invalidating the Guidelines: 

ThDm Cutcurr: 

U.s. v. Kapan.lais, No. 87·251 (W.D. Pa. Aug. 16,1988) 

(Bloch. I.) (memorandum opinion holding composition and 

placement of Sentencing Commission violate separation of 

powers; other provisions of Sentencing Reform Act. such as 

factors IOconsidec and statement of reasons, appellate review, 

abolition of parole, supervised release, and repeal of Youth 

Corrections Act. remain valid and shall be appUed in sentencing). 

U.s. v. Rossi, No. 87·241 (W.O. Pa. Aug. 11, 1988) 

(McCune, Sr. OJ.) (memorandum and order fmding '"the 

GuideJines to be legislation and void for failure of Congress 

to adopt themj. 

EuM!NrH ClRcurr: 

U.s. v. Richardson, No. CR88-222-1A (N.D. Ga. Aug. 9, 

1988) (Freeman, I .) (order holding Guidelines violate separa. 

tion of powers; court will sentence defendants under prior 

law). 
Guideline Sentencing Update 

GwUklUu Sc~IICUI' UpdMll will be dimibulCd periodically by die Ctaler too iIIf_ PIp and oIhCI' Pdic:ial pcnamc.l of Idectoil fedcn1coun ~ .. the ___ , 

relom> lepLtliOll of 19M and 1917 aad the SeIIIendn& ~ A.IIhooF die publiuliocl ma)' rei. too tile Smtcacina 0ui1Selm. aad ro&1l'11.lanenll ~the U.s. Sal-.. in, CommissI.cIG ia die c:onlatof~ _ hoIdiI!p. it iI_ ia1mdcocI too..,.. s--:in, C ___ poIidaI ar ICCiYili& JtadcrJ &baWd rei. toolbeOiWkliMl. palicJ 

__ ... -IU)'. and ocher ma." iHuecI by IboScnIalCiltc c-m.a-far IIUCb iaf-mcn. 

Publication ~ GttiMliN SIl~IfCiA, U,.,t.ulianifiea that die CCIIIa' Nprds it IS. reapolllihle aad valuable WOJS. II. IMWd _ be CCIIIIidend • ~Iioa ar oIfliCW 

policy ~ die Ccntct. On mallen cl JIOtic1!.be Ctaler ipW:I Gal)' IhIwp ira Board. 

VOl.UNB 1 • NUMBER IS • SEP'I1lNBEIt 14, 1988 

Constitutionality-Appellate Courts 

Fifth Circuit exercises supervisory power to order use 

ofGuideUne5 in aU district courts pending Supreme Court 

decision. "Afu:r considering the merits of the constitutional 

arguments raised in various appeals before this court. the 

impending Supreme Coun resolution of the constitutional 

issues, and the impact on the administration of criminal justice 

in the interim, we exercise our supervisory power to direct that 

the senlencing guidelines be applied in all district courts of the 

Fifth Circuit pending the decision of the Supreme Court ••• in 

[U.s ,J v. Mistretta and the implementation of that decision by 

this court. " Thecoun stated its ruling does not preclude funher 

constitutional challenges to the Guidelines and noted that all 

but 6 of the circuit' s 65 district judges now use the Guidelines. 

U.s. v. White. No. 88-1073 (5th Cir. Sept 8, 1988) (per 

cwiam). 

Government request to stay decision holding Guidelines unconstitutional denied. The Eleventh Circuit refused 

to grant an emergency stay of the order in U.S. v. Bogle, No, 

87-OO8S6-CR (S.D. Fla. June 15, 1 988)(en banc)(seeGSU# 

II and # 14), pending appeal on the merits. The coun found 

that the government failed to demonstrale it would suffer 

irreparable injury if the stay were not granted. On the other 

hand, "some defendants who would have gotten probation 

under the pre-guideline syslem will be required to serve a term 

of imprisonment" under the Guidelines, and would thereby 

suffer an "wmecessary deprivation of libeny [that) clearly 

constitutes irreparable harm." 

The coun "encowaged" district courts to delennine on a 

case-by-case basis whether they should make findings that 

would be necessary under the Guidelines in order to alleviate 

future administrative problems if the Guidelines are upheld. 

U.s. v.Bogle.No. 88-5700(llthCir.Aug.26,1988)(per 

curiam), 

Guidelines Application 

presenlence report which are used to determine the offense 

level," not the "clear and convincing evidence" standard 

defendant sought 

The court also examined "'to what extent a court may 

consider evidence of prior unindicted aiminal activity ••• in 

determining the aptX'Opriate offense level under the sentencing guidelines," There was evidence of defendant's involvement with drugs several months prior to the offense of convic· 

tion, possession with inlent to distribule cocaine. 1be court 

detennined Guideline § IB1.3 authorizes that "conduct that 

is not formally charged or is not an element of the offense of 

conviction may enter into the detennination of the applicable 

guideline sentencing range" if "'the alleged prior act and the 

offense of conviction were part of the same course of conduct 

or common scheme or plan for purposes of § IB 1.3(a)('2)," 

The coun concluded that the acts in question were part of"a 

continuing course of narcotics dealing on Ihe part of defen· 

dant." and were thus "relevant conduct for the purpose of determining the offense level." Bw see U.s. v. Smith. infra. The 

coun "would have been free prior to the guidelines to consider 

evidence of a continuing pattern of drug actiyity on the part of 

a defendant, " and the Guidelines have not changed that. 

ThecounaIso denied defendant's motion to withdraw his 

guilty plea under Fed. R. Crim. P. 32(d): ""The fact that a 

defendant receives a higher sentence under the guidelines than 

he anticipated does not constitute grounds in this case for 

allowing defendant to withdraw his guilty plea." 

U.s. v. Silverman, No. CR2·88-028 (S.D. Ohio Aug. 23, 

1988) (Graham, J.) (memorandum opinion). 

Use of counts dismissed as part of plea bargain limited 

in setting ofTense leveL A W.D. Tenn. counheld ahat conduct 

included in setting the base offense level "must be established 

by a finding of the jury, a plea of guilly confinned by a fmding 

of gUilt in open court. or a stipulated offense other lhan the 

offense of conviction on a plea of gUilty or nolo contendere." 

Other conduct, however. "ifcst.ablishedintherecord,"maybe 

consideced for certain adjustments to the offense leveL 

District court examines evidentiary procedures wben Defendant agreed to a plea bargain in wruch he would 

determining offense level. A coun in S.D. Ohio resolved plead gUilty to one drug count and a second drug count would 

several evidentiary issues relating to guideline sentencing. be dropped. Guidelines §§ IB1.3(a)(2) and 3Dl.2(d) re· 

The coun held it is not limited to considering evidence quired, however, that the amount of drugs from !he second 

admissible at trial or already contained in the presenlence count be considered insetting the base offense level. Thecoun 

report-the Guidelines have not repealed the practice of concluded that "the Guidelines and Commentaries of the 

considering any information with "sufficient indicia of relia- Commission which authorize or require that alleged criminal 

bility to support its probable accuracy" that defendant has "an conduct included in counts to be dismissed pursuant to a plea 

opportunity to explain or rebut." In addition, the court held I agreement and therefore not proven againstor admilled by the 

"for purposes of this case" thai it "will apply a preponderance! defendant, be added 10 counts 10 which a pica of guilty and a 

of Ihe evidence lest to the faclual mailers set forth in the I finding of guilt are made for the purpose of determining the 

1\01 for Citation. Guic:U:/ine Senrencing Vpdale IS provided for infonn3tion only. It should not be cited, either in opinions or otherwise. 

29 
30 

Guideline Sentencing Update 

Base Offense Level. are beyond the scope of the enabling 

legislation. 28 U.S.C. § § 991-998. and therefore inapplicable 

in the calculations of the Base Offense Level in this case. " 

Even if the legislation authorized such use of unproven 

conduct. the court held. the "procedure of including the 

alleged conduct of a dismissed count. creates 'a mitigating 

circumstance (unjust punishment) ••• 10 a degJee DOt adequately raken into consideration by the Sentencing Commission •• :" -Which would authorize and require sentencing 

below the guideline range" by the amount the base offense 

level was increased by the inclusion of the dismissed cowus. 

The court's decision here differs from two Olh« case&-

Silverman, supra. and U.s. v. RU41as-ArrMIIla, 684 F. Suppa 

1048 (C.D. Cal. 1988) (Stt GSU • 9). 

Nonetheless, the court concluded "that conduct oth« 

than the conduct which was necessary to establish the essential elements of the offense or offenses of conviction, if 

established in the record, may be considered for adjustment to 

the Base Offense Level pursuant 10 Pans A. B, C and E of 

Chapter 3 of the Manual, the precise sentence within therange 

of the guidelines, fines and restiUltion .••. " (Note: Pans A, B, 

C and E of Chapter 3 cover victim-related adjustments, role in 

the offense. obstruction, and acceptance of responsibility.) 

U.s. v. Smith. No. 87-20219-4 (W.D. Tenn. Aug. 26. 

1988) (McRae. Sr. DJ.) (ruling on sentencing hearing). 

Guideline section mandating consecutive sentences 

held contrary to statute. In D. Md. a defendant being sentenced for escaping from federal custody stin had time remaining on an earlier sentence. In such a situation, Guideline 

§ 5GI.3 states that "the sentences for the instantoffense(s) 

shaD run consecutively to .•• unexpired sentences, unless one 

or more of the instant offense(s) arose out of the same 

transactions or occurrences as the unexpired sentences." The 

court found § 5G 1.3 inconsistent with 18 U.S.C. § 3584(a), 

which states that "if a term of imprisonment is imposed on a 

defendant who is already subject to an undischarged term of 

imprisonment. the terms may run concurrently or consecutively," and that "terms of imprisonment imposed at different 

times run consecuti vel y unless the court orders that the terms 

are 10 run concurrently." The Sentencing Commission apparently interpreted § 3584(a) as creating a presumption in favor 

of consecutive sentences, the court found, whereas it "creates 

a presumption in favor of consecutive sentences only where 

the Court remains silent on the issue." 

The court concluded that the Commission ·'failed to give 

adequate consideration to § 3584 (a) when formulating Guideline § SG 1.3. Accordingly ,the Court will depart from Guideline § 5Gl.3 ... when determining whether to impose ••. 

sentence concWTently or conseculively." The court ordered 

the lerms to run concurrently. 

U.S. \I. Scott. No. JH-87-0570 (D. Md. May 23, 1988) 

(Howard, J.) (memorandum and order). 

I 

I 

Volume 1 • Number 1S· Seplember 14.1988· Page 2 

District court finds problems with plea bargaining 

under Guidelines; lifts stay of order Invalidating Guidelines. "Defects" in plea bargains under Ihe Guidelines led a 

court in D.D.C. to conclude "it would be imp:udcnt 10 continue to apply che guidelines.." Thus, the court lifted the Slay of 

its order invalidating the Guidelines in U.5. v. BrodU, 686 F. 

SUppa 941 (D.D.C. 1988). and will "abide by prior law." 

In one case before the court a plea to a "esser included 

offense," a misdemeanor, resulted in the same sentence under 

the Guidelines warraated by the originally charged felony offense. The court concluded that in such an inslanc:e Ihe "'benefit" of a plea bargain may be "entirely illusory," and that "it 

should not participate in a scheme which implicitly or explicitly promises the defendant that his plea will bring him 

more lenient treatment when, under lhe guidelines. that is not 

what will occur." The court concluded Chat. "in order 10 avoid 

misleading criminal defendants in this respect. it should advise such defendants of this fundamental fact at the dmeofrhe 

taking of the plea. or in any event prior 10 the time rhatsentence 

is imposed. so as 10 permit a withdrawal of the guilty plea." 

In a second case, the Guideline sentence for a defendant 

convicted at trial on one count was ten times that which two 

other defendants (involved in the same activity and charged 

with four offenses) would receive in plea bargains dropping 

three counts in exchange for guilty pleas to another counL 

The court concluded that "these variations in punishment fly 

in the face of the dominant congressional purpose undetlying 

the enactment of the new law-that of eliminating unwarranted disparity." 

The court noted that if a plea bargain includes an agreement to dismiss or not pursue charges, Guideline § 6BI.2 

provides that "the court may accept the agreement [only] if the 

court determines, for reasons stated on the record. that the 

remaining charges adequately reflect the seriousness of the 

actual offense behavior and that accepting the agreement will 

not undermine the statutory purposes of sentencing." The 

court concluded that following § 6B 1.2 "in practice raises 

weU-nigh insurmountable obstacles." It would require courts 

to probe-perhaps unconstiUltionally-into proseculOrial 

decisionmaking, and the Sentencing Commi~on has 

"plainly stated .. that Fed. R. Crim. P. Il(e), which requires 

that charges remaining after a plea bargain reflect the seriousness of the aClual offense, "does not authorize judges 10 

intrude upon the charging discretion of the proseculOr." The 

result is "10 leave prosecutors free to employ their charging 

discretion as they see fit. without any judicial intaference or 

inquiry. "The objective of uniform sentencing is not met when 

"the discretion to impose disparate sentences for equally siluated offenders is simply shifted from judges to prosecutors, 

if rhe latter are free to pick and choose among the charges." 

U.S. \I. Bethancurt, No. 88-0188 (D.D.C. Aug. 29.1988) 

(Greene, J.) (opinion). 
Guideline Sentencing Update 

GwUWw,ullUlICbo, Upd«. will be clillzi.bulOd paioclic&Il1 b71bc Cc.nIcr 10 iNonn juq ... an4 ocher judie:W pcncnncl of ~ fodrc:nl_ deo:Uioa& as Ibc IC:I'IICnI:iIIf 

M0I'IIII1cp1a1ian 011914 aad 191711DCS" SCIIImC:ini Ouidcliaa AlIhoup Ibc pIlbliealica 11\&1 refer 10 \be Scn~ Guido::liMllIDCS poIiq ~ 01 die u.s. ~ 

in, CommiIosiGG ill .. _c.u.1 01 rc:ponin& _lIoIdiap,ilk DOt IDacIod 10 tep«t ScDIaciDa CcnmiIaas ~ .. 1ICCiW:ie&.1IMdcn IhGuW refer 10" Glidtliaa. paZicJ 

foUtemenll. ~. aad CIIhcr _1aiaJa ..... b1 tM Scatcoc:irta Cnmmissim Cor INCh iaf_a\lan. 

PublicMioaola..iMliM!._N:ilttU""III&nifi-dlat.mc.~Il ... ~.aady""bkwodl:.kIhauldDOt"'---"._ .dadoa ... otficW 

polley 01 die Center. On maaen 01 poIiqo \11& Ccnu:r IpUb aal1 duaup iIa BOU'II. 

VOI.UWB 1 • NUWUR 16 • 0cr0amt3.1988 

Guidelines Application 

District court defines "substantial portion of his ln~ 

come" requirement of criminal UveUbood provision. 

Guideline § 4B 1.3 establishes a minimum offense level (requiring a ttnn of imprisonment) for an offense committed"as 

part of a paaem of criminal COtlduct from which he derived a 

substantialponionofhisincome." A court in S.D.N.Y. noted 

that "substantial portion of his income .... admits of at Jeast two 

possible meanings. " It may apply when .. the income received 

from a pattern of criminal activity constitutes a substantial 

percentage of the defendant's annual income," or it may be 

construed to apply only to "offenders forwhom the portion of 

their income derived from the pattern of criminal activity is 

sufficiently large in amount to be considered ·substantial.'" 

The court concluded that "the latterinterpretation is correct and that § 4Bl.3 should be applied only when the 

defendant derives substantial income, defined in absolute 

terms, from criminal activity. This interpretalion is a reasonable construction of the statutory language and is most consonant with the purpose and legislative history of the guideline." 

The other interpretation would produce the "anomalous" 

result of sentence enhancement for persons with small in· 

comes but whose percentage of income from criminal activity 

was high, "while someone who engaged in a substantial scale 

of narcotics dealing would not come under the guideline if that 

person had a comparatively large source of other income." 

The court also noted that the Sentencing Reform Act 

requires the Guidelines to be "'entirely neutral as to the •.• 

socio-economic status of offenders.' ••• It would be wholly 

contrary to [the Act] (and might also raise constitutional 

questions ..• ) for the commission to have required a tenn of 

imprisonment for every indigent defendant who engages in a 

pattern of criminal conduct without mandating similar treatment for the wealthy defendant who derives substantial income fro~ aiminal activity." BUl cf. U.s. v. Kerr. 686 F. 

Supp. 1174 (W.O. Pa 1988) (holding aiminal livelihood 

provision does not viola1eequal protection. due process. or the 

Act) (see GSU # 10). Since the defendant in this case was 

indigent and did not gain "substantial" income from his 

criminal activiry. the court did not apply § 4B 1.3. 

U.S. v. Rivera. No. 88 CR. 0059 (S.D.N.Y. Sept. 20. 

1988) (Leval. J.). 

District court holds role in offense adjustment is not 

applicable to solitary drug dealer. Guideline § 381.1(a) 

provides that "[i]fthe defendant was an organizer or leader of 

a criminal activity that involved five or more participants or 

was otherwise extensive." the offense levd should be in· 

creased by four. Defendant grew and sold marijuana alone., 

but the government argued thalif onec:onsidcted defendant's 

customers his operation .was .. otherwise extensive" under 

§ 3Bl.1(a). The court bdd that this section could not be 

applied to defendant ""Section 3Bl.l(a) ••• n:quircs not only 

that the operation be extensive or have five (I' lDOI:e partici. 

pants. but also that the defendant be an organizer or leader • 

. The RlCOfd does not suppcx1. the proposition Ihal [defendant1 

organized or led anyone. Onewbocommitsaseriesof solitary 

crimes does nOl become an organizer or leader because his 

crime is extensive; one ordinarily does ~ simply by virtue 

of selling drugs. lead or organize those to whom he sells." 

U.S. v. WeidMr, No. SO'. 88-15 (N.D. Ind. Sept. 19, 

1988) (Miller, J.) (sentencing memorandum). 

District court denies defendant's request for a pretrial guideline computation. "A pre.aia1 sentencing guideline determination is completely inappropriate; und.cr the 

prior sentencing SYSlCm. a request that this Counstate what its 

sentence would be if the defendant pleaded guilty would have 

been equaUy inappropriate." 

U.s. v. Que:ada, No. 88 CR 204 (E.9.N.Y. Aug. 31. 

1988) (platt, CJ.). 

Upward departure from Guideline sentence war~ 

ranted lor lugitive5tatus and uncounted criminal history. 

Defendant's Guideline range was 30-37 months. "However, 

he committed this offense while on conditions of release and 

in fugitive status in the State of New Hampshire. In addition, 

there is a hislOry of thefts from others not resulting in convictions and sentences. Therefore, the Court finds that OiminaI 

History Category III significantly under-represents the seriousness of his criminal history and the likelihood that he wiD 

commit further crimes. Criminal History V more a<k'.quately 

represents this defendant's past course of conducL " Thecourt 

sentenced defendant to a te.nn of 55 months. 

U.s. v. Swinewslci, No. 87-86-01'(0. VL 1uly 26, 1988) 

(Billings, J.) (statement of reasons for sentence). 

Downward departure warranted b"outhfulness. A 

court in D.N.D. held that a deviation from the sentencing 

guidelines wa~ justified by the "youth and lack of sophistication" of a "nLive and immatW'C" 18-year-old who pleaded 

gUilty to a COlT puter theft misdemeanor. The court noted that 

while Guideline § 5H1.1 states that "(a]ge is not ordinarily 

relevant in determining whether a sentence should be outside 

the guidelines." an exception is provided for the Clderly arld 

infirm. It would be "age discrimination." the court found. to 

Not for Cit .. tion. GuilkliM Seltl~lIcillg Updtlu is provided for infonnallon only. 11 should not be cited. either in opinions or otherwise. 

31 
32 

Guideline Sentencing Update 

ignore youthfulness. 

U.s. v. Kopp. No. C·l·88·06-01 (D.N.D. Apr. 29.1988) 

(Kautzman, U.s. Magis.) (transcript of sentencing). 

Upward departure warranted to d1scourage drull 

traffic and a«OODt ror Joc.aI sentiment. De.fendant entered 

a guilty plea in D.P.R. to possession of cocaine on board an air· 

aafL Noting inaeasing use of Puerto Rico "as a convenient 

stopover point for me disttibution of narcotics ••• via commercial.schedulcdairlineflights. "thecomtheld: MIt is our honest 

judicial conviction that depanure from the guidelines is warranted in onlet to discourage the utilization of the Puerco Rico 

International Airport. an airport with ICSSC2' law-enCorcement 

capabilities than those in the mainland. is a connecting point 

for intemational narcotics trafficking •••• Sentence within the 

guidelines in a cascof this nature would also be in violation of 

the Puerto Rico public sentiment. feelings, and mores regarding this type of crime." The c:ourt sentenced defendant 10 48 

months; the Guideline range was 21-27 months. 

U.s. v. AguiiDr·Pena. No. 87-617 (D.P .R. Mar. 23. 1988) 

(Fusre. J.) (sentencing findings). 

Rules and Procedure 

District court notes standard for modification or sentence under revised rule 35. A defendant in S.D.N.Y. 

sentenced under the Guidelines requested a reduction in 

sentence under Fed. R. aim. P. 35. The coun noted that 

"[u]nder the old rule, a motion for reduction of sentence is 

committed to the sound discretion of the District Coun." Under the new rule, effective Nov. I, 1987, that discretion is removed. the court found, and a court may only "correct a 

sentence detern1 ined on appeal to be erroneous" or, on motion 

by the government, may within a year lower the sentence of a 

defendant who provided substantial assistance in the investi· 

gation or prosecution of another. Since neither of those 

conditions applied here. the court held there was "no basis for 

reducing the sen_tence." 

U.s. v. Soto. No. 87 Cr. (1.J76 (S.D.N.Y. Aug. 24,1988) 

(Kram,J.). 

Constitutionality - District Courts 

Court in D. Md. sentences under Guidelines in accordance witb stay order, notes possible exception. Following 

U.s. v.Bolding.683F. Supp.l003 (D. Md. 1988). in which all 

judges of the disuict found the Guide6nes invalid but determined to apply them pending fmal resolution of their constitutionality, the court denied defendant' s request to be sentenced under prior law. The court noted, however. that "[a] valid 

reaso. for a departure from the general practice of sentencing 

under the 1984 Act would be presented if. for example, a def. 

endant whom the Court would not be likely to imprison under 

prior law would be imprisoned under the 1984 Act but would 

be eligible for release under that Act before a final adjudication of its constitutionality could reasonably be expected." 

U.s. v. Davis. No. HAR 87-0553 (D. Md. Sept. 20.1988) 

(Smatlcin. J.). 

Vol.unc I • Number 16· October 3. 1988· Pige 2 

Decisions upholding the Guidelines: 

SEVENTH CIRCUIT: 

U.s. v. Franz, No. 88 CR 0455 (N.D. m. Aug. 26, 1988) 

(Zagel. J.) (holding guidelines valid: neither Guidelines nor 

Commission violate delegation doctrine. due process. orseparation of powers). 

E.iGlml CmaJIT: 

U.s. v. Roy, No. Cr. 6-88-59 (D. MinD. Sept. 13. 1988) 

(Devitt. Sr. OJ.) (upholding constitutionality of Sentencing 

Guidelines law and rmding thal Congress ma), delegate legislative power to SenteqCing Cammission and eslllblish Commission. as independent agency in the judicial branch). 

TENm O:aaJIT: 

U.s. v. Coslewn.No. 88-CR-69 (D. Colo. Aug. 1.1988) 

(Fanesilver, CJ.) (cOncluding: "(1) the Act~ DOt violate 

separation of powers principles: (2) Congress did not impropcd)' delegate its legislative aulhority to eslllblish sentences: 

and (3) defendant's right to due process of law is not-denied 

but, rather. is expanded under the Actj. 

Decisions invalidating the Guidelines: 

SECOND CntaJIT: 

U.s. v. Johnson, No. 88 Cr. 298 (S.D.N.Y. Aug. 30. 

1988); U.s. v. Sefair. No. 88 Cr. 301 (S.D.N.Y. Aug. 29. 

1988); U.S. v.Fields.No.88Cr.286(S.D.N.Y.Aug.29.1988) 

(Haight, J.) (finding Guidelines invalid but severable from 

Act; "the remainder of the Act should stand," except for provisions abolishing parole). 

1imto CmaJIT: 

U.s. v. Whyte. No. A. 88-0047 (E.D. Pa. SepL 9, 1988) 

(Katz., 1.) (holding Guidelines invalid because 't]he judicial 

branch has no authority 10 legislate or execute sentences 

binding on all judges"; since defendant "is SUbject to a 

substantial period of incarceration under either the old stalUtory standards or the new guidelines" and "wiU remain in jail 

until he is sentenced." sentencing is continued until after decision of Supreme Court in Mistretta v. U.S.). 

SEVENTH Cmcurr: 

U.s. v. Eastland. No. 87 CR 948 (N.D. Dl. SepL 8. 1988) 

(Aspen. J.) (concluding Guidelines "arc invalid under the 

nondelegation theory or • alternatively .-&san ex~ivedeJegation." and adopting finding of Gubiensio-Ortil v. KfJIfIlMlf. 

No. 88-5848 (9th Cit. Aug. 23, 1988) &hat composition of 

Commission violates separation of powers). 

E.!...EvENrn Cmu "T. 

U.S. v. Jackson, No. CR88-96A-Ol (N.D. Ga. Sept. I. 

1988) (Ward. J.) (finding Sentencing Reform Act violates 

delegation doctrine and separation of IX>wers; deC endant shaU 

be sentence:<! under prior law). 

U.S. v. Salas. No. 87422·Cr·T·15B1M.D:-F1a. July 19. 

1988) (Castagna. J.) (adopting U.S. v. Russell. 685 F. Supp. 

1245 (N.D. Ga. 1988), holding Guidelines invalid). 
Guideline Sentencing Update G~ s..-1tCiItJ Updlttu will be 6tDbuIIDd pcriodit:aIlJ by 1ho CcalclO lafmm jucIp and 0IIbcr ~ pcnc:anc1 olldected fodcnl_ ~ as1ho IIeIIUIICiaa __ .latim ol19104 UId 1m UId \be ~ OuWdi_ A.bhout.b \be JdIIicaIioa -J _.r 10 \be ~ Oui~ IIId po1icJ_ ol .. u.s. s--. .. Canmi'ciael ill \be __ t ol nponina cue boWinaa. it ia _ inloCi:lWW 10 IIrIpCI'\ SaI&cncin, c-iIIiCIII paliciII ar r.c:IiviIi& a.....s-tboo.t.W rd'w 101ho0uidc ... paIicJ 

II&~ ~. UId 0IhI:f llIWaiali iuued by the ScaIalCint Cammi";oa far IIICh w_tim. 

Pt.ab1icadan ol GtMtIiM s.r-1tCiItJ u,..,lipiti_ dial 1ho c.......,. il ... ..,.,able UId valublc ..t. IL aboald Dell be ~ • , IGIII •• .,A, ... oIfic:iIl 

paIiq olthe o.w.. On _ucn ol poijcy !he CcaIcr.,.u IWJ duauah iIII Boud. 

VOL1l1oIE 1 • N\JlGI!R 17 • Ocroaa 25.1988 

Guidelines Application 

Ninth Circuit affIrms upward departure. 

Appellant pled guilty to one count of transportation of 

illegal aliens. 1be probation officer recommended a 

7 -month term of imprisonment. the upper limit of the 

applicable guideline range, but the district coun sentenced appellant to 2 years. Appellant contended that 

the sentence was excessive, an unwarranted departure 

from the Guidelines. that it violated due process and 

constituted cruel and unusual punishment 

Acknowledging that it was bound by the decision 

in Gubiensio-Ortiz v. Kanahele. No. 88-5848 (9th 

Crr. Aug. 23, 1988). holding the Guidelines constitutionally infirm. the appellate coun nevenheless 

determined to "proceed as if the Guidelines remain 

applicable to this defendant in order to avoid the 

necessity of reconsidering his appeal if the Supreme 

Court should sustain their constitutionality," TIle 

coun reasoned that "the issue in the present case is 

whether the sentence was properly imposed in excess 

of the Sentencing Guidelines. Because we hold that it 

was. we do not rely upon the statute held to be unconstitutional. We conclude the sentence here was 

proper under the Guidelines. or under the law. in the 

absence of Sentencing Guidelines." 

In upholding the departure the coun concluded: 

"At sentencing, the district judge carefully set out his 

reasons for departure from the Guidelines as required 

by 18 U.S.C. § 3553(c) .... He examined 

[appellant's] 'role in these events. the nature of the 

Ope1'3tion. the length of time it existed, (and) the 

number of aliens moved through it' in determining to 

depan from the Guidelines. and in fixing the sentence 

imposed .... On the basis of the record before the . 

district court, it is clear that departure from the 

Guidelines was not unreasonable. The district coun 

set out a number of reasons ... that demonstrate that 

the conduct involved varied significantly from the 

norm. The case thus represents an unusual or atypical 

case where departure from the Guidelines is entirely 

appropriale. Nor was the extent of depanure unreasonable. [Appellant's] varied activities in the scheme 

and his position as the 'right hand man' to a leader 

reflect [his] significant panicipation and provide the 

basis for a substantial departure from the Guidelines." 

The court also held appellant's other arguments 

were without merit: '''There was no violation of 

appellant's due process rigllts. The sentence was well 

within the statutory maximum and he was afforded a 

full hearing before sentencing. Further. the two-year 

sentence does not represent cruel and unusual punishment. As indicated above. the sentencing judge did 

consider the gravity of the offense and [appellant's] 

participation in the scheme in arriving at the sentence. 

He also was mindful of the sentences imposed upon . 

the other participants and asseSsed the individual participants' culpability and panicipation before pronouncing sentence. It 

U.S. v. Nun.o-Huizar. No. 88-5192 (9th Cir. Sept 

29, 1988) (per curiam). 

Constitutionality-Appellate Courts 

Ninth Circuit holds supervised release provision of Sentencing Reform Act invaltd.. In Gubiensio-Ortiz, supra. the Ninth Circuit held the Sentencing Refonn Act unconstitutional. 1be question in this 

case "is whether the SRA's supervised release provision (18 U.S.C. § 3583) is severable from 1hc rest of 

the Act." The coun held that it was not: '·In GubienSiD, we considered the severability of the provision 

relating to good time credits and concluded: ·Congress having chosen a "comprehensive" approach to 

making sentencing more determinate. we will not 

sever companion sections of the guidelines system 

that would introduce piecemeal reforms.' ••. We 

reach-the same conclusion as to the supervised release 

provision. Severing the provision would leave in 

place two competing systems of post-custodial 

supervision-parole and probation under pre-SRA 

law and supervised release under the SRA. The 

simultaneous availability of both systems wo-uld be 

senseless." 

U.S. v. Jackson, No. 88-5204 (9th Cir. Sept. 29. 

I 1988) (per curiam). I 

!'ot for Ciutlon. G"ufLlint StflltnC;ng Ut:>d.Jlt I~ pro"ided for infonnation only. It should not be ciled, either III opinions or otherv.·;se, 33 
34 

Guideline Sentencing Update 

Eleventh Circuit upholds mnstitutionality of 

SRA's substantial assistance provisions. Appellants were convicted on drug conspiracy charges and 

sentenced under the Anti-Drug Abuse Act of 1986. 

1bey argued that the Sentencing Reform Act's 

"substantial assistance" provisions (18 U.S.c. 

§ 3SS3(e) and Fed. R Crim. P. 3S(b», which grant 

courts authority to impose or reduce sentences below 

a statute's mandaIory minimum, violate the equal 

protection clause "because minor panicipanrs and 

those of relatively low culpability are without sufficient knowledge to avail themselves of the provision'" 

In rejecting the equal protection claim. the coon 

held that "Congress' desire to ferret out drug kingpins 

is obviously served by encouraging those with information as to the identity of kingpins to disclose such 

infol1'Dation. Hence. there is a rational relationship 

between the statute and Congress' purpose. Moreover, all 'minor' figures are treated similarly by the 

statute. which belies any claim of unequal treaunent. 

. . . Appellants' equal protection challenge to the 

'substantial assistance' provision'is without merit." 

The court also rejected appellants' claim that the 

provision was unconstitutional because it delegated to 

prosecutors "unbridled discretion to decide who is 

entitled to a sentence reduction .... [T]he only 

authority 'delegated' by the rule is the authority to 

move the district court for a reduction of sentence in 

cases in which the defendant has rendered substantial 

assistance. The authority to actually reduce a sentence remains yested in the district court ..• ." The 

court added that "although the term 'substantial 

assistance' is not defined in the statute, the discretion 

of prosecutors is limited by considering the 'substantial assistance' proviSion within the overall context of 

VoIwnc 1 • Number 17 • October 15, 1988. PalC 2 

the Anti-Drug Abuse Act itself." 

U.S. Y. Musser, No. 87-3616 (lIth Or. Oct. 4. 

1988) (pu cu.rltJm) (to be reported at 856 F.2d 1484). 

Constitutionality-District Courts 

SECOND CutaJrr: 

u.s. Y. Perez. No. 88 CR 128 (S.D.N.Y. Oct. II, 

1988) (Sprizzo. 1.) (holding Guidelines invalid: "[1]( 

Congress wishes to eliminate sernenciDg disparity. 

~ are constitutional ways to do it. Qmgress can 

eliminate judicial discretion entirely •••• However, 

Congress does not have the power to set up a Commission to din::ct Judges as to how they should 

exercise a judicial power-once conferred in particular 

cases. In sho~ Congress cannot exercise judicial 

power and may not delegate to a Commission the 

authority to do what it may not do .•• • j. 

THIRD CDtcurr: 

U.s. Y. UeU, No. 88·00119·01 (M.D. Pa. Oct. 3 • 

1988) (Muir. Sr. 0.1.) (holding Guidelines constitutional. sentencing defendant under Guidelines and 

also providing "alternate sentence" in case Supreme 

Court declares Sentencing Reform Act unconstitutional in whole or in part). 

EL£va.'TH Cutcurr: 

U.S. \/. Furranda, No. 88-114-Cr-T-13(OS) 

(M.D. Fla. Sept. 23. 1988) (Krentzman, Sr. 0.1.) 

(holding placement and membership of Commission 

violate separation of powers; sentence will be imposed under prior law, but court will conduct hearings and state and explain sentences under both 

Guidelines and prior law to avoid further sentencing 

proceedings if Supreme Court upholds Guidelines). 

Most of the early issues of Guidelint! St!ntencing Updatt! concerned decisions on the constitutionality of the 

Senlencing Reform Act and the Sentencing Guidelines. Since the issue of constitutionality is now before 

the Supreme Court. we have shifted our emphasis to cases applying or interpreting the Guidelines or related 

statutory provisions. We are grateful to all of the courts that have provided us with copies of decisions. We 

request that courts continue to send us copies of opinions. sentencing memoranda, statements of reasons 

for imposing sentence, and transcripts of .sentencing proceedings that discuss these or other aspects of 

guideline sentencing. 
Guideline Sentencing Update 

GtlWtIiNt S6..u1lCiAt UpJau will be &lIibulCld ~ b:Y 11M CcaIu 10 Waan jIId," e4 0Ihc:r jIu.\iI:ial pc:ncMICI 0I1CI.ocIocI fodocnl COW\ 4cc:i.cioaa aalbe-.ciA 

ftf_lqiabtia> 011914 ..,..19&7 &lid Iho S_an, 0ItidcIia& A.IIhcuP!he publlcalioa m.rftfc:r 10 !he ScaICCi.aa OuideUDc:a &IIdpoticylla __ oflbo u.s. Scar.: 

inc COImmiaIioft in !he canlCJtt 01 rqlCIftin, caM boUiqa. k ilIllGliateded 10 NpCIfl SonIilnl:iD& C~CIIl polidc:a or acti'llitica. I\c&dcn Iha.II.d rctcrlO Ibe 0uWcIIa.. policy 

lIa_lI, c:cmmc:nr.uy. aa4 0Ibc:r _laiala iaood bribe SealCllan, CAImmi.uioa few IUdI WcmaaticG. 

Plablicatia> «GlliMlw Sc..u1lCiAf UptItIM sipitiOi that !he C_ n>pdiI it u. ftllpoMible aa4 valuable .....m.. It ""wid net be ~ • _mdalioa CI' ot6cial 

paIicy «1M CaaIa'. 011 111_ of policy Ibo CcDICr t:peW emir duwp iu a-d. . 

VOI.UloGI 1 • NUloCISR 18 • NOVIIMBBIt 10. 1988 

Constitutionality 

Thhd Circuit upholds Sentencing Guidelines. 

rmding no violations of due process or separation of 

powers, the Third Circuit reversed a district court ruling 

and held the Sentencing Reform ActconstitutionaI. This 

is the second opinion by a court of appeals on the 

constitutionality of the Guidelines. The Ninth Circuit 

found the Guidelines invalid in Gubimsio-Ortiz v. J(a. 

nahele, No. 88-5848 (9th Or. Aug. 23, 1988) (seeGSU #14). 

The court determined that, other than in death 

penalty cases, there is no "federal substantive liberty 

interest'" in individualized sentencing, and thus the 

narrowing of judicial disaetion in the Guidelines does 

not violate substantive due process. On the separation 

of powers issue, the court concluded that (1) "Congress 

may lawfully curtail judicial disaetion in sentencing," 

(2) it lawfully delegated that authority to the Sentencing 

Commission by providing "an abundance of substan· 

tive guidance to the Commission," and (3) neither the 

composition nor placement of the Commission unconstitutionally ina-eased the power or impaired the function of the executive or judicial branches. 

U.S. v. FranJc, No. 88-3268 (3d Or. Nov. 7, 1988) 

(Gibbons, c.J.) (reversing in part 682 F. Supp. 815 (W.O. 

Pa.) (GSU #6». 

Guidelines _Application 

Second Circuit affirms upward departure based 

upon quantity of drugs where offense of conviction 

does not list quantity as sentencing factor. Appellant 

was indicted on two drug-related offenses, but those 

charges were dropped in return for a plea of guilty to 

"use of a communication facility in the commission of a 

drug offense.'" Quantity of drugs is not a sentencing 

factor for that offense under the Guidelines, but the 

sentencing judge considered the large amount of drugs 

involved to be an aggravating circumstance and departed from the guideline range of 6-12 months to impose the statutory .1aximum of 48 months. 

The appellate court detennined that the sentencing 

court could prope.ly consider the quantity of drugs. 

"[Tlhere is no place in the Guidelines where the Commission states that it has rejected quantity as a factor in 

sentencing telephone-count offenders," and courts 

have the discretion to consider factors not foreclosed by 

the Commission. The Commission specifically stated in 

policy statement § SK2.0 that "a factor may be listed as 

a specific offense characteristic under one guideline, but 

not under all guideliiles. Simply beause it u.s rwt listed 

does rwt metln that there rruzy rwt be circumsf.ances when tIult 

{tIctor would be relevant to sentencing," (Emphasis in 

court's opinion.) See also U.S, v. RtsfTepo, infm. 

Rejecting appellant's claim that the sentencing 

court improperly used a "real-offense" methodology, 

the court found that although Hthe Guidelines basically 

adopt a charge-offense method, they contain sufficient 

elements of the real-offense method to allow the district 

court in this case to look to the actual facts in determining sentence:' Moreover, the commentuy to guideline 

§ 1 B1.4 states that "information that does not enter into 

the detennination of the applicable guideline sentencing range may be considered in determining whether 

and to what extent to depart from the guidelines." 

To appellant's claim that departure from the Guidelines in this case would undermine the congressional 

goal of uniformity in sentencing. the court noted that 

"the statutory goal is 'avoiding umoamznted sentencing 

disparities •.. .''' (Emphasis by court.) The court 0bserved that, if anything. the proposed plea bargain 

would have resulted in greater disparity, allowing a 

sentence of 6-12 months when the original charges carried sentences of 12.5-155 years: "From that perspective, a sentence of 6-12 months creates more disaepancy and is, therefore, much less 'unifonn' than a sentence of four years. Allowing judges to ameliorate to 

some extent the skewing occasioned. by plea bargaining 

may well carty out the intent of the statute. A rigid 

refusal to allow judges to depart from the Guidelines in 

this situation simply always transfers disaetion from 

the district judge to the prosecutor, a result that w.e 

believe Congress did not intend.''' 

U.S. v. Coma-Vargas, No. 88-1167 (2d Or. Oct. 18, 

1988) (Feinberg, C.l.). 

District court explores authority under Guidelines to accept plea to reduc"!d charge. In E.D. Pa. defendants were charged with buee drug offenses, the two 

most serious of which each carried mandatory minimum terms of 10 years. Under a plea agreementdefendants would plead guilty to the third, lesser charge, and 

receive 5-year terms, and the other two rounfs would be 

dismissed. The issue for the court was "whether, within 

the framework of the guidelines," it could properly 

Not for Citation. Guiddi/l.! S~lIw .. cillg Update is provided for infonn.tion only. It should not be cited, either in opinions or otherwise. 

35 
36 

Guideline Sentencing Update 

accept a plea agreement where the sentence under the 

remaining count would be half the mandatory minimum for each dismissed count, and less than half of the 

applicable guideline ranges for those counts. In addition, because the agreed sentence of 60 months was . 

approximately double the top of the guideline range for 

the remaining offense, the court had to determine 

whether such a departure was justified. 

Following policy statement § 6Bl.2, "'Standard for 

Acceptance of PJea Agreements,'" the court first determined that "'the remaining charges adequately reflect 

the seriousness of the actual offense behavior and that 

accepting the agreement will not undermine the statutory purposes of sentencing." § 6Bl.2(a). The court 

based this conclusion upon the facts of the case, the 

difficulty of presenting the case and obtaining convictions on the more serious charges, and concern over 

revealing the identity of a government informant. 

The court then detennined that under § 6Bl.2(c)(2) 

the proposed sentences "depart[ed] from the appli~ble 

guideline range for justifiable reasons." The largequanlity of drugs involved constituted an "aggravating circumstance" under 18 US.C. §3553(b) that warranted an 

upward departure. While the statutory offense of conviction does not address the quantity of drugs, the court 

found it was a proper factor to consider for purposes of 

departure. See CorreQ-Vargas, supra. 

The court also relied upon policy statement 

§ 5K2.14, which au thorizes departures above the guideline range "[iJf national securi ty, public health, or safety 

was Significantly endangered." The court concluded 

that "taking public health as meaning national public 

health, and safety as meaning national safety •••. activities involving the storage of drugs, which in this event 

turned out to amount to 30 kilos of cocaine, did indeed 

carry with them a threat to the public health and safety 

of the nation." 

U.S. p. Rlstrepo, No. 88-00086 (E.D. Pa. Aug. 16, 

1988) <Pollak, J .). 

Guidelines held InappUcable to Assimilative 

Crimes Act. In what appears to be a question of first 

impression, a court in D. Kan. held that the Guidelines 

should not be used when sentendng under the Assimilative Crimes Act (ACA), 18 US.c. § 13. That Act pr0-

vides that persons found guilty "of any act or omission 

[on federal territory) wbich,althoughnotmadepunisbable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of 

the State, T 'rritory, Possession, or District in which such 

place is situated, ... shaU be guilty of a like offense and 

subject to LUke punishment." 

The court found that the ACA "has been consistently interpreted to require that the state statute fixes 

the punishment or sentence to be imposed." Passage of 

the Sentencing Reform Act by itself does not change that 

practice, the court held: "There is no clear and manifest 

indication that Congress intended to repeal the 'like 

punishment' provision of the ACA. In fact, application 

Volume 1 • Number IS· November 10. 1988· Page 2 

of the sentendng guidelines to crimes under the ACA 

would gut the very policy behind the ACA, because 

those convicted of state crimes incorporated under the 

ACA would no longer be treated as if the crime had 

occurred in the surrounding state." 

The court noted that the Guidelines, at § 2X5.1, 

"indicate that the guidelines do cover assimilative 

crimes, at least if such aime is a felony or Oass A 

misdemeanor.· The court held, however, that "thecommission cannot amend or repeal laws, only Congress 

can. Congress has not amended the ACA by applying 

the sentencing guiC\eUnes to assimilative crimes:' 

U.s. P. Ridllzrds, No. 88-9005M'()l (D.l<an. Oct. 21, 

1988) (Reid, US. Map). 

Severability 

District court holds gradlng and probation provisions of Sentencing .Reform Ad severable from 

Guidelines. TheSRA precludes a sentence of probation 

where the offense is a aa55 B felony, as defined by the 

Act's grading provisions. See 18 U.S.c. §§ 3559(a)(1)(B) 

and 3561(aXl). A court in S.D.N.Y. that previously 

found the Guidelines invalid determined that these 

provisions are severable from the Guidelines and remain valid, thereby precluding probation for a defendant convicted of a Oass B felony. 

Noting that "'[w]hether a statutory provision is 

severableisprimariJyamatteroflegislativeintent,"and 

that "ta) presumption favors severability," the court 

found the provisions severable: ""There is nothing in the 

structure of the statute that, upon lnvalidation of the 

guidelines, vitiates the effectiveness of the grading and 

probation proviSiOns or otherwise makes those provisions nonsensical in the context of the rest of the Art 

Thus, if there is any reason that the presumption in favor 

of severability should be overcome, it .will be through 

more subtle evidence of Congressional intent H 

The court added: "While I agree in principle with 

the Ninth Orcuit ••• when It says in Gubiensio[-orHz P. 

Kan4htle. No. 88-5848 (9th Or. Aug. 23, 1988)] that Congress intended a 'comprehensive' approach that would 

make sentendng more determinate, it does not ~ 

sarily follow that Congress intended for the remainder 

of the Act to be jettisoned should the guidelines be 

founc:t unconstitutional. ••• The abolition of probation 

for defendants convicted of crimes punishable by imprisonment for twenty years or more serves to narrow 

the judge's discretion and thereby helps to standardize 

sentencing. It was th:' t goal of Congress -the reduction 

of disparities in sentencing-that the Gubiensio court 

caUed Congress' 'ov.!rriding goal' in passing the Sentendng Reform Act. Although Congress would undoubtedly have preferred that the constitutionality of 

the guidelines be upheld ... there iwo relson to believe 

that Congress would not wish other provisions to be enforced that further its purposes." 

U.S. v. Hernandez, No. 88 Cr. 374 (S.D.N.Y. Oct. 7, 

1988) (Haight, T.). 
Guideline Sentellcing Update 

GotiMIiNIS.-1IdI!.f uptIttU will be dYlzibulod paiodic:aIl1 by tbo 0.1« 10 w_:;uqc. UId 0Ibc:r ju4io:W po!III(GIId of ~ fedcnl cautI dec:iaionI em doe lilllWadna 

m-lcp!a- GIll'''' &DIII9I7..,.. tbts-a. ~ AlIboqll1IMl"'t&.licluu,rt4er 10 die ScnIaIci.a& ~ -poIley_ Gldoe u.s. s.-. 

fa, C«mnl ..... fa lbo _tal GI ~ -1IoJdIaaa. Is II ace"'" 10 IIiI*' IcataM:iaa C-="'em JIOIic:i- err ICI.MIi& ...."..1IhcuW..-1O tbt 0uWdia.. polley 

.. ~ I .. CUT.'" cdw_...w. .... by .. s.e.=, c! ' .. far axil iaI'_1ica.. 

Pllblicalica GlGtJMIiNI ~ U"..,.IipiA_ that doeC-..... It ... ~. "'" .u..bIo WCld:.ll Ihoulilacc be~ .no_1IIICIMlca errollidal 

po&,. GIlbo c.... 0. _ .... fIlpolloeJ 1M C-tipGlb.., ...... 110ft 

VOI..UltB 1 • NUMIU 19 • DacmaIat I, 1988 

Sentencing Procedure 

District court allocates burden of proof to 

government and detennines standard of proof 

when resolving disputed facts In presentence 

report. Both defendant and the government objected 

to portions of the presentence report. which recommended an increase in defendant's offense level for 

his role in the offense and a reduction for acceptance 

of responsibility. The government conceded that it 

should bear the burden of proving defendant's 

sentence should be increased. but argued that defendant should bear the burden of showing his sentence 

should be reduced. 

The court noted that under pre-guidelines sentencing procedures courts had concluded that .. the 

Govenunent bore the burden of persuasion on all 

matters disputed in PSI' s where those matters were 

relied upon by the sentencing judge." Rejecting the 

government's argument.. the court found that "it is 

clear that whatever determination the Court makes 

with respect to either of the disputed matters in the 

PSI. that determination will have the effect of either 

increasing or reducing the Guidelines applicable to 

defendant .... 'Ibis is not essentially different from 

the situation which existed prior to promulgation of 

the Guidelines. to The court concluded that it was Unot 

unreasonable" for the Goverrunent to bear the burden 

of proving defendant was not eligible for the acceptance of responsibility reduction because the government "should for the most part have as much access 

to [information on this issue] as the defendant" 

The court held that the standard of proof required 

at the sentencing hearing is "a preponderance of the 

evidence," rejecting defendant's claim that a "clear 

and convincing" standard was required. 

U.S. v. Dolan. No. CR-1-8 ~-S7 (E.D. Tenn. Nov. 

22. 198.8) (Edgar. J.). 

District court sHows withdrawal of guilty plea 

because of "plain error of law." A defendant in 

W.D. Mo. sought leave under Fed. R. enm. P. 32(d) 

to be released from his guilty plea on the ground that 

it was based upon an. erroneous computation by both 

defense counsel and the government. The parties 

miscalculated the penalty for the instant offcose, 

""failure to appear," which was to be based upon the 

maximum penalty authorized for the underlying 

offense. Because the error appatently resulted from a 

misreading of the comple~ statutory scheme involved, rather than merely a ""bad guess" by the 

attorneys as to the expected sentence. the court 

allowed me withdrawal: "I am mindful that Guideline 

confusion is likely to be rather common, and there 

must be considerable caution used in granting relief 

from pleas that may have been affected by judgmentcalls that tum out to be erroneous. 'Ibis case is 

exceptional, however. in that a plain error of law has 

been made in computing the ex.pected sentence. and 

the error was apparently shared by Government 

cou.'lSel." 

U.S. v. Lomtlll, No. 88-OO125-0l':CR-W-6 (W.O. 

Mo. Oct 25. 1988) (Sachs, J.). 

Guidelines Application 

Upward departure warranted by specific 

offense characteristics. Defendant. a government 

employee. pleaded guilty to theft of government 

property. false claims against the government. and tax 

evasion. TIle applicable guideline range was 30 to 37 

months. but the court found ""at least ~ factors 

involved in the defendant's offenses which the 

Guidelines either fail to address or to consider 

adequately" and which warranted upward departure. 

The court detennined that the Guidelines address the 

severity of the offenses. but not their duration. which 

in this case was over six. years. The court further 

found that departure was warranted by ~.e facts that 

defendant uabused a process relied upon by the 

government" and that he "totally violated his oath of 

employment by engaging in this protracted, devious 

conduct." 

Not (Of' Citation. auilk/itv Se"WICUtg UpdJ:lle is yided for inform.tion only. :~ should not be cited. either in inions or otherwise. 

37 
38 

Guideline Sentencing Update 

The coun relied in pan upon the Sentencing 

Commission's policy statement § 5K2.7, which 

provides for upwant departure when "defendant's 

conduct resulted in a significant disruption of a 

govemmental function." and held that ·'stealing 

govemment funds in excess of one million dollars. 

over a six year period, and by way of fifty-th.ree 

separate instruments," caused such a disruption. 

Additionally, § 5K2.9 provides fordepanure if 

"defendant committed the offense in order to facilitate or conceallb4:: commission of another offense." 

By evading taxes. the court found. "defeo1ant CODcealed the crimes of theft and false claims. tt 

The court determined that the above factors 

warranted an increase in defendant's offense level 

from 19 to 24, for a sentencing range of 51 to 63 

months. Defendant was sentenced to a 6()..monlh 

tenn. 

U.S. v. Burns, No. 88-0302 (D.D.C. Oct. 14. 

1988) (Johnson, J.). 

Constitutionality 

District court finds ''good time" provisions of 

Sentencing Reform Act not severable from 

Guidelines. A coun in S.D.N.Y. that had earlier held 

the Guidelines invalid concluded that the good time 

provisions of the SRA cannot be severed from the 

Guidelines. "The legislative history suggests that the 

Act was meant to be a complete package, with the 

goals of eliminating disparities and establishing more 

cenainty in sentencing .... The fact that there is no 

Volume 1 • Number 19· Dea::mber 1. 1988. PaJe 2 

severability clause is some indication that Congress 

intended to have the various components accepted as 

a package, or not at all .•.• [l]f sentences were imposed under the old system and gOod time were calculated under the new system, disparities in'sentencing and uncertainty over release dates could be increased, subverting the overriding Congressional purpose." Defendant will be sentenced under prior law. 

U.S. v. Ortega-FerlflJltdez. No. 88 at. 261 

(S.D.N.Y. Oct. 12, 1988) . (Griesa, J.). 

Decisions Invalidating the GuJdeBnes: 

U.S. v. Christman, No. Cr. 88-4-2 (D. Vt. Nov. 

19,1988) (per curI4m) (holding, in "special session 

en bane, It that '"the Sentencing Guidelines promulgated as provided in the Sentencing Reform Act of 

1984 are unconstitutional" on separation of powers 

grounds; defendants will be sentenced under prior 

law). 

U.S. v. Scherz, No. 87 CR 981-4 (N.D. D1. Nov. 3. 

1988) (Duff. J.) (holding Sentencing Reform Act 

unconstitutional because membership of Sentencing 

Commission and President's authority to appoint and 

remove commissioners violate separation of powers). 

U.S. v. COrfU, No. 88 CR 159 (S'.D.N.Y. Oct. 7. 

1988) (Kram. 1.) (holding Sentencing Commission 

and Guidelines violate separation of powers, and 

Guidelines are not severable from other provisions of 

Sentencing Reform Act). 
Guideline Sentencing Update 

GtIMIiM"".,:rn,U""'wm ... 4iICII.1i II I, Nfl Ii "., .. O..W.w_ ......... __ ~ ............... reolcn1 ______ ....... .............. 1"' ... 1917 .... S., .... Grllliin .. .AIIIMap"raW!r d a_,. ...... S .. IDdIIcOui ....... paIiq ............ u.s. ..... .,C ! d .................... _ ........ ".................. ! IC ' •• paIloc* .. ecdwiti& ............... <W ..... ..., ......... " ....... ..-w. ..... ., .. S ... :it.O ' ......... .., ....... PilllmS. •• c:;.w..r.,,,.,, dqU,.,., ............ O"W ..... " .... ,' IIIt .............. w.t.k...w_ ... a .. iI ..... I pI ........... paliqfll .. O""O' __ fllpaIiq .. O"W ..... ..., ........ ...... 

VClC..IW I • N..- 20. JAMIJAIlv4.1989 

Guidelines Application 

Second CIrcuIt upholds departure based on 

quantity of drugs involved In rele1'8Jlt coad.uc:t but 

not used to determine guideline range.. Pursuant to 

a plea agreement, defendant pled guilty to ODe count 

of distributing a sman sample of beIOiD; two counts 

JdadDg to tbc sale of a larger quandty of the dlug 

were dropped.. The district court accepted dcfcodaDt·s 

claim that Ihe base offense levd sbould be calculated 

accon:ling to the offense of convictioo. radIcr 1han 1he 

overall cooduct of which it was a part. After adjustments., this produced an offense levd of 10 aDd. a 

guideline range of 6 to 12 months. The court departed 

upward. however. because of the dcfeodant·s admitted involvement in the scbeme to sen the laJger 

amount of heroin. and sentenced defendant to 63 

months. 

Defendant argued on appeal that the Sentencing 

Commission had already taken drug quantity into 

account in setting the base offense level for his 

offense. and therefore quantity could not be used as a 

basis for upwant depanure. The court determined that 

"if the sentencing judge had ••. selected a base 

offense leye1 from the drug quantity table that correlated with the total amO\D1t of drugs in the ultimate 

transaction." whim in this case would have resulted 

in a range of 51 to 63 months. "we would doubt that 

this same quantity coUld be used to justify a departure 

above that range. But where. as in this case. a judge 

selects a guideline range that is not based on all the 

relevant conduct of the defendant. it is not 'unreasonable.' whim is our standanl of review. 18 U.s.C. 

§ 3742(d)(3) (Supp. IV 1986). for the judge to depan 

above that range because of relevant conduct established at a hearing or admitted by the defendant"1be 

coun concluded that the departure "was "1Ot unreasonable ... in light of the large quantity of narcotics in 

the ultimate transaction that [defendant] admitted he 

had facilitated." 

As a preliminary matter, the court rejected 

defendant's contention that the guidelines if) effect on 

the dale ofrus offense, Dec. 4,1987, required the 

gui~ range --ro ~ detcnn.ined solely by the 

quantity of narcotics handled OIl the day of the 

offense. ".1be court noted that tbc· currentversions of 

guideline IIIB1.2 and IB 1.3. wblcb wem IeYised. 

Jan. IS, 1988. "deady" allow the sentenc:ini court to 

base the guideline range not ODly OIl the o1feDsc of 

, conviction. but also on the "ldevant conduct" of 

defendant. as that term is ddined in 11Bl.3. Rmcwing the eadier versions of these sections in 'effect at 

the time of defendant's offense.1he c:ommeatary 10 

the sections. and statements of 1he Sentencing Commission regarding the later revision.. the coon bcld 

that the Jan. 15. 1988 revisions merely darificd the 

language of the earlier versions. The senteDCing court 

shouJd have based the offense level on the .IaJger 

quantity of drugs involved in the overaU scheme. the 

court found. Nevertheless. the court upheld the 

sentence: "'The appropriate guideline range was 

therefore fifty-one to sixty-thn:e-months. and the 

sixty-three month sentence was therefore proper 

under the Guidelines." 

U,s. Y. GU.(!rrero, No. 88-1198 (2d Or. Dec. 12-

1988) (Newman. J.). 

Mandatory minimum sentence to be used. if 

applicable guideline range is lower. The Eigbth 

Circuit has upheld a sentence based on the mandatory 

minimum called for by statute. rather chan the lower 

semenoe calculated under the Guidelines. DekDdaDt 

was convicted of being a felon in possession of a 

firearm and sentenced to 15 years without parole. the 

mandatory minimum. Although the offense occurred 

after Nov. 1. 1987. the appellate court rejected 

defendanrs argument that he should have been 

sentenced under the Guidelines: "In fact, the district 

coun did apply the Guidelines, but unfortunately for 

the defendant. they provide that where the Guide:;.Jtes 

sentence would be less than the statutory minimu'D, 

that statutory minimum 'shall be the guideline 

sentence.' Sentencing Guidelin..E,s § 5_G 1.1 {b)." 

U.S. Y. Savage. No. 88-1906 (Dec. 16.1988) 

(Woods. J., sitting by designation). 

?\o( for CltatiOfl. Guiddiru! S~"'l!"c;"g Updal~ is provided for infonnauon only. 11 shooJd nO! be cited. cilher in opinions Of otherwise. 

39 
Guideline Sentencing Update 

Guidelines apply to conspiracy begun berore 

but coding after efrective date or Seotendng 

Reform Act. In £.0. Pa. defendants were charged 

with c:onspiracy to receive aDd sell stolen treasmy 

cbecks.1.bc coaspiracy began Mon or about September I, 19871Dd continued. undl December S. 1987." 

Seven cbecb were stolen after Nov. I, 1987. iDcludlog four on Dec. 8. 

The court found that --me aime in the instaDt 

case. conspiracy. was 4committed' after November 1. 

RcfoIDl 

1987-4bc 

At;t 

effective 

of 1984 

SWUlDI)' 

lOCI after 

dale 

December 

of tile ~ 

7. 1987-

tbe date of tbe eoactm.el1t of tile Sc:alaJciog /v:t of 

1987." R.cvicwiDg prior case law. which bdd that 

statulOt)' changes tbat take effect during Ibc COUIIC of 

an ongoing coaspiracy will be appUed.. the COUIt 

determined Ibat it fouDd ~ ex postjaClO violaliOll in 

the application of tile Sentencing ReioIDl At;t of 1984 

and !be ~ng Ac: of 1987 to the conspiracy in 

!be case It bar. The conspiracy hele was • crime tbIt 

continued until after the effective dates of both ICtS. " 

1be court held, however. tbIt the amenc1mena to !be 

SRA made by 1be Qiminal Fines Improvements At:t 

of 1987. effective Dec. 11. 1987. would DOt apply to 

these defendants. 

U.s. Y. GtzSptVOtti, No. 88-00094-01 (B.D. Pa. 

Dec. 19, 1988) (Van AnlweIpCll. J.). 

Special verdlct not required to decide whether 

Guidelines apply or to detennIne the amount of 

drugs involved. Defendant. charged in D. Mel. with 

engaging in a drug conspiracy that existed from 1983 

through July 1988, requested "spe<:ial intcJ1'Ogatories 

to the jury designed to elicit answers to two flemal 

questions relevani to sentencing. Yiz., (1) whether defendant was a member of the conspiracy on or after 

November 1. 1987, and (2) what quandty of drugs 

was involved in the conspiracy." The tim inquiry 

concerned whether the Guidelines applied to the conspiracy count. the second inquiry concerned the 

pe.na1ty imposable, since quantity of drugs is a sentencing factor. 

The court denied defendant's request. finding that 

40 

Volwne 1· Number 20. Ia.auary ... 1989' Pace 2 

M(i]t is the almost universal view that spedal verdicts 

are DOt to be employed in federal criminal cues." aDd 

that 110 case bas fOU11Cl that a trial judge mast seek a 

spedal fIcma1 finding fn:m the jury to aid in deter· 

mung scnteDciDg factoIs. The court he1d.1bat 1:t]be 

detcnDinltion of facts relevant to sentencing bas 

consistently been understood ••• to be widibi Ibc trial 

judge's province. ••• The Uial judge bas always been 

able to base factual detem1inat.ioDs Idcvant 10 sentencin& OIl., intO' alia, the evidcDce ad4uccd at ttia1. 

••• This Court sees DO reason why it ~ exemse 

its fact-finding funcdon relevant to seurew.:iog In 1bis 

cue IS It always has, viz .. witboat die aid of. july's 

special findings." 

The COUIt added: .,-r]be CDd.te 0uideJinc 1eI'IIaIc,.. 

ing scheme depends OIl Ibc trial judge's resolution of 

• myriad of faduallssues that bear on tbe cabtladon 

of the relevant offense level and. criminal bistory 

calCgot)'. Because of this mec:banistic approach to 

sentmcing. If defendant's present request is p1IDled. 

then it could logically be argued that DO sentencing 

fact can be determined by the judge, but III must be 

submitted to the jury. because tile I1:SOlution of each 

fact affects abc SCIUeDCe that !be judge IIUIIt, except in 

unusual circumstances. DOW impose. ••• Neidler the 

Sentencing Reform Act nor tile Constitution compels. 

such a result" 

U.s. v. SMjfO', No. S 88-0293 (D. ~d. Dec. 1. 

1988) (Smalldn.1.). 

Constitutionality-District Courts 

Decl.sIons holding guidelines Invalid:. 

U.s. Y. DahUn. No. 88 CR 20001 (N.D. m. NOv. 

22. 1988) (Roszkowski. 1.) (holding -mat the SeDtalCing Guidelines ue an W1COnSdtudonal delegation 

of legislative power and therefore lnvaUd"; deJeadant 

will be sentenced "acc.onting to the old pIOCed.ures"). 

U.s. Y. B~r,mmk. No. 88 CR 620 (N.D. DL Nov. 

21, 1988) (Rovner. J.) (Guidelines invalid; defendant 

will be sentenced under prior law if found guUty). 
Guideline Sentencing Update 

GIIidI/.i"", ~lIklOCU.1 UpdlIl. will be diallibuted periocIiull)' by III_ Ccn* 10 i.afCIDII judaCIIW ocII« jladicW pa'JCIIIIIIII of IICleet.ecI fcdcn1 court daci&iOlll an 1b_1CIIIGIciD1 

reIonn legisiltiCll oC 1914 &lid 1981w "'-S-=a 0u.iddineI. AkbcIup the p.!b1icaticn 1M)' reIcr!o"'-Sen-aa, Ouidcli.DCII aad po1ic:)'ltalCmans aflbe u.s. s..._ 

ing Commi.uion in !.be eaUClltor repor!inl_ boIdinp. is. 11_ inIcnded 10 l'IIipCXl ScnIaIciftI CCIIIII'IIlaian.,.,ua. at IICI:iviliei. Ru.ckn lheWd reIcnolb_Ouidcliaa.po1ic:y 

NUlmCIIW,~, &lid ocher mataiala iuued by the Sen .... c-.m.ioD for IUd! i.af-a. 

Publication af G,.;.,M/iM S __ IOCu., Updlaflt Iipifi_lhatllle CenIcr IIIp.I'dI it u • _~c &lid yaluable WOldt. 1\ Ihaald _ be ~dcnd • recanmGId.rillll at af5cW 

policy af "'- Cen\c:r. Oa _1ICft af policy the Ccn* IIpGk.I alii), thnIuah iu Baud. 

VOLIJMII 1 • NtIMBIiR 21 • lAHUAity 19. 1989 

Constitutionality 

Supreme Court upbolds constitutionality or Seoteociog Rerorm Act agaiust delegation aod separatioo 

of powers cballeoges. In Mistretta Y. United States die 

Supreme Coun held, by an 8-1 vote, that although the 

United States Sentencing Commission is "an unusual 

hybrid in structure and authority," its Guidelines were not 

subject to constitutional challenge on the grounds that 

Congress delegated excessive legislative power 10 the 

Commission or that the placement and structure of the 

Commission violated separation of powers. 

The Coun flI'St held that "Congress' delegation of authority 10 the Sentencing Commission is sufficiently 

specific and detailed 10 meet constitutional requirements." 

Congress set forth the goals and purposes the Commission 

was to pursue in carrying out its mandate and "prescribed 

the specific tool-the guidelines system-for the Commission 10 use in regulating sentencing." The Court also found 

that Congress gave specific instructions as to how to set up 

the guidelines, including the determination of sentencing 

ranges, factors to use in formulating offense categories and 

in setting offense levels, and aggravating and mitigating 

circumstances that mayor may not be considered. 

The Court f!Oted that"the Commission enjoys significant discretion in formulating guidelines .... But our cases 

do not at all suggest that delegations of this type may not 

carry with them the need 10 exercise judgment on matters 

of policy." In this instance the discretion granted to the 

Commission was proper: "Developing proportionate 

penalties for hundreds of different crimes by a muaHy 

limitless array of offenders is precisely the son of intricate, 

labor-intensive task for which delegation 10 an expen body 

is especially appropriate. Although Congress has delegated 

significant discretion to the Commission to draw judgments 

from its analysis of existing sentencing practice and , 

alternative sentencing models, 'Congress is not confined to 

that method of executing its policy which involves the least 

possible delegation of discretion 10 administrative officers. ' 

... We have no doubt that in the hands of the Commission 

'the criteria which Congress has supplied are wholly 

adequate for carrying out the general policy and purpose' 

of the Act." 

On the separation of powers issue, the Comt first held 

that the location of lbe Commission was proper. "Congress' 

decision 10 creare an independent rulemaking body to 

promulgate sentencing guidelines and 10 locate that body 

within the Judicial Branch is not unconstitutional unless 

Congress has vested in the Commission powers that are 

more appropriately perfonued by the other Branches or that 

undermine the integrity of the Judiciary," In the past the 

Court has held .. that Congress, in some circumstances. may 

confer rulemaking authority on lbe Judicial Branch," and 

also that "Congress may delegate 10 the Judicial Branch 

non-adjudicatory functions that do not trench upon the 

prerogatives of another Branch and that are appropriate 10 

the central mission of the Judiciary." In light of this 

precedent and practice, the Court "discem[ed] no separation-of-powers impediment 10 the placement of the Sentencing Commission within the Judicial Br..:nch. As we 

described at the outset. the sentencing function has long 

been a peculiarly shared responsibility among the Branches 

of government and has never been thought of as the exclusive constitutional province of any one Branch ...• Given 

the consistent responsibility of federal judges to pronounce 

sentence within the staturory range established by Congress, we find that the role of the Commission in promulgating gujdelines for the exercise of that judicial function 

bears considerable similarity to the role of this court in 

establishing rules of procedure under the various enabling 

acts .••. Just as me rules of procedure bind judges and 

coons in lbe proper management of the cases before them, 

so the Guidelines bind judges and comts in the exercise of 

their uncontested responsibility to pass sentence in criminal 

cases. In other words, the Commission's functions,1ike this 

Coun's function in pomulgating procedural ndes. are 

clearlyauendant to a cenn! element oflbe bistaically 

acknowledged mission of the ludicial Branch," 

While conceding that ""the degree of political judgment 

about crime and criminality exercised by lbe Commission 

and the scope of the substantive effects of its work does 10 

some extent set its rulemaking powers apan from prior 

judicial rulemalcing." the Coon concludc;Q "that the 

significant political nature of the Commission's work" did I not preclude its placement in the Judicial Branch: "Our 

I 

l\ot Cor Citation. Guidl!luU! StnJtllCUtI UpdI2tt is provided for uUonnation only. 11 should not be ciled. cithcr in opinions or otherwise. 

41 
42 

Guideline Sentencing Update 

separation-of-powers analysis does not tum on the JabeJIing 

of an activity as 'substantive' as opposed to 'procedW'3I,' or 

'political' as opposed to 'judicial,' ., • Rather. OW' inquiry 

is focused on the 'unique aspects of the congressional plan 

at issue and its practical consequences in light or the larger 

concerns that underlie An.icle m.' .. , In this case, the 

'practical consequences' of locating the Commission within 

the Judicial Branch pose no threat of undermining the 

integrity of the Judicial Branch or of expanding the powers 

of the Judiciary beyond constitutional bounds by uniting 

within the Branch the political or quasi-legislative power of 

the Commission with the judicial power of the courts," 

Funhcrmore, in light of the Guidelines' "limited reach,the 

special role of the Judicial Branch in the faeld or sentencing. and the fact that the Guidelines are promulgated by an 

independent agency and not a coun. it follows as a matter 

of 'practical consequences' the )ocation of the Sentencing 

Commission within the Judicial Branch simply leaves with 

the Judiciary what has long belonged to it." 

The Court also rejected various contentions concerning 

the propriety of judicial membership on the Commission, 

AlLhough the Court found the requirement of judicial 

service usomewhal troublesome," it concluded that neither 

the tellt of the Constibltion, historical practice, nor the 

Court's precedents would prohibit Article m judges from 

undertaking exaajudicial duties in their individual 

capacities. The Court found that "[s)ervice on the 

Commission by any particular judge is voluntary," and it is 

doubtful that any judge could be forced to serve against his 

will, Service by judges on the Sentencing Commission does 

not undennine the integrity of the Judicial Branch by 

diminishing the independence of the Judiciary or by 

improperly Ie riling judicial prestige and an IW'3 of judicial 

impartiality to the Commission's political work." Nor will 

judicial service on the Commission "have a constitutionally 

signifICant practical effect on the openl1ion of the Judicial 

Branch. We see no reason why service on the Commission 

should result in widespread judicial recusals. That federal 

judges participate in the p:omulgation of guidelines does 

not affect their or other judges' ability impartially to 

adjudicate seRlenCing issues. " 

While the Coon was "somewhat more troubled" by the 

argument that judicial service on the Commission might 

undennine public confidence, it concluded that ''the participation of federal judges on the Sentencing Commission 

does not threaten, eiLher in fact or in appearance. the imparVolume 1 • Number 21 • January \9, 1989· Page 2 

tialiry of Lhe Judicial Branch. , , • [nhe Sentencing Commission is devoted exclusively to the development or rules 

to rationalize a process that has been and will continue to 

be perfonned exclusively by the Judicial Branch, In OlD' 

view, this is an essentially neu&ral endeavor and one in 

which judicial panicipation is peculiarJy appaopriale." 

The Court summarily rejected "petitioner's argument 

that rhe mixed nature of the Commission violates the 

Constibltion by requiring Article III judges to share judicial 

power with nonjudges. , •• [nhe Commission is DOl a c:oun 

and exercises no judicial power. Thus, the Act does not vest 

Article m power in nonjudges or tequire Article m judges 

to share their power with nonjudges." 

Finally. the Court heJd Lhat "[t)he notion that the 

President's power to appoint federal judges to tM Cammission somehow gives him influence over the Judicial Branch 

or prevents. even potentially. the Judicial Branch frOm performing its constitutionally assigned function is fanciful. 

.. , We simply caMot imagine that federal judges wiD 

campon their actions to Lhe wishes of Lhe President for the 

purpose of receiving an appointment to the Sentencing 

Commission," The Court also found that the removal 

power "poses a similarly negligibJe threat to judicial independence. The Act does nOl, and could not under the 

Constitution, authorize the President to remove, or in any 

way diminish the stablS of Article III judges, as judges. , , , 

Also, Lhe President's removal power under the Act is 

limited" to removal only for good cause, "Under these 

circumstances, we see no risk that the President' s limited 

removal power will compromise the impartiality of Article 

III judges serving on the Commission and, consequendy, 

no risk that the Act's removal provision will prevent the 

Judicial Branch from performing its constitutionally 

assigned function of fairly adjudicating cases and controversies," 

In dissent, Justice Scalia reasoned that Congress can 

delegate rulemalcing power only when that power is 

ancillary to executive or judicial functions. The Sentencing 

Commission has no executive or judicial fWlCtions. he 

concluded. but rather has been given "a pure delegation of 

legislative power," and he found "no place within OlD' constitutional syS1em for an agency created by Congress to 

exercise no governmental power other than the making of 

laws," 

Mistretta v. United States. No. 87-7028 (U.S, Jan, 18, 

1989) (B1acbnun. J.). 
Guideline Sentencing Update 

a.,;,,,,,.,.. s-1tCiItc u,.-. will bel dUtriIu.eoI J*iocIicaDyby Ibrc c.....10 W_ jud.-lAd alb. jt.odicial,..-l <tIMloa.d Codcnl_ ~ en !he-.~ 

nl_ JcpIacioa .. 19&4 ud 1917 .... die ~ 0ui4cIiaee. ~ Ibrc pubtic&1ioa may .... 10 !be S-an, ~ and poIiq "'_11 of Ihc U.S. ScnIalC· 

in, C......m..iaa ia Ibrc _"1IIpGIIiac CUllIaoIdiap. it ..... ~ Ionpaot s..r...daa ~ paIic:i-. .... K'Ii~ IloMen IIbouW •• 10 .... ~ palicy 

~~. ud ocbor_..w. --.br" ~Capmi-iaD r« IUCh inCGIID&Ii<>a. . ~ olCitt8tM_,.".".,., u,.,. 8ipi&I diet .. C-.... h ... ~ ..... wJu.l.a. weD. h"-W _ bel ~. --sacioa .... atficUl 

paI.icy 01 .. C-. o._.paIieJ .. c-. .... .sy u-.p iu load. 

VClLIlMI 1 • NUMII8R 22· FuwAav7.1989 

TOPICAL INDEX FOR GUIDELINE SENTENCING UPDATE, VQLUME 1 

The foUowing is an index of casesreportcd in GuideUne Selllencing UPfl4u up to.and including tile Su~ Court decision 

in MislreltIJ v. U.s., No. 87-7028 (U.s. Jan. 18, 1989). which upheld the Sentencing Reform Act Of 1984 (SRA) against 

separation of powas and delegation docIrinc ehaUcnges. The index is divided into two partS. The fiist part lists cases that 

appUed or intetpRlt.ed the Guidelines or relevant sections of the SRA. or that decided cba1lenges to particular sections or Ihe 

GuidclinesorSRAongroundsOlherchanthoseinMistretta. Thesecondpartoflheinde1listsdecisioosonthcconstilutionality 

of the Guidelines and SRA. The number in bractds at the end of each citation refas to the GSU issue in which the case was 

summarized. 

PART I 

A. Sentencing Procedure/Guidelines Application 

1. DETERMINING Of'FENS1 LEVEL 

L OfTense CoDdud Considered 

U.s. Y. Silverman. 692 F. Supp. 788 (S.D. Ohio 1988) 

(relevant conduct that may be used in determining 

offense level) [illS]. 

u.s. Y. Rue/Qs~Annenta. 684 F. Supp. 1048 (C.D. CaL) 

(court may consider relevant conduct DOt in offense 

of cooviction) [119]. 

U.s. v. Smith. No. 87-20219-4 (W.D. Tenn. Aug. 26. 

1988) (unproven conduct may not be considered in 

setting base offense level) [#IS). 

b. Guideline Disputes 

U.s. Y. Bermingham, 855 F.2d 925 (2d Cir. 1988) 

(dispute over applicable guideline range may be left 

unresolved ifseotence unaffected) [#14]. 

c. Particular Offenses 

U.s. v.King.849F.2d 1259 (9thCir. 1988)(percurlam) 

(clarifying arson guideline, f 2Kl.4(b)(4» [#12]. 

2. ADJUSTMENTS TO OFFENSE LEVEL 

a. Criminal Livelihood 

U.s. v.Rivera, 694F. Supp. 1105 (S.D.N.Y.1988)(defming "substantial portion of his income" requirement of criminal livelihood provision) [1116). 

b. Role in Offense 

U.S. v. Weidner. 692F. Supp.968 (N.D.Ind. 1988)(role 

in offense adjusunenl nOl applicable to solitary offender) [#16]. 

3. EVlDINTWlY issUES 

a. BurdeD oIProo1 

U.s. Y. Dolan. 701 F. Supp. 138 (E.D. Tenn. 1988) 

(allocating burden of proof to govemmentanddet.etmining standard of proof when resolving disputed 

facts in PSI) [1119]. 

U.s. Y. Silwmnan, 692 F. Supp. 788 (S.D. Ohio 1988) 

(preponderance of the cvidcDCc test to be used for 

factualmatlelS in PSJ) [illS]. 

4. PRocmvl.E 

U.s. Y. Sheffer. 100 F. Supp. 292 (D. Md. 1988) (special 

verdict not required to decide whether Guidelines 

apply or to detenninc amount of drugs involved) 

[1120]. 

U.s. Y. Q~zada. No. 88 CR 204 (E.D.N.Y. Aug. 31, 

1988) (denying request for pre-trial guideline computation) (1116). 

U.s. v. SOlO, No. 81 Cr. 0916 (S.D.N.Y.Aug.24. 1988) 

(noting standard for modification of sentence under 

revised rule 35) [1116). 

S. PLEA BARGAINING 

U.s. v. Restropo, 698 F. Supp. 563 (E.D. Pa. 1988) 

(examining authority under Guidelines to accept 

plea to reduced charge) [1118]. 

U.s. v. Btllh.ancurt. 692 F. Supp. 1427 (D.D.C. 1988) 

(discussing problems with plea bargaining under 

Guidelines) [1115]. 

U.s. Y. Loman. No. 88-OO125"()1-CR·W-6 (W.D. Mo. 

Ocl 25, 1988) (allowing withdrawal of guilty plea 

under Fed. R. Crim. P. 32(d)'because of "plain error 

Nol Cor CII.alion. G",idtlillt S",ulICiIIg Updau is provided Cor inform.o.tion only. It should not be cited. eiLher in opinions or Olherwisc. 

43 
44 

Guideline Sentencing Update 

of law" in computing p-ospective guideline sentence) [MI9]. 

6. WHETIIEJt TO APPLY GlIIDD.lNIS 

U.s. v. Savage. 863 F.2d S9S (8th Cit. 1988) (mandatory minimum must be used if guideline sentence 

lower) [1120]. 

U.s. v. While,8SSF.2d201 (SthCir.1988)(p«curiam) 

(exercising supervisory power 10 order disuict 

courts to ~ Guidelines pending Supreme Court 

decision) [MI51. 

U.s. v. Richards. No. 88-900SM..()1 (D. Kan. Oct. 21, 

1988) (GliideliDes do not apply to ASsimilative 

Crimes Act) [118]. 

1. En'Ecnv& DATE 

U.s. v.Kel/y.680F.SJIPP.119(SD.N.Y.1988)(Guidelines do DOt apply 10 offenses committed before 

effective date of SRA) [M3]. 

u.s. v. Gasparotli.No.88-00094"()1 (E.D.Pa.Dec.19, 

1988) (Guidelines apply 10 conspiracy begun before 

and ending after effective date of SRA) [#20]. 

B. Departures 

U.S. v. G~"ero, 863 F.2d 245 (241 Cir. 1988) (upholding upward departure based on quantity of drugs in 

relevant coOOuct but not used to compute guideline 

range) ['20]. 

U.s. v.NUlIO-Huizar. 863 F.2d 36 (9thCir. 1988) (per 

curiam) (affuming upward departure based on 

defendant's role in offense. size and scope of criminal activity~ other facts){Ml7]. ' 

U.S. v.Correa-Vargas.860F.2d3S(2dCir.1988)(upholding upward departure based upon quantity of 

drugs) ['18]. 

U.s. \I. Aguilar-Pena. 696 F. Supp. 781 (D.P.R. 1988) 

(upward depanure warranted by locaI sentiment and 

VoI.urne I • Number 22· FebNAty 7.1989· Pale 2 

to discourage drug lraffic) [#16]. 

U.s. v. Pipich. 688 F. Supp. 191 (D. Md. 1988) (exceptional military secvice record justifies downward 

departure) [MI3]. 

U.s. v. Burns. No. 88"()302 (D.D.C. OcL 14. 1988) 

(upward departure based on specific circurn.stances 

of offense) [MI91. 

U.s. v. H~r, No. 88-20060-4 (W.D. Tenn. Aug. 8. 

1988) (prior good time penalty warrants downward 

departure) ['14]. 

U.s. v.Swiruww.No.87-86..()1 (D. VLJuly26.1988) 

. (upward. departure wa.rraolCd Cor fugitive status and 

uncounrcd aiminal IUsIory) [MI6]. 

U.s. v. Haigler. No. 3-87 CRIM 135(2) (D. Minn. May 

19, 1988) (upbringing and family situation justify 

downw8rd departure) ['12]. 

U.s. v.Kopp. No. C-I-88..()6..() 1 (D.ND. AIx'.29, 1988) 

(youthfulness warrants downward depa.rtilre) [#16]. 

C. Challenges to Specific Guideline or SRA 

Provisions 

u.s. \I. Musser. 856 F.2d 1484 (11th Cir. 1988) (per 

curiam) (rejecting equal protection challenge 10 

SRA"s substantial assistance provisions) ['17]. 

U.s. \I. Belgard. 694 F. Supp. 1488 (D. Or. 1988) 

(rejecting various constitutional challenges 10 role of 

probation officers, acceptance of responsibility and 

career offC:nder guidelines, consideration of tribal 

convictions) ['13]. 

U.s. v. Kerr. 686 F. Supp. 1174 (W D. Pa. 1988) (upholding criminal livelihood provision. § 4B13. 

against constitutional challenges) [MlO}. 

U.s. v. SCO", No. JH-87-OS70 (D. Md. May 23. 1988) 

(Guideline section mandating consecutive sentences 

contrary to stalute. invalid) ['15]. 

PARTn 

A. Upholding Guidelines 

Mistretta v. U.s .• No. 87-7028 (U.S. Jan. 18. 1989) 

[#21]. 

Fni.sT CntClIIT: 

U.S. \I. Seluk. 691 F. Supp. 525 (D. Mass. 1988) [# 12]. 

U.S. \I. Alves, 688 F. Supp. 70 (D. Mass. 1988) [#8]. 

SECOND CIRCUIT: 

U.S. \I. Hickerndl. 690 F. Supp. 272 (S.D.N.Y. 1988) 

(#13}. 

U.S, \I.ScMruUr. No. CR-87-00806-02 (E.D.N.Y.July 

13,1988) [#14). 

U.S. v. Etienne. No. 87CR 791 (E.D.N.Y. May 5,1988) 

(#11]. 

THIRD CIRCUIT: 

U.s. v. FranA:. No. 88-3220 (3dCir. Nov. 7.1988)[#18]. 

U.s. v. Schwarlz. 692F. Supp. 331 {D. Del. 1988){#13]. 

U.S. v. lieU. No. 88-00119-01 (M.D. Pa. Oct. 3,1988) 

[#17}. 

U.s. v. Huff, No. 88-72 (W.D.Pa. Aug. 17.1988) [#14]. 

U.S. v. Hodge. No. 88-04 CO.V.I. May 31, 988)[#l1J. 

FOURTH CIltCUlT: 

U.S. v. Richardson. 685 F. Supp. I) I (E.D.N.C. 1988) 

[#111. 

u.s. v., Stokely. No. 2:87-00206 (S.D.W. Va. July 8. 

1988) (en bane) [#121. 
Guideline Sentencing Update 

FIFrH CIRCUI1': 

U.s. v. Chambless. 680 F. Supp. 793 (E.D. La. 1988) 

[H3]. 

SIXTH ClRctJJT: 

U.s. v. Lmu:krs. 690 F. Supp. 615 (W.O. Tenn. 1988) 

[HI2]. 

U.s. Y. Sparks. 687 F. Supp. 1145 (E.O. Mich. 1988) 

['10]. 

U.s. Y. Smith. 686 F. Supp. 1246 (WD. Team. 1988) 

[19]~ 

SIVDmI Cucurr: 

U.s. v. FrtJllZ. 693 F. Supp. 687 (N.D. m;I988) ['16]. 

U.s. Y. Weidner. 692 F. Supp. 968{ND. IneL 1988) 

[HI4]. 

ElGK11t CIRCUIT: 

U.s. Y. Rcry. 694 F. Supp. 635 (D. MinD. 1988), ['16]. 

U.s. v. Whitfield. 689 F. Supp. 954 (D. Minn. 1988) 

['13]. 

U.s. Y. JoM...flJn. 682 F. Supp. 1033 (W.O. Mo. 1988) 

[H5]. off.d sub 110m. Mistretta v. U.S .• No. 87-7028 

(U.s. Jan. 18. 1989) [121]. 

NINTH CDlCUl1': 

U.s. v. Macills-Pedro:a. 694 F. Supp. 1406 (D. Ariz. 

1988) (en bane) [19]. 

U.s. v.Belgard.694 F. Supp. 1488 (D. Or. 1988) [113]. 

U.s. Y. Am4squila-Padilla. 691 F. Supp. 2n (W.O. 

Wash. 1988) ['10]. 

U.s. Y. Myers, 687 F. Supp. 1403 (ND. Cal. 1988) 

[#10]. 

U.s. v. Rui.r-VilIanueWl, 680 F. Supp. 1411 (S.D. Cal. 

1988) [H2]. 

TENTH CIacum 

U.s. v. Costelon. 694 F. Supp. 786 (D. Colo. 1988) 

[#161. 

EUVENrH CIRCurr: 

U.s. v. Childress. No. 87-263-N (M.D. Ala. May 16. 

1988) (19). 

U.s. v. ErYU, No. CR87-478A (N.D. Ga. Mar. 22, 

1988) [#4]. 

B. Guidelines Invalid 

(Pa.rentheticals follow cases that fOWld the Guidelines 

invalid on constitutional grounds other than or in addition to separation of powers or the delegation doctrine.) 

D.C. Cmcurr: 

U.s. v. Brodie. 686 F. Supp. 941 (D. D.C. 1988) (due 

process, order sl.ayed) [#9], Slay lifted. U.S. v. BethancUTt. 692 F. Supp. 1427 (D.O.C. 1988) [#15]. 

SECOND CIRCUIT: 

U.s. v. Cortes. 697 F. Supp. 1305 (S.O.N.Y. 1988) 

[##19]. 

Volume 1· Number 22· February 7.1989· Pase 3 

U.s. v. Perez. 696F. Supp. 55 (S.ON.Y. 1988) [111]. 

U.S. v. Mend..ez. 691 F. Supp. 656 (S.ON.Y. 1988) 

[Ill]. 

U.s. v. Sumpter. 690 F. Supp. 1214 (S.ON.Y. 1988) 

[113]. 

U.s. v.AltVTi.r.690F.Supp.1303 (S.0.N.Y.1988)(due 

process) ['13]. 

U.s. Y. OUwn.ciD. 689 F. Supp. 1319 (SD.N.Y. 1988) 

[18]. 

U.s. Y. MoUna. 688 F. Supp. 819 (D. Conn. 1988) [19]. 

U.s. Y.DiBia.se. 687F. Supp. 38 (D. Conn. 1988) [19]. 

U.s. Y. ClrristlMlt. No. Cr. 88-4-2 (D. VL Nov. 19, 

.1988) (eo bane) (pet curiam) ['19]. 

U.s. v. Orte,a-Fe11lll/rlkz. No. 88 Cr. 261 (SJ).N.Y. 

OcL 12.1988) (119]. 

U.s. v. HerlllJlldez. No. 88 0.374 (SD.N.Y. Oct. 7, 

1988) ['Ui]. 

U.s: Y. JDlrnsoit. No. 88 Cr. 298 (S.O.N. Y. Aug. 30, 

1988) ['16]. 

U.s.v.SqQir:No.88Cr.301 (S.0.N.Y.Aug.30.1988) 

[#161. 

U.s. v.Fidds. No. 880. 286 (SD.N.Y. Aug. 29. 1988) 

[116]. 

U.s. v. Smith. No. 88 Cr. 49 (SD.N.Y. May 31. 1988) 

[#10]. 

THDlD Cmcurr: . 

U.s. Y. Whyte. 694 F. Supp. 1194 (ED. Pa. 1988) [# 161. 

U.s. v.BrowiI.690F.Supp.1423(ED.Pa.1988)(order 

stayed) ['13]. 

U.s. v. FranJ::.682F. Supp. 815 (WD. Pa. 1988) (due 

process) ['5] rev'd in part. U.s. Y. Frank. No. 88-

3220 (3d Cit. Nov. 7. 1988) ['18]. 

U.s. v. Kapantais. No. 87-2S1 (WD. Pa. Aug. 16.1988) 

[114]. 

u.s. v. Rossi. No. 87-241 (W D. Pa. Aug. 11. 1988) 

(article I presentment requirement) [114]. 

FOURTH CIRcurr: 

U.s. Y. Davis. 694 F. Supp. 1218 (D. Md. 1988) [#16]. 

U.S. v. Bolding. 683 F. Supp. 1003 (D. Md. 1988) (due 

process, order stayed) ['7]. 

FiFrH Cmcurr: 

U.S. v. Perez. 685 F. Supp. 990 (W.D. Tex.) (due 

process. article I IX'esentment requirement) [#11]. 

U.s. v. Coburn. No. C-88-05 (S.D. Tex. July 13. 1988) 

[#12]. 

SIXTH ClRcurr: 

U.S. v. Thomas. 699 F. Supp. 147 (W.O. Tenn. 1 88) 

[112]. 

U.S. v. Williams. 691 F.Supp. 36 (M.D. Tenn. 1988) (en 

bane) [#12]. 

SEVENTII CiRCurr: 

U.S. v. Dahlin, 701 F. Supp. 148 (N.D. m. 1988) {#20]. 

U.S. v. Sche,.:. 698 F. Supp. 153 (N.D. Ill. 1988) [#19]. 

45 
46 

Guideline Sentencing Update 

u.s. v. Easlland, 694 F. Supp. 512 (N.D. llL 1988) 

[IU6]. 

U.s. v. Rosario. 687 F. Supp. 426 (N.D. m. 1988) 

['11]. 

u.s. v. Molander, 683 F. Supp. 701 (W.O. Wis. 1988) 

['8]. 

U.s. v. Bergmark, No. 88 CR 620 (N.D. I1l. Nov. 21, 

1988) (120]. 

EiOlml ClRcvrr: 

U.s. v.TerriU.~F.Supp. 542(W .D.Mo.I988)['11]. 

U.s. Y. SerPa. 68a F.Supp. 1398 (D. Neb. 1988) (en 

bane) (per,cwiam). [' 12]. 

U.s. v. Brit~. 681 F. Supp~ ~3~(E.D. Ark.. 1988) 

(due JX'OCCSS. article I presenaneot requirement) 

['11]. 

U.s. V.HONOII.68SF.Supp.1479(D.MUm.1988)[I9]. 

U.s. Y. &trada, 680 F. Supp. 1312 (D. Minn. 1988) 

[#6]. 

U.s. v. Besler. No. S:-88"()8 (D. Minn. July 19. 1988) 

[#13]. 

NJN11I CIRCtJJT: 

GubieflSio..Orli:r v. Kanahde. 857 F.2d 1245 (9th Cir. 

1988) [114]. 

U.s. Y. Jad:son. 857 F.2d 1285 (9th Cir. 1988) (per 

cmiarn) (holding supervised release provision of 

SRA not sevaable from. Guidelines, invalid 

following Gubknsio-Ortiz. supra) ['17). 

U.s. Y. Martinez-Orlega. 684 F. Supp. 634 (D. Idaho 

1988) (due process. ordet stayed) [19]. 

U.s. Y. Onega-lA/X1z, 684 F. Supp. 1506 (C.D. CaL 

1988) (en bane) (due process) ['8]. 

U.s. Y.ArIlOId.678F. Supp.I463 {S.D. Cal. 1988)[#1]. 

U.s. Y. Nordoll. No. CR87..06TI'B (W.D. Wash. Apr. 

21. 1988) [#9]. 

U.s. v. HaniIIgtolioNo. CR-88-34-1 (E.D. Wash. Apr. 

13.1988) ['10]. 

U.s. Y. Man./~, No. 87-1290-R (S.D. Cal. Feb. 18. 

1988) [#1]. 

TEN11f CIRelln': 

U.s. Y. Swapp, 695 F. Supp. 1140 (D. Utah 1988) (en 

bane) (article I presentment requirement) [lfI3]. 

VoIwue I • NlIIDber 22· February 7,1989· Pace" 

u.s. Y. Scou, 688 F. Supp. 1483 (D.N.M. 1988) [Ill]. U.s. Y. Wilson, 686 F. Supp. 284 (W.O. Okla. 1988) 

(19]. 

U.s. v. Smilh, 686 F. Supp. 847 (D. Colo. 1988) ['S]. 

U.s. Y. EUiott, 684 F. Supp. 1535 (D. Colo. 1988) (due 

process) ['8]. 

U.s. v. Tolbert,682F.Supp.1517 (D. Kan:1988}[t6]. 

U.s. v. Brown~ No. 88·10036 (D. Kan.luly 14. 1988) 

['13]. 

U.s. Y.Biuer~No. 88-16a. U.s. v.Scott.No.88-11-

CR (B.D. 0Ida. May 26. 1988) ['10]. 

U.s. v. Riwu-Hmsande:r. No. CR-88-S6-T (W .D. 0kJa.. 

. May 16, 1988) [110]. 

U.s. v. Harri.8. No. 88-CR-6-B (N.D. 0kJa. Apt. 29. 

19s8) [#9]. 

EuVEN'I1I CutctJrr: 

u.s. v. Bogle, 693 F. Supp. 1102 (S.D. Fla. 1988) (en 

bane) [112]. 

U.s. v. Kane. 691 F. Supp. 341 (N.D. Ga. 1988) ['12]. 

U.s. Y.Rkhardson.690F. Supp.l030{N.D. Ga.1988) 

['14]. 

U.s. v. Bogle. 689 F. Supp. 1121 (S.D. Fla. 1988) {en 

bane} ['11], reqlU!sl/or stay of ortkr tkllJe.d. 855 

F.2d 707 {11th Cir. 1988} (per cuiiam)['IS): 

U.s. v.FolUeca,686F. Supp. 296 {S.D. Ala. 1988)[119]. 

U.s. Y. AUen. 685 F. Supp. 827 (N.D. Ala. 1988) (en 

bane) [19]. 

U.s. Y. Dim, 68S F. Supp. 1213 (S.D. Ala. 1988) [119]. 

U.s. v.Russeli. 685 F. Supp.1245 ~:D. Ga.1988) ['8]. 

u.s. Y. Fer~:r,No. 88-114-Cr-T-13(08) (M.D. Fla. 

Sept. 23.1988) [#17]. 

U.s. v. Jackson. No. CR88-96A..()l (N.D. Ga. SepL 1. 

1988) ['16]. 

U.s. Y. Salas. No. 87-422-Cr-T-15B (M.D. Fla.luly 19, 

1988) ['16]. 

C. Standing 

Federal Defenders 0/ San. D~go Y. U.s. St!11Iencing 

Comm'n, 680 F. Supp. 26 (D. D.C. 1988) (public 

defender groups do not have sWlding 10 challenge 

Guidelines) [lfl]. 
Guideline Sentencing Update 

0-._ ~ Upt/tlu will hcdillllibulod paiodicaIl, &, 11M Cal1cIr to W-jDdp _ 0Iba' judida1 pcnGIIMl_1Idoc:IecI feclcal-' cIecUiaaI_.---' 

rcloaa IqpaJaIiaG _1914 _1m _ 11M SaMacinJ GriH_ AIII:Iaaah -(Nblinrion _, _"IOIM~ GaidcliD. _poIic:f~ 1iIl_ u.s. s--. .. CommiAim ill lMamIcIl_~ _1IOWiaP. iL lie IICI&lalaIIW 10 1IIpGd ........... c-iIII._ JICIIioI:* .. .am_ RcNco!t IIIIaald nf .. to !befluiMJiMl, policy 

----. --v. _ 0Iba'1IIIICd8a ... .,,!be s-.s~ OwmnIwIm ...... iafcmaadaa.. l'IIbIiAIiIIa_GwitldiM~ U,...IipIfia!bat _C--.... il •• .....,.......0 ... vaiuItt&o wodt.lt 1bGuWIICI& ______ .. ' ........ aI!idal 

pGlicy IiIlIbo C-. 011 ___ poI:iq 1ho c-lIIJ*Ib .., IIIIaItb ita Boad. 

VOl.llIG 2 • NUWIIIt 1 • FalwAaY 22. 1989 

Guidelines Application 

DEPAllTUllES 

Third Clrcalt reverses departure because factGn 

relied OD W21'e adequately coaskIered by SeDteDdng 

COIDIDissioa. Defendants pleaded guilty to federal fueanns 

offenses. The district court sentenced both defendants 

above Ihe guidelines. fmding that the number and untraceability of Ihe weapons involved. the potential unlawful use 

of the weapons. and Ihe threat they posed to Ihe public 

welfare justified upward departme. 

The appellate court reversed, holding that in fonnulating Ihe applicable guidelines the Commission adequately 

considered the factors relating to the number of guns, 

traceability. aDd unlawful purpose. and lhetefore. pursuant 

to 18 U.s.C. f 3SS3(b). "no upward departwe was pennissible." Basing the departure on the tIueat to public welfare 

(guidelines policy statement f SK2.14) was similarly unsustainable because "the Guidelines clearly contemplale the 

very activities charged in these cases. " 

The court also emphasized that "the Guidelines. 

commentaries and policy statements clearly indicate that 

departures should be rare." and that the legislative history 

indicates that departures "are to be the exception. not the 

rule."1be "overriding congressional pwpose of reducing 

sentencing disparity and achieving general unifonnity of 

treatmenl," the cOurt added. "will be destroyed if courts 

depart ofren from the Guidelines." 

U.s. v. Uca. No. 88-1607 (3d elf. Feb. 9.1989) 

(Gibbons., C.J.). 

Third Circuit holds that fadors not coDSidered in 

settiDg base oIf'ense level ror offense of cODvictioD may 

be considered for departure. Defendant was charged with 

possession of • controlled substance with intent to distribute. but was convicted of the lesser included offense of 

simple possession. Based upon the amount. purity, and 

packaging of the drugs. which are not sentencing factors 

under the guideline for the offense of simple possession. 

the district court departed from the 0-6 month guideline and 

sentenced defendant to 10 months' imprisonment 

The appeUate court upheld the departure, finding that 

the omission of these factors in setting the guideline range 

fOf defendant's crime, although they are included in 

guidelines for other offenses. did not preclude their use in 

determining whether departure was warranted. The 

Sentencing Commission specifically stated. in policy 

statement § SK2.0, thit ". factor may be listed. a specifIC 

offense characteristic under one guideline but DOt under all 

guidelines. Simply because it was DOt Iistcd does not mean 

that IbcR may DOt be circumsrances when dial factor would 

be relevant to sentencing. "The court noted that Ihe Second 

Circuit. in U.s. v. CtJrI'eIl-VargM. 860 P.2d 3S (2d Or. 

1988). rejected argmnents "rIear1y identical" 10 defendant's. 

and agreed with that comt that .. departure may be warranted 011 the basis of conduct which is not an element of 

the offense of conviction. .. 

Defendant also argued that the Guidelines only allow 

departures in "unusual" cases. and that his situalion did nOl 

meet that requiremenL The court acknowledged that Ihe 

Guidelines "suggest" in some places that deparIure is warranted only in unusual cases. but determined thatlhis case 

could be considered Wlusual because of the drug in\'Olved. 

namely"aack" (cocaine base). The guideline for simple 

possession does not account fOf Ihe "'particuJarIy insidious 

and dangerous" nature of cocaine base,lhecourt found. and 

thus "the district court's departure from the guideline might 

weU be reasonable in view of the Commission's faDon: 10 

take into account the unusual danger of crack in drafting 

the guidelines governing drug possession." 

U.s. v. Ryan. No. 88-3344 (3d Cir. Jan. 26.1989) 

(Greenberg,l.). 

Firth Circuit holds sentencing court may use 

reliable facts uDderlying acquitted oIf'ense IS basis for 

departure. Defendant was convicted by a jury of two 

counts of distributing cocaine. and acquitted of one count 

of carrying a fu:eann during a drug trafficling offense. The 

sentencing court determined that the facts underlying Ihe 

fuearm offense wc= DOt in dispute. and departed from the 

recommended guideline range of 12-18 months to impose 

concwrent sentences of 76 months fOf the two distribution 

offenses. A codefendant was convicted of all three counts 

and given the same term of incarcmltion. Defendant argued 

on appeal that basing the departure on the fJrCaml offense 

in effect ovenode the jury's determination that he did not 

possess a fJrCaml. and that it was also improper to give him 

the same sentence as a codefendant who was found guilty 

of one more offense. 

The appellate court aff"lCmed the depal'TUre, holding 

that "the district court did not abuse its discretion in 

considering evidence of [defendant's] possession of a 

Not fur Citation. Guickline SeflleltcUtg Updale is provided for infonnation only. It should not be cited, either in opinions or otherwise. 

47 
48 

Guideline Sentencing Update 

handgun despite [defendant's] acquiual of the substantive 

firearm offense. .. The court RaSODed.: "Althougb the jury 

may have decennined dw the government had not proved 

all of the elements of the weapons offense beyond 8 

mISOl'I8ble doubt. sucb 8 defami.naUon does not necessarily 

preclude consideration of underlying facts of the offense at 

sentencing so long as diose facts meet the reliability 

SIandard.' The sentencing court was DOt relying on facts 

disclosed at ttialro punish the defendant for the extraneous 

offense. but to justify the heavier penalties for the offenses 

for which be was c:oovicted. " 

Tho coun also held Ihal defendant's other argument, 

"t.hal m:eiving the same 0\Uall seotaJce as IUs codefendant afta' being convicted of fewer offenses was per 8C an 

abuse of disaedon, is also wirbout maiL It is w~ the 

sentencing court's di.sc::n:Cion 10 1reat codefendants differendy •••• A defendant convicted of fewer subslanlive 

counts may m:eive 8 heavier sentence if justified." 

U.s. v. Ju.art!z-Ortega. No. 88-2547 (Sth Cir. Jan. 31, 

1989) (pc2' curiam). 

DeleDdaDt*s SUbstaDtiaI cooperatioD warraDts 

departure reduclDg seDteDce from 78-'" moaths to 14 

mODths. Defendant pleaded guilty 10 conspiracy 10 possess 

with intent 10 distribute SOO grams or more of a conaolled 

substance. Aiu:z adjusbnent, the applicable guideline range 

was 78-97 months. PW'suantlO guideline policy statement 

§ SKU, however, which authorizes departures for "Substanlial Assistance 10 Authorities." the court sentenced defendant 10 14 months' incarceration. This sizeable departure was based upoD defendant's prompt and valuable c0-

operation. which led 10 convictions of his codefendants, 

and upon his "sincere and heartfelt" conuition and the fact 

that this was "an isoJalcd incident of abaTant behavior." 

U.s. v. CanrpIH!U. No. CR. 88-00203-A (E..D. Va. Jan. 

26, 1989) (Ellis, J .). 

DETERMINING OFFENSE LEVEL 

District coul1limits use 01 coudUd Dot included iD 

otTeuse 01 CODvidJoD wheD settiDg base offense level. 

Defendants were charged with conspiracy 10 diSb"ibute 

more than five tilograms of cocaine, and convicted by a 

jury of the included offense of conspiring 10 dislribute SOO 

or more grams of cocaine. Although !he court was "convinced by 8 preponderance of the evidence that they. in 

fact, conspired 10 dislribute S or more kilograms of 

cocaine." it used the 1esser amount 10 calculate defendants' 

base offense levels. 

Under guideline § 1 B l.3(a)(I), the base offense level 

where the offense guideline specifies more than one base 

offense level is to be determined on die basis of "all acts 

Volume 2· Number 1 • February 22,1989· Pap 2 

..• commiu.ed .•• by the defendant ..• that occurred. 

dwing the commission of the offense of coovic:tiou ••• or 

that 0Ihenrisc were in funherancc of the offense." The 

court concluded: ""Tbe key wards of JimihltioA in the 

guideline are the WOlds 'offense of conYictioD.' The 

offense of coavicUon was conspiracy to distribute SOO or 

more grams of cocaine. By SUltutory dcfiDition, this 

includes 8 range of cocaine between SOO grams and S 

kilograms. The Iessc::r does not include the greater. Activity 

in connection with S or more tilograms could not logically 

occur during the less6r offense Dor be in furtherance of it. .. 

Accotdingly, the court calculated abe base offense level 

using the lesser amotmt of drugs in the offense of c0nviction. 

U.s. v. Moreno, No. 88-CR.-20033-BC-03 (B.D. Mich. 

Jan. 25, 1989) (Churchill, J.). 

P ARTICllLU OFFENSES 

District court holds offense level tor LSD vioiatioD 

sbould be based on weight ot drug plus deUvery medium. Defendants were found guilty of drug violations 

involving LSD. The base offense level depeaded upon lite 

amount of the conaol1ed subslance involved in the relevant 

conduct. Here, blou« paper was impregnated with LSD; 

!he paper could be ingested along with the drug. The issue 

was whether 10 calculate the offense level using the total 

weight of !he paper and drug <r the weight of !he drug 

alone. 

The applicable SlaIUte, 21 U.S.c. § 841 (bXIXAXv) 

and (BXv), refers 10 violations involving "8 mixbUe or 

substance containing 8 dcteccable amount of [LSD]." The 

court determined that "the blou« paper ••• is 8 'substance' 

which contains a detectable amount of LSD," and therefore 

under the "plain language of the statute" the relevant 

weight for sentencing is the total weight of the paper and 

drug. Defendants argued Ihal the court should usc the 

"dosage equivalency table" on page 2.4S of the Guidelines 

Manual. which would result in 8 lower weight. The court 

found, however, Ihal the preface 10 the lable indicates that it 

is 10 be used "where the number of doses. but DOt the 

weight of !he controlled substances, are known. " and Ihal 

since the weight is known in this case there is no need 10 

use the table. In addition, the court noted that a recent 

Sentencing Commission publication specifically stated that 

!he Commission "has not addressed the issue" of whether 

10 usc the weight of blouet paper plus LSD or LSD alone. 

and Ihal sentencing courts may have 10 make Ihal determination. 

U.s. v. Bishop. No. 88-300S (N.D. Iowa Feb. 7.1989) 

(Hansen, J.). 
Guideline Sentencing Update 

GtliMIiM SoU..., uptJ.u will be &tzibuled~, '" lbeC-1O iaf-JudI- _odwju&id pcaamal fIlllClocMd feclln1_decWaal .... ---. ",-~fIll914111111917 _ 1beS~GeWeI!nw ~ 1be~..,rrl.101be ....,.,.. 0aideIIDeI_ fICIIic1--fIl .. u.s ......... ilia c ·s'" ialbe_fIlNpCldiaa_taaWlllp.llil_ ..... lOlIIIfIM S s i ,c-M+r ~ .. 1ICIIiviIiM. ~ -..w ..... 1O .. O'ddeHe=.paIiq "---'-'UJ. ___ IIIIIItaIaII ..... '" Ibe SM' ,0 . '";,,, ___ W~ 

~fIlc:lio.w.liM 'n' • .., U,.,. ......... C-.... k •• ...,......_ vaJaabla ..... JtIbalaW _be_rid...... .dllliaa .. aI5cW 

paIiI:J fIl1beo.s.. 011 __ fIl paIiI:J 1be C-....... aalf IbtoDF ill ...... 

VOWMI 2 • NUMIIIIIt 2· MARoIl', 1989 

Appellate Review 

Fifth Circuit holds findiDgs ander GuldeUaes are 

radual, DOt legal, and reviewable aDder dearly erroneous 

standard; sets requirements ror reasoas Justifying se .... 

tences. Defendant appealed his seoaencc. CODtcnding it was 

too long because tho district court erroocously found that be 

was an "organizer, leader, manager, or supezvisor'" under 

guideline § 3Bl.l(c). The appellalc court affarmed tho sentence. 

The court DOled that "[t]o decide [defendant's] appeal of 

this finding, we must fd determine wbether tho finding was 

factual or legal. We hold lhat it was faaual.- The c:ow:t Ihea 

determined that other .. sophisticated factual determinations" 

courts must make undc-z the Guidelines are also factual findings that "enjoy the proIeCtion of the ·clearly moneous' 

standard. A more exacting approach 10 appellate review of 

senteoces would frusttare tho purpose of the guidelines. ••• If 

factual fandings were narrowly cooslrUed. and legal issues 

commensurately expanded. actual applications of the guidelines would be subject to review for legal error. Disttict courts 

would have an incentive to insure against appellate reversal by 

footing their sentencing decisions on reasonable departures. 

Such a result would clearly undermine lhe purpose of tho 

sentencing guidelines. 

'"The standan1 of review which weeslablish today avoids 

this odd result We will affum sent.ences imposed by dislrict 

judges who make factual fmdings that are not clearly erroneous, and who apply the guidelines 10 Ihose findings. In soch 

cases. the senfCDCing judge need DOt offer further reasons 

justifying the senleDC:e. WheA. however, the judge departs 

from the guideline l3I18e, an additional reasonableness requirement applies: the judge must offer masons explaining 

why tho departUl'e is justified in terms of the policies underlying the senlenCing guidelines. 

"Implicit in what we have said is &.he conclusion that the 

dislrict court's simple SlalemeDl that the defendant is a 

'manager· or 'leader' is a finding of fact. ••. [W]e 'decline to 

require the judge IOwnle out· morespecifac findings about lite 

defendant •.• Nonelheless. we urge district courts 10 clarify 

their ultimate factual fmdings by more specific findings when 

possible. Specific findings wiD both guide reviewing courts 10 

&.he evidentiary basis for sentencing judgments, and also help 

the trial judge 10 identify matters relevant to application of &.he 

guidelines ... 

U.S. v. Mejia-Orosco. No. 88-5584 (5th Cir. Feb. 17, 

1989) (Clark, CJ.). 

Fifth Clradt holds "m1n1mal participant" status Is a 

question or lad, sell standard. or review lor reIDsaJs to 

departtrom GuideliDes. Deleudantappealed hissenfalCeOD 

the basis that the district court cued in DOt finding Ibat be was 

a '"minimal participant" entitled lOa rcductioD in offense level 

UIICI« guideline 13D l.2(a). Applying the SIandan:Is of IeYiew 

set forth in Mejia..()rosco, supra, the coon held that minimal 

participant sUduS is a quesliOD of fact and that the district 

court's fmding was not clearly erronoous.. 

Defendant also claimed tho district court should have 

departed downward because defendant thought the subsrance 

involved was marijuana, DOt heroin. The appe1Jat.e comt determined that '"we will uphold a disbict court's refusal 10 depart 

from the guidelines unless therefusal was in violation of law," 

and held there was no such violation here. 

U.s. \I. Bwlt.1'ostro, No. 88-2490 (Sth Or. Mar. 8, 1989) 

(Higginbotham. S.). 

Constitutionality 

Second Circuit upholds Sentencing Rerorm Act aDd 

Guidelines apiDst due process challenge. Thedisbictcourt 

rejected defendant's due process challenges 10 the Act and 

Guidelines. In affll1lling, the appeals court held that there is no 

due process rigbt 10 individualized sentencing in oon-capital 

cases. that the Guidelines "provide ••. satisfactory procedural 

safeguards 10 satisfy the demands of tho due Process clause," 

and that the Act does not vest excessive sentencing aulhority 

in the executive branch in violation of due process. Stt also 

U.s. \I. Frank, 864 F.2d 992 (3d Cit. 1988) (upholding Act 

against substantive due process challenge). 

U.s. \I. Vizcaino, No. 88-1302 (2d Cit. Mar. 6, 1989) 

(Oakes, CJ.). 

Guidelines Application 

DEPAIlTURES 

Second Circuit afT'arms upward departure lor or· 

renses not included in criminal history cakulatioD. Defendant pleaded guilty 10 bank robbery. As part of the plea 

agreement he stipulated 10 lite facts of a second bank robbery, 

for which he had been charged but not convicted, in order to 

allow Lhat crime 10 be included in calculating hisofrense level. 

On these facts, defendant was in criminal history Category III 

and his sentencing range was 37-46 months. -

The district court determined. however. thalderendant's 

criminal history calculation underreprescnt.ed the seriousness 

f"ot ror Clbtioo. Guidt!liM Sf!n.lf!l'Icing Upd(JU is provided for information only. It should not be cited, either in opinions or otherwise. 

49 
50 

Guideline Sentencing Update 

of his criminal record because (1) it did nOl include two un.reIaled stare felony convictions because defendant bad not yet 

been sentenced onlhosc cJwges. and (2) defendant bad commiUCd the bank robberies whlle awaiting senlCnCing on the 

stale cooviclioas. The court departed from criminal bistcry 

Category m eo Category V and imposed a6().month scnttncc. 

The appellate court found deparIuIe was authorized by 

polley statement 1 4Al.3 of the Guidelines, which allows departure if .. the criminal history calegory does not adequately 

JdIcct the seriousDcss of the defendant's past criminal conduct or the likdibood that the defendant will commit otbel 

crimes." Factors to consider in making this detaminaUon 

include "'wbcdaer die defendant was pending ••• sentcDCing • 

• , OIl anocbcr dwgc at the time of the instant offense" (I 

4Al.3(d». and wbelhu defendant Mcommiaed the insIant 

offense whllc on bail or pretrial release for another serious 

offense" (I 4Al.3(4», The court concluded !hal the district 

court's decision to depart was not unreasonable. and Ihalthe 

6O-month sentence "was not unreasonable under the particular circumstances of this a!SC. .. 

The court also reswed its emphasis in earlier cases that 

dislriCl courts have "'wide discretion' , •• in delenniniog what 

circum.stances eo take into account in deciding whether to 

depan from the guidelines." and "may 'exercise their sound 

judgment in departing from thcGuidelines' when necessary to 

ac:count for factors not reflecled in the applicable guideline 

range:' S~~ U.s. lI. Corr~a-Vargas, 860 F.2d 35 (2d Cit. 

1988); U.s. v. Guerr~ro, 863 F.2d 245 (24 Cir. 1988). The 

Second Circuit has "decided that it is best to allow dislrict 

judges 'sensible flexibility' in sentencing undel' the new acL .. 

U.s. V. Sturgis, No. 88-1131 (2d Cir. Feb. IS, 1989) 

(Altimari, J .). 

Faith Circuit affirms upward departure wbere ttimiDal bistory calculation did DOt accouDt for large quaatity 

01 drugs ill prlQr oIfease or lor similarity to present 01'-

feDse. Defendant pleaded guilty to conspiring to possess 200 

pounds of marijuana. In 1975 he had been convicted of intent 

to dislributc 1,653 pounds of marijuana. Citing policy stalement § 4Al.3 of the Guidelines. the district court found that 

defendant's criminal history calculation did not adequately 

reflect the amount of drugs involved in each offense or the fact 

that the prior conviction was for the same type of offense, and 

departed from the guideline range of ~57 months to sentence defendant to 72 months' imprisonment 

Affuming the departure, the appellate court reasoned: 

"The recidivist's relapse into the same aiminal behavior 

demonsb'ates his lack of recognition of the gravity of his 

original wrong, entails greater culpability for the offense with 

which he is currently charged, and suggests an increased 

likelihood that the offense will be repeated yet again. While 

the prior similar adult criminal conduct that has resulted in 

conviction may have already been counted under section 

4A1.2(e)(1) or (2) when computing the criminal history 

category. the similarity between the two offenses provides the 

district court with additional reason to enhance the sentence 

under section 4A 1.3." 

Volume 2 • Number 2· Match 11. 1989 • Paac 2 

The court also instructed sentencing courts that use 

§ 4Al.3 to make specirlC rmdings: UWben a dislrict court 

!dies on section 4Al.3 to depart from die csaablisbcd guidetines, it should articular.c its reasons for doiDg 10 explicitly. 

Wc do DOt. of course. require seutcocingjudges 10 iDcaDt the 

specific languagc used in the guidelines, ... indeed., such a 

ritualistic recital would make die sentence less comprebensible to the defendant and our review IOOl'e difficu1L What is 

desirable. howcver, is that the court identify clearly the 

aggravating facun and its reasons forconDCCtiDg diem to the 

pennissible &fOW1ds fer depa1'tUlC under sectioa 4Al.3." 

U.s.lI.Luna-Tl1ljlllo.No.88-2689(51bCir.Mar.6,1989) 

(Rubin, J.) • 

District court fmds Guldebes did Dot adequately 

eoa.sider terror .. departs upward. Defendant. a member 

of the Japanese Red Anny (JRA) terrorist organizaIion. was 

convicted on cxplosives, weapons. and immigratioD charges. 

The guidel.incrange for all counts of cooviction 1OtaIed27-33 

months. Citing "the aggravating factors c:onceming these 

offenses. and rmding the Sentencing Commission did DOt 

adequately consider (and in fact did DOt consider) die kind or 

degree of the conduct at issue or the type or kind of individual 

who commiUCd these offenses. "the court departed from the 

Guidelines and imposed prison terms totaling 30 years. 

ThecourtspeciflC8llyfoundthatdcfcndantwas"aninternational ~ who has lrained members of and has been 

given training by theJRA. who quietly acquired thecJements 

for and constructed I.hreeanti-personncl bombs with theintcnt 

of murdering scores and severely wounding scores more of 

the slD"Vivors of the blast in order eo wage war on the enemy 

of the JRA-mc United Swes." The court noted that ""the 

Sentencing Guidelines specifically list 'death.' 'physical injury: 'the dangerousness of the instrwnentality (weapoo): 

'disruption of governmental function' and ·cxaemcconduct' 

as facta:s wammting departure. Sections "SK2.1. 5K2.2, 

5K2.6. 5K2.7 and 5K2.8," 

In this case. however, "none of the applicable guidelines 

takes these critical factors ineo accounL In point of fact. the 

Guidelines do not consider teaorism or conduct remotely 

similar to Ihal of [defendant}, Here. because [defendant] 

intended to cause death and horrible injury, a departure from 

the guidelines is warranted. Moreover, because the 

defendant's bombs were intended to cause multiple deaths 

and injwies •.•. greater departure is wmaJ1tcd... . 

The court also found that departure was wananttJd, under 

policy statement § 4Al.3, because defendant's applicablc 

criminal history category significandy undcmpresented thc 

seriousness of his criminal history and the likelihood that he 

would commit further crimes. This rmding was based upon an 

earlier arrest for terrorist activity and defendant's terrorist 

training. In addition, the court determined that defendant's 

actions constituled a threat to national security, public health, 

or safety. thereby justifying a depanure undf£ policy statement § 51<2.14. 

U.S. v.Kikwnura. No. CR. 88·166(D.NJ. Feb. 10. 1989) 

(Lechner, J.). 
Guideline Sentencing Update 

nf_lqr;iaIaIim 

Gtti.WiM ~ 

.19114 UptIttU _191'7 

will __ bel &tzi.lIIolIod 

S .--=iroa ~1 CJuiddi_ 

'" the AlIbcu&h Ccalca-IO the Wcm:Il"OI 

publiallil.la -1 

UId 

nfcr 

0lIl« 

10 

jPdic:i.al 

\lie s..tar.ci pcnaancl .. ~ 

of ....... UId foclcnl_ 

paIicJ __ 

dec:WcaI 

of the 

mille 

U.s. ~ s-ta:.o. 

iliaC. . ',. ill .. OIlIIIIIal.~_baldiap.illl ........ 1O IIIIpCIIt s...t..nc:jg, Ccmmiai_~ .. ~ JlMdca ~ rcfarIOIbcO .. ~.poIicy 

......... --*7." __ ..-.w. ..... ."dIe S aua .. """'"" __ rw IUCb iaf-..QaQ. l'IabIioIIiaaof~ ._ • ., U".,. ........ C-.... it _ • ..,...w .... valuable W'CIIIr. h~ .. bel ......... all' .w"d.1iI.la aral6cial paIicJ." c-.. 0. _. poIicJ" CcaIca-.,..... cmlJ 'Itu.aIah ill! load. 

VOUlMI 2 • NUMBI.l.R 3 • Aru.4.1989 

Appellate Review 

Fifth Circuit holds that wbetber prior convidion falls 

withiD scope f1I immigration otrea.se guideliae adjustment 

is questioa 01 law subject to de DOYO review. Defendant 

pleaded guilty to aiding and abetting the transportation of 

illegal aliens. His offense level was inc:n:ased by two under 

guideline § 2L1.1{b)(2). which povides for an increase if a 

defendant ""previously has been convicted of smuggling. 

transporting. or barboring an unlawful alien. or a related 

offense," On appeal defendant argued that a previous conviction for aiding and abetting the illegal enb')' of another did not 

constibJte a "related offense." 

In afTuming the sentence. the appeUatecourt noted: "To 

the extent that this appeal deals with express or implied 

fandings of fact. such as whether the defendant bad a prior 

conviction of the kind comprehended by section 2L1. 1 (b)(2). 

we apply the clearly erroneous slandard of review. However. 

on the question of law as to whether a given prior conviction 

falls within the scope of section 2Ll.1{b )(2). our review is de 

novo," . 

AIu:t first OOltCluding that the flOding of a prior conviction foraiding and abetting the illegal enb')' of another was not 

clearly erroneous. the court determined that the prior offense· 

was a ""related offense" unc:Iez § 2Ll.l{b)(2): '"Under the plain 

meaning of the term 'related offense,' aiding and abetting the 

illegal enb')' of another is clearly related to the offense of 

smuggling, cmnsPorting, or harboring an illegal alien. It is 

difficult to imagine a sibJation in which aiding the eob')' of an 

illegal alien does not involve some aspect of smuggling, 

transporting, or harboring lhat person." 

u.s. v.Reyu-Ruit, No. 88-1632 (5th Cir. Mar. 13.1989) 

(Johnson, J.). 

Sentencing Procedure 

DefendaDt must be given notice berore sentencing of 

radors that may be used for upward departure, Firtb 

Circuit holds. At sentencing, the district court depaned from 

the Guidelines because of the purity of the coca.ine involved 

in the offense. However, the defendant was not given notice 

either by thecounor the presenlellCC repon that this was being 

considered. 

The appellate coun vacated and remanded for resentencing: "Federal Rule of Criminal Procedure 32(a)(I) provides. 'At the sentencing hearing. the coon shall afford the 

counsel for the defendant ... an opponunity to comment upon 

the probation officer's determination and on other matters 

relating to the appropriate senrence.' This rule contemplates 

that the court may base tIS sentencing decisions on matters DOt 

raised in the prcsenleAlCC IqJOI'L If, however. the court intends 

to rely on any such additional fact« to make an upward 

adjustment of the sentence, defense counsel must be givea an 

opportunity to address the court on the issue." In this case, 

defendant had no notice "that the cocaine mightbeconsidered 

of unusually high purity er that. if it were found to be. the coon 

might adjust the sentence imposed." 

U.s. v. Otero. No. 88-5583 (5th Cit. Mar. 23. 1989) 

(Rubin, 1.). 

Guidelines Application 

DF:I'ERMINlNG OFFENSE LEVEL 

Firtb Circuit holds that weight of LSD in guideline 

computation includes weight of distribution medium. 

Defendant challenged his sentence fer conspiracy to disuibute LSD, cJaiming the Guidelines were ambiguous as to 

whether the weight of the drug alone or the_weight of the drug 

plus the medium should be used to calculale his sentence. 

Afflnning the sentence. the appellate court Slated: "We believe the guidelines answer this argument. as § 201.1 saar.es: 

'The scale amounts fer aU controlled substances refer to the 

total weight of the controlled substance. Consistent with the 

provisions of the Anti-Drug Abuse Act. if any mixture of a 

compound contains any detectable amount of a controlled 

substance, the entire amountofthc mixture orcompound shaU 

be consideled in measuring the quantity.' 'lba"e is no ambiguity in this statement." Accord U.s. v. Bishop, No. 88-3005 

(N.D. Iowa Feb. 7, 1989) (offense level for LSD violation 

based on weight of drug plus medium) (.see 2 GSU til). 

U.s. v. Taylor, No. 88-3677 (5th Cit. Mar, 6, 1989) 

(Jones. J.). 

Low drug purity does not warraot orrense level 

reduction, Fifth Circuit bolds. Defendant claimed that she 

was entitled to a reduction in bet offense level because of the 

low purity of the drug that was produced. The appellate coon 

rejected her argument ""The guidelines provide for no such 

reduction. The guidelines do provide for an increase in the 

offense level when the government seizes drugs of unusually 

high purity. but this guideline provision does not create a 

corresponding reduction in a • weak • drug case. See Guideline 

2D l.l and commentary." 

U.S. v. Davis. No. 88-2587 (51.h Cir. Mar. 17. 1989) 

(Clark. Cl.). 

No( for CIUltion. Guideline Selllenc;ng Updale is provided for information only. It should not be cited, eilher in opinions Of otherwise. 

51 
52 

Guideline Sentencing Update 

DUAImJItES 

FaRIa Circult upholds upward departure for "egrePous" criaIDaI history til repeat oIf'eases. Defendant 

pleaded guilty 10 transporting a stolen truck in interstate 

commcrc::e.1be district court imposed the statutory maximwn 

offive years, rarher than the 30-37 month guideline sentence. 

finding chat defendant's criminal history calculation did not 

adequatelyreflect the nature ofhis criminal record. Defeadant 

had a long history of similar offenses and had been in custody 

or a fugidve almClSt continuously since December 1975. 

Tbc eppcUarccoun found departure was appropriate "for 

adefeadaDtwithaRCOrd so egregious as [defendant's]. Considering his RCClId. the sentence imposed by the district court 

was reasonable.lndeed.lbe districtcourt was jusdfied in concluding that the oaly reliable way 10 keep [defeAdant] from 

driving stolen trucks is to keep him in prison. " 

U.s. y, Fisher. No. 88-1790 (Sth Cir. Mar. 7, 1989) 

(Rubin,J.) 

CRIMINAL HmoRY CATEGORY 

District court upholds criminal history enhancement· 

based on fadors that are also elements of escape orrense. 

In the context of a due process challenge to the Guidelines, 

which the court rejected, the defendant also argued that his 

criminal history calculation led to an "inequilable result. .. 

Defendant was charged with escaping &om a federal 

prison camp, Section 2Pl,l(a) sets the offense level for the 

crime of escape at 13 "if from lawful custody resulting &om 

a conviction or as a result of a lawful arrest for a felony." 

Points arc to be added 10 the criminal hiSlOry caJculacion "if 

defendant commiUCd the insIant offense while under any 

criminal justice sentence" or"ess Ihan two years afrerrelease 

from imprisonment" See guideline f 4A 1.1(d) and (e). Thus, 

defendant's criminal history category would be increased by 

adding points foc: facts that comprise elements of the crime 

charged. 

The court held that this is not inequieable or unconstilUtional: ""While there is no indication in the commenlS to the 

sentencing guidelines that the Commission considered this 

occunenc:e,1hete arc valid reasons for enhancing defendant's 

senlenCe," including helping correctional officers "to keep 

conlrol of and 10 encourage good behavior from prisoners," 

U.S. y. JimeMz. No. m 88-14-CR (S.D. Ind. Mar, 8. 

1989) (Tinder,J.). 

Constitutionality 

Fifth Circuit upbolds Sentencing Guidetines against 

due process and other constitutional and statutory challenges. The Fifth Circuit has become the third appellate court 

to rejectadue process challenge to the Guidelines. See U.S. v. 

Volume 2· Nwnbu 3· April 4. 1989· Pale 2 

Frank. 864 F.2d 992 (3d Cir. 1988); U.s, v. Vizcaino. No. 88-

1302 (2d eir. Mar. 6, 1989) (2 GSU 112). Defendants had 

raised several constilUtional chal1enges 10 the Guidelines: 

(1) abe Glddclincs too narrowly limit sentencing courts' discretion, thereby violating defendants' due prOcess rights 10 

p:esentmitigadngfactors; (2) theacceptanCCofresponsibility 

guideline deprives defendants of their right 10 a jury trial by 

encouraging guilty pleas in contravention of the sixth amendment; and (3) applying the Guidelines 10 a conspiracy that 

began prior to 1bcir effective dare violates the ex post facIO 

clause. 

Rejecting defendants' constitutional c1aims, the court 

held: 

(1) Defendants have no due process right to present 

mitigatingfacrorspriOl'lOsentencing:""1bcConstiIUtionOOes 

not require individualized sentences. ••• Congress has the 

powa' to completely divest the courts of &heir sentencing 

discretion andtoestablish an exact. mandalCl'y sentence for all 

offenses. ••• If Congress can remove the sentencing discretion 

of the disuict courts. it certainly may guide that discretion 

through the guidelines." 

(2) The acceptance of responsibility reduction. guideline 

§ 3EU. 00es not violate the sixth amendment even though 

"[a] defendant who puts the government 10 its poof by 

challenging factual guilt cannot receive" it "Ev~ assuming 

that the sole purpose of this guideline is to encourage guilty 

pleas, it is not unconstilUtional for the government to bargain 

for a guilty plea in exchange for a reduced.sentence," 

(3) The ex post facIO clause "is not viola&cd by applying 

an increased penalty to [a] conspiracy that continwd after the 

effective dale of the increased penalty •••• [Defendant's] 

conspiracy offense continued weD aCta- November 1. 1987, 

and thus was an offense committed after abe effective date" of 

the Guidelines. 

Dcfendantsalso argued that the Sentencing Commission 

violated its statutory mandaIe with respect to the availability 

of probation. the aiminal hisICI'y c::alculation, the reduction in 

senleDCe for cooperating with the govcmment"and the GuideIincs' effect on the prison population. Tbecourtrejected these 

claims. holding that .. the Commission acted wen within its 

broad grant of authority and pursuant 10 congressional goals 

and principles." 

Todefendants' fmal argument, that the Guidelines never 

became effective because the required General Acc:ountiog 

Ofnce report was inadequate and untimely. the court seated: 

'"This court wiU not scrutinize the merits or timeliness of 

repor1S intended solely for the benefit of Congress .••. Such 

a determination is for Congress and is essentiaUy a political 

question outside the province of the judiciary," 

U.s. v, White. No. 88-1073 (Mar. 24. 1989) (percwiam). 
Guideline Sentencing Update 

VOLUMB 2 • NUMBBR 4 • APRIL 18, 1989 

Guidelines Application 

DETERMINING OFFENSE LEVEL 

Court may consider drug quantities Dot ID IDdict· 

meDt or offense of coDvictioD when setting offense level, 

Fifth Circuit holds. Defcodant pleaded guilty to attempting 10 possess, with the intent 10 distribute, more than SOO 

grams of cocaine. The district court found as a fact that the 

offense actually involved more than 5 kilograms of 

cocaine. and based defendant's offense level on that 

amounL Defendant appealed his sentence, arguing that the 

discrictjudge impermissibly looked beyond the indictment 

in determining the amount of cocaine involved in the 

offense. 

The appeUate court affirmed the sentence, finding that 

"[t]he guidelines make plain that the discrict court is not 

bound by the quantity of drugs mentioned by the indictmenL" (Citing application note 11 to § 201.1, application 

notes 1 and 2 to § 201.4.) The court held that "the disbict 

court clearly acted properly in considering" that defendant's transaction was part of a larger scheme involving 5 

kilograms of cocaine, "rather than restricting its inquiry to 

the amounts actually mentioned in the indictmenL" Accord 

u.s. v. Perez. No. 88-3409 (6th Cir. Mar. 29, 1989), ir(ra. 

U.s. v. Sarasti. No. 88-2734 (5th Cir. Mar. 24, 1989) 

(Higginbotham, J.). 

District court declines to consider conduct tor 

wbicb there is Insumcient evidence against defendant in 

calculating base orrense level, and holds that invalid 

convictiou may not be used in criminal history score. 

Defendant and others were charged in a five-oount indictment for cocaine offenses. Defendant was only mentioned 

in counts I and V. and pleaded gUilty to count V, distn'bution of two ounces of cocaine. In calculating defendant's 

base offense level "[t]he probation office aggregated all of 

the cocaine charged in counts II, m,IV and V and 28.3 

grams not charged against any of the defendants." 

. The court found that in determining offense level it 

may consider quantities of drugs not included in the count 

of conviction (§ 2D t.l, appl icalion note 6), aclS that were 

"part of the same course of conduct or common scheme or 

plan as the offense of conviction" (§ IB1.3(a)(2», and 

"relevant information" that has "surficienl indicia of 

reliability to support its probable accuracy" (§ 6A.l(3)(a». 

"However. the court will not use the information as a basis 

for calculating the guideline offense level or criminal 

history score unless the governmcot can establish the 

reliability of the inforrDation by a preponderance of the 

evidence. In Landry's case the government has provided no 

evidence to tic the defendant to counts n and m of the 

indictment. and insuffICient evidence to warrant consideration of the drugs in count IV in calculating Landry's base 

offense level." The court held that the quantities of drugs 

from counts n, m. and IV rould thetefore not be used 10 set 

defendant's offense leveL 

Defendant also successfully challenged his aiminal 

history score. He had been sentenced 10 make $140 

restitution on a bad check charge in 1986, but was jailed for 

eight days when he failed to make paymenL Had defendant 

paid the $140 he would not have been incarcerated and the 

offense would not have been counted in his criminal 

history. The court agreed with defendant that the sentence 

was constitutionally invalid because "[a] court may not 

order the offender incarcerated unless it makes a finding 

that the offcoder willfully refused 10 pay or failed to make 

suffICient bona fide efforts 10 acquire the resources 10 pay," 

Since there was no evidence to support such a finding, the 

sentence was invalid and the eight-day jail tenn should not 

have been included in defendant's aiminal history. The 

court also found that the Guidelines "specifically provide 

for this type of chaUenge at sentencing." Section 6A1.3(a) 

allows the parties "an adequate opportunity 10" present 

infonnation to the court" regarding Many factor important to 

the sentencing detennination," and application note 6 to 

§ 4Al.2 states! "Convictions which the defendant shows to 

have been constitutionally invalid may not be counted in 

the criminal history score." 

U.s. v. Landry. No. CR 3-88-000(02) (0. Minn. Mar. 

31. 1989) (Magnuson, J,). 

DEPARTURES 

District court finds dangerous Dature of cocaine 

base warrants departure. Defendant was found guilty of 

possession of 22.1 grams of cocaine base (crack). The 

guideline sentencing range was 0-4-months. However. the 

court concluded that departure was appropriate: "The Drug 

Quantity Table (in the) Guidelines Manual recognizes that 

cocaine base is a much more dangerous controlled substance than cocaine and heroin. The table reflects that 

20-34.9 grams of cocaine base is the equivalent of 2-3.4 

kilograms of cocaine or 400-699 grams of heroin. Section 

2D2.1 which scts forth the Basc Offense Levels for 

Not for Citation. Guideline SenJencing UpdtJu is provided for inronnation only. It should nOt be ciled. cilhcr in opinions or olhcrwisc. 

53 
54 

Guideline Sentencing Update 

unlawful possession of controlled substance does not have 

a specific reference 10 cocaine base in setting forth the 

respecti'YC levels. The highest level is 8 for heroin. Therefore the Court concluded that there should be an upward 

departure from the Guidelines for cocaine base. Based upon 

the amount of cocaine base in this case, namely 22.1 grams, 

.•• a sentence of 10 months incarceration is appropriate. " 

Sf!t also U.s. \I. Ryan. No. 88-3344 (3d Cir. Jan. 26,1989) 

("departure from Ihe guideline might well be reasonable in 

view of the Commission's failure 10 take inlO account the 

unusual danger of crack in drafting the guidelines governing drug possessionj (2 GSU Itl). 

U.s. \I. Colemtm, No. 88-20037-4 (W.O. Tenn. Feb. 

27,1989) (McRae. Sr. J.). 

Other Recent Cases: 

U.s. \I. Perez, No. 88-3409 (6th Cir. Mar. 29, 1989) 

(Martin, 1.) \Under the sentencing guidelines. the amount 

of the drug being negotiated, even in an uncompleted 

distribution, shaD be used to calculate the IOtal amount in 

order 10 determine the base level. j. 

U.s. \I. Peoplu. No. 88-20234-4 (W.O. Tenn. Mar. 27, 

1989) (McRae, Sr. 1.) (rejecting arguments attacking AntiDrug Abuse Act of 1986 and Guidelines on basis of 

dUTeRnt~tofcocaineandcocainebase;maDng 

upward adjusunent for obstruction of justice because 

defendant threw controlled substance to the ground when 

running from authorities). 

U.s. \I. Norquay. No. CR. 6-88-98 (D. Minn. Mar. 28, 

1989) (Devitt, Sr. 1.) (Guidelines will not be applied to violations of the Major Indian Crimes Act, 18 U.S.C. § 1153). 

Appellate Review 

Firtb Circuit bolds acceptance or responsibility and 

obstrudion or justice determinations are factual 

questions subject to "dearly erroneous" standard of 

review. The appellate coun upheld findings that the 

defendant had not accepted responsibility for his crime and 

had obstructed justice: "Whether or not a defendant has 

accepted responsibility is a factual question, depending 

largely upon credibility assessments. With respect to such 

assessments, we defer to the conclusions of the sentencing 

judge. We will therefore affirm the sentencing judge's 

rmdings unless they are 'without roundation.' ... In this 

case ... [w)e see no reason to conclude that these findings 

were 'without foundation. , .. 

Similarly, U[w]hether or not a defendant has obstructed 

the adminisltation of justice is a ractual question, and the 

dislrict coon's resolution of the question enjoys the 

protection of the clearly erroneous standard .... We 

therefore ask only whether there was sufficient evidence in 

the record to permit the sentencing judge to conclude thal 

[defendant) obstructed the adminislration or justice." The 

Volume 2· Number'" April 18, 1989· Page 2 

coun concluded that the "evidence suffices to suppon the 

judge's rIDding." 

U.s. \I. Franco-Torres, No. 88-1382 (5th Cir. Mar. 24, 

1989) {Higginbotham. 1.). 

Eleventh Circuit holds ac:ceptaDce of nspoDSibility 

is factual issue subject to "clearly erroneous" standard, 

amrms enhancemeat or criminal bistory. The district 

court denied credit for acceptance of responsibility and 

enhanced defendant's aiminal history category from I to 

IV. The appellate court found that the Guidelines and 

Sentencing Reform Act indicate that acceptance of responsibility is a factual finding entitled 10 gral deference and 

subject to review UDder the "clearly erroneous" standard. 

See Guidelines § 3Rl.1 commentary at 3.22; 18 U.s.C. 

§ 3742(d). Reviewing the record. the court held that the 

dislrict court's findings ~ not clearly eaoneous. 

Defendant conceded that departure from criminal 

history category I to caIegory m would be appropriate. but 

argued that enJwK:ement 10 category IV was unreasonable. 

The court disagreed. holding that the district court properly 

found conduct that justified departure under guideline 

§ 4A13, and that "[b]ased on this information, which the 

defendant does not argue is unreliable. the dislriCl court 

reasonabl y could conclude that criminal history category 

IV more adequately reflects the seriousness of [defendant's] criminal hista:y and the likelihood of recidivism 

than does category 1lI." 

U.s. \I. Spraggins. No. 88-3824 (11th Cit. Apr. 5, 

1989) (per curiam). 

District court refuses to grant in forma pauperis 

status ror frivolous appeal or sentence. The court denied 

petitiooer's application 10 proceed on appeal in forma 

pauperis because it determined that "the issues for which 

petitioner seeks review are frivolous from an objective 

standard." "The direct appeal of a sentence imposed 

pursuant 10 the Sentencing Guidelines Act by an individual 

proceeding pro se and requesting in forma pauperis status 

upon appeal after having had the previous benefit of 

retained counsel presents a situation unlike others considered by this court. Upon considering the applicable rules, 

the court determines that the standards contained therein, 

i.e., that a litigant may not proceed in forma pauperis upon 

appeal if that appeal is not taken in good faith, apply 10 this 

situation." 

U.S. v. Wilson, No. CR88-12-V AL (M.D. Ga. Mar. 17, 

1989) (Owens, CJ.). 

Other Recent Case: 

U.S. v. Mtjia-Orosco. No. 88-5584 (5th Cir. Mar. 31, 

1989) (per curiam) (denying petition for rehearing and rearrtrming earlier decision, 867 F.2d 216; 3J.!lCndl'l!ent to 18 

U.S.C. § 3742. including addition ofuduedeference" 

language, does not affect applicability of "clearly errone· 

ous" standard to sentencing couns' factual determinations). 
Guideline Sentencing Update 

GWMIilw ~ u".", .m be c&.tdbI ..... pcriocIic:aD,bJlbeCeala: '" ialoaD ~ Uld oIbeir judicial. ~ fI.JCICIOd foclcnl_ ~ 0II1be_1a>cia& 

n:e-JepIaIioa fl19I4 .... J9I7111C11be ~ o..icWv- AlIboup Ibe ,........._,,,,,,.,,, Ibe~ ~ .. (IOIioc7 ......... fllbe u.s. s.-. "C~· ... ill lbe_fllICIf'CIIdaa- hoIdiDp, Ilil_iateaded "'npad s--.ia&c-wim paIicioI«~"""lIIbouIdnl .. "'IbeG.w..am.. pc&.,. 

.... '-

~ 

•• ~1'J 

flGtWIIliItII 

..... 

~ 

oIbeirma'IeIi.UI 

U".", 

.. 

~ 

*tb1IbeS 

dial IbeCeala:ftIPI* 

r ci",C i 

it 

'rn"' 

.. ellWpClll6le" __ ~ 'f'I.IaabkIwwlLltlllDaW _ be--.s ......... _Mica .. aI!idd 

paIiI:r fl1bec.r.. OIl ..... fI paliq1be ec-..u cD.y IIIruaP 1Ia ...... 

VOLUMB 2 • NUMBSIt S • MAv2., 1989 

Guidelines Application 

CRIMINAL HIsTORY CATEGORY 

Fifth Circuit bolds dlat degree of departure for iD.-

adequatecrimlDal bIstoryscore should be tied toa.pecltic 

crim1Da1 b&t0r7 aategOl'J. Defendant pleaded guilty to immigration offenses. Two prior convictions for immigration 

offenses were not counted in her criminal hisrory score because1heyfeUjustoutsidetheten-yearlimitoff4Al.2(e}(2), 

givingdefendanta score of zero and sentencing range of4-10 

months. The senleDCing court found that the criminal history 

score undenepresentcd defendant's past aimina1 behavior 

and likely recidivism, and departed from the Guidelines 10 

impose a two-year senrence. 

The appeUare court remanded the case f(X'resentencing 

because the districtcourt simply departed from the Guidelines 

instead of adjustinl defendant's criminal history category: 

''There is no question that a sentencing court may sometimes 

. justify its departure from the Guidelines based upon. the 

inadequacy of a defendant's criminal history score •••• However, the Guidelines provisions tteating adjustments f(X' criminal history indicasc that in. considering a departure from the 

Guidelines 'the Commission intends that the court use. as a 

reference, die guideline range for a defendant with a higher or 

lower criminal hisrory cascg(X'y, as applicable.' ••. [T]he district court was justified in considering that a level of zero was 

not represenWive of defendant's true aiminal history. Neverthetess. wcconclude that the court should nothavecomplefely 

disregarded the Guidelines without further expJanadon. 

"Under section 4A13. the judge should have considered 

the sentencing ranges that would be indicated by raising 

defendant's criminal hisrory carcgory to n or higher." 

In remanding f(X' resentencing, the court "emphasize[d] 

that in some cases involving defendants with low criminal 

history scores, it may be justified to impose a sentence 

reflecting a much higher aiminal history caregory or to go 

beyond the range corresponding to the highest category VI. 

However, in such cases the sentencing judge should state 

defmitively that he or she has considered lesser adjustments of 

the criminal history category and must provide the reasons 

why such adjusunents are inadequate." 

U.s. v. Lopez, No. 88-2962 (5th Cir. Apr. 14, 1989) 

(Smith. J .). 

DETERMINING OFFENSE LEVEL 

Firth Circuit upholds decision not to group firearm 

orrenses. Defendant pleaded gUillY to possession of a pistol by 

a convicted felon and unJawful possession of an unregistered 

.firearm, a silencer fOr the pistol Defendant claimed the 

d.isIric::t court sbouId have grouped Ihe two counts as closely 

reIaIcd offenses under gui.dc1ino 13Dl.2(d) ins1ead of senteDCing him pursuant to 13Dl.4 according to the combined 

offense Ieve1 for the two separate offenses. 

Section 3Dl.2(d) lists offense guidelines lhatare specifically included in or excluded from the grouping sectioo. Because the guide1inecovering defendant·soffenses, f 2Ia.2. is 

notoneitherlist.thedislrictCOlD'thadtodetamineifgrouping 

wasappopriatc.ln this~. theappeUareCOlD't noted.lhe 

Guidelines indicate that -. ciscH>y-c:ase decenninatioo must 

be made based upon the facts of the case and the appUcable 

guidelines (mcluding specific offense characteristics and 

other adjustments) used to deramine the offense level.' 'This 

determination is in some parts legal nadlerthan factual. and so 

is not shielded bythe clearly erroneous standai'd. Thedet.ermination does. however, depend on factual and caso-speci.fic 

conclusions. A reviewing cowt must therefore give 'due 

deference' to the district court. and tespeCt the inf<X'med 

judgment made by that court." (Citing 18 U.s.C. f 3742.) 

Looking at "the language of the guidelines and the 

explanatory comments." the coon found that "[t]he possessionof an onregistm:dsDencerand theunJawful possession of 

a pistol by • convicted felon do not clearly ran under the 

language of [guideline 13Dl.2(d)]. Indeed. me 'total amount 

of ham or loss' and 'the quantity of the substance involved' 

are notrelevant factors in determining the offense level forthe 

crimes [defendant) has committed. . . . Given the plain 

language of the relevant provision and the different nature of 

[defendant's) offenses. we fmd no error in the coun·s conclusion that his offenses sbould not have been grouped together 

under f 3Dl.2(d) of the guidelines." 

Defendant also argued that his offense level on the 

silencer count should have been reduced six points. pursuant 

to § 2K2.2(b)(3). because the silencer was possessed as pan of 

a gun coUection. Thecourthe1dthat"theadvisorynotestothis 

section makcclear Ihalonly a lawful coUection of guns can be 

considered as a mitigating factor under § 2IC2.2(b )(3) .••• [1]t 

would be contrary to the clear intent of this provisioo to find 

that an iUega! gun collection, such as one possessed by a 

convicted felon, should be used to reduce the sentence of a 

person guilty of violating a fuearms stalu~ Corgmon sense 

and the commentary to the guidelines preclude this resulL" 

U.S. v. Pope, No. 88-1464 (5th Cir. Apr. 14. 1989) 

(Williams. J.). 

1\ot for Citation. Gu.icUlitu Sentencing UpdiJle is provided for information only. It $hould not be ciled. either in opinions or othcrwise. 

55 
56 

Guideline Sentencing Update 

Other Recent Cases: 

U.s. v. Nunley. No. 88-2169 (8th Cir. Apr. 19, 1989) 

(Amold.J.) (stipulation in plea ~lbetween dof'endant 

and government Ihal defendant accepted responsibility in 

aecoRlance with Guideline 13EI.l is not binding on senfCDC.. 

ing court; denial of "'minimal participant" reduction upheld as 

DOl clearly erroneous). 

U.s. v. Breit. No. 88-1899 (8th eir. Apr. 24.1989) (Lay, 

, CJ.) (atr111l'ling upward adjustment for obstruction of juslicc 

for giving false name when arrested). 

U.s. v. Roberts. No. 88-5087 (4dl eir. Ap'. 24. 1989) 

(Chapman. J.) (amount of drUgs sought in conspiracy. not 

amount ac&uaDy obtained, &Ie used to set offense level). 

U.s. v. Salles. No. 88-S810 (6th Or. Apr. 13, 1989) 

(Nelson, J.) (drugs involved in relevant cooduct. not just in 

offense of conviction, are used to set base offense level). 

Volume 2· Nllmber S • May 2. 1989· Page 2 

of the same course of conduct or common scheme as the 

offense of conviction." 

U.s. v.Paulino.No. 88-1433 (2dCir. Apr. 13. 1989) (per 

curiam). 

Other Recent Case: 

U.s. v. SallUar-ViUQlTeal. No. 88-262S(Sth Or. Apr. 21, 

1989) (per curiam) (affirming upward departure. from 4-10 

months to 3 years. for reckless conduct by driver of van 

carrying 24 Ulega! aliens-one passenger Idlled and others 

injmed in crash when driver altempted to elude authorities). . SENTENCING PROCEDURE 

DefeDdaDt Dot eDOOed to pretriall'fSOlutloD of dispute reprdiDg application of Guidelines to facts of tile 

case. Tbe discrict court referred this case to a masisttare to 

resoIveprcuial mauets. A dispute aroseowrwhccberthecooduct alleged in the indiclmCnt constituted an "organized 

criminal activity" within the meanbig of I 281.2(4) of the 

DEpA.RTURES 'GuideliDcs. which would result in a higher base offense level 

SecoDd Circu.lt rlDds that dedsioD DOt to depart was .. ifdefeodantwereconvictcd. 1bcparticsproposcdsubmiaing 

within souad discretiOD of seDteDcml court; also, orreuse' the dispute to the magistrate, who ~luded that resolving 

level should be based OD total amouDt cl drup lD tra_c- this dispute before ttial would be imJX'Ol)Cr. "[S]uch a procctloD eVeD if defeDdaDt is aaiDimai partidpaut. Defendant. dure DOl only seeks to have the court enter an advisory 

who pleaded guilty to a drug violalion, received a four-level opinion, but also creates an undue risk that error could affcct 

reduction for minimal role in the offense, and a two-level the defendant's decision to go to trial or plead guilty." The 

reduction for ac:cepIaDCC of responsibility. Defcnclant argued court adopted the magistrale's report as its opinion. 

that his minimal rolecntitledhim toadownwanfdepartUl'C in U.s. v. Ware, No. CR 89·AR-010-S (ND. Ala. Ap'. 10, 

addition to the four-level reduction already grantcd.lhathis 1989) (Acker,J.). 

insubstantial prior aiminal record provided a fUl1het basis for ••• 

downward depar1ure. and that the SCDtencingjudge exceeded Constitutionality 

his d.iscretioIl by not so departing. Eighth Circuit rejects due processchaUeDletoGukleThe appc11ate court found Ihat"[tlhisargumeotis without lines, approves ''two-track" seDteDciq procedure. The 

merit. Tbe decision to depart is a matter within the sound Eighth Circuit held Ihat the Guidelines are not vulncnble toa 

discretion of the sentencing judge ••.. Moreover, Congress due process challenge based on the elimination of judges' 

expected that thal broad discretion would be ~ only sentencing disaetion. The court found that .. some di.scnIdon, 

when the basis fOr departure was a cilcumsIaDCC DOl aln:ady' some power to fit senlenCeS to the individual offender .isleft." 

factored into the Guidelines •••• Here. (dof'cndaDl] suggCSlS and that Mjn any event the Constitution does DOt gwnnrcc 

as bases f«departure two factors, minimal role and insubstan- individualized sentencing, c.xcepl in capital cases. .. 

tiaI aiminal record. both of which werec.xpllcidy consideRd 1bc cowt appears to be the fat appcllalo panel to 

by Ihe Commission in formulating the Guidelines and were consider the "two-track" sentencing approach used by several 

taken into account by the District Court in its guideline dislrict courts whUe awaiting the Supreme Court decision on 

calculation. Under such ci1cumstances, a decision DOt to theGuidelines.See.e.g.,U.s.v.Brittmall,687F.Supp.1329 

depart from the applicable guideline range cannot possibly be (B.D. AIt. 1988) (1 GSU II 11). 1bc disll'ic& court found the 

inc.xcessofthcdiscretionconfidedinsentencl.ngjudges..evCD Guidelines unconstitutional and imposed scntcacc under 

if we make the doubtful assumption that the disctction DOl to prior law, but also med a Statement of Reasoas for Imposing 

depan could ever be exceeded." Sentence. as required by the Sentencing Rcfonn Ad., that 

Defendant had also argued that the dislrict court coed in explained what senlenCe the court would have imposed under 

calculating his base offense level on the basis of the total the Guidelines. The appellate court held that ~ District 

amount of the drugs in the overall scheme in which he partici- Court acted prudently in using Ibis two-track procedure. As 

paled. This challenge was rejected "in light of our holding in theCourtobserved. 'ifthe Guidelines and the Commission &Ie 

Unit~d Sta~s v. GlUrrero. 863 F.2d 24S (2d Cir. 1988), heldconstitutional,onlyanewcommiunentorderwUlhaveto 

despite the fact that [defendant] possessed minimal knowl- be executed.' ... It will not be necessary to have a second 

edge of the scope of the transaction and had minimal conlI'Ol sentencing hearing." The court affinned1md remanded for 

over its execution. In GlUrrero. we held that. under section resentencing. 

IBI.3 (relevant conduct). the offense level calculation in- U.S. v. Britlman. No. 88-1973 (8th Cir. Apr. 19. 1989) 

cludesall actsaidcdandabcttcd by Lhcdefendant that area part (Arnold, J.). 
Guideline Sentencing Update 

VOLUNK 2 • NUNBBIt 6 • MAy 19.1989 

Guidelines Application 

DETERMINING OFFENSE LEVEL 

First Circuit bolds that dereDdaDt must accept respoasiblUty onl, lor couot or CODYictiOD. Defendant 

pleaded guilty to one of five counlS. In setting the O(fense 

level. a dispute arose over whether defendant had to accept 

responsibility for the dismissed counts in order to receive the 

two-level reduction for acceptance of responsibility. Defendant claimed that could cause him to incriminate himself on 

the ocher offenses, and that in any event he had accepted re--

sponsibility for all counts at the sentencing hearing. The 

sentencing court "ruled that the Sentencing Guiclclines re--

quired a defendant to admit responsibility for all his aiminal 

activity, not just the counts to which he was pleading guilty, 

even if that meant incriminating himself on the othet counts. " 

. The appellate court reversed and remanded. "We conclude that the ooly plausible reading of the Guidelines for 

cases in which a pleaagreementhas been made. is that 'acceptance of personal responslbility for his criminal conduct' 

means the criminal conduct to which the defendant pleads 

guilty." The court fouod that forcing a defendant to accept responsibility for all counts would violate the fif!.h amendment. 

because it was possible t.hal statements concerning dismissed 

counts made during plea negotiations might be admissible in 

other litigation. "A plea bargain can unravel at any time, ••• 

[and] the judge need not accept the plea agreement ••• Nor 

need the judge &utomatically accept a dismissal of an indictment filed by the government" Also, statements made to a 

probatiOn offlCCt for a presentence report are not protected by 

Fed. R. Bvid. 410 from possible future admission. The court 

concluded that. "[g]ivcn both the language of the Guidelines 

and theconstituUonaJ restrictions, the acceptance of responsibility section can only be interpreced to mean thata defendant 

who has made a plea agreement must accept responsibility 

solely for the counts to which he is pleading guilty." 

To defendant"s argument that he had accepted responsibility for all counts during the sentencing hearing, the court 

held that the d.isIrict judge has "substantial discretion" as to 

whether that accepCanCe was timely. 

U.s. \I. Perez-Franco, No. 88-1768 (1st Cir. Apr. 28, 

1989) (Bownes,1.). 

First and Third Circuits hold that derendants sen· 

tenced pursuant to career offender guideline may not 

receive acceptance or responsibility reduction. Defendants 

in both cases qualified as career offenders under guideline 

§ 4 B 1.1 and were sentenced under the offense leveltublc in 

that section. Each defendant claimed he should have received 

the lWO-levcl reductiop for acceptance of responsibility. 

Theappellatocourts held that this reduction should not be 

applied to the offense levels in the career offender lable. Both 

courts reasoned that this conclusion was consistent with the 

legislative mandate of 28 U.s.C. § 994(h), which was to 

"assure that the guidelines specify a sentence [for a career 

offender] to a fCml 0( imprisonment at (]I' near the maximum 

term authorized"; accepdng defendants' posi~ would 

undercut that policy. . 

Denying the reduction is also consistent with !.he Guidelines. The Fust Circuit found that if the Guidelines "application insuuctions- are foll~ "a career criminal is never 

allowed the two-poiot reduction from his career-offender 

level determination." The Third Circuit. concluded that 

"[i]nasmucb as the career offender table haS no provis~on for 

adjustments, we would be no more entitled to give [defendant] 

a two-level reduction under § 3E1.1 than we would be pennitted to increase his level by reason of any of the factors [used 

in] the on.tinary toCal offense level calculation." 

The courts also noted that § 4B1.3;the aiminallivelihood provision. provides a reduction for acceptance or responsibility. The lack of a similar provision in § 4Bl.l indicates the Commission did not intend the reduction to apply. 

The FII'St Circuit added that the reduction may still be 

reflected in the actual sentence. The career 9ffender offense 

levelgivesasenfeDCi.ngrange,and"[i]ndeterminingtheexact 

amount of time tobeserved from thatrange,acourtmay factor 

into its sentence a defendant's acceptance of responsibility." 

Inaddidon, thesentcncingcoun "mightdetennine thatacceplance ofresponsibllity by acareeroffcnder in certain instances 

constituted 'unusual circumstances' such as to warrant a 

departure from the guidelines." 

U.s. \I. Alvu. No. 88-1752 (lst Cir. May 8, 1989) 

(Bownes. 1.): U.s. Y. Huff, No. 8&-3733 (3d Cir. May 10, 

1989) (Greenberg, J.). 

Other Recent Cases: 

U.s. \I. Wright, No. 88-1687 (lst Cir. Apr. 27. 1989) 

(Breyer ,1.) (affmning sentence and holding: sentencing court 

may consider relevanlrelated conduct in dismissed counts and 

"past behavior relevant to determining an appropriate penalty 

for !.he crime" when setting offense level; whel.her defendant 

was a minor or minimal participant is a~ixe4 question" of 

fact and law reviewed under "clearly erroneous" standard). 

U.S. \I. Graham, No. CR-88-0667 (N.D. Cal. Apr. 7, 

1989) (Orrick, Sr. OJ.) (when live marijuana plants are 

Not ror Citation. G .. ideline Sentencing Update is provided for information only. It should 1101 be ciled, either in opinions or otherwise. 

57 
58 

Guideline Sentencing Update 

seized, weight is immaterial and number of plants is used to 

calculate the offense level). 

DEPARTURES 

Fif'tb Circuit addresses several departure ksues. 

Defendant. a recent parolee. lived wilb an e1dedy man who. 

acc:uding to defendant. died in a household accidenL Fearing 

he would be accused of murder. defendant initially fled the 

house but Iaterretumed. put the body in the trunk of the man's 

car and drove around Texas for several days wbiJe using the 

man'scmlitca.nLEventDally.defendantdisposedofthebody 

by placing it in a dwnpster and burning it. When arrested by 

state police forpublic inlOXicalion. defcndanttried to bide the 

mclitcard. The policefound the card. defendanttold the story • 

and he was indicted on state charges and a federal charge of 

cmt card fraud. Defendant pleaded guilty. to the CR'dit card 

offense. and the sentencingjudgedepal1ed from the guideline 

range of 30-37 monlbs to impose a 120-mondI sentence. 

Defendant chaDenged two of the senfCtlCing court· s leaSOIlS for the departure: that his cxmduct. in the treatment and 

disposal of the body. was MeXb"eme conduct" under § SK2.8i 

and that aiminal history categOry VI did oot adequately 

Volume 2· Nwnber6. May 19.1989. Page 2 

it must impose a reasonable sentence. The recommended 

range provides a point of reference for the sentencing COUrt 

.... If the court identifies the wrong recommended range, its 

frame of reference may be skewed. ••• Accordingly, whelher 

the court incorrec:tly decermined the recommended range is 

relevant to our review of a sentence impJSed onder Ihe 

departure provisions." Reviewing under the "dearly enone.-

ous" standant. the court rejected defendant's various challenges to the sentencing court·s guideline calculalion, including its fmdings that the deceased was a MvulnenbIe vicUm" 

under § 3Al.l and ~ a vulnerable victim need DOt be abe 

victim of abe offense of conviction; and thal defendant tried to 

obsCruct jusIice by hiding the CR'dit card. 

U.s. v. RobusOlt. No. 88-1624 (Sib Cu. Apr. 28, 1989) 

(Smitb.J.). 

Other Recent Case: 

U.s. v. Vtltuqllez-Mtrcado, No. 88-2621 (Sib Cir. Apr. 

28, 1989) (Jones, J.) (upward departure warranted· where 

defendant organized scheme to transport large Dumber of 

illegal aliens. molested women passengers. and attempced. to 

evade authorities' in high-speed chase), 

reflect his criminal record or potential for fuwre criminal Appellate Review 

acU.vity. The appellate court rejected both chaDenges. 

The court concluded that § SK2.8 is not. as defendant First CircUit outlines standard or review for deparargued. limited to ham done to the victim: .. Section SK2.8 tures. In upholding a departure from a sentencing range of 

directs the sentencing court's attention to the defendant's 27-33 months to 10 years,the rll'St Circuit set forth a threeconduct. not the victim 's ham, and thus does not implicate the step standard for reviewing departurec:ases. The first step is to 

limiting language in section 510.0." The court also decer- "assay the circumstances relied on by the disaict court in 

mined that a '"victim .. under I SK2.8 need oot be the direct determining that abe case is suffICiently 'unusual' to warrant 

victim of the offense of conviction. deparwre. That review is essentially plenary." 

Defendant claimed ahat the district court. in delennioing . Next. the reviewing counshould .. detennine whether abe 

thataiminal history category VI was inadequate, should not circumsmnces, if concepcually proper, actually exist in the 

have considered as separate three 1979 convictions that were particular case. That assessment involves factfmding and Ihe 

consolidated f(l' sentencing, The appeUate court found that trier's detenninations may be set aside only for clear error." 

the Guidelines allow consideration of concurrent senlerlCt& in Finally, "the direction and degree of deparcw'c must. on 

that situation. The court als9 held that. once a sentencing Court appeal, be measured by a standard of reasonableness. ••• ·In 

gives specifIC reasons for departing from the guideline range. this context. reasonableness is determined with due regard for 

it need not explain why a specific tenn is chOsen: "Nothing in 'dle factors to be considered in imposing a sentence: genet-

[18 U.s.C.I] 3553 reqUires the sentencing judge to juslify his aUy, and 'the reasons for the imposition of the particular 

choice of sentence further by explaining, for example. why sentence, as stated by the dislrict cOW!. .. • (Citing 18 U.s.c. 

120 months is more appropriate than 100 months." §l3SS3(a) and 3742(dX3),) -ntis third step involves what is 

In addition, defendant claimed that. once the sentencing quintessentially a judgment call •.• [A]ppeUate review must 

court delennined that category VI was inadequate, it should occur with full awareness of, and respect for. the trier's 

have gone to the nextoffense level to guide thedepar&ure. This superior 'feel' for the case. We will not lightly disbJIb deci· 

argument is premised on the fact that the Guidelines instruct sionstodepart.ornot.orrelateddecisionsimplicalingdegrees 

courts 10 move between criminal history categories when the of depar&ure. .. 

applicable category is inadequate. The court detamined that The courtadded that "we read the Guidelines as envision· 

the Guidelines do not require courts to do this and, in fact. to ing considerable discretion in departure decisions. at least at 

do so would be inappropriate: "Arbitrarily moving to a new this early stage of their existence. ..• Although we are 

offense level when the highest criminal history category cognizant that depanures should be the exception rather than 

proves inadequate would skew the balancing of factors which the rule ••.. we must nonetheless defer, within broad limits. to 

the Commission created in the Sentencing Table." the trial judge's intimate familiarity with the nuances of a 

Defendant also challenged the district court' s calculation given case." - • 

of the guideline range for the offense of conviction. The U.s. v. Diaz-Villafane. No. 88-1998 (lst Cit. May 4. 

appellate court noted Lhat "even if the court decides to depart, 1989) (Selya. J .). 
Guideline Sentencing Update 

NI_ 

CitMlIiIfll 

J.ePIMioa S~ 011914 

U,..", 

... 1917 

will 

... 

be diaduI.od 

the s-ciq 

pcriodicaIl, 

Ouidd.iDeI, 

'by thec...loinfoma 

AhbcIup Ihc pubIicIIioama, 

~ ... 

.... 

adMr 

10 

judi.cial 

IIba ~ 

~ 

0uideIiMI 

01 ...... 

N'Id 

r..-.t 

policJ 

____ 

__ 01 the 

011 !lie 

u.s. ~ s.-

iDa Ow' , 's';''''' ~ 01...,.-. _1IOWiItP. it 11_ a..cled 10 npc!Il s-a.:ma C_jeriClil paI.IdeI or~. a..-.1JbauIrl NI.1o IhcC'\ridelie-.policJ _. 

~ 

• .. ",aad ................ 'by .. S .... C_jeejm tar .... iIaf ___ 

oIo..r.wIM , ..... .., U".,. .......... e--..... 11 •• NIpCIIIIIibIoIaad" .... ,.,..., ItlhauW _ 110-*-1 ... "" :IIItioa or ddaI 

paIic)' oIlIbac.o.. 0. ...... fII paIic)' .. e--..... CIIIlJ ....... i&a Boud. 

VOLUMB 2 • NUWBBI 7 • JUNB S. 1989 

Sentencing Procedure 

Tb1rd Clrcult IaoIdI that wileD plea agreemeDt alab-

.kba fads releYDttoseDteDeiDlDofar1ber proofottbose 

facts Is required. Defendant entle:led a plea of guilty to theft 

of 122 pieces of mail valued at $22.soo. A1thougb defendant 

neverwilhdrew his plea. be challenged the presenrcncen:p«t. 

claiming he oaly scoIe 4O-4S packages with a value of less 

than $20.000, a value that would result in a lower offense 

level. On appeal, defendant argued Wtthe dispute over the 

value of the stolen property was not foreclosed by his guilty 

plea. and that the government should have been required to 

prove the value through the dispute resolution procedures of 

Fed. R. Crim. P. 32(c)(3)(D) and guideline f Ml.3. 

The appeUare court rejected this·view. flOding thal "the. 

plea agn:ement eocompassed an understanding both as 10 the 

number of parcels taken and their value." that there was "no 

suggest.ionin the piea agreement that [defendant] reserved the 

right to c:hallenge the valuation," and thal defendant "did not 

seek to wiabdraw the plea when the judge ruled that the 

indictment valuation would be used for sentencing. "Thus, the 

eowt held. defendant's "plea of guilty admitted the value for 

purposes of his semence and no further proof or stipulation 

was required." 

U.S. v, Parur. No. 88-3752 (3d Cit. May 10, ]989) 

(Greenberg. J.). 

Fiflb Circuit holds judge must resolve factual disputes berO" senteDdog. Defendant pleaded guilty to coospiJKy 10 possess marijuana with intent 10 distribute. He 

objedcd to IhepresentencerqxH1,claimiDg Ihat tbe amount of 

marijuana used to set his offense level was too high and lhat 

he should not have been classified as an organizer or leader. 

The disuict COUll did not rule on these objections or mate 

explicit faccual findings. IDscead. the court departed from the 

recommended senlCnCing ranle and imposed the scatula)' 

maximum of five years, giving as IQSOOS defendant's privileled social background and prior criminal activity. The 

appeUare coun vacarcd the senaence and remanded. 

The coun noced that .. the presentence report and the defendant's objections to &hat report are essential considerations 

in JXoper senLencing." Furthermore. "(tlhe guidelines explicitly require that the sentencing counresolvedispuled sentencing faclOrS. without regard to whelher the eowt ultimately 

determines that a departure from the guidelines is warranted. 

Sentencing Guideline 6AJ .3(b). Wilhouta clear resolution of 

the facts that fonn the basis for the disttlCI court's sentence, 

this eowt cannot gauge either the need for or rcasonableocss 

of the departure. " 'IlMi court held that "failure 10 comply with 

[Fed. R. Crim. P.] 32(c) and IIlideIiDe 6Al.3(b) requires dUll 

we vacare [defendant',] JeDt.eoce and IeIIIIftd Ibis actioa for 

aeseatencin&. • • • TIle metbod by wbicb the disIrict COUll 

chooses to address the requircmenrs of Rule 32(c) and guideline 6Al,3(b) in a given case is for dUll court to select. ••• The 

ooIy Jequirement we mae is that the ftIOOI'd reflect the 1rial 

eowt's resolution of any disputed senlenCing factors in aceor· 

dance willa the fcdaal rules and the guidelines. " 

The eowt also held thal .. the d.isIrict court must • • • 

redetcnnine, in light of irs fact findings, whelber a depanure 

is wananted." In doing 10, the disIric:t COUll should DOt 

consider defendant', educalion or soci.o«onomic s&alUS. as 

those factors are excluded under Ihe GuideliDcs. 

U.s. v. Burch. No. 88-2680 (Sib Cir. May 10. 1989) 

(Clark. CJ.). 

Di.stric:t court determina that party seeking adjustment to base oI1'ense level bears burdep 01 proot. Defendant, who pleaded guilty toenpging in a coruinuing criminal 

enterprise, objected to an offense level incn:ase for obstruction of justice and clabned he shouldhaveRCCived a two-level 

decrease for acceptancc of responsibility. The COWl held an 

evidentiary hearing on Ihe dispute, and f11'Sl concluded that 

..the preponderance of evidence standard is the appopriare 

standard of proof 10 be applied in evidentiary bearings held 

under the Guidelines." 

As 10 whetbet the government or defendant bcx'e the 

burden ofproof,lhe eowt concluded"lhal tbe burden should 

shift depending on the disputed factor atissuc.ltisclcarlO this 

eowt d1at the government should bear the burden of proof 

when showinl that the defendant', base offense level should 

be incIcased. " On Ihe ocher hand. "{b]aviDl the government 

carry the burden of proof in the contcxtof decreasing thebase 

offense IeYei seems inappropriate. ••• The defendant', base 

offense level cannot be reduced under the Guidelines without 

proof that a factor exists which wananrs such a reduction, e.g .. 

acceptance of responsibility •••• Surely the lovernment need 

not cany the burden of proving that the defendant's base 

offense level should not be decreased if there is no proof in the 

record wamll1ting such a decrease. If evidence is submiued by 

the defendant warranting a decrease ...• the government can 

then go forward with evidence disputing-tbe same. But fU"St 

there must be evidence wamll1ting such a reduction and who 

is better to offer Ibis evidence than thedefendanL" BUle! U.S. 

Sot for Citation. Guidl!/~ SI!IItl!lICi", Updal/! is provided for infonnatioo only. It should flO{ be cited, either in opinions or otherwise, 

59 
60 

Guideline Sentencing Update 

v. Dolan. 701 F. Supp. 138 (B.D. Tenn. 1988) (holding that 

government bad burden of proof when it chaUenged pesentence report recommendation of downward adjuslment for 

acceprancc of responsibility). In this case, the court found 

that neither party satistled its burden, and no adjuslments to 

the offense level were allowed. 

U.s. v. Clt.vk. No. CR. SCR 88-60(1) (N.O.1nd. May 11, 

1989) (sharp, CJ.). 

Guidelines Application 

FIftIa Circuit IaoIdJ that lack of eoDDedioII betweeD 

dnaa 011' .. aacI _poa precludes oIre ... 1ml1acreue 

uDder pldelllle ,2Dl,l(bXl). Defendant pleIdcd pilty to 

possessic:m of cocaine widl intent 10 dislribute. Police found • 

loaded pistol. his residence. which WIS several miles from 

the scene of1be drug purcbasc where defendant was arreIIed. 

The district court adjusted his offense level under guideline 

§ 2Dl.l(b)(I), which directs courts 10 incmase the offense 

level by two "[i]f a firearm ••• was possessed dming commission of (a drug-reIaIed) offense. .. 

The appellate court held that "[ilt is a suained interprel8-

tion, given this siblation, 10 conclude thatdefendant possessed 

the gun during the commission of the offense, even applying 

the deferential clearIy-erroneous saandard of review," There 

was no showing that the gun and drugs were connecc.cd in any 

way, and they were. in fact. always several miles apan. 

Although the court found that under the language of the 

guideline ~ is a close case," it held that ~ adjustment 

made was inapproprimc and must be vacated. .. 

U.s. v. Vasquez. No.·88-2775 (5th Cu. May 19, 1989) 

(Smith. J.). 

Other Recent Cases: 

U.S. v. While. No. 88-5613 (4th Cu. May 22, 1989) 

(Wilkins. J.) (whethca- 10 apply acccpcancc of fC,,'ipOOSibility 

guideline "is clearly a factual issue and thus reviewable Wlder 

a clearly erroneous standard"). 

U.s. v. Piltlo. No. 88-2896 (7th Cir. May 19, 1989) 

(Ea.stabroot. J.) (although Scnt.cncing Commission's AppIicationNoccs"are not formaUy binding," scntencingcounmay 

use no&es 10 illuminate meaning of guidelines). 

U.S. v. Harry, No. 88·1743 (Sib CU. May 18, 1989) (per 

curiam) (when term of probation is imposed under guideline 

§ SB 1.2, maximum length of amn that may be imposed is 

Volume 2· Number 7 • June 5,1989' Pa,e 2 

determined by defendant's total adjusted offense level, not the 

base offense level). 

U.S. v.D(JugNrey, No. 88·5]51 (4111 Or. May 11,1989) 

(Wilkins, J.) (issue of minimal or minor participant saatus "is 

an 'essenlially factual' question" and, undet the "due defer· 

ence" standard of review, sentencing coun'i decision will be 

affumed ""unless clearly erroneousj. 

U.S. v. Ayano, No. 88-3123 (9th Cu. May 9. 1989) 

(Wiggins. J.) (rejecaing separation of powc:n and due pocess 

cbaJ1enges 10 requirement of subsWlUal assiscancc J:IOvision, 

f 5Kl.l,1hat such downward adjUSlment may be made only 

~ motion oflbe governmentj. 

U.s. v. GtJIwut-Gtvcia. No. 88-2752 (5th Cit. May 1, 

1989) (JohnsoD. J.) (affuming offense Ie\ld increase for 

obsIruction of justice wbele defCDdant dnw bags of marijuana out of vehicle during-high-speed chase). 

U.S. v.Rafferty, No. CR. 88-01508-01 (D. Hawaii May 5, 

1989) (Eua. J.) (increasing offense level fel' obstruction of 

justice where defendant gave false information to am:sting 

otrJCetS and false testimony at dcleOnon hearing). 

DEPARTURES 

U.S. v. Ramirez-tk Rosas, No. 88·5219 (9th CU. May s. 

1989) (Wright. Sr. OJ.) (upholding dcparIure based on high· 

speed chase on ground that it constituted either "dangerous 

areaunent 0{ aliens" (sec Application NOleS 10 § 21.1.1) or an 

"aggravating circumstance" nol adequately considered by the 

Sentencing Commission; under these circumstances departurelO30-monlb sentence from guideUnerangeof0-4 mondls 

was "completely reasonablej. 

Constitutionality 

DuE PROCESS CHALLENGES 

As of this writing, all seven circuits lhat have considered 

due process challenges to the Senlenc::ing Guidelines have 

rejected them. most n:cendy the FU"St. Sixth, and Sevenlb 

Circuits. See U.s. Y. Seluk. No. 88·1779 (1st CU. Apr. 27, 

1989) (per curiam); U.s. v. Allen. No. 88·5739 (6th Cir. May 

4, 1989) (Contie, Sr. J.); U.s. Y. Pinto, No. 88·2896 (71b Cu. 

May 19, 1989) (EascedJrook:,J.). In light of Ibis suong1reDd. 

GuidtUlle Sententing UpdiIle wiD not Iq)OI1 future cases 

upholding the Guidelines against due proc:ess challenges. 
Guideline Sentencing Update 

VOLUMB 2 • HUlIn. 8 • JlTNB27.1989 

Guidelines Application 

DEPAIl11JRES 

SeCODd Circuit oatllDes procedure 'or departure 

bued OR crladul bistor1t IaokIs cleteDdaDt mast be ."ea 

aotice of poIIible departure. Defendant pleaded pilty 10 

imponaIion of ccxaiac; his guideline range was 33-41 

months. 1bc court dcpaI1cd and imposed a 6O-month sentence, fOlding that defendant's aiminal history score. which 

placed him in Calegory l, did not adcqualdy represent his past 

criminal conduct. 

1bc appeUate court vacated abe scntenc:c, partly because 

the district court may have based abe departure on factors alreadyconsideted by abe Sentencing Commission, but also be· 

cause abe court failed eitbel' to adeqwudy set forth the reasons 

for departing or to use other aiminaI history caacgories as a 

guide: "'We believe that abe disttict court should explicitly 

articulale its reasons for departing pursuant CO § 4AIJ. 

Failure to do so renders abe sentence unlawful under 18 U.S.C. 

, 3742(d)(1) •••• It is nec:cssary ••• that the coun clearly identify any aggravating faclOrS and specify its reasons for utilizing a panicuJar aiminal bisuxy c:arcgory."1bc court found 

Ihat"[a]pRCiseprocedurereguJatestheexeraseofdiscretion 

in making this type of depar1ure •••• [T1he Guidelines require 

ajudge to I) determine which category best encompasses the 

defendant's pier history, and 2) use the corresponding senItllcing range for that c:arcgory '10 guide its depanure. '" 

(Citing policy swement 14AI.3.) Accord U.s. v. Lopez, 871 

F.ld 513 (SIh Cir. 1989) (depar1ure for inadequaac history 

score should be tied 10 specifIC criminal history ca&cgory). 

In this case. "[t]he departure to a 60-m0n1h lam or 

imprisoomcnt-from an initial range 0(33-41 months-can 

only be suppcJrted by placing [defendant] in Criminal HiSIOIy 

CaJesory IV. The district court's ayptic scatemenl reganling 

this depanure does DOl satisfy abe congressional. requirement 

that specifIC reason or reasons be ciled. • • • Nor was an 

expW1adon otlered for selecting a sentence lppIopiiate for a . 

defendant in Calegory IV rather than CaJesory D or W." 

1bc court also held that a defendan& must be given nocic:e 

of and an qJpOrUmity 10 prcscnt argumentS on possib1edeparlUreS. 1be court based this ruling. in ~ on the language of 

Fed. R. Crim. P. 32(a)(I), which gives defense oounsel the 

right to "an opportunity to comment upon .•• other mauers 

relating to the appropriate sentence." Accord U.s. v. Otero, 

868F.2d 1412 (SthCir. I 989)(defensc mUSl have notice and 

opportunity 10 be heard if cowt in&cnds upward departure). 

u.s. v. Cervallles. No. 89-] 002 (2d Cir. June 20, ]989) 

(Kaufman, Sr. J.). 

Ninth Cln:uJt boIds district court must dearlJldeatil) 'acton warnDtiDa departure. Defendant pleaded 

guilty to bantrobbery. His criminal hiauIry score placed him 

in CaIqary Vl.1Dd the guideline range was 61-78 monlbs. 

Thecoundepartc4 from the range to impose a senIeDCe of 96 

mmths, explaining that depanurc .. justified under 

If 4AI.3 and 5K2.O of the SenICncing Guidelines because 

the guideline seDtt.nce does not adequately reflect defendant' s 

criminal bistory. Since defendant is in Ihe bigbcstc:ategOl'y by 

~ of several c:onviclions. addidoaal convicdons whk:b 

would 0Lhcnrisc be included in abe calaJladoo add nothing 

fW1her. Defendant is very close to-career criminal status. 

Other similar criminal conduct is not reO.ectcd. All of this 

reflects strong, recidivist tendencies. .. 

1bc appeJlaJe court vacated and remanded. holding that 

the sentencing coun's "conclusory staIement of reasons ... 

fails 10 clearly identify the specifIC aggravating circumstances 

present in this case. 1bc stalement also fails to indicate 

whethet the coun found that abe SeotaICing Commission 

inadequaldy oonsidered those circumstances in formulating 

the guidelines. Absent such a fmding, departure is not permitted." (Citing 18 U.S.C. II 3SS3(b) and 3742(d)(3).) 

U.s. v. Michel. No. 88-1280 (9th Cir. June 8, 1989) 

(Wiggins, 1.). 

Fifth Circuit reverscs departures 'or 'ailuretoardc:ulate valid radODllle. ,.oure to coasicler adjustmeDt to 

c:rimiDal bistOl'J.1n one case. defendant pleaded guilty 10 

possessim of an unregisaered fueann with an alla'ed serial 

number. 1bc evidence showed dUll defendant. a convicu:d 

felon. was stopped at a border cbecIcpoinl whele 18 different 

weapons. all with altered serial numbers. were found ill his 

CM'. The guideline range was 27-33 months. Tbc court departed 10 impose an eigbl.year JeDtcnce. SIaIing that the 

guidelines 'W'CI'C"'weak IDd iacffeclUal wilb respect to [defendant',] criIac"lnd that defendant was addicted 10 beroia. 

The appeIIafe court vacaICd abe JeDtcDCe, bolding Ihat 

"[l]he IeIlICDCing coun', anicuJatcd nuiona1e for departing 

from the guidelines in this case. and the resulting senfeDCe. It 

were "unreasonable. It 1bc court staled that "[a] SCD&cnCing 

counts personal disagreement willi abe guidelines does not 

provide a reasonable basis for sen&cncing: and found d1It the 

"'record does not disclose that [defendant's] drug addiction 

provided a reasonable basis for [depaJ1ure:'I. 'I'be guidelines 

admonish that drug dependence is not ordinarily relevant in 

detennining whether a departw"c is warranted," and the district court's "single stalement" that defendant was a hemin 

Not for CltatiOft. G .. iik/iM ~lIlellCill' Updau is provided for informatim only. h .hould not be cited, c:ilha in opinion. or 0Ihe:rwi.se. 

61 
62 

Guideline Sentencing Update Volume 2· Number 8· June 7:1.1989. Paae 2 

addict"doesnotsuff"aciendy explain why [defendanl'S]addic- an appropriate case the district court may be empowered 10 

lion is so extraordinary that a departure was justified. Wilhout grant a departure notwilhstanding the govenunent's refusal 10 

a more particularized nWonale, we cannot gauge the reasona- motion the sentencing court if the defendant can esaablisb the 

blcnessoflbisciepartluenorC8Dwegaugetheextentiowhich fact of his substantial assistance to aulhorities. .. The court 

addic.:tion justiflCS the sentcnc::e imposed. .. decided it did DOl have to reach this issue. bowever. finding 

U.s. v. Lopez. No. 88-2765 (Sth Cir. June 12. 1989) tbatdefendant's assisIance may in fact have been Jec:ognized 

(Clark., CJ.). by a lenient plea agreemenL 

In another case. defendant pleaded guilty to falsely rep- U.s. v. Justice. No. 88-2539 (Sth Cir. June 8, 1989) 

resenting himself as a U.s. citizen. The sentA:ftCingjudge de- (Gibsm, Sr. J.). 

paaUId from abe guideline range to impose the SWUlOl'y maxi- Dlstrkt court Co determine ill camera wbether prosemum of dIftIe yean' imprisonment, citing defendant', "priar cutorrelued III Rood ;a1tb loroDo ... agreemeDtlo move ror 

bisrory"lDd ... as .. illegal aIiea. The appeUate coon Ie- "labstaDtial assistance" departure. Defendant provided 

~ first finding IhIt abe seoteacing judge sbould hawe information to an assisIant U.s. aaomey JMftUIIIt to his plea 

considered ... upward IdjusUnent to defendant', criminal and a .. cooperation agreement" be signed with abe JO¥'CI'DhisUxyCllCgOr)'ifitdidnotadequate1Ylepu."otbisc:riminal meaL The AUSA did not believe some of the informalion. 

past. The sentence here exceeded the highest possible guide- concluded thatdefendanthad breacbedthecoopcndionqreeline scntA:ftCe. using CUegary VI, by 50':11. and M[n]othing in ment. and informed defendant's auomey that the government 

the record indicar.es chat [the district) court consic:IemI the no longer intended to move for a downward reduction of senpossiblesentcnceswhichwouldaesul1fromanadjustmeot.to tcncc under 18 U.S.C. I 3SS3(e) and policy saucment 

criminal histoay categoay V ar VL Nor did the court provide I SKU or the Guidelines. Defendant moved 10 compel the 

any explanalion wby such adjusunents. if they were consid;. gowemment to me such a motion. 

ered. are inadequare in this case." The court found that, while the SWUte and policy stareThe appellate court also found that "[t]he judge's com· ment"pJace so1e responsibility and disaetionfor deterrnioing 

mentssuggestchat[defendant's]SlalUS8SanillegaJalienand what constitutes 'substantial assistance' on the prosecutor, 

his cavalier attitude toward United States citizenship require. and not on the trial cowt." when there is a cooperation 

ments intlueoccd me judge in depaning from the I'eCOIft-o agreement and the governmenlrefuses to move for departure, 

mended sentence. Since the offense for whim [defendant] the court may scrutinize whether the prosecutor's decision 

was convicted already lakes into account his illegal immigra- was made"in good faith." The court wanted"l0 know in derail 

lion status. this was nota valid reason for depa11l.U'C." whatactual assistance [defendanl] hasrendcred10 thegovcmU.s. v. RiDs, No. 88-6126 (Sib Cir. June 12.1989) (per ment. and what use the government has made or intends to 

curiam). make out of any infonnation furnished .•. in orda' 10 

detamine wbelhu Lherc is any basis to conclude tIW. in the 

Eightb Circuit vokes macero about f SKI.l provi- . IOIality of the circumstances. the government acted in bad 

sioDthatdeparturdorsubstaDtialassistaocerequiresmo- faith in refusing to make a motion on [defendant's] behalf 

tion by IOvtrlllDent. Defendant plC*.ted guilty to a drug under the guidelines or the statute. It 

offense. He aqUed that he was entitled toa c:Iepartwe under Astoprocedure,thecourtdetcrminedlhclewas"noaeed 

f SK1.1 far substantial assistance to the govcnunenL The ... toconducttheequivaJenlofatrialontheissue,becausethe 

go~nt did DOt dispute &hat defendant provided substan- issue is DOl the ultimate objective reality. but mthet the 

tiaJ assistance. but refused to make a § SKI.1 motion, and the subjective stale of the prosecutor's mind." The disclosures 

district court did not depart from the guideline sentcnc::e. could be made ex pane and in camera., and me 1I'WCria1s 

Although the appellate court upheld the refusal todepart. provided would "'be placed under seal pending this Coun's 

it had .. sevtlIl problems with I SKI. 1', requirement that a further order or for the purpose or appeUare m1ew." 

motion by the government is necessary before a d.isaictjudge This appears to be the rust aeporICd case in which a 

can depan from the guidelines. It Sucb an III'IIlgement"places disbict court has ordered a prosecutor to defend a decision 10 

discredon chat has historically been in abe Iumds of a fedcnl refuse to move far a reduction or sentence.. Another district 

judge into the bands of the prosecutor." Wherhet the prosecu- court has held that, under the specifIC ciR:umstanoe ~ the 

torabusestbisdiscretion"isaquestionthatappearstobeurue- case,leuers from the prosecutor satisracd abe reqWremencs of 

viewable. "and'"theissueofwhetheradefeodanthasprovided 18 U.s.C.13SS3(e)and § SKU wbeo theprosecurorreCused 

substantial assisI.ance 10 aullKlities may be a disputed factual to file a motion. See U.s. v. ColelMll. 707 F. Supp. 1101 (W.D. 

issue" that the prosecutor, not the coun. now resolves. Mo. 1989) (because of prosecutor's representations 10 defcn. 

"[W]e are not positive that this provision, in the absence dants and mislaken belief that a motion was not required,court 

of a motion by the government. would divest a seotA:ftCing treated letters from prosecutor detailing dcrcndants' assis· 

court of the authority to depart below the guidelines in tance as "functional equivalenl" of 13S,,<"e) motion). 

recognition of a defendant's clearly established and recog- U.s. v. Galan. No. 89 Cr. 198 (S.D.N.Y. June 8. 1989) 

nized substantial assistance 10 authorities. We believe that in (Haight. J.). 
Guideline Sentencing Update 

VOWlIII 2 • NuaoIR 9 • JuLY 13;1989 

Guidelines Application 

SENTENCING PROCEDURE 

SecoacI·ClrcultboldscoartsareDOtrequlred.toadYise 

defeadaDti rI 1ikeI, pldellDe leDteDce Wore accepdq 

pia barpla, but "wbere feaslble,'sbouId" do so. Defcodant pleaded'sui1tY to impolting 'more dian .soo arams of 

cocaine. 1befactsShowed.anddefcndimtdid nbtdisputc.1hat 

abcoffensc aclUa1ly involved 2S kilograms. The dislrict court 

calculated the offense level based on abc 1argcramount. which 

resulted ina substantially longerscntcnccdcspitea downward 

departure under.'. SKU of abc Guidelines for defaKIaDt's 

eooperalion. DeiCDdantargucd (1) that abccourtcrrediD using 

abclargel'amount.and(2)fhalabccourtshouJdhaveinformed 

him it would do so at the lime of his guilty plta to prevent 

unfair SUlprise and enable him to funy understand the cooseq1JCDCC4 of his guilty plea. 

Affuming abc sentence, the appe1la&c court noted that it 

had already rejected the rust argument in U's. \I. GllUTtTO, 

863 F.2d 24S (2d Or. 1988). The court also rejected defendant's nodcc argument. bolding Ihal Fed. R. Crim. P.ll(c)(l) 

requires a sentcnciDg c:ourt 10 appise a defendant only of abc 

statutory minimum and maximum penalties faced. not what 

the likely sentence under the Guidelines will be.. ""I'hc dislrict 

court was DOlmquinx1 to calculalc and explain the Guideline 

sentence 10 the appellant before accepting the plea. for, once 

appcUantwas informed of the JOSSibleconsequenccsenumcrated in the RuIo--the maximum and abc minimum seralenCCI--dle requisites of Rule 11 were met. .. 

The cowtlddcd. bowc\U.1hat Mabcseotencc libly to be 

imposed can in some inslanccs be reacWy c:aJculated from abe 

universcof facts beforcabc districtcowtat the timcoflbc pica. 

In those cascs wbcle abc appHcablc GuidcJines seralenCC is 

easily ascerWnablc at abc lime abc plea is offered. the 

district court bas full discmion t.o-and. where feasible,_ 

sbouJd......explain die likely Guidelines sentence to the defendant before accepting the plea." BUI if. U.s. Y. Weft, 109 F. 

Supp. 1062 (N.D. Ala. 1989)(defendantDOl entitJed toprecrial 

resolution of dispute involving applicadon of Guidelines to 

facts of case: "such a proccdw'e ••• crea!CS an undue risk that 

error could alfectabc defendant's decision to go 10 trial or 

plead guiltyj. 

U.s. Y. FernaJUlez. No. 88·1409 (2d Cir. June 15.1989) 

(Pierce. J .). 

SecoDd Circuit bolds derense attorney's underestima· 

tion or probable sentencing raDge does not warrant wilb· 

drawal or guilty pleL After defendant pleaded guilty to two 

offenses, abc district court calculated abc guidcliDe sentence 

range 10 be S 1-63 monlhs. Defendant moved 10 wilbdtaw his 

pleas but thecourtdenledabcmodonandJ.mposcdaS7-montb _~ 011 appeal. ddendant.-gaed be should be allowed 

to wilhdlaw the pleas because be was denied effccli~ assis· 

1aDCe of c:ounsel by his aaomey'. cnoneous admaae ofa 

lCDfCDCing range of 21:-27 ~ths. Defendant claimed ~ 

relied on thalCSlimate. and thus his pleas were not \'OIwuarily 

made with Cd knowledge of the COASequtni:eS. 

The appellate court found lhal when defendant pleaded 

guilty he was aware of abc maximum terms he facccl. fhalabc 

lenam of die sentence to be imposed was within the sole 

disaedon of the sentencing judge. and that oven if the sentence'wasmore seve:re than expected he wasbound by bis plea. 

Morcova'. under ~uide1incs law ... ,it seems ~ that we 

would not have reversed a district judge for refusmg 10 allow 

withdrawal of a pica under [Fed. R. Crim. P.) 32(d) on the 

ground lhat counsel's estimat: was erroneous.. We do DOl see 

why the presence of the Guidelines should change abc law in 

this respecL If anything. they seem 10 us 10 mnfon::e our 

eadierdecisions on the issue. Under abc Guidelines there will 

be many more detailed hearings regarding imposition of seDtencc.1S in this case. A sentencing judge will now frequendy 

indic:aIe. as are.suk of sucb hearing, whalabc soateIICC may be. 

Intbosecireumstanccs.aDowing defendants lOuse abcpesentencc prong of Rule 32(d) to withdraw their pleas would 

pervert abc rule and threaten the integrity of the seratencing 

process. Defendants may not plead guilty in order 10 test 

wbedler dley will get an acceptably lenient sentence." 

U.s. Y. SweeM)'. No. 89-1072 (2dCir. June22. 1989) (pel' 

curiam). 

DE'AKTURES 

NbatJa Circuit holds ddendants must be giYeD notice 

of facton warraDtinl departure, aDd that COIII1I m. 

follow Guideliae ItaDdards for depart.ve. Defendants 

pleadedpiltylDonecountofaidingandabeUiDJthe~­

tation of iJlegaI aliens. 1bc facia showed the operaIiOIl was 

very large and well organized. and that boIh defendants were 

key pardcipanu. At the. ::ntencing hearing die court, wiahout 

infonning defendants in advance. departed upward from the 

guideline ranges. 

1bc appellate court held "Lhat the failure to notify appellanes of abc basis for departure in advance of the imposition of 

sentence violated Fed. R. Crim. P. 3:2(axn." 1be court 

detennincd that Rule 32(aXl)and 18 U.S ,C. I 3SS3(d) "indicate thatlhe presentence report or the court must inform the 

No« lor Cltatlola. G~liM ~"'ellCi", UpdtJJt i, provided for information only" 11 hould 00( be' ell, cd a 'th' er Ul opuuon, " Of od-Ierwi.se ' I 

63 
64 

Guideline Sentencing Update Volume 2· Numbu9· July 13.1989' Pace 2 

Other Recmt Case: 

U.s. v. MI.ukk. No. 88-3095 (7m CU. May 24, 1989) 

(Cumminp.J.) (deparUuenotapproprialCCordefendantwho 

IUpplied drugs. duough • c:ouriu, 10 persODS poaessiDs 

tirearms--«feadant did not possess weapon, had DO direcl 

COIllaCl willa. IDd was DOt chargecl as ~irator wi~ 

those Who had weapons). 

defendant of facun that they considellO consaitute grounds 

for departure. ••• This requirement is not satisfied by the fact 

Ihat the relevant inCormadon is prcaeot wilhin tbe prescnIaICe 

report. ••• Radler, IUCb iaformatioa cilbcr must be identified 

... basis for dcpIrture in &he presemr.nc:e rcpc:Il1. or, the c:oun 

must advise abo defendant that it is c:oosidering dcpanurc 

based on • perticu1at factor and allow defense counsd III 

appor1.UDit)' to commcnL" Accord U.s. Y. CtrlIdItles, No. 89· 

1002 (2d Or. June 20, (989): U.s. Y. Otero, 868 F. 2d 1412 DETERMINING OirFENSK LEVEL 

(Sib CU. 1989). ReceDt Cues: 

The court foUDd _abo lCIIfCDCiDg court c:ouJd properly ---• .t-_-oo ...... I_.:.. .. ofthenN!l'll.u... .......... t..I ... &. U.s. Y. Wilsoll, No. 8IJ..6086 (6Ih Cr. June 29. 1989) 

~'""';~:;:&;..~~u;::,,;; (Coade;Sr. J.) (&be offeDso level reducdoa ill pideUnc 

for by the guidcliacs ill irs docisioa to depIri 60m ~ f 2IC2.1(b)(2). covc::dDa possession of. fU:arm by • cooauide1iDes. ttaamelydefcadaats'JOIcIin abooffcascandpofil, victcd fcloo MlOldy for sport or JeCreaIioa.M is not~ 

motive. '""Such. ruliDg, iDdiclr.cs dissalisfacdoowilh the 10. ~ posse,sscd. coUaIa'aI; reterenc:c lO.,...tended 

guideUnea rada' than • ~ judgment Ibat panicWar lawful ~ ID theCom~ ~be ~ tohroadca abo 

cbanlctcrisda of'tbe offense or the offa,lSeS haYe no.t been -unambIgUOUS language ••• ID che guideline itselfj. 

accounted for. Morcovu, because the coun's staremeDt of U.s. Y. SQllChn-Lopt!Z. No. 88-3102. (9Ib Cr. June 21. 

reaSODS eooc.aiDed an improper IS weD IS. proper basis for 1989) (AIarcoa.. J.) Mw}hetIIeI'. defendant is. tllliD«' or 

depanure. we haYe no way to~ whetbet any portion 'minimal' panicipaat in tbe criminallCtivity is • facIual 

oftbesentcaceWlSbaseduponcoosideralionof~impopu dettnnination subject 10 tbe dcarl)' C'.II'I'OIWlOUS standan.f'; 

facun. .. The c:oun vacated and remanded for reseatencinS, can:er offender provision does DOt result ill "impennissible 

andcmpbasizcdtbattbedcc:isioluodepartislimitedbySlaluIC double enhancement" oCpenalties. nor involve "'uaconsIi1Uand --must be based OD tbe guidc1incs or poliC)' stalements in tiona) sub-delegation oC con,rcssionalllllhorit)'to tbe various 

tbe guidelines. .. staUs" because stale c:onvicUODS lDay aigu die proYisioa). 

U.s. y.NMM-ParQ,No.88-5163(91bCir.June20, 1989) U.s. v. Mann. No. 88-2085 (Sib Clr. June 13, 1989) 

(Nelson, J.). (GibSon,J.)(quantity of drup in priordrus sale. not included 

District court Ii ... departure warraDted because inindic:tmentoroffenscofconvicuODbutpartoC"samec:oursc 

SeDteDdDl Commissioa·faUed to 8CCOIUl1 tor dvU remt- of conduct or common scheme," may be considered by sendies. Defendant pleaded guilty to uafrickinS in counlCrfeit ICncinS court). 

IQOds.ThetotaloffenseleYel was ll.and tbepidelinoransc U.s. Y. Moore, No. 88-1573 (Sth Cir.June 8, 1989) (per 

was 8-14 months. The tOUItdeparted from dleOuidclines 10 curiam)(separate insIancesofbank robbery.lhoupcommitimposea36-moatbtennofpobatioaandS6,OOOfute:""Under led at same bank. IDaY not be _ • ......d UDder _.:..c..t; .... 

tbespecialcircumscancesoflhiscase.atcrmofimpisonmeAt § 3Dl.2). 6"............. • .-

would serve DOIlC of che stated purposes of senleftcillS. [DefeodaDl] is tbe modler of • yowts chi1~ she ba DO prior 

criminaJ involvement, no RlC'OI'd of dru& Of alcoholabuse.and 

a clOSCaknit extended family. She has free)y acknowled&ed 

hu pill and immediately after apprdIensiOD she sought 10 

c:ooperaIC with tbe SOVcrnmeat •••• She poses no threat to tbe 

public and will be justly punisbed. sutliciently dccerred.. and 

adequalely rchabilitarcd'" by this scatenc:e. 

The c:oun Ibo DOled dial in this type of crimo-counterfeitinSIl'ademalts of 10gb-priced. designer-label items die 

companie.s wboilcmaehaDdilois c:opiecl"havepowerfu1civiJ 

remedies .vaiJabIe for proteCCing dlelr imeI'Cs&s," and. "(i}n 

U.s. v. O/chlllick. No. 89-3008 (3d Cir. JW1C 1. 1989) 

(Greenbtq, J.) (defendant c:onviclcd of acape fiorD c:ustod)' 

may receive criminal hisIory cnhaDc:ement under pidclinc 

14AI.l(cI) and (e) for e.scapina while UDda' senreoc:e of 

imprisonment and while sd1l in confinement. even though 

bcin& in custody is elcmeal of offense). 

U.s. v. 7.qJs. No. 89-1031 (1st Cir. June 1, 1989) 

O'orrucUa. J.) (dis1rict com1 "dearly juItified" in reCusing 

reduction for accepcanoe of responsibility to defeadlnt who 

c:onuniacd perjury dwilll Dial). 

fact, that approach to eafcxcinSIrademart rishu 1. far more Appellate Review 

prevaIcat. effective, and reasonable Ihan enJislins our already 

ovcnurocned police. prosecutors. and COUI1S to act OD behalf 

of" such companies. Thccounconc:luded thalclepanure in this 

case was apptOptiaIC, "the Scntcncins Commission not havilll considered the aVailability of extraordinary civil remedies 

to deal with the crimes charged here." 

U.S. v. HOIl, No. 89 Cr. 0052 (S.DN.Y. May 31.1989) 

(Sweet, J.). 

Ree,DI Cast: 

U.s. v. Oni:, No. 89·1056(JdCir.June 29,1989) (Seitz, 

J.) (under "due deference" standard oC 18 U.S.C. f 3742(e), 

appellalc rcviow s&andard varies dependllls OlfWbcther issue 

is factual, legal, or mixed; question of defendant's "aggravatingrolc"inoffenseis"cssenLiallyfactual"andrcvicwedundu 

clearly erroneous standard). 
Guideline Sentencing Update 

rcfarIII 

GtIiMIiM~ 

..... _ttM 

U,,-,. 

I11III1917 

wiD 

...... 

bac1i111i11a1e4 

S ....... 

~ 

0pLIe!-

lIJ"'c-.to 

~ ... 

iaf_~"GCb« 

paWiOMiGamq __ to'" 

jucIicial.,...... 

Ssrt *' CJa:Iddioeo" 

~ ICIectadfeclal 

paficr 

______ 

__ ~ ... u.s. ~ s....o. 

.,0 . i 1 .... ~_ ..... _IIaWinp.I& .. _ ..... to ..... SE. rh.('mnjej_pciidel.accmu.. ............ ...,.to ... Oui.li ••• poIiq 

."="",,,1 "" .... -......w. ..... lIJ ... ,_ .. C-' i n .. __ iaf-..a-. 

..... ccIaI_~ S,,, a., U,,-,. ........... o..r ....... alllllJl mEliWlo'" ftIuIbIn ..... lul.'1I1U _baoani f .. a _' 'Ed •• .mew 

paliqfll ... c-.O' ....... fIIpaficr ... o..r ............... ...... 

VOLUM. 2 • NUMB ... 10 • AuOUIT ". 1989 

Sentencing Procedure 

Folll1la CImaIt IaoIdsdefadant bean bardeD atproof 

wbeDteeIdq oII'ease level ftduc:tioa. DefeadaalcoafeDded 

the district court erred in DOt reducina his offClDle IcYd for 

acceptance of ~bility, arguing be was entided to abe 

reduction because the gcrvernment did DOt ~ by clear and 

ccnviaciDg eridcDce dial be was aot. 

The appc1181e court found t.hal othcrcourtsexamining &be 

sraodard of proal question "have generally 8gIeCd tbat • 

prepoodcnnc.:e scandard is the proper measure.. The court 

also noted Ibat. in • JDoOuidelines case. die Supreme Court 

concluded lbatapplying &be preponderanceSlalldanf to faclUal 

findings made by .senteDCingcourtsalisfied ducprocess.See 

McMilltm Y. PeMSyIwmia. 477 U.S. 79,91 (1986). 

As to &be burden of JlIOOf. ""1he guideline in question 

involYed. poIt:IItiaI decIase in the offense level which would 

have bad the effect of lowering [defendant·s] ukimaIe seatencing nmie.ln dlesc cin:um.stances. we hold that thedefendant bas die burden of establishing by • preponderance of &be 

evidence the applicability ofdle mitigating factorio question. 

••• Howeva". itthe govc:mmentaecb toenhanoe &berenaeucing range and poIeOtiaIly increase the uItimaIc 1alt.eDCe. it 

should bca' abe burden of proof. Such • scbcme is eatirely 

consistent willa the directives of the Supreme CourtinMtMiIIan and wiIb due process requirements. ••• [N)eithc,oz concems 

of procedoraI due process nor any 0Cba' good reason suggest 

that • defeadant IbouId be able CO put &be burden OIl the 

gOYelllllM'lal toaxove Ibat thedefeodantshould notRCCiveany 

particuJar mitipting adjusunenL • 

This appcaa to be abe fiat appeIJate court opinion coo· 

ceming burdcu of proof for adjustments to offense level. 

Previously GSU bas IqJOl'Uld two district court cases OIl Ibis 

1l1IUCr. See U.s. Y. CItri. No. CIt sea 8UO(1) (N.D.lnd. 

May 11.1989) (burden is on defendant 10 prove decrease is 

wamntecI. OIl govenunenl for inciease) (2 GSU 16); U.s. Y. 

Dolmr.. 701 P. Supp. 138 (B.D. Tcnn. 1988) (govemmcnt has 

burdea of proof whCIl cbaIlenging pre.9Cl11mCC report RIC'OIIlmcodation of downward adjustment in offense level) (1 GSU 

'19). Stt aLso U.s. v. Lovell. infra. 

U.s Y. Urrego-UN:lTes. No. 88·5646 (4th Cit. July 20. 

1989) (Wilkins, J.). 

District court bokls party seeking oITense lel'el.dJust. 

meDt bean burdeD of proof; burden is OD goverDment 

wben preponderance of evidence favors neither party.1be 

government contested reductions that defendant sought in his 

base orrense level. The court held that "where there is a dispule IS to facII bciDg tabu inro 8CCOUIIt by die courtreJadve 

to an adjustment to abe base offense IcYel UDder die Guidelines. abe party who desires to obtain an adjusImmt ••• must 

balrdle burdea~coming forward with IIIf6deDtpooflOe&-

tablish • prima facie case Ihat &be adjustment is appropriate.. 

"[W]bcre dleprq:K)DCDtofabeadjuslmeDtbasesuablisbed 

• pima facie case warranting tbal adjusImeat. abe burden 

shifts to abe opposing partf to come forwan1 widlRbultal 

cvideoce. Atlhatpoint. abe issues am delamJDedby ...... 

derance of the cvidcocc and abe resoIudoa of die issues Is 

clear-cut unless Ihccvideocedoes DOtprepondcratc iDfa'¥OI'~ 

eithc.T party'. position. 

""1n the [JaUt.d ~ ••• the bunJco olpetSUaSion must be 

placed upon the govanment for ••. ftalIlt authority dealing 

widap:e-GuidcUDcsseorencingproccdurescoocluded tbatthe 

gD\'el'DIDCI1t sbouJd bear abe bunIcn of petSUaSion on III 

ID8IlCn disputed in prcscatcnce iD'f'CStigation ft1JOI1S when 

those matters wa'C rcIiecl upon by die seoteocing judge. • 

U.s.y.L.ovdI.No.CR.88-20111-1U(W.D.TCDlLJuly1. 

1989) (Tumer. J.). .' 

District coart allows wWadrawal of JUIItJ pleas because oflargemlseakulatJoas b1~taacl defease 

COIIDsei u to uddpated seateDdDI ........ During Ibeir 

prdiminary estimates of defendants' probable Guideline 

ranges. govenuneat and defense auomcys did DOt iadude 

cerrain .... vant conduct- in Ibeir calculations. rcsultiDg in 

much lower ranges Ihaa the court ultimately found. Defeodants argued thai because ofabe miscalculatian they"did DOt 

receivcabe bcnefitoflbeirbalpin wiIh the govemmealwbich 

induced Ibese pleas: and lhatabecmll'JXOvidcd ..... lDC1just 

reasoos-IO aUow withdrawal oftbeir guilty pleas pursuant to 

Peel. R. Crim. P.32(d). 

Thecourtlgl'eed: ""While ilis true dial III partiesinYohed 

Imcw dill the pleaaareemcac calct"81kml were ODly pdiIDinary and subject to ct.ge. it does DOt follow chat the plea 

nesotiations cn:ated DO Clpcclations regarding • &eIIIaICing 

lW'lge.- The court held IbN one defcadaDt's cxpec&ed range 

was close to his fmal range. and denied lea~ to widldmw his 

plea. Par twodclcadanc.s.howcver,lbeaauahangcaof 41-51 

months. versus Clpccted ranges of 21-33 and 21-21 months. 

were "too far afaeld" and "simply beyond the scopcof expectancy crcaIed. by the plea agreemenL It would be unfair and 

unjust to emorcc the conlraCt between the defetKlant and die 

government where abe defendant was induced by a promise 

which could not be lcepL .. 

The court stressed that '''considerable caution' will be 

Not ror Citation. Gui<kliM ~lIItIlCjll' Updmt is provided (or information only. h should not be dIed, either in opinions or OIhcrwi.se. 

65 
66 

Guideline Sentencing Update 

used in granting reJid from pleas •.•• OnJy under eJtccptiooal 

circumstances ••• will a motion to withdraw a guilty plea be 

granted." 

U.s. Y.BtllMlI.No.CR88-30(N.D.Ind.JuIy 13.1989) 

(Lce.J.). 

Guidelines Application 

DlrrBItMINING OnrENSE LEvEL 

Pint Circuli outiiDes procedure ror seateaciDa whea 

aben II aoapedlicpddeliDe ror theoft'eDIe. DefClldant WIll 

cxmictcd or coaaempt or court for refusing 10 eesdfy It a 

crimiDallrial. despifC a grant of immunity. 1bc guideline for 

contempt offeascs.I21I.I, docs not set. specific Clft"ea 

level, leavina it to the court to impose a sen&a1CC based 011 &he 

principles set fOnh in 18 u.s.c. I 3553(a)(2). Tbe disuict 

court imposed a Ibn:e-ycar scoteocc. 

T'bc appelIaIc coun vacat.cd and remanded for resentencing. hoIdiDg Ihat &he senreace imposed was ""un1awfuJly 

Iong.. In pan. the coun based Us dedsioa 011 Ibc facts of &he 

case: defeac:lan& believed in good faith tbatbe bad a IcpI basis 

for refusing to &estify; be showed DO disrespect for Ibc court; 

and be bad DO prior convictions. The court also fOUDd Ihe 

three-year sentcDcc did not compon with &he directive of 

18 u.s.C.I 3S53(b), which povides: "In die abscDcc or III 

applicable Ie'ateftCing guideline ••• the court sball also have 

due regard for Ibc reJaUonsbip or the scateoce imposed to 

sentences prescribed by the guidelines applicable 10 sim.i.1ar 

offenses and offenders, and to the applicable policy suucmenlS or Ibc Sallencing Commission. "The '"applicabJc policy swemcnr." in 1211.1 refers to 12XS.l, wbich din!c:ts a 

sentcacing coun 10 "apply abo most analogous offensc guideline" when DO specific guideline was pmmulp«cd.lIld_ 

that "(ilf there is DOt a suffJCiendy analogous guidcUnc.1he 

povisions or 18 U.s.C.I 3553(b) sbaI1 CORIrOl" 

The appeI!ate caurt deIa:mined Ihal "(t)bcae various 

saatanenII aU amount 10 the same Ihing: they tell the disarict 

court to look for analogies. And.. in deciding wbctbcr the 

seatenc:e is 'plainly unreasonable' [under 18 U.s.c. 

I 3742(e)(4)],1hat is also what we must.do."Thecourtde&ermined Ihat 1211.5. '"FaiJure to Appear by MaIaial WiIncas; 

was"aclose1yanalogousguideJ.ine."Underthecircamstances 

ofthiscasc. using 1211.5 would resuJt in amaximW1lIC111eDCe 

or six monlhs. The coun held dlat "any le'atcncc in euess or 

six IIlOIIIbs ••• is 'plainly uaueasonable.' and bcnce uoJawful" 

under 18 u.s.c. f 3742(e)(4), and instructed Ibcdiscric& court 

to SCAIeOCe defendant to a tam of six months or less. 

U.s. Y. UttMrw004. No. 89-1315 (lstCir.July24,I989) 

(Brcyer. J.). 

District court coDdudes SeDteaciag COIIlIDlssioD did 

Dot adequately consider errects or certaiD GuideHoes sections 011 escape coavicdODS. Defendana. incan::crarcd for a 

pre-Guidelines offense. escaped from custody afttz Ihe effective date of the Guidelines. Defendant's offense level resulted 

in a sentencing range of 18-24 months. In addition. guideline 

§ SG 1.3 requires a consecutive sentence for offenses committed by a defendant already serving an unexpired sentence. 

Volume 2. • Nl.ftlbcr 10· Auault 4, 1989. J>aac 2. 

Defendant raised two objections. rust, since an individual cannot commit me offense of escape wdess be is under a 

c:rimiaal justice Ie'ateftCe.Ihe two-point addition 10 me aimiaaI bis&ory ICOIe rundar.ed by f 4Al.l(d) is DOt appcopiale in 

eapcc:ases. Second., the Parole Commission will impoee an 

~tioaal period or iacIItcnIioa 011 his artier, pe.Guido-

~ ~ease ~ or die lenD impJlCld fOr abo escape. 

'Ibis ~ defendaDt coaleDded,. is. factor DOl'" 

qlllfely considered by Ihe Sentencing Commission in aIoptiagf5G13. 

Tbe court held "Ibat Ibc Senteadn, CGmmissioa iaadoqualdy coasidered tho imJllCl or 14Al.I(d) in. cape 

~ "1Ild departed froID Ibe guiddiDc 10 reducedefcadaD&'s 

crimiaaI bistary ICOI'e by two poinu. T'bc COUll foaad dIat 

""bein& inc.aIt:eated is an element of Ibc oftease .. of escape, 

and. UDder 14AI.1 (d) this same staI.US enbInces &he criminal 

hisIOIy score. The court detenaiDed Ibal "(a] basic pllicy or 

the guidelines is 10 avoid double COUDIing. ••• The underlying 

priaciple is that if ODe poYision ••• 8CCOUIUI for • element 

of ~. offense or a specifIC offense chRcraistic. anocber 

pIOVISlOII dcsigacd 10 ICCXIUDl for die SlIDe factor should DOt 

apply. The same principle holds true ew:a if die doubJc 

couaDng relates 10 III elemcat oldie cumat offease and 

calculation of the criminal bisIOry score. - The court COIlcluded Ibat nothing in Ihe guidelines. pllicy ~ or 

commentary indicates tballbis principle should be abrogaIed 

by applying f 4Al.l(d) in an escape cue. or "'dIal the Commission was e'VCIl aware or the double COUDtiag tbat occ:urs 

wbc:a f 4Al.l (d) is applied to an escape casc.-

The c:ourt specifically disagJeed willi two cadi« dccisioat that bad up.eJd die use or f 4AI.l(d) in escape cues, 

U.s. Y. Ofchbtici.. 877 F.2d 251 (3d Cir. 1989). and U.s. Y. 

Ibneltn. 708 F. Supp. 964 (S.D. lad. 1989). See ,., U.s. Y. 

GoIdbaIIm. No. 88-2239 (lOch Or. July 21. 1989), U{ra. At 

least ODe ocbe.r c:ourt has found Ihat miDI f 4AI.l(d) in an 

capecuccoasUlUIeS improperdoubJcCOUDdag.See U.s. Y. 

Cltri, No. 88-0793 (S.D.N.Y. Mar. 'Xl, 1989). 

The c:ourt also Igft'lCd Ihat defendaDl'.1CDICIICC for die 

cape should run concumndy with .y additional limo 

imposed by the Parole Commission. "Since [defeadaat',] 

offenses place him within the jurisdiction or both the PIroIe 

Commission and this court. the court c::aDDOt dicfaIID eucdy 

the IIDOUDt ollimc (defeodaDt] will acne. ••• NevenbeIcas. 

the court cannot close i&s eyes and igncn the pracdcal effect 

of die Parole Commission', probable coarse of IICtioa. ••• 

There is DO evidence Ibat the Sentencin& Commission Idequaldy c:oasidercd this coaOict bctwcea pe-guideliae leO-

&encesand post-guideline aenrences wIleD it dI8fted guidcIiae 

15013." 

U.s. Y. BeU, No. CIt. S-88-02I(OI) (D. MiDn. June 30. 

1989) (Magnuson. J.). 

Other Recent Case: 

U.s. v. GoldlxJum, No. 88·2239 (I00iCir.luly21,1989) 

(Andason. J.) (aff"uming use of guideline I 4A1.1 (d) to add 

two points to criminal history score of defendant convicted of 

escape). See also U.S. v. Bell. supra. 
Guideline Sentencing Update 

GwiMli"", SMU/IIi:htf Uptlau will be dimbuled pedodlIIaIIy by Ihcc-to illfosm,iudcel-.l ocher judicUl.--u=l tllIdecIed fedcnl_ deciaicna OIl 1hc~ 

nfocm IqJiaJldaa 0119&4 and 1911 -.1_ SeaIaIciII, CMd .... AlIhaap _ publiclliora _, rd. to Ibo S.1..an, CJaidoIiJI.a -.I policy __ ctlM u.s. ScIIIc:acina Canmiuica ill 1M ODIIIat tllIIp<IItiq _ hoIdiap, •• JIIIIt irlIaIdod to IqIOl\ ScatcDc:iq c-aiAi.ca palic:iICII or 1Idi .... Readca Ibould ref. to !he GWde.Iiaec. poIlcy 

~~. ad c.-mNriaJa iII!IOd It, -s...c:m,c-;.;... fatolllCb W-1IIIC111 

Pllblicadaa tlGtoiMu.. S-C;", U,...,. .... __ c.u. .... ira aMpGllliblo aad valuablll .... IIlbDWd """ beooa&ldcnod. -.-de_ cr cmcw 

policy ctlbo C-. 011_ 01 poIiI:J Ibe c....peata aaly IbrauP iu Boud. 

VOLin, •• 2 • NUMBI!R 11 • AUOUST21.1989 

Guidelines Application 

Ninth ud Eleventh Circuits disagree as to whether 

SeDtencinl CommissioD may mandate consecutive senteDces. In the NinthCireuitcasc, defendant was serving aswe 

senlence at the lime he was sentenced in the district court. 

Under guideline § SG 1.3. "[ilf at the time of sentencing,the 

defendant is already serving one or more uncxpiredsenlences, 

then the sentences forthe instant offense(s) shall run consecu· 

tively to such unexpUOO sentences," Prior to taking defendant's plea, the disttiCl court did not. inform him that the 

Guidelines required. that the sentence imposed be consecutive 

to his current term, Defendant claimed on appeal that failure 

to advise him of that fact violated Fed. R, Crim. P. 11. 

The appellale court detennined that whether a violation 

of Rule 11 occurred hinged upon whether the consecutive 

senlence was a "direct consequence" of the plea, of which 

defendant had to be informed. That issue, in turn, depended 

upon whether "in this case. the Irial judge had discrelion 10 

impose a consecutive or concurrent senlence." Guideline 

§ 50 13 indicates that the Irial judge does not have such discretion, but the court concluded that the guideline conflicts 

with 18 U.S.C. § 3S84(a), which staleS that "[m]ultiple terms 

of imprisonment imposed at different times run consecutively 

unless the court orders that the terms are to run concurrently." 

The cowt held "that a judge has cUscretion to impose a 

concurrent or consecutive senlence. as a matter of law, under 

section 3584(a). -rust. section 3584(a) unambiguously confers thatcUscretion upon the trial judge •••• If the guidelines are 

to he consistent with TItle 18, the discretion cannot be taken 

away."Thecoonalsofound thal"allhough the language of the 

guidelines would deprive the judge of discretion, the Sentencing Commission's commentary suggeslS that the guidelines 

are not meant to change section 3584(a), but rather to reflect 

iL" Thus, "the district judge had discretion to impose either a 

consecutive or concurrent senlence •.. , the resulting sentence 

was nota 'directc:onsequence' of [defendant's] plea ••. [and 

t]he judge ••• did not violale Rule 11." S~~ also US. v. Scott. 

No. IH..s7-OS70 (D. Md. May 23. 1988) (§ 5Gl.3inconsistent 

with § 3584(a): court will depart from § SO 1.3 whendetermining whether to impose concurrent or consecutive sentences). 

U.S. v. Wills, No. 88-3291 (9thCir.Aug.9,1989)(Leavy, 

J.). 

In the Eleventh Circuit case. defendant argued unsuccessfully that the district coon should have allowed her 10 

serve her sentence concurrently with an earlier. unexpired 

sentence. Citing the discretion given to sentencing courts in 

18 U.S.C. § 3584(a). the appellate coun found thal the Sentcocing Reform Act "places limilS on the court's discretion in 

this regard. In considerjng whethera term should runconseculively or concurrently, the Act n::quires the court to cmsider 

the factors setfortbin 18U.S.C.A.§ 3553(a) •••• 1batsection, 

in turn requires the coun to consider any pertinent policy 

promulgated by the ..• Sentencing Commission. to 

1becourtcited § 5013 as such a Commission policy. and 

concluded that "the distriCl courtcould have orderedappeUant 

to serve her sentence concuii'endy oo1y if the court bad followed theprocedurcsfordeparting from thesencencingguidelines." See also US. v. M~ndez. 691 F. Supp. 6S6 (S.D.N.Y. 

1988) (holding § S013 does notconfliCl with § 3584(a». 

U.S. v. FOSS~II. No. 88-3904 (11th Cir. Aug. 7, 1989) 

(Tjoflat, 1.). 

DETERMINING OFFENSE LtVEL 

ReceDt Cases: 

U.S. v. HayMs. No. 88-2277 (8th Cit. Aug. 11. 1989) 

(Henley. Sr.J.) (defendantacquiued of a Continuing Criminal 

Enterprise charge may still be given an offense level incmlse 

under guideline § 3B1.l(a) for being an organizer or leader 

based upon his relevant conduct in ~ criminal activity). 

U.S. v. FMe~-Kolbenschlag. No. Ss..S424 (11th Cir. 

Aug. 3, 1989) (per curiam) (inCteasing offense level under 

both counterfeiting guideline § 2BS.l(b)(2) for "inanufacturing" counterfeit currency, and guideline § 3B1.3 for use of 

"special skill," does not result in improper"double-enhancement"; also. dispures on overlapping guideline ranges are 

appealable under 18 U.s.C. § 3742(a)(2) "if the appealing 

party alleges that the sentencing guidelines have been incorrectly applied, even in cases whele the guideline ranges 

advocated by each of the parties overlap"). Cf. U.S. v. B~rmingham. ass F.2d 92S (2d Cir. 1988) (guideline range 

dispute may be left unresolved if same sentence would be 

imposed): US. v. TIIT1IeI'. No. 88-S143 (9thCir. Aug. 1.1989) 

(foDowing B~rmingham). 

US. v. Scroggins. No. 88-8218 (11th Cir. July 31,1989) 

(Tjoflat.l.) \loss" under theft guideline § 2B 1.1(b) includes 

cost of repairing property damage, in this case damage to 

posta! vending machines defendant robbed: also. districtcourt 

property denied reduction for acceptance of responsibility to 

defendant who continued to use drugs after his arrest because 

such use "ClStdoubton tbe sincerity of [defendant's] avowed 

acceptance of responsibility"). 

U.S. v. Notal-Rivero, No. 88-2462 (8th Cir.July 14.1989) 

(Henley. Sr. J.) (Guidelines do not violate due process, and 

Not ror Citation. Guilkline Se/lWtcing Update is provided for infonnllion only. It should not be cilOd, either in opinions or otherwise. 

67 
68 

Guideline Sentencing Update 

district COurt did not err, by not taking defendant's "cultural 

heritage" inro account as a mitigating facta). 

U.s. Y.Hewiu,No. 89 Cr.OO2S (SDN.Y.Aug.4,1989) 

(Sweet. J.) (when factors relating 10 defendant's past criminal 

conduct were used to increaseoffense level under the criminal 

livelihood provision, § 4B 1.3. court would not use those same 

facaors as basis for upward departure in criminal history 

category under § 4Al.3-using both sections "would doubly 

punish defendant fo: the common nature of his criminal acts. 

and do so in fun.herance of nearly identical sentencing pin. 

ciples. Such senrencing practices involving 'double counting' 

are inappropriate and, in all1ikelihood. are W1Iawful.j. 

DEPARTURES 

District court denies request to order .,,,erament to 

move rorsentence below statutory minimum, notes differ. 

ences In motions under guideline policy statement f SKI.I 

aud18 U.s.C.f3S53(e).DefendantwassubjectlOafivc-year 

mandatory minimum senrence, and his guideline range was 

SI-61months.Aspartofawritrenpleaagreementthegovemmentswed it would "have the option" to move under § SKU 

for a departure from the Guidelines if defendant cooperared 

with the government. The defendant cooperiired 10 some 

extent, but the government chose not to make the f SKU 

motion. Defendant contended he made a good faith effM to 

cooperare, and was entitled to a departure from the statulOr)' 

minimum sentence 10 allow a sentence at the low end of the 

guideline range, even without a motion by the government. 

The court noted that defendant's request for sentencing 

below the statutory min.mum indicared it 'VM actually a 

request 10 order the government to make • motion under 

18 U.S.C. § 3SS3(e), which grants • court .. the authority 10 

impose a senrence below a level csllblished by statute as 

minimum senrence so as 10 reflect a defendant's substantial 

assistance" IOJhe government. Section SK1.1, on the other 

hand, allows a departure "from the guidelines" if a defendant 

"has made • good faith effort 10 provide substantial assistance." The court concluded that, "[b ]ecause of the apparent 

confusion surrounding the distinction between f 3SS3(e) and 

f SKl.l, the Court will construe the plea agreement against 

the government. the drafter, and will assume the parties used 

'SK1.1' as the shonhand for a departure from both the Sen· 

tencing Guidelines and the statutory minimum." 

Although both sections require a motion by the government, and neither section limits the government's discretion, 

the court found it is". well esaablished principle" that if a plea 

was induced by. promise or agreementoflhe prosecUlOr',lhat 

promise must be fulfilled or the defendant may be entitled to 

specific pcrfonnance of the agreemenL Thus, in this case, "if 

the government has breached its obligatioD under the plea 

agreement 10 recommend a departure based upon defendant's 

assistance, this Court may mer specifIC perfonnancc of that 

promise." In determining whether the government breached 

its promise, the court noted that "[although the government 

clearly reserved the right to detennine whether 10 recommend 

a downward depanure. it has an obligation to make that 

detennination in good faith." 

Volume 2· Number 11 • August 21.1989· Page 2 

To determine whether the government acted in good 

faith, the court had to determine "the standard by which 

defendant's cooperation is to be measured.." Defendant argued that Wlder § SKl.1 he only had to make "a good faith 

effort 10 provide substantial assistance.",.~ court hel~, 

however, that since defendant sought a depanure from the 

statutory minimum, .. , 35S3(e) provides the relevant st.andard. " Under &hat standard, defendant must actually provide 

"substantial assistance," not just make a good faith effort 10 do 

so The facts before the court demonstrated &hat defendant did 

~ provide substanti81 assistance, and the government &here. 

fore acted in good faith. Defendant's motion was denied. 

U.s. Y. Nelson. No. 4-89-14 (D. Minn. Aug. I, 1989) 

(Doty, J.). 

Distrid court fmds upward departure Justified because ddeadants bid large sum or stolen moaey. Defendantspleadedguilty to bank larceny and conspiracy • They had 

SIOlen a Wells Fargo trude, and at the time of their arrest 

almastS l.iJ million was DOt recove.red, apparendy because defendants hid the money for lalel' use. The guideline range for 

onedefendantwas 37-46 months, for the other 30-37 months. 

The government urged the court to depan from the 

guideline ranges and impose the statutory maximum of 15 

years against each defendanL The court agreed, fmding that 

the Munique" facts of this case were not adequately considered 

by the Sentencing Commission: "The Defendants have 

stashed the proceeds of the crime, and they refuse to disclose 

the location. They plan 10 be millionaires upon their release 

from prison. The Defendants have obviously made a calculated decision-if they have to spend some time in prison. they 

are going 10 make it wonh their while." 

"The Senrencing Commission did not foresee cases in 

which the Defendants plan 10 exploit the letter of the law to 

their fll18lJCial advantage. ••• A sentence imposed under the 

guidelines would be unjust. Under these circumstances, it is 

our duty 10 depart upward from the guidelines. Only a maximum statutory sentence will thwartlhe Defendants' 8UemptlO 

defeat the sysrem •••• If the Defendants have a change of heart 

and decide 10 tum over the money 10 the Govemment. we will 

entatain a motion for reduction of senrence." 

U.s. v. Vall,. No. 89-08O-CR (S.D. F1a. July 19, 1989) 

(Scou,J.). 

Otber Recent Case: 

U.S. v.Gon:ale:,No.88Cr.SS9(S.DN.Y.July27,1989) 

(Haight, J.) (Defendant, mother of three small children, was 

granted downward deparcurc from guideline sentence requiring short tcnn of confmement and given probation. Althougb 

policy statement f SHl.6 states that "family ties and responsibilities ••• are notordinarily relevant in determining whether 

• sentence should be outside the Guidelines," court holds that 

"the qualifying adverb 'ordinarily' implies that family ties in 

some circumstances may be considerediiia doWnward adjustment; and where the father is in prison and the imprisonment 

or the mother would place minor children at hazard, I am 

prepared to depart rrom the ordinary," at least "when the 

mother's involvement is as peripheral as in the case at bar.'). 
Guideline Sentencing Update 

VOLUWB 2 • NUWBBR 12 • SI!PTBMBBR S, 1989 

Sentencing Procedure 

Eleventh Circuit holds evidence from a c:o-coaspirator's trial may not be used to resolve dispute over quantity 

or drugs. Defendant and foar others were indicted on drug 

charges. Defendant pleadedguilty 10 one c:ountand stipulated 

that nine ounces of cocaine were involved in the offense. The 

presentence report. however, stated that over five kilograms 

were involved. The district court resolved the dispute by relying on testimony presented at the trial of one of defendant's 

co-conspiralors. which supp<x1ed the five-kilogram figure. 

The appellare court held that the "reliance on testimony 

adduced at the trial of another was fundamental error," and 

remanded for resentencing. "We have held that a sentencing 

judge may rely on the evidence presented at the defendant's 

own trial in resolving disputed facts for sentencing purposes. 

.•• This procedure is entirely proper: such a defendant has had 

the opportunity 10 cross-examine the Government's witnesses, make objections 10 the evidence, and put on his own case 

..•• When the sentencing judge relies on evidence adduced at 

the trial of another, however, no such poceduml guarantees 

are presenL" The court noced that. if appellant's testimony at 

the co-conspirator's trial coDstitutedan admission as to quantity, that testimony could be used for senrencing. The court 

determined there had been no such admission, however. 

U.s. v. CClStelianos. No. 88-3535 (11th Cir. Aug. 17, 

1989) (Tjoflat. J.):. 

Sixth Circuit holds burden or proof to avoid weapons 

enhancement may be placed on defendant to show it was 

"clearly improbable" that weapon was connected with 

ottense. Defendant was convicted on drug charges. His offense level was increased by two levels under guideline 

§ 2Dl.l(b) because he possessed weapons during the commission of the offense. The commentary 10 that section states 

the adjusunent should be applied "unless it is clearly improbable that the weapon wasconnccted with lheoffense." Defendantargued m appeal that shifting the burden of proof on the 

probability of a connection between the weapons and the 

offense violated due process. 

The appellate court rejected defendant's claim. finding 

that the "possession of a firearm during the commissim of a 

drug offense may fairly be considered by the court as a fact. or 

bearing on the extent of punishment, .. rather than "one of the 

elements of the substantive crime, 10 be established 10 the 

satisfaclion of lhe jury beyond a reasonable doubt. Not all 

ractors that bear on punishment need to be proven before a 

jury," The court found that Supreme Coun cases supported 

this conclusion, and also rejected defendant's claim that 

application off lOI.I@) violated his Sixth Amendment right 

10 a jury trial 

U.S. v. McGhee. No. 88-S878 (6th Cir. Aug. 18, 1989) 

(Nelson, J .). 

Other Recent Cases: 

U.s. v. Duque. No. 88-.3999 (6dl Cir. Aug. 24. 1989) 

(Gilmore,J.) (under 18 U.S.C.13SS3(cXI).sentencingcoun 

need not state reasms forpanicular sentence within guideline 

range if that range does DOt exceed 24 months). 

U.s. v. Turner. ,No. 88-S143 (9th Cir. Aug. I, 1989) 

(Alarcon, I.) (sentencing court need not inform defendant of 

applicable offense level and aiminal history categOJ:)' befon: 

,accepting guilty plea).. See also U.s. v. FmaaIIIln. 877 F.2d 

n 38 (2d Cir. 1989)' (sentencing court DOt required 10 infonn 

defendant of likely pdeline sentence before accepting plea. 

but "where feasible, should"). 

U.s. v.Ugon.No.CR88-OOO13'()I-P(W.D.Ky.Aug.14. 

1989) (SUer, CJ.) (foUowing U.S. v. U"ego-U1UJI'es. 879 

F.2d 1234 (4thCir.1989), holding that defendant must"carry 

the burden of proof in showing acceptanceofresponsibilityj, 

Guidelines Application 

DEPARTURES 

Third Circuit finds Sentencing Commission "adequately considered" ditterence:s between eseapes from 

secure and nOD-5eCnre 'adllties, bars use of proposed 

guideline changes as basis for departures. Defendant 

pleaded guUty 10 escape from a non-secure prison facility. He 

argued he should receive a downward depanure because the 

Commission failed. to distinguish in the escape guideline 

between escape from a secure prison versm "walking away" 

from a non-secure prison camp, as evidenced by a Commission request for comment on whetheritshouldrcduce the base 

offense level for escapes from non-secure facUities. 

In rejecting defendant's claims. the appellate court noted 

that, in § 2Pl.1(b)('2), theCommissionprovidedforan offense 

level reduction for escapees from non-secure facilities who 

returned voluntarily within 96 hours. showing the Commission did. in fact. make a distinction. Also, the May 17. 1989. 

fmal amendments 10 the Guidelines do not include lhe pro· 

posed amendment on which defendant retied, showing that 

"the Commission obviously rejected the proposal on further 

consideration. [Defendant"sJ argument that the Commission 

has notconsidcred lhe issue thererore fails without question." 

Not for Citation. Guideline SlIlIli:flCittg Update is provided for informaLioo only, It should not be cited. cilhcr in opinions or olhcrwisc, 

69 
70 

Guideline Sentencing Update 

The court also held that "the existence of a proposal for 

amendment to the Guidelines is not a legitimate ground for 

departure from ahem." "[11he fact that the Commission has 

invited public comment on a proposed change in no way 

indicates that it will in fact adopt this change. Any preswnplion to the cootrary would precipilate departures from the 

Guidelines before the Commission had made a decision. .. and 

could deter the Commission from proposing amendments. 

U.s. v. Medeiros. No. 89-5296 (3d Or. Aug. 18, 1989) 

(Sloviter, J.). 

Sixth Circuit outlines standard or review ror depar. 

tures. In upholding a departure to a six-year term &om the 

guideline range of 30-37 months, the court determined it 

would follow the three-srep process for review of departures 

outiinedbytherU'SlCircuitinU.S. v.Diaz-Villqfane,874F.2d 

43 (1st Cir. 1989). The court also agreed with the Fifth Circuit, 

in U.s. v.Roberson, Bn F.2d 597 (5th Cir. 1989). that "'[tlhe 

court's disa'etion to depart from the Guidelines is broad· .. 

The court held that two factors used by the district court 

to justify departure were invalid: udefendant'snationalorigin 

is not a factor which the court should consider in" sentencing 

under the Guidelines," and "defendant's inability to speak 

English, while not specifically addressed in the Guidelines. is 

similarly a factor irrelevant to sentencing." Other factors used 

by the dislrict court were valid, however, including defendant's illegal enery into the U.S. while serving a foreign 

sentence, dependence on criminal activity, and propensity to 

commit future crimes. "While one of the factors found in the 

present case standing alone might not support the court's 

sentence. seen as a whole. the sentence is pe.nnissible." 

U.s. v.Rodrequez. No. 88-3604 (6dt cit. Aug. 15,1989) 

(Milburn, J.). 

Other Recent Case: 

U.S. v.Akhlar. No. 89 CR. 0264 (S.D.N.Y. Aug. 1,1989) 

(Sweet, J.) (on 3ovemment'S motion pursuant to guideline 

policy statement § 5K1.I and 18 U.S.C. § 3553(e). court 

departed from guideline range of 97-121 months to impose 

sentence of one year and one day). 

DETERMINING OFFENSE LEVEL 

Ninth Circuit holds conduct that does not result in a 

CODvictioD should not be grouped with counts or con vie· 

tion in setting guideline range ror narcotics offense. Defendant was convicted of two counts of distributing cocaine. At 

the trial and at the sentencing hearing, a codefendant testified 

that defendant was involved in two other instances of cocaine 

possession. The sentencing court found that all four instances 

were part of a common scheme or plan in which defendant 

participated. and used the total amount of cocaine to set the 

offense level. Defendant claimed that the language of the 

multiplecounts,or"grouping," guideline allows a court to use 

only the quantity of drugs in the offenses of conviction. 

In a divided opinion, the appellate court agreed: "In our 

view, the Multiple CounlS section, by ilS explicit tenns. 

applies only to counlS of which the defendant has been 

conviCled .... [T]he opening sentence of the Mulliple CounlS 

Volume 2· Number 12· Sepwnber S. 1989· Page 2 

section refers to 'all the counlS of which the defendant is 

convicted,' Guidelinesat3.9 ... ,and Section 3D1.1 provides 

ilLStructions for when 'a defendant has been convicted of more 

thanonecount •. ,:Guidelinesat3.10."Thecourtconcluded 

that "language that the government cites in the Relevant 

Conduct section-which provides that conduct related to 

counts of conviction can be grouped together with conduct not 

related to any count of conviction-contlicts with the above 

quoted language of the Multiple Counts section," 

"At best," the court determined. "the Guidelines are ambiguous because they support both the intelprelation offered 

by [defendant] and the interpretation offered by the GovernmenL Given this ambiguity, our interpretation of the Guidelines should be informed by the 'rule oflenity.·tt Applying that 

rule. the court held that "the district court erred in interpreting 

the Multiple Counts section of the Guidelines to require 

aggregation under subsections 3D1.2(d) and IBI3(a)(2) of 

quantities of drugs involved in counts of which [defendant] 

was convicted with quantities of drugs involved in counts of 

which [defendant] was neither charged nor convicted." 

The dissenting judge found that the "Guidelines,. read in 

conjunction with the commentary sections, are not ambiguous," and the quantities could be aggregated. 

U.s. v. Restrepo. No. 88-3207 (9th Cir. Aug. 24,1989) 

'(P.regerson. J.) (Boochever, Sr. J •• dissenting). 

Other Recent Cases: 

U.S. v. Rodriguez-Reyes. No. 89-2115 (5th Or. Aug. 14. 

1989) (Reavley, J.) (agreeing with First and Third Circuits 

thatcareuoffenders under guideline § 4Bl~1 may not receive 

acceptance of teSpolLSibility reduction; agreeing with rust 

Circuit that district court may account for it by sentencing at 

lower end of guideline range). See U.S. v.Alves.873F.2d495 

(1st Cir. 1989); U.S. v. Huff, 873 F.2d 709 (3d Cir. 1989). 

U.s. v. Cain. No. 88-3917 (11th Cir. Aug. 11,1989) (per 

curiam) (count of retaining and concealing stolen U.S. Treaswy checks, guideline § 2B5.2. should be grouped pursuant to 

§ 3D1.2 with counts of willfully possessing same stolen 

checks, § 2Bl.1). 

U.S. v. Williams. No. 88-2698 (8th Cir. July 20, 1989) 

(Gibson, Sr. J.) (increase pursuant to guideline § 2K2.2(b)(1) 

for stolen flJ"Carm does not require that defendant knew 

fueann was stolen; also, conduct in dismissed counts may be 

considered for adjustments to offense level). 

U.s. v.Donatiu. No. 88CR441 (N.D. Ill. Aug. 3,1989) 

(Rovner.J ,) ("court must follow [guideline policy statement] 

§ 5KU in departing from a guideline sentence based on a 

defendant's substantial assistance," and the court "may not 

depart unless the government first brings a motion"). 

U.s. v. Lester. No. 89-I3·A (W.O. Va. Aug. 2, (989) 

(Williams. Sr.J.). (Defendant who claimed acceplance of responsibility at sentencing hearing woulli-not be given that 

reduction-he previously told probation officer he had been 

entrapped. and had told two or three different stories abouuhe 

offense. Court reasoned thaltruthf ulness and actions of defendant are factors to consider for acccpLance of responsi bililY.). 
Guideline Sentencing Update ~ s,,1IIiIItt:iIfI U,.,. will be diItzibuIed paiocIicd7'" _CcalerIO __ judp -S .... jIIdicUl "--Gi~fodaal __ ~ OIl dIe--.xinc 

n:f«mJep1atiaa Gil'" -S I'" -S die I c dn.cw,w- AIII:iGap_ pabliatiaa -7 _«10_ In 'Woo •• cw.w;..1IId JICIIic1IWaDf1111 Gi_ U.s. s.u-. 

ilia Cmwniaioa ill __ 01 JIIIIICIftIaI-IlllllliDp.Il._ ....... 1O npad $mtcaci"l C....m.ion pcIIiciaI Cll'1CIivfI:ioI. Radca -.w _crlO _GridelUa. paIit.:J 

•• ~ I I' ,*.,. -S .... 1IDIIIIddI .... ., _ ........ C....m.ion ... mc:ll1af0lllllld0a. 

PlllltiaDaaal~S ... "'" U""'~"_C-.... It ..• .....,.. .. DIe IIId ~wodt.luboIlW_be-w..s. _.I'i~tiaa .. aftidal JICIIic1 Gi_ c-. Ora ___ alJlGlic7d1e c-.1IpIIb'" dnup ill .... 

VOLUME 2 • NUldBR 13 • S8J'1'BM8BR 21. 1989 

Guidelines Application 

DETERMINING OFFENSE LEVEL 

Whea I'ads stipulated ia plea agreeIDeat estabUsb 

more serious offense thaD offense of coavlctioa, court 

should apply auJdeliDe most applicable to stipulated or· 

fense. Defendant pleaded guilty to two counts of using a 

telephone to facilitate a JI8RX)lics offense. but as part of the 

plea agreement stipulated to facts that established the IJIC:R 

serious offense of conspiracy to possess marijuana with inlent 

to distribute. In light of the stipulalion and other factors. the 

disuiCl court departed from the guideline range to impose 

consecutive 48-month terms. the statuto:)' maximum for the 

two coones of conviction. 

The Fifth Circuit atT1I'l1'led. because the district cowt 

imposed an appropriatesenrcnce cven though it did not follow 

the proper procedure. Instead of departing. the district cowt 

should have used guideline § 1 B 1.2(a). which provides that 

"in the case of conviction by a plea of guilty ••• containing a 

stipulation that specifICally establishes a more serious offense 

than the offense of conviction., the court shall apply the 

guideline in such chapta" most applicable to the stipulated 

offense." The appellate cowt detennined that aftez the sen· 

tence for the stipulat.ed offense is calculated. a district court 

"must formally implement that sentence in tenns of the actual 

convicted offense. • • • If the guideline senrence for the 

stipulaaed off~ exceeds the maximum swur.ory sentence 

for the accuaJ convicted offense •••• "the statutory maximum 

shall be the guideline sentence.· .. (Quoting guideline 

§ 501.1(a).}""Foe mulliple-countconvictions. the suidelines 

direct the court to order consecutive sentences so that the 

aggregate sentence equals the guideline sentence forthe IIlOIe 

serious stipulated offense." Guideline § SGl.2(d). 

In this case, the stalUtory maximwn for each count of 

conviction wac; 48 months. The appeUare court found that.depending on whether a two-level reduction for acceptance of 

responsibility was granted, defendant's guideline sentence for 

the stipulated offense would be 78-97 months or a minimum 

of97 months. Thus, the 96-month tenn imposcdbythe district 

court fell within the appropriate sentencing range, and the 

appellate court atrlmled: "moo district coun's failw-e to articulate its sentence in this manner did not affect any substan· 

tial right of the defendant because the sentence imposed .•. 

was pennissible under a correct application of the guidelines." 

U.s. v. Garza. No. 89-1078 (5th Cir. Sept. 7, 1989) 

(Clark, C.1.). 

Other ReceDt Cases: 

U.s. v. AIle". NO. 88-5340 (81b Cit. Sept. 12, 1989) 

(Arnold. J.)(quantities of cocaine disIributed before Nov. 1. 

1989. but not included in count of conviction. may be considered in determining base offense level pursuant to guideline 

§ IBI3(a)(2». 

U.s. v. Tharp. No. 88:1829 (Sth Cit. Sept. 12, 1989) 

(Arnold. J.) (holding that "'Guidelines are propedy applied to 

aconspiracy begun before lhe.iteffectivedat.cand ending aftez 

itj. Accord U.s. v. While, 869 F.2d 812, 826 (Sib Cit.) (per 

cwiam). cert. denied. 109 S. CL 3172 (1989). BUI se~ U.s. v. 

Davis. il(ra. 

U.s. v. Sciarri.1lo. No. 89·52.43 (3d Cir. Sept. 1. 1989) 

(Gibbons. CJ.) (usc of reliable hearsay evidence"in making 

fmdings for purposes of guideline sentencing" does not vi0-

late due process; before the Guidelines "the use of hearsay in 

the sentencing stage of a aiminaJ proceeding wac; permissible," and .. the enactment of the SenteGcing Reform Act of 

1984 requires no different rules with respcet to what evidence 

may be used in determining a senrence than were already in 

placej. 

U.s. v. Bahr, No. 88-1833 (5th Cir. Aug. 25.1989) (per 

curiam) (Guidelines' method of using drug quantity.111her 

than purity. to set base offense level not imp-oper; also, court 

may consider drug purity when deciding where to sentence 

within guideline range). 

U.s. v. Doly, No. 88-5672 (4th Cit. Aug. 2.4, 1989) 

(Pbillips.J.) (gross weight of"carricr mediums" plusLSD,not 

just weight of the drug. should be used to c:alculatc base 

offense level). Accord U.s. v. Taylor. 868 F.2d 125 (5th Cir. 

1989). 

U.s. v. St~rn. No. 89-3070 (6th Cir. Aug. 2.4. 1989) (per 

cmiam) (sentencing court not bound by govem.ment·s"concession" in plea agreement that defendant was"minol' panicipant."orbygovemment·srccommcndalionthatdefendantbe 

sentenced at lower end of guideUne range). 

U.s. v. Davis, No. 87 CR 853 (S.D.N.Y. Aug. 25,1989) 

(Griesa, J.) (under the specifIC circumstances of this case, 

where "the great bulle of the criminal activity" in multi-year 

drug conspiracy COWlt occurred before effective date of 

Guidelines. "it is inappropriate to apply the- Sentencing 

Guidelines" to that count). 

Nol ror Citation. Guideline Sentencing Update is provided for inlonnation only. It should not Ix: cited, either in opinions or otherwise. 

71 
72 

Guideline Sentencing Update 

DEPARTURES 

NiDth Circuit vacates upward departure because 

districteourt relied Ia part ODimproper Iactors. Defendant 

pleaded guilty to InU'lSpOI:1ing illegal aliensaod was scoteDced 

to a 24-m0nth 1mB, eight months above the guideliDe maximwn. Tbc disUictcourt departed from the guidclioe range 011 

the basis of a high-speed chase JnCCding meat. dcfeadaDt's 

criminal nx:ord. aod obstruction of justice by using an alias. 

The appellate court found that the high-speed chase was 

an improper ground fordeparture be<:ausedefeadant'"wasnot 

the driver and tbeae is noevideoce on the record bcfom us that 

be was JapODSibIe for this chase. " The court also held Ibat 

crimiDal bistoIy ~ a popel ground "only in limiIccl cilaunstances where the defendant's reoord is 'sipifieaody !DOle 

serious' than that of other defendants in the same caIegory." 

(Quoting guideline policy statement 14A13.) There was no 

evidence that was the case here, 

Tbccourtheld thatobstructionof justice by use of anatias 

was a proper ground for departure. but that when "a court 

relies on both proper aod improper factors, the sentence must 

be~andthecasercmanded. "Thecourtaddcd thatitsaw 

"no justification for enhancing [defendant's] guideliDe sentence by a period of more than 3 months on account of using 

an alias in the dislrict court proceedings. " and instrucled the 

disrrict court to "impose such an amended sentence upon 

remand." 

U.s. v. HeT'lllWlez-Vasquez, No. 88-5236 (9th Cit. SepL 

13, 1989) (p« curiam). 

Sixth CIrcuit amtms departure above category VI 

based OD IDadequaeJ 01 crlmlaaJ history calculatioD. Defendant pleaded guilty to two drug counts and to being a felon 

in possession of a firearm. His guideline range was 57-71 

months. based on an offense level of 18 and criminal history 

cazcgory VI. Tbc disaict court departed to impose a 120-

monch ~ finding dW even category VI inadequately 

reprcacnltd defendant's criminal history. 

The sent.encing court found that "defendaru·s violent, 

dangerous criminal history and the lenient treatment from the 

incarceradon standpoint that defendant received" for his prior 

conviclionsjustified a ~ above criminal history calCgory VI. set guideline policy statement 14A1.3. In addition, 

defendant's "record of violadng probationary requirements 

and continuing in his violent behavior against victims, women 

in particular, indicates the failure of prior punitive and rebabUitative measures, .. demonSlraIeS tbat he is a Ihreat to the 

public welfare and safety.andjusdrlCSdeparture under guideline policy stalement 1 510.14. 

The appeUate court affarmed, holding lhat"[c}leatly. this 

defendant·s aiminal history was suffICiently unusual to justify. factually and legally, the disaict court's upward departure." The coun also held that the sentence of 120 months 

"was reasonable and appropriate, considering aU of the circumstances." 

U.S. v. Joan, No. 88-3857 (6th Cir. Aug. 25, 1989) 

(Gilmore, J.). 

Volume 2· Number 13· September 21.1989· Page 2 

Other R~Dt Cases: 

U.s. v. Colon. No. 89-1141 (2d Or. Sept. 6. 1989) 

(WID., J.) (holding that "the disa'etionary failure to depart 

downward is DOt appealable" and dismissing case). S« also 

U.s. Y,Fo.ueu.No.88-3904 (11th Cit. Aug. 7,1989)(,"SeolenCing Reform Act poIu'bits a defendant from appealing a 

senllCDCiug judgc·s ICfusalIO make a dowaward departure 

from the guideline senreocing range"). 

U.s. v. Lopez-Escobar. No. 88-6157 (5th Cir. Sept. 6, 

1989) (HigginboCham\ J.) (affuming upward departure from 

guideline maximwn of24 months to stabJtory maximum of 

five years. based on large numberof al.iensin illegal immigratioa offense). 

U.s. Y. KbuuJrd. No. 88-6437 (6th Cit. Aug. 31, 1989) 

(p« curiam) (affuming upward departure 10 90 months from 

range ol63-78 months based on high purity of cocaine, Ite 

commentary to guideline 1201.1). 

U.s. v. Sharp. No. 88-5186 (9th Cir. Aug. 29,1989) (per 

curiam) (miligaling circumstances sufficient to warrant ~ 

paIt.1Ue below miDimum guideline sentence may not be used 

to justify scorenee below minimum established by Anti-Drug 

Abuse Al;t of 1986). 

U.s. Y. Edwards. No. 88-4190 (6th Cit. Aug. 21.1989) 

(p« curiam) (upward departure not warranled by disaict 

court's "unproven suspicion" chat defendant was pan of a 

larga' liaud scheme, and that more money was involved in 

offense than was ref1ectt4 in guideline computation; DOl' is 

depanure wan:antcd by defend8nt·s refusal to assist authorities in identifying other persons involved in alleged scheme, 

Ite guideline policy statement 1 5K1.2). 

U.s. v. ColICtpcion, No. 88CR.0607 (S.DN.Y.Aug.17, 

1989) (Sweet,J.) (Departultl was warranted"in view or the 

unusual circumstances pmsented by a re-seatencing [under 

the Guidelines] that follows upon a defendllll·s sadsfacaory 

completion of a prison term" imposed by a court that had held 

the Guidelines unconstitulional. A rille of $2,000 was imposed. in lieu of additional prison dme called for under the 

Guidelines. in light of defendant's sucx:ess during probation: 

"TheavailabUity of such post-incarceration information in the 

context of re-sentencing is a circumstance of a kind unanticipaled by the Sentencing Commission. "). 

Sentencing Procedure 

u.s. v. Rutrtpo. No. 88-3208 (9th Cit. SepL 12. 1989) 

(Wright. Sr. J.) (no due process violadon to put burden on 

defendant to prove that rarearm was not connected with drug 

offense so as to avoid weapons enhancement under guideline 

1 2D1. 1 (b)(l». kcord U.s. v. McGMt. No. 88-5878 (6th 

Cir. Aug. 18, 1989) (2 GSU 1#12). 

U.s. v. Davenport, No. 88-5661 (4th.Cit. J\JJg. 28,1989) 

(Chapman,J.) (defendant, not the government. has the burden 

of proof when chaUenging the constitutionality of prior conviction used to enhance prescnt Guideline scnlCnce). 
Guideline Sentencing Update 

VOLVMI 1 • HUMBlIt 14 • 0cr0.1It 6, 1989 

Guidelines Application 

DETaMINlNG OFFENsE LEVEL 

D.c. CJreuJt IIoIds cUsarIct COUI1I haw dlscredoa to 

review drcu· ..... fIIprlor coavlc:doDl that _, place 

deteudaDt Ia career oft'tDder sCatal. Dcfendanl claimed be 

was improperly designatcdacarc«offenderunder the Guicfe. 

lines becausconcof abe two prior convictions required f(l' that 

SIalUS was nota "aimcofviolence" in DJinois. theaare where 

he was c:onvicted. The offense. robbery, is listed as a crime of 

violenceintheCommenrarylO guideline 14B 1.2, Application 

Note 1. The sentencingjudge "apparently believed that he did 

not haw: discretion 10 review the facts" of that offense and 

sentenced defendant as a career offender. 

The appcllalc court reminded tor resentencing, holding 

thata sentencing cowt "'retains discretion 10 cuminc the facts 

of a prcdicatc crime 10 determine whether it was a ai!llC of 

violence nolwilhs&anding Ihc Commenrary 10 the guidelines' 

predctennined list of crimes which it considers to becrimcs of 

violence." In this case. c1a.c;sifying defC'.1ldant "'as a career 

offender based on statutory characterizations ofbis previous 

crimes may be impoper if an analysis of the facts demon· 

sttaICS lhaubey WCR not in factcrimcs of violence •••• [l]tmay 

be appropriaIe, as provided by the guidelines, for a district 

judge 10 depart from the guidelines' StalUtory derwtion of a 

particular crime depending on the facts of the case." 

U.s. Y. Bddll. No. 88-3102 (D.C. Cir. Sept. 22,1989) 

(Will, Sr. DJ.). 

Other ReaDt Cases: 

U.s. Y. Darlld. No. 89-SOSO (8th Cit. Sept. 28,1989) (per 

curiam) (WIder guideline I SO 1.3, scntcnc::e for guideline 

offense that also served as basis fer parole revoc:ation on 

earlier offense must be served c:onsecutively to the prior 

unexpired sentence; revocation of parole and resulting reincan:eradon OIl earlier offense did not '"arise out or the same 

uansacdons or occurrences" as the present offense so as to 

wmant concurrent sentences under I SOI.3). 

U.s. Y. SmUll. No. 88-6115 (6Ib Cit. Sept. 28, 1989) 

(Ryan, I.), rrig U.s. Y. Smltll. No. 87·202194 (W.D. TeDD. 

Aug. 26.1988)(1 GSU IHS)(in determining sentencing mnge 

fordrugoff'ensecommiued before Ian. IS, 1988amendmcnts 

10 Guidelines, district court erred in refusing 10 consider drug 

quantities charged in a count dismissed under plea bargain). 

U.s. v. Boyd. No. 88·2632 (5th Cit. Sept 27, 1989) (per 

cwiarn) (defendant "cannot base a challenge to his sentence 

solely on the lesser sentence given ..• to his codefendantj. 

DEPARnJRES 

Eleftllda Clrcalt IaoIds departure •• , be based OD 

qaaDtilJ 01 ctrap •• ple pOll .. oft'eue IUId OD role 

Ia oft'ease dalt leU IIaort fIIpldelilae I 381.1 defIDitiGL 

Defendant wu iDdic1ecIlcr coaspialcy to cliSlributc coeaine. 

but plod guilty 10 simple poaessioD of cocaine. Her guideline 

ICDtcacing ruge was 0-4 months. The sentencing court 

impoIccIlII ll-mond1l1eD1enCe. finding Ibat tile amount of 

cocaine In defendant's possession and her mte In the offense 

were notadequaldy accounted f«in the guidelineeompuaadon and warranted III upward departure. 

The appellate court held thal"the disttictcoun did DOteii' 

in considering the amountofoarcoticsposscsscd by appellant 

in dceiding whcdlcr 10 depart fmm Ihc guideline senteocing 

mngc. "The court agreed with Ihc RaSODing in U.s. Y. Ryall. 

866 F.2d 604 (3d Cir. 1989), which held dat Ihc Guidelines' 

listing of quantity as a specific offense characteristic f(l'some 

drug offenses. but not f(l' simple possession, docs not proclude courts from using quantity to detamine whether depart 

ture was W8I1'8JUed in a drug possession ~ Su also U.s. Y. 

Correa.Vargas. 860 P.2d 35 (2d Cit. 1988); guideline policy 

swement I 5K2.0. 

The court also held that the sentencing court was not 

"precluded from considering a defendant's role in Ihc offense 

merely because bet acIion did not rise 10 the level of an 

aggravadng role, as defined by guidcUno 3Bl.1." The court 

agreed with the Fiflh Circuit that "(s]eotencing under the 

guidelines is not ••• an eucl science" and that the "guidd.incs 

are DOt intended to cover all contingenclcs (I' rigidly bind 

dislrictjudps.-(QuotingU.s.y.MejUJ-Orosco.867F.2d216 

(5th Cir.). cen. deified. 109 S. CL 3257 (1989).) 

U.s. Y. Crawford, No. 88·3993 (11th Cit. Sept. IS, 1989) 

(Tjof1at. I.). 

ootr Rectat Cases: 

U.s. Y. ANWIOII, No. 89-1203 (Sib Cit. Sept. 29, 1989) 

(per curiam) (vacating departuJe from criminal history ~ 

gory IV 10 VI becausedislrictcoun""failed IOcompare [defendant's] bisr.ory 10 lhal of 'most defendants with a [c]atcgory 

[VI] criminal bislory'· pursuant 10 guidelinepolicy statement 

14Al.3, "Ihc procedure required for depanurej. 

U.s. Y. Jadcsoll. No. 88·8470 (111h Cit. ScpL IS, 1989) 

(per curiam) (afTuming upward departure in aiminal history 

from C8tegCX'Y m 10 IV because criminal history score did not 

reflect seriousness of defendant's criminal past-two prior 

anned robberies. commitled separately but tried together. 

were counted as one offense under Guidelines). 

Not ror Citation. GuitkliM ~lItellci", Update is provided for information only. 11 should IIOl be cited. either in opinions or OUIC:twUe. 

73 
74 

Guideline Sentencing Update 

Sentencing Procedure 

u.s. Y. /ad:soll. No. 88·1686 (7th Cir. Sept. 25, 1989) 

(K.anne. J.) (boIdjng there is '"no sixth amendment right 10 

assistance of counsd at a present.encc interview conducted by 

a probation offlCCl'j. 

Appellate Review 

I1nt Circuit estabUslles policy of sum...., I'ftIew '01' meritleu appeals ~ pldeliDe MDteDCeL Defendant 

set forth seva'll claims of error on appeal of his guideline ~ an of wbida the appeUatc court found. Mallopaber 

meridess.. NodD& tbat the Senrcncing Rcfonn Act and the 

GuideUncs wiUlibly rauIt ill an increase ill such appeals. 

pardy because dofendanlS have "IiUJe to lose by II)'ing. " the 

court sot forth • policy of review for appeals of guideJ.irJe 

sentences: "To the extent chat such appeals raise valid questions. we will respond in kind. On theolher band. if a criminal 

defendant proICSIS his innocence merely because he has time 

on his hands. and wiahout any supponable basis in law or 

facl-4S in thiscasc-we will henceforth respondsununarily. 

Sentencing appeals prosecuted without discernible rhyme or 

reason. in the tenuous hope ahat Iigblning may sttike. ought 

not to be digniflCd with exegetic opinions. inlricale factual 

synlhesis. or full-dress expUcations of accepr.ed legal principles. Assurdy, a criminal defendant des«ves his day in 

court; but we see no purpose in wasting ovcnaxed judicial 

resources razing castles in the air." 

U.s. Y. RIIh..()QI'da, No. 89·1S17 (1st Cir. Sept. 28, 

1989) (Selya. J.). 

Constitutionality 

Teatb Circuit flDds DO double Jeopardy "riolatioa In 

prosecuting de!eDdaDt 'or c:rime that was preYiouslJ used 

to eDbaDce seDteDce tor a difTereDt oII'ease. Defendant was 

indiCled in Utah on drug and fueann charges. He had previousJy been convicted in South Dakota for a different drug 

offense, and his scn&cncc for ahal crime was panJy based on 

evidence of odler alleged crimes, including the Utah offense. 

Defendant ctabned that the Utah prosecution would Yiolal.c 

double jeopardy and the SenleDCing Guidelines because tbc 

cooduct underlying tbc Utah offense had already been used to 

cnbance his South Dakota semcncc. 

The appeUate court held Ibal "t]he Double Jcopan1y 

Clause's ban OIl multiple prosecutions for the same offense is 

notimplicaledherebecause defendanlis not now facing a Iria1 

in Utah for the same offense forwhicb he previously has been 

convicted. in South Dakoca. The Utah offense and the South 

Dakota offense are differenL" Furthermore, abe South Dakota 

sentencing hearing did not c:onstilUlC a proseculion for the 

Utah offense: "Althougb abe South Dakota disUict court 

inquired into the Utah offense during the sentencing bearing 

and made fmdings concerning it. at no time was defendant in 

jeopardy for the Utah offense. Rather, defendant was only 'in 

jeopardy' of receiving a harsher sentence for the South Dakota 

offense than he otherwise would have received." 

Volume 2 • Number 14 • Od.ober 6. 1989' Pqe 2 

The cowtalso found nothing in the Guidelines precluded 

a defendant', subsequent prosecution for a different offense. 

U.s. Y. Koonce. No. 89-4013 (10th Cir. Sept. 25, 1989) 

(EbeI.J.). 

District court IIoIds "substaDliaJ assistaace" pron. .. \'IoIatedue process. Evidence prcseD&edatthe sentencing bearing cs&abIishecI tbaldefcndantbadcooperaled with tbc 

gowmmeat and provided imporlant tcaimoDy ata c:odefendarn', trial. 'lbe go\'UIUDCJU did not move for a R:CIuction of 

scntcoce und« eitbei 18 U.s.C.§3SS3(e) or I SKU oftbe 

Gllidelines. Tbe court. however, ruled that dcCcndaDt bad 

povided "suhslandalassislance" within the meaning of tbc 

SlalUlC and guideline. reduced defeodaDt'. seDIIenCe below 

tbc scalUla)' minimum and guideline raqe. and beJd the 

sIab.JIOI'y and guideline provisions uncoosdtutional. 

Tbe court held that tbc provisions vioIare subslantivc due 

process because only the government may present evidence 

on this issue: 1,W]beIe a statute like 18 U.s.C.§3SS3(e) or a 

regulatioD like § SK 1.1 withholds from thedcfendant the Daht 

to present to tbc court an issue so intimately rcIalcd to the appropriaI.e length of sentence. then such a statute or reguladon 

must be struck down as fundamentally unfair •••• Eilhet side 

must be able at Jeast to raise the possibility ofadownward departum for c:oopcralion." 'lbe court also noted it could not 

raise tbc issue sua sponte. with the msult Ibalin cascslike this 

"the provisions require the Court 10 ignore faclS of which it 

already bu knowleclgeand whicb are indispulably relevanL" 

In addition, abe provisions violate ~ due process 

because tbc procedure "'is lipped too far in favor of tbc 

Govemmcnt" and is therefore "inherendy unfair." 'lbe court 

IeCOgI1ized ahat "defcndanls bave no inherent right 10 the 

availability of tbc ·substandal assisIance' provision, but once 

tbal provision is made available to me party to the Uligation, 

due prcK:OSS rcquiRs daat it be made available to all parties. .. 

The provisions also violate due process by "den[ying] to the 

Defendant an opportunity 10 contest the fadS relied upon by 

the Government in deeiding not 10 move for a cIepartme. It 

also apparenlIyoffersa defendant no opportunity IOcballenge 

the dcci.sion." 

Alleast two appe11a&o courts bave apcciflCllly upheld 

these provisions against due process cbaIlenl1 S« U.s. Y. 

Hwrta, 87S F.2d 89 (2dCir. 1989); U.s. l'.A)WZG,874F.2d 

641 (9tb Cir.1989). OIhtzeouns have qucstic.Ded or limiccd 

tbc requirement d1at no rcductioD in IIeDfIeIICe may be 8JUfCd 

absenta motion by the govemment. See, e., .. U.s. Y. /astice, 

sn F.2d 664 (Sth Cir. 1989) (expressiDB c:oacans about 

requirement for mocion by government); U.s. v. White,869 

F.2d 822 (Sth Cir. 1989)(1 SK1.1 "doesn-' preclude. district 

court from entcnaining a defendant's showing tbalthe govemmentismusingtorecognizcsucbsubstantialassisumcej; 

U.s. Y. GtIliJII. No. 89 Cr. 198 (S.D.N.Y. JImC 8, 1989) 

(where plea agreement stares govemmeftl.will make I SKU 

or § 3SS3( e) motion if defendant cooperates. refusal to move 

for reduction must be made in good faith). 

U.s. v. ClUTiJII. No. 88-10027-02 (C.D. Ill. Sepl 29. 

1989) (Mihm. J.). 
Guideline Sentencing Update 

GwiM/iItIIs-.1IdIof u,.... wiIlbc~paiocIiaIll1"'''C-to __ jD4pIlDd'''''judiciaI ...... m''''''focllnl_~aetbo~ 

__ ~ml9141Dd19111Dd"S.t t ,Clq!!Wirw AldIGuP .. ,. ........ IUJ __ to .. S ... ~lDdpoliq ......... m .. U.s,s--,.. 

illl&C 'Id " .... _flL ...... _ .................. tollllpGl& s..da&0 -.paIic:i.-_lICIIiIriIiIL .......... "'.to .. lJIaI. I' .poIiq 

ARc==n. .., ................ .., .. ' ..... 0 i' ...... Walllilli" 

~flLo..r.w.S.'..., U,.... .......... c... ......... PllplldNt ............... " .... bc ............ 'Ii ....... CIftidal ,..,m .. c....O'_fII,.., .. c... ...... .., ......... ..... 

VOLUMa 2. NUlBBR 15 • Ocroaaa30.1989 

Guidelines AppUcation 

DETERMINING OnrENSE LEVEL 

ElPtb CImaJt .. aids dud poI1ioD rI "faUare to .. 

port" pldellae YIoIaCesltataforJ .... date. DefCDdantwas 

sentcuccd to .. 18-monlh prisoo. tenD 011 • drug conW::tian, 

butfailed to repon to prisoo.. Sbepled guilty to a chargeoffailme to surrender for service of sentence. Tbe applicable sen· 

aenciDg pidclinc. I 211.6, requm an increase in the base 

offense levcl of six based upoo 1be maximum stUutory pco--

ally for the underlying offcoso.ln thiscasc the maximum was 

15 years or mc:n.zesulting in an offcosc Icvcl increaseofninc. 

Defendant argued 011 appeal that 1be guideline violates the 

Senaeocing Rcfcxm Act by failing to coosider 1be actual sen.. 

teace imposed for 1be underlying offense.. rather than the· 

maximum poIaJtial penally. 

The appeUaIC court agreed: "Section 211.6 ignores the 

signiflClDl differmc:c in cin:umsIances between failing to 

reportfor trial or sentcocing. whcna~ possibililycDsts that 

the maximum sent.mcc will be imposed. and failing to report 

for seniceaftersenrencing where the sentence to be served is 

but a fractioa of the maximum. ~ language of [18 U.s.c. 

I] 3553 to consider the n8Iure and cin:umsIances of the 

offense and to impose a scntcncc that rdleclS the seriousness 

of the offense. and thelanguagcin [28 U.s.C.ll 991(bXl) Ibat 

the sentcocing pacticcs provide cettainty and fairness. aVoid 

unwarranted ICnIencing disparilies. and consider mitigating 

factors. canvinccus that Congress intfDded courts toconsidet 

this significant diffm::acc when sentencing a defendant for 

failure toappcar •••• Wc therefcxe hold that the application of 

section 211.6 in this case is not sufficiendy IC&'KlO8bIe and 

violates the statutory mandaIc given to the SenteACing Commission. Wc conclude Ibat the appropiar.c remedy is to 

invalidale the application of section 211.6 insofar as it deals 

with a defendant·s failure to appear after a seatencc has been 

imposed that is but a rraction of the maximwn. This will 

necessitate resentencing as if there were no guideline applicable to this offense. -

U.s. v. 'ue. No. 88-5292 (8th Cir. Oct. 16, 1989) 

(Gibson, J.). 

Under U.s.S.G. f IBl.8(a) district court may not, 

wben determining guideUne range, use inc:riminating 

statements made pursuant to plea agreement unless the 

agreement so provides, Tentb Circuit bolds. Defendant's 

plea agreement stipulated that in return for her cooperation in 

the investigation of other drug suspects she would "not be subject toadditionaJ federal criminal prosecution for crimes commitred in this judicial disIrict. "but it also had a disclaimer dial 

whDc the govemmcnt 1VOUld infcxm the c:oartofhercoopemUoa."[s]eateACingwilrlemaiDin thesolcdiacmionofthetrial 

court." Self-incriminating iDformaIioo tbat defendant pr0-

vided to 1be government was mentioned inber'paentenccmpon.and theCOUlt usedil to inm:ase ber'offmse 1cvd. DefendantarguedOlllJlPCallbatunderU.s.s.G.IIBI.8lbedislricl 

court should DOt have used this information in senteACing. 

Tbe appellate c:oart agreed. Section IBl.8(a) reads: 

"Where a delCDdantagrces to cooperar.c wiIb 1be goyamneot 

by providing information cooceming unlawful activities of 

ochen. and the govanrneat agn:es dial self·inaiminating 

information 10 provided will not be used apiDst die deleadani, then such informadoo sbaI1 not be used in decamining 

the applicable guideline range. except to the alent provided 

in tbeagrecmcnL "Tbecoart held that the laDguageof1bepiea 

agreemcot bcIe was sufflCiCDt to invoke the I'CStI'iaion in 

liB l.8(a). Tbec:oartalsoDOCed that "we believe dlelanpage 

and spirit of GuiMliMS I IB 1.8 require'die agreement to 

specifically 1IlCDIi0ll the court's ability to consider delcodant's disclosures during dcbriefmg in caky181ing the appropriatcsentenciDgangebcfcn1beCOUltmaydolO. "Ooeofthe 

advanCagcs of I IB1.8. to "assure porcntial infonnancs that 

their StatcmeDIs will in DO way be used ap.iJIst tbem." would 

"be Wlden:utifwealJowambusbbybroadlywordcddisclahnera •••• Tbc full disclosure appoacb we requile bcrc will 

easuredefendants arc DOt unfairly surprised -by sentencing 

dett:nninations and will aDow both the delendant and the 

goYel1UDCllt to bargain wi&h run infonnatiOD." 

U.s. Y. Shoneetll., No. 88-2853 (10th eir. Oct 10. 1989) 

(Logan, 1.). 

Eigbth Circuit adopts narrow dellDltIcMa 01 "subsCantial portion of bls iDc:ome" III Criminal Uve1ibood guidetiDe; impending pldeUae JUDendmeat bas similar effect. 

Defendant earned $450 from his criminal activities out of an 

annual incomcof approximately $1.525, and 1bedislrictcoart 

detennincd that this constituted a "substantial portion of bis 

income- undtz the Criminal Uvclihood provision. U.s.s.G. 

1 4B 13. Tbc appcUare court reversed. bolding Ihat because 

the "substantial ponion"language was derived from the Dan· 

gerous Special Offender statutes. 18 u.s.C.I 357S(cX2) and 

21 U.S.c. 1 849(c)(2). the defmition from those statutes 

should apply to this provision. Those statures defmed "substantial source of income" as an amounUhat exceeds the 

yearly minimum wagc under the Fair Labor Standards Act and 

also exceeds balf of the defendant's declared adjusted gross 

income, The current yearly minimum wage is approximately 

Not for Citation. GWdelw S,Il/,lICing UpdIu, is provided ror information only, It should not be ciled, eilhcr in opinion, or otherwise. 

75 
76 

Guideline Sentencing Update 

$6,700. the court found. and thus abe Criminal Livelihood 

provision should not have been applied here. 

A coacuniDa OPiDioa noted that I 4Al.3 bas bccD 

amendcd. effective Nov. 1, 1989, toIaCha similaraaulL Tho 

relevant language DOW reads: "1fthe defendantCOllU1liUcd an 

offense as pan of a paItem of criminal conduct engaged in as 

a livelihood •••• "The commentary to the guideline statt.s Ibal 

"engaged in IS a livelihood" means Ihat the defendanteamed 

iD:omefrom tbccriminalconductinexcessoftbcycadymioimum wage and '"1bat such criminal conduct was the defendant's primary occupation in that twe1ve-montb period." 

US. Y. HolMr, No. 88-2648 (Bth Cit. 0cL 4, 1989) 

(WoUman.J.). 

Other Receat CUe: 

US. Y. Luper, No. 88-3726 (11th Cir. Sept 29,1989) 

(peI'curiam)(remandingf(]l'resentcncingbecauseoatbefacts 

of this case. offense leveleobancement fOl' "substantial inletference willi the adminisb:aIion of justice .. under peri..,. 

guideline, U.S.s.G.I2Jl.3(b)(2), should notbeappUed when 

c:onduct in question occurred before and did not reJaac to· 

offense of conviction; this positiCIII was taken by Dcparunent 

of Justice on 8RJe8l. and the appellate court agreed). 

Volume 2· Number IS • Oaobcr 30, 1989 • Page 2 

Appellate Review 

DEPARTURES 

Sneath Circuit balds It bas DO Jurisdictioa to review 

refusal to depart. Defendant pled guilty to a charge of bank 

tiaud. He requesled. a downward dqtadure iIll)j.s .sentence CIII . 

the grounds Ibal theIe were mitigating factars present in his 

case Ibal wtzC not adcquaIdy consideRd by abe GuideIiaes. 

The district court refused to depart. flDding Ibal the facrors 

defendant raised were "considemI in abe guideline range.. .. 

Tho appcJlaIc c:omt held dial it did not have jurisdiction 

to review a disaict court's refusal to depart from die Guide-

. lines. The court detamiaed that 18 U.s.C. I 3742(a) conbOlIcd appel1are review of sentences UDder the Guidelines. 

WbiIc subsecdm (2) of that statute "seems to support appellate review of a refusal to depart from Ihc guiddines" when 

read.1itera1ly,thecourtconcludedlbal"'tbcSUUClUreofaection 

3742 IS a whole" and Ihc legislatiw history lead to the c0nclusion "'lbat Congms did not intend a disarict court's'decision refusing to depart from abe guidelines to be appealable." 

Thec:ounnotcd Ibala simiJar decision wasrcacbedby abe 

Second Circuit in US. Y. Colon. No. 89·1141 (2d Or. Sept. 6, 

1989) \the discretionary failure to depart downward is not 

1 DEPAIlTUllES lC' appealablej. and that a "compauole" decisiCIII was reached 

by abe Ftfth Circuit in US. Y. Buenrostro. 868 F.ld 135, 139 

First CIrcuit balds departure may DOt be based OR (5th Or. 1989) ("we will uphold a district court's refusal to 

"commuaitJ seatimeat. "The dislrict courtdepancd upward depart from Ihe guidelines unless abe refusal was in violation 

in sentencing a defendant convicted of possessing cocaine CIII of lawj. The court "agreC[d] with Ihe Fifth Circuit that. when 

boardanain::raft.TheCOUltfounddepar1urewaswarranted"to a disarict court's refusal to depart is in violation of law, "'; ......... _- 01.- u":':-·:- of ..... 1:1.. __ Rico International ................... IIIW uu..wIUUIl IIIW n ..... w appelJat.ereviewofdlaldecision is available-under 18U.S.C. 

Airport. an airport with J.essez law-enforcement capabilities I 3742(aXl)." See also US. Y. Fosse«. 881 F.2d 976, 979 

than those in the mainland. as a connecting point fOl'intema· . (11th Cir. 1989) (claim that "district court did not believe it 

lionaI narc:odcs trafficking: and because of the SIrong ~ . had abe stalUtoIy authority to depart from the sentencing 

public sentiment against this type of offense. guideline range •.. presents a cognizable claim on appealj. 

The appellate court remanded. holding that "Ihe guicte:. US. Y. Franz. No. 88-2739 Oth Cir. OcL 4, 1989) 

lines do not allow departures fOl'reasons such as these. The (Ripple. J.). 

basic flaw in lhedlstri.ctcomt's reasoning is thatitdependse. 

tirely upon the mae commission of abe offense of conviction. 

••• Because abe pounds fOl'depanure derived their essence 

from the offense itself, DOt from idioc::ralic: circumstances attendant to a partk::ular defendant's commission of a particular 

crime, Ihe grounds, virtually by defmition, fell within abe 

heartland" of typical cases encompassed by the Guidelines. 

The court also detcnnined that deparIuIes based on local sentimentare inconsistent with the stabJtoIy language,and would 

undenninc the goal of "national uniformity in sen&encing." 

US. Y. AguilDr-PeIIQ. No. 88·1477 (1st eir. 0cL 12, 

1989) (Sely&, J.), rev' g 696 F. Supp. 781 (D.P.R. 1988). 

Other Recent Case: 

US. Y. Warurs. No. 89-2155 (5th Cit. Sept. 29, 1989) 

(Garwood,J.) (departure may be warranted for defendant convicted of misprision of conspiracy if facts demonstrate defendant was member of conspiracy and guilty of that orrense-

"[aJ misprision defendant's personal guilt of the underlying 

offense is ... a circumstance not taken into account in formulating the misprision guidelines under section 2X4.1"). 

Fourth Circult appUes "reasoaableaess" standard ia 

review of refusal to make departure permitted by 

Guldel1aes. Defendant requesled.. and was denied, a departure based. on a claim Ibal be acted under c:oeId.oD (]I'duress, 

a departure speciflC8l1y listed in U.S.s.G.1 SKl.12,p.s. The 

appeIIare court determined that '"where abe defendant challenges a district court's decision to grant or deny a requested 

downward depanure" it would "review todetcrminc whether' 

.it was 'reasonable' f(]l' abe district court to conclude that 

[defendant] did not act under' 'coercion' or 'duress.' and that 

be thelefore was not eligible for a downward departure under 

Guidelines f SK2.12. See 18 U.S.C. f 3742(eX3)."Thecourt 

affirmed abe refusal to depart. 

US. Y. McCrary, No. 88·5698 (41h Cir. Oct 16. 1989) 

(per curiam). 

Note: Beginning wi!.h !.his issue of GSU we will use the 

recommended citation fonns found in United States Sentencing Commission, Guidelines Manual (Nov. 1989). 
Guideline Sentencing Update 

VOLUWI 2 • NU'MBlIt 16 • NoVBMBBIt 22, 1989 

Guidelines Application 

DETERMINING OFFENSE LEVEL 

Other Receat Case: 

D.C. Clrcult holds oII'ease level iDcrease tor fireanD U.s. Y. Whit4. No. 89·1313 (7th Cir. Oct. 25, 1989) 

possessIoa IUJDOt 1M! applied abseDtslaowlDgfJIsdeater. (Eas&edxoot.J.) (Wbca drug amounts from Iq)IInde cnmsacDcfeadant pJed guilty 10 possession ofheadn willa huent 10 1iooI_ canbIDed aadcr 11BI3(8)(2) to set oft'ease Je'Vd, 

distribute. He bad IlaveDcd by train wicb the beroia III a tofc the"'(S]enleacemustbebesedOilthesalcsthatwaeputofOllO 

bag. The police also discovered a gun in die bag. Defendant -common scbemo or plan' (such as a single c:oaspiIacy) or a 

claimed be was unaware that die gun was in die bag. aDd single -course of conduct' (die unilateral equivalent 10 the 

argued Ihat die court should not apply die incIease under coaspiracy).Offeasesofdlesamekind.butnotellCCJlDp4lSsed 

U.s.s.O. § 2Dl.1(b) unless he had knowingly possesSed iL in die same caunc of coodUCl ex' plan. are excluded.--Court 

The sentencing court did, however, and defendant appealed. also advised dislrictcourts 10 "marshall their findings and n:aThe appcDate cOutt. DOling Ibat "[tllle United Slates sons in scntenc:ingcase.s in the same way they do wbenmaking 

conc:eded at cnl81p1lf:1ltlhat § 20 1.1(b) sbouJd DOt be read cnI findings and cooclDSians undec Fed. R. Civ. P. 52(a)."). 

10 apply in the absence of scieutec: reversed and IaD8Ildcd. DEPARTURES 

The c:oan c:oocloded Ihal wbile 1 201.1 "'is sileot as to scieacer: language in 11BI3(a) regarding specific offense TbIrd Clrcult bolds that Jury's rejectiOD of coerdon 

charactcristics"suggesaslhaladefcndant'smentalsr:aaemnst and duress defense does not preclude departure under 

be lakeD infO accounL 10 U.s.s.G. I SK2.12. Defendant was coovicted by a jury of 

TheCOW'tCODSttued § IB1.3(a)(3) 10 mean that "the sen- baDt robbery offenses. The vmiict indica&ed that the Jury 

tcncingjudgesboulduppadethescnteaccofadruadefendant rejected her defense that she was forted to commit the 

who possessed a dangerous weapon or firearm whenever it is crimes because of the c:oeIdoa and duressJmposed by f.'M) 

found that the defendant possessed it "inrcntionally. reck- codefendants. At sentencing the district c:omt indicated it 

less1y or by criminal negligence.'" This standard applies Ihought a departure under 1 SK2.12 was wauanted, but 

M(i) where it is shown Ihallbe defendant knew that he was in declined 10 depart because that would have been inconsisacnt 

possessioo of a ~ or (ii) where there is insufficient with the jury vmiicL 

prooflO showlbat the defendant knew be was in possession of • The appel1atccomtrcmanded. Section SK2.12 provides. 

aweapon.bulitissbownthatpossession wasavoidablebutfor ID part "If the defendant coounitted the offense because oC 

die defendant's reCkJessness or aiminaI negligenco. • serious cocrdon • • • or dwess. under circ:umstances DOt 

The c:oan swed that "'possession with pool of knowl- amounting ~ a complete defense.1he court may decrease Ihe 

edge-lncludesbothactuaIand"construedveposscssion. -and senlalCC below the applicable guideline range.- The COUll 

Ibat fa either case ""the Government must show possession of held that"sccdon SK2.12 mates it clear Iha& the Commission 

a weapon in reasonable proximity 10 the scene of the drug inraldcd 10 povide for a downward departure in some _-

transaction. "In a case oC"possession without proof' ofknowl- ations where die evidence of coercion does not amount 10 a 

edgelOthe gowmment must prove that. "in addition to having complete defense. Indeed. in situations where the coercion 

dir~ct playsictll cOlllrol of the weapon. the defendant falled 10 does amount 10 a complete defense. the defendant would be 

takcn:uonablcSIqJSlbatwouldhavediscloscddleweaponin acquiUcd." Thus the puvision must be read"as providing a 

question.1O (Emphasis in original.) broader standard of coercion as a sentencing factor than coerOn 0Iher issues. the court held that the application oC cion as req~ 10 puve a completcdcfensc at trial "and"lhe 

§ 2Dl.l(b) ffiJ IlOlcontingenton a fmeting that the gun ••• was disttict court has rhe power 10 depart if [def~tl proves 

operable" or "'that the defendant used the fRaml or would coercion or duress by a preponderance of the evidence. -

haveusocllhefuearm 10 advance the commission of the under- U.s. Y. CheDpe. No. 89-3207 (3d Cir. Nov. 14, 1989) 

lying drug offense," that facts necessary Cor senrcncing may (Becker. J.). 

be proved by a preponderance of &he evidence, and that"inso- Eleventh Circuit upbolds criminal history departure 

Caras § 20 l.l(b) relates lOa matter that wouldenhancc the de- to career offender status where consoUdatign ofprior CODCendant's sentencc, the burden of proof is on Lheprosecution." victions underrepresented defendant's criminal pasL 

U.s. v.Burke. No. 88-3179 (D.C. Cir. Oct. 31.1989) DeCendantpled guilty to CourcountsoCbank robbery and one 

(Edwards. J.). escape count. In 1982 he had pled guilty to four bank robberies 

Not for Citation. Guid~/ilU &lIt~"ci"g Updatt is provided ror information only It $hould not L_ CI't-~ e·· L • .... ""'. .u.cr 111 • optnton$ •• or ou.erwlSe. .L· 

77 
78 

Guideline Sentencing Update 

in two different states. The earlier robberies had been com· 

bined for senlenCing under Fed. R. erim. P. 2O{a), and as a 

result ~ fn*ed under U.S.s.G. § 4Al.2(a)(2) as one 

sentence in the criminal history calculation (or the current 

seoteocing. The district court (ound Ihat the rcsult.ing 

criminal bistory score inadequalCly R'oprCSeIlted defendant's 

past and likely future criminal conduct. concluded Ihat defendant should be treated as a C8RlCl offcodcr, and departed 

upward to impose a 262-mootb senteoce. 

Theappel1arccourtaffumed,boldinglhatcle:partwewas 

juscifJCd despite the IaDguage of § 4AI.2(a)(2): "We do DOt 

~ dJat the Commission inIended that someone wi&b a 

history such as [dofendantts) sbouIdbe~. baYiDgoaly 

one prior COIl'Yicdoa. aoleIy because he is permitted 10 I8ke 

advantage of Rule 2O(a)ts poceduraI dovico.. The c::owt 

DO&ed thai Application Note 3 of § 4AI.2 ~ tbal 

sttict applicadoo of the !dated case aifCria may DOt properly 

relIecta defendant's aiminal history ,-and sw.es Ihat in such 

a case "die court should c:cnsicb whether cIcpal1JR is warranted. ·In addition, § 4AI3 sw.es Ibat .. departure under this 

provisioo is warranted when the aiminal history category 

significandy underrepIesents the saiousness of cbe deleodanl's ai.minal history or the likel.ibood Ihat the defendant 

will commit furtbeI" aimcs. .. 

US. Y. Dorsey, No. 88-8442 (1l1b Cit. Sept. 29,1989) 

(Roney. Col.). 

District court holds departure warranted where dereudaat lacked knowledge or 01' cootrol over size of drug 

tnmsactioD. Defcndantpled guilty to conspiring todisUibute 

cocaioc; be bad aBowed his apartment to be used to stole 

cocaine in mum forpaymcnlof hisrcoL Thec:ourtdctcrmincd 

Ihat defendant was eotided to an offcosc level rcducCion as a 

"minimal participant.. U.8.s.G. § 3BI.2(a), thus lowering 

the guideline range from 41-51 months to 27-33 months. 

The court imposed a sentence of 18 monlhs. however, 

rmding departure was warranted under U.s.s.G. § SK2.O 

because "die Guidelines do not sufficiendy consider the fact 

Ihal defendant had 110 knowledge oC, and played 110 role in 

determining. the size of the dlUg cnmaction in which be 

participaIed. As a result. the Guidelines ovttStatc lhc severity 

o( defendant'soffensc condUCL" The cowtreasoned thatdrug 

offenses"are graded under !he Guidelines stricdy on the basis 

oC the quantity/weight oC the dlUg in question: and thus "die 

applicable base offense level is wholly unaffected by the 

degree to which lhc participant had knowledge o( lhc size ascope of the drug transaction." 

In a case where a defendant "had no knowledge o( or 

control over Ihe quantity o( dlUgs involved. nor stood to gain 

anything more (rom a larger rather than smaller transaction, 

predicating a sentence so predominantly upon drug quantity 

may result in punishment unfiuing o( the crime ••. notwith· 

standing lhc availability ••• o( a (our point adjustment (or 

'minimal offense role.'" That reduction, "designed to assist in 

evaluating the severity of offenses of every nature descnOed 

in the Guidelines-gives insufficient consideration to the 

significance in drug offenses of a panicipant's lack of know 1-

Volume 2 • Nwnbcr 16· November 21,1989· Page 2 

edge of Of' stake in the scope of a transaction, in view of the 

weight-driven system of grading such offenses." 

U.s. v. BalisuI·Segura. No. S 89 CR. 371 (SD.N.Y. 

Oct 19, 1989)(Sweet. J.). 

District court holds successful rebabWtatioD 01 drug 

addict warranted departure. Defendant was (ound guiltyoC 

selling a smaU amount of aact.: (or $10. The gUideline range' 

was 8-14 months. but the applicable stab:lte required dJat if a 

sentence o( imprisonment was given it had to be fa-IIOlIess 

than one year. 11ws.lhc court would ha~ to scoteac:edefendant to a minimum onc:year term unJessitcoulddeparttogive 

a seufCIICC of probatiOll. 

Tbc court fouad.1hat tbe circumsaanc:ea of &be case WII'-

ran&ed depubR. The defendant "has aooomplisbed III imprashe rebabilitation.· ovaaxning his drug addictioa IDd 

mnaiDing drug-fn:e for almost two yean. mmitiPg with his 

famBy, and obtaining employment. The court concluded it 

would be "senseless. deslrucaive and contrary to the objco. 

lives o( the aiminallawlO now impose a year's jail tam OIl 

this defendanLThe court also concluded that the Guidelines- gcncraJ. 

probibidon against c:onsidtnltion of a defendant's «personal 

cbaraefCrisdcs" did not preclude this departure. Although 

offender ~ "were essendaI1y ld't oat of the 

Guideline calcuJadon. they are provided for through Policy 

Statements and through the departure power." alJowiDg for 

depanures in "atypical" cases sucb as this. See U.s.s.G. 

Ch. I. PI.. A. intto. comment at 1.6. 

US. Y. Rodriguez, No. 88 CR. 117 (SDN.Y. Oct. Z7, 

1989) (LevaI., J.). 

Appellate Review 

DEPARTURES 

US. Y. Draper, No. 88-5933 (6th Cit. Nov. 2. 1989) 

(Taylor, Dist. J.) (,"A sentence which is within tbeGuidelines. 

and olhcrwise valid. ••• is not appealable on tbe grouDds Ihat 

the seotcncing judge (ailed to depart from the GuidcIiJa OIl 

account o( certain (actors which lhc defendant feds were DOt 

considered by lhc Guidelines and should reduce his 

sentence. ,. Accord US. v. Franz, No. 88-2739 (71h Or. 

Oct. 4. 1989) (2 GSU #1S). 

Constitutionality 

us. Y. Roberts, No. 89-0033 (D.CD.C. Nov. 16. 1989) 

(Greene, J.) (Holding"the sentencing statute and lhc guidolines issued pursuant thereto" unconstitutional on due pocess 

grounds ror causing "de (acto transfer of the sentencing authority from lhc judge 10 lhc proseaJlor." Also holding that 

the substantial assistance provisions, U.S.s.G. § 5K.1.1 and 

18 U.S.C. § 3SS3(e), violate due process by "prcdud[ing] a 

defendant from contesting the refusal o( the prosecution to 

acknowledge his substantial cooperation with lawenforcement authorities so as to establish his eligroility For sen&encing 

leniency"; defendanlS in two cases before the cowt may 

present evidence that they provided substantial assistance.). 
Guideline Sentencing Update GtliMIiIWS.IfIIIIICiItIU""willbccli.uibutedpc:riooticl11,"'\bec...IOW_judp"'''jDdicUl~~'''''''''''''_''''''' .. IIIa''''''' 

...ram. SepIatiaD 011914 ... 1917 ... ilia S_ .. ,0uiIWiIw. AlIIroaup \be pabIiI:atioaa _, ....... ilia S •• " Ogjde\inee ... paIia)' ......... ~\be u.s. s-. .. C 4 II" ..... 1IIa_~IIIIfIGIIiaI-ho1dinp, ill ill _ .......... S-IIIJCiaa C-Wan paIic:ieI_eechiIie& ....... 1IhaaW _ ... \be G,., ,. .poIicJ 

..--. ---,.II1II ......... iuDodbJ!be s.ar.ciIIc C-' ·,.Ibr-=ll W--' 

PIablicatian ol~~ U~ ~ .. IMc-....... NIIpCIIIIIibIa'" Y&1DIl1k W'IIIIL kabolaW __ =esidm.a... .tri. _ aIIidal 

policy ~IM C-. 0. _ ~ paIia)' 1M c.ccr ipIIoIb oaI,. dnup ilia load. 

VOLUMI 2 • NutOll 17 • DIcDo.16, 1989 

Guidelines Application 

DEPARTURES 

Fourtb Clrcult IIoIcIs lack of prior crbDIaaI reeard 

aDd fact tbat possible loll of empJoymeat ma,. ...u 

I'lStltutJoa awe dlmc:ult are DOt proper poaDdl far 

departure; IaoIds fiadinl OR minimal plaaaial wu 

"dearly erroaeous." Defendant pled guilty 10 check titing 

and making false statements 10 a bank. He borrowed money 

from friends 10 pay back the illegally obtained funds, but still 

owed over $6,400 10 the banks. The district court resolved a 

dispute over the appropdar.e offense level by finding the 

offense did not involve "more than minimal planning," 

U.S.S.G. § 2F1.I(b)(2), resulting in an offense level of8 and 

guideUne range of 2-8 months. Under the Guidelines, defendarll could be sentenced 10 probation. with a minimwn two 

months of intenniueat or community confinemenL S4e 

U.s.s.G. ffSBl.l(a)(2),SC1.l(c). The court imposed a tenn 

of probation for five years with no confmement, bolding that 

depanure was wananted because defendant had not"'been in 

any trouble before," and because a term of imprisonment 

could cost defendant his job and make restitution 10 the banks 

and repayment 10 his friends more difficulL 

The appeUale court reversed, flDding that both the departure and offense level calculation were improper. The court 

held thatlwo points must be added 10 the offense level under 

f 2Fl.l (b )(2) because "theftlCOl'd is undisputed that thecheck 

kiting scheme iequired more than minimal planning and ••• 

any finding of fact that the increment was nOljustifJed would 

be clearly erroneous. As a matter of law the increment must 

be added." 

The departure was improper because "the district court 

cannOlcredit [defendant] for lack of a record of prior aiminal 

behavior. 'Th[at] fact ••• is taken inlO considcntion in the 

Sentencing Table •••• Having receivccl credit for his lack of 

prior offenses in the determination of the sentencing range. 

[he] is not entitled 10 further aed.it in the fonn of a downward 

adjustmenL .. 

The court also concluded that ""we do not think that the 

economic desirability of aaempling 10 preserve [defendant's] 

job so as 10 enable him 10 make restitution warrants a downward adjustment," reasoning that "[defendant] is no different 

from any other person convicted of a similar offense. Both 

would be unable 10 wort: it is not unlikely that both would be 

d.ischargett without earned income both would be hindered or 

prevented from making restitution ... In remanding, the court 

noted that the various conditions of community and intennil· 

tenl confinement "'provide Ibe sentcDcin& court with adler 

opDoas that may IIIow (defendant] to keep his job." 

U.s. v. BolM,., No. 88-5183 (4da~. Nov. 22. 1989) 

(Winrer. J .). 

Other Receat Cases: 

U.s. v. Lllctu. No. 88-2239 (6th Cir. Nov. 13. 1989) 

(MiJbum, J.) (district court may depart upwa'd 10 accoant for 

psychological injmy 10 robbery viCIims; robbery guideUDe 

allows departure for physiCal injury 10 robbery victims. .,.. does not iddIess psychological injury). 

U.S. v. Smith. No. 88-2817 (10d1 Cir. Nov. 3. 1989) 

(Moore, J.). (sentencing court's M'briefswement" 1hat *'the 

force and violence used by the defendant in committing the 

offense ••• justifies an upward departure from the guidelines" 

does nol satisfy the requilanent for a specific statement of 

reasons 10 justify a departure). 

U.s. v. Pilmtm. No. 89-1264 (6&b Cir. Nov. 2. 1989) (per 

cwiam) (unpublished disposition) (conVictions that occurmI 

more than 10 years pior 10 cunmt offense. and thuscoukt not 

be used for calculating criminal history SCOIe, could be used 

as basis for departure tmder U.S.S.G. f 4Al.3,p.s.; also. large 

sum of money found at defendant's home at time of arrest and 

other reliable evidence indicating defendant was a drug ttafflCker p:ovided additional basis for departure). 

U.S. v. Sadler. No. 88-10055 (D. Idaho Oct. 2. 1989) 

(Ryan, CJ.) (holding that "defendant's educational and vocational sIdlls. menial and emotional condition, previous employment record. and family and community ties, although 

not ordinarilyrdevant [pursuant 10 U.s.s.G.t SHU." seq •• 

p.s.], exist in the present alSe in such a quality and 10 such a 

degree as 10 warrant a downward cleparttRj. q.U.s. v. 

RodrigwI. No. 88 CR 117 (S.D.N.Y. Oct. 27. 1989) (Guidelines' general prohibition against consideration of defmdants' "'personal chaJacteristics" does not preclude dcpanure 

in "atypical" case) (2 GSU '16). 

DETERMINING OFFENSE LEVEL 

Seveatb Circuit holds that convidioD for otrease dlat 

occurred durial aDd was related to conspiracy or curreat 

convidioa .a,. couat toward career ofl'eader status. 

Defendant was convicted of conspiracy 10 pOssess cocaiae 

with intent 10 disbibute. He was sentenced 10 30 years in 

prison as a career offender under U.S.S.G. § 4Bl.l. "Two 

fliot for Citation. G.u.uluw Sell.uIlcillg UpdaJt is provided for information only. 11 should DOl be ciled. cilhcr in opinions or Olherwiu. 

79 
80 

Guideline Sentencing Update 

prior felony convictions" are required for career offender 

status, and defendant disputed one of the convictions used by 

the court. The c::onspiracy in the instant offense toc* pa.;e in 

Milwaukee and lasted from Nov. 1,1987, to Sept. 13,1988. 

During abe course m abe conspiracy. defendant was arrested 

and convicted in California for possession of c::ocaine. Because abeCalifomia c::ocaine wascanneetcd widlabe MiJwaukeecoaspiracy. 'd]oubtwhcther this was. 'p;orcomicdoa' 

wilhin abe meaning of abe gu.idd.incs arises from the fact that 

although abe [California] conviction pRlCCded his current conviction. it punished conduct Ihal toc* place after abe offense 

underlying the current cmvidion ••• bad begun and IbM 

indeed was part of t.hal offeftlC.-

The appc1Iare court held Ihal the QIlifomia convicdon 

was properly deemed. "prior felony convic&ion,-""Nadling in 

the gu.idd.incs' dermition of. career offenderftlQuires ••• t.hal 

every act constitutive of the offense underlying his current 

cmvidion have been commiUed after abe prior conviction, 

and we can think of no reason for such • requirtmcnL" The 

court concluded tbat ""Ihc 'subsequent' offense need not be 

entirely subsequent to preserve the relation between the 

guideline and its animating polk:y of punishing the recidivist 

more severely." 

The court also reasoned that. in this panicular case. "the 

evidence presented to the jUl)' makes clear that [defendant's] 

subsequent participation in the conspiracy was sufficient by 

itself to support the conspiracy conviction. The 'instant offense' was 'subsequent' in the practical sense that. the parlof 

the conspiracy Ihal preceded the prior conviction could be 

lopped off without affecting [his] guilL .. 

U.s, Y. Belton, No. '89-1649 (71h Cir. Nov. 20. 1989) 

(Posner, J.). 

Sentencing Procedure 

Fourth CiTcuit carves ''very Darrow" exceptioa to 

Fed. R. CriID. P. 3S to .Dow district court to amend 

Improper guideline Ientence. Defendant was convicted of 

distributing c:oc:ainc. Her sentencing range was 6-12 monlhs, 

and she was not eligiblc forprobation. The district judge stated 

Ihal heinrended. pursuant to U.s.S.O.1 SCl.l(c),to sentence 

defendant 10 Ibrce monlhs' imprisonment followed by supervised rdease with a condition of Ihree months of community 

or intenniaent confinemenL At senl.enCing, however, the 

judge aclUally sentenced defendant to Ihree months eX community confinement foUowed by three months of supervised 

rdease. Neilher the government nor defendant objected, but 

the judge "subsequently realized that he had incorrectly inrerpraed sectioa SCl.l(c). Without notice to the parties the 

district judge then sua sponte issued an amended judgment 

and sentencing order that changed [defendant's] sentence" to 

that. which he originally intended. 

The appellar.e court held that the court could amend the 

sentence. Although Rule 3S substantially restricts the power 

of district courts to amend sentences. "this is an unusual case 

Volume 2· Number 17. Decanber6.1989. Pile 2 

and we recognize the inherent power in a court to correct an 

acknowledsed and obvious mistake." The court cautioned, 

however, that Ibis "inherent power is DOl without liJDicadon." 

and beld "that abe authority to modify a sentcncc 10 correct aD 

acknowledged and obvious miscake exisbI only during dial 

period of time in whicb eitherpart)' may rdea-noticeofapJal.' 

AIft:r Ihat ame. we belicw that the senteoce bas become 6Dal. 

and abe district court Jacts any IUthority ID modify iL • 

The coun stressed "lhatour holding is. very oanowone. 

The power m. disbict court to amend a 1CIlt.ence does DOl 

extend to a situation Where the dislrict jud&c limply cban&es 

IUs mind about tho amlCacc. Narlbould tbiI be iDtap_ as 

au at.cmpt eo meoaca b1Dcr Rule 3S by judicial edic:L Our 

deciIioa is limited to abe cue where the district court lIlIeS 

dial. padicuIar kind m sentence is to be impaled aad eben 

impoaea • differeat aeotax:c IOlely becaUle of .. ackDowledpd IDisi.Dtapreladon of die pertinent guidelila ICCIion. " 

Theappella&ecourt!ound. however,lbM the ~court 

may notinc:rease abe amleDCe in defendant's abseDce, Fed.R. 

Crim. P. 43(a), and remanded for resentencing. 

U.S. Y. Cook, No. 89-S622 (4th Cir. Nov. 22. 1989) 

(Wilkins.. J.). 

Other Recent Cases: 

U.s. v. SolimtJII, No. 89-1162 (2d Cir. Nov. 13, 1989) 

(Kaufman,J.) (upholding sentencing judge's consideladonof 

foreign conviction in deciding to sentence 81 top of guideline 

range. but cautioning district judges 10 be aware fA "possible 

constitutional infumitics swrounding a foreign c:onvicdon" 

and 10 exercise "informed discretion" in deciding whelher 10 

rdy OIl foreign conviction 10 increase sentence within range 

or to justify dc:padure WIder U.s.s.O. § 4Al.3(a), p.s.). 

U.S. Y. McDowell. No. 89-3265 (3d Cir. Oct. lS, J989) 

(Rosenn. Sr. J.) ("8 sentencing coon considering an adjustment eX the oft'ense level ••• need only base its dc1erminalion 

on the preponderance of the evidence" standard, and ""Ihc 

burden of ultimate persuasion should rest upon the party 

aaempting 10 adjust the sentencej. 

Constitutionality 

u.s. Y. FTflN:ois. No. 88-S110 (4th Cir. Nov. 22. 1989) 

(Qapman. J.) (rejecting due process challenge to subslantial 

assistance provisions: '"the requirement t.hal the government 

file the motion does not dcpriw the defCDdaDI of aDy coastitutional rights whelherthe faiJure to make die motion be under 

[V.S.s.O.] § SK1.1 or under [Fed. R. Crim. P.] 3S(b), because 

Ihete is no constitutional right to theavailabi1i&y of. substantial usi.stance provision to reduce a criminal sentencej. 

U.s. v. Savoge. No. 89-1643 (7th Cit. Nov. 2, 1989) 

(Easlerbrook. J.) (rejecting claim lhat U.s.s.O. § 2J 1.6. Failure to Appear, is unconstitutional on the ground that il cbs 

not allow sentencing court to considennitigating factors 

such as prompt voluntary surrender). 
Guideline Sentencing Update 

VOIJJWI 2 • NUloIBBI. 18 • DacIaaa 29. 1989 

Guidelines Application 

DEPARTUIlES 

FIrst Circuit boIds departures 8ft warraDted oaly 

where abe elrcll1DltUcel ...... lUftkaeady .a .. a1 to 

remow • ease f'rGID tbe llearllaad" of typlcalplde1lDe 

eases. Defendant pled guilty to. SIring ofbant robberies and 

robbery au.empcs commiaed in a tJu\».wcek period. The 

dislrict court coocJuded a downward departure was warranled 

because defendant did not use a weapon. was "inelfectivc" 

and '"half-hearted'" as a bank robba'. c:ommiaed the crimes 

during a briefperiod whea besuJrCRldfrom cocaincaddiction. 

had a minimal priorrecord.andcxprcssed thedesiJetorefonn. 

The appellate court vacated the sentence. fmding that 

most of the district COUJt's reasons for departure were faccors 

already considered by theSentcncing Commission.TheCOUJt 

also found that two faccors that might warrant depanuredef'endant'sexceUentconduct in prison before scnteacingand 

his "lack. of enthusiasm" in committing the robberies-were 

"clearly insuffICient" 10 support a departure in Chis case. The 

court stressed that .. departures must be bottomcdon meaningful atypicality .••• the circumstances uiggering a departure 

must be cruly "unusual:" and '"the trial coun's right to depart. 

up or down. must be restricted to Chose few insw1ces where 

some substantial atypicality can be demonstrated." 

U.s. v. Williams. No. 89-1689 (Jst Cir. Dec. 15. 1989) 

(Selya. J.). 

Other Rectat Cases: 

U.S. v. Coe. No. 89-1205 (2d Cir. Nov. 30. 1989) 

(Newman. J.) (short span of time in which robberies were 

COIIlmiaed and defendant's false claim of having weapon 

were not permissible grounds for upward departure under 

U.s.S.O. , SK2.0. p.s.; departure was warranted because defendant's pauem of behavior indicllCd be was likely 10 

COIIlmit future offenses. U.s.S.O. I 4A 13. p.s.. and dislrict 

courtsbould follow procedure for such departures set fanh in 

U.s. \I. C,rwmt,s. 878 F.2d SO (2d Cir.1989). by delennining 

whk:hcriminalhistorycatcgory"bcstencornpassesthedefendant's prior histay" and then using the COlTCSpOnding sentencing range for that category ""10 guide its departurej. 

U.S. v. Mahler. No. 88-5193 (4th Cir. Dec. 8, 1989) 

(Widener.J .)(use of replica of handgun in robbery warranled 

upward depanure-replicas arc notcovcrec1 in the Ouidelines 

definitions of fueann or dangerous weapon. and arc therefore 

"an aggravating circumstance" not adequately considered by 

Scntcncing Commission; sentencing court treated replica as 

1ft unloaded guo und« U.S.s.O. I 2B3.1 (b)(2)(C) and increased offense lcvo1 by dwe). 

U.s. v. 101'_, No. 89-1774 (7th CU. Dec. 7, 1989) 

(Cummings.J.) (cIcparl1n from 70-87 months to 120moncbs 

wmanted because defendant', IUt:mpt to flee from 8'ftlSt 

resulted in injury to govenuncnt agent. there was evidence 

defendant continued to deal and use drugs while awaiting 

senrencing. and criminal history score did not represent seriousness of pMt activity). 

U.s. \I. Y,llow F.aniII,s. No. 89-5142 (8dl Cir. Dec. I, 

1989) (Bright. Sr. J.) (affuming downward departure for 

assaultdefendant. from 18Dacof41-S1 months to 15 IDOIllhs. 

because victim "subsl8DtialIy provotec:r' rbc offense (se, 

U.s.s.O.1 SK2.10, p.s.». 

DETERMINING OFFENSE LEVEL 

u.s. \I.Otttro.No.89-3077(llthCir.Dec.ll,I989)(pcr 

curiam) (defendant who claimed be was unaware cbal c0-

conspirator bad farearm wu properly giwn enhancement for 

fueann possession UDder U.s.S.O. f 2Dl.l(b». Cf. U.s. v. 

Missick.. 87S'F.2d 1294 (71h Or. 1989) (departure fordefendant who supplied drugs to persons IDscssing weapons was 

not proper because defendant bad no direct CODtact with and 

was not charged as co-conspira1or with Chose woo JX)SSCSSed 

weapons). 

U.s. \I. Mocciolll. No. 89·1471 (1st Cir. Dec. 5, 1989) 

(AJdrich. Sr. J.) (defendant who pled guilty todrug possession 

charge may be given enharK:cmeat for possession of firearm 

under U.S.s.O. , 2D1.1(b)(l) despite acquiual by jury on 

charge of using a weapoa duriq a drug uafficting crime 

1JIlde.r 18 U.s.C. I 924(c)(I». &, • U.s. \I. lsom.. 886 

F.2d 736.738 &: 0.3 (41hCir. 1989)(acquiuaJdoesDOtnccessarily preclude use of undedyiaa facIs of offense at sentencing); U.s. \I.laara-Orre,a. 866 F.2d 747.749 (5th Cir. 

1989) (pcrc:uriam) (same); U.s. v. R.ytm. 866 F.2d 604.609 

(3d Cir. 1989) (same). 

U.s. v. Green, No. 89·5198 (8th CU. Nov. 15. 1989) 

(Wollman.J.) (although guo was not loaded and was found in 

different room from most r:I drugs. defendant's "undenied 

possession or a fareann and ammunition in the same place 

where she conducted drug ttansactions and the additional 

hazard the presence of !he fareann creaICd in her drug operation satisfy us that c:onnection of the gunto thioffensc is not 

clearly improbable," and an upward adjustment under 

V.S.S.G. § 2Dl.l(bXl) was proper). 

Not for CltatJoo. GwitUliM ~'IUItCillg UpdlJu is pl'OYided for informaLion only. It should not be cited, either in opinions Of otheNoise. 

81 
82 

Guideline Sentencing Update 

u.s. v. Gero.llu. No. 89-1235 (1st Cir. Dec. 8. 1989) 

(Campbell. CJ.) (sentencing court properly converlCd 

$68.000 that originaled from pior drug uansaetion inlO estimated quandly of cocaine 10 delt:rmine relevant quanddes rexpurpose of calculating base offense level under U.S.s.O. 

f 201.1(a)(3); case must be remanded. however, because 

comt did not mate explicit finding required by Fed. R. Crim. 

P. 32(c)(3)(D)on disputed issueofwhcther Ihe $68.000 did in 

fact originaIC from prior drug transaction). 

U.s. Y. GorcItJ. No. 89-1499 (5th Or. Nov. 30, 1989) 

(loUy, 1.) (coon may base offense level on IIDOUDt of drugs 

uncItz negotiation in an uncompleted drug 1ranSaCIion, see 

U.s.s.O.1I201.1, commenL (0.12), 201.4, commenL (0.1) 

(Nov. 1989); ~ defendant sold eight ounces or cocaine but 

bad negotiaIA:d to sell 16 ounces, and the Jarger amount was 

properly used 10 dercnnine base offense level). 

U.s. Y. ~. No. 89-1133 (2d Cir. Nov. 29. 1989) 

(Re. 1.) (remanding for rescnccncing: "district court did DOl 

mate a specifIC finding of the idenddes of the 'five or more 

participanrs. • or that the criminal activit)' was 'otherwise extensive. '" and thus appellate court could not dctcrm.ine 

whdher defendant's sentence was correctly increased for 

being a ""manager or supervisor" WIder U.S.s.G. f 3B 1.1 (b); 

also reversed codefendant·s sentence because flDding that he 

was a "manager or supervisor" was "clearly erroneousj. 

U.s. Y. Ford. No. 89-3205 (6th Cir. Nov. 27, 1989) 

(Kennedy, 1.) (00 double jeopardy when sentencing court 

used same information. given by defendant 10 probation 

offlCCf. to grantdefendant reduction foraccept.arICC of resp0nsibility and to impose sentence ncar high end of guideline 

range). 

CRIMINAL HISTOR.Y 

U.s. Y. VicUrs.No. 89-3308 (5thCir. Dec. 8. 1989) (per 

curiam)(apieing with U.s. Y. Goldbaum. 879 F.24 811 (10th 

Cir.1989).andU.s. Y. O/chillick. 877F.2d2S1 (3dCir.I989). 

that it is DOl improper to add points to aimina1 history scc:xe. 

pursuant to U.S.S.O .. f 4Al.I(d) and (e). of defendant CODvicted of escape from custody). S4e o.lso U.s. Y. Wright. No. 

88-1277 (9thCit. Dec. 4.1989) (Canby. 1.) (when defendant 

is convicted of escape offense it is not error or violaUon of 

double jeopardy to add criminal history points under U.S.s.O. 

If 4Al.l(d) and (e». BIU see U.s. Y.Bell. 716F. Supp.1207 

(D. Minn. 1989) (adding criminal history points under 

f 4A 1.1 (d) amounts 10 double countiog); U.s. Y. CI",,*. 711 F. 

Supp. 736 (S.D.N. Y. 1989) (same). 

U.s. Y. Willio.ms. No. 89·50017 (9th Cit. Dec. 6. 1989) 

(Nelson. 1.) (not a violation of due process to use juvenile 

conviction in criminal history calculation even though there 

was 00 right 10 jury trial in the juvenile adjudication; also, 

"commitment to juvenile haJl is a form of confinement" that 

falls within U.S.S.O. § 4A1.2(d)(2)(A». 

Volume 2· Number 18· December 29.1989' Page 2 

Sentencing Procedure 

Fourth Circuit holds that limited power to seDteDce 

below statutory miD imam tor substaDtiaI assistance, 

II U.s.C. f 3553(e). also applies to II U.s.C. f 3561(a)(l) 

to allow probe'- tor Class A aDd B feloD.les. Defendant 

plcd guUty to conspiracy to posscssand disttibutecocaine •. Hc 

arped Ihalthe circumstances of his case made a sentenc:e of 

probaIioo appropriaIc. and that 18 U.S.C. f 3SS3(e) allowed 

iL The disuict court disagreed, holding thai. the prohibition 

apiDst probaIioo fex- Class A and B felonies in 18 U.s.C. 

• 3S61(a)(l) applied. 

The appeUatc court rananded. holding that probation 

could be given to _ defendant who qualified under f 3SS3(e): 

"/u we view Soction 3SS3(e). &here is 00 logical diSliDdion 

betwoca the two licuaDons. i.e., betwcc:a the mandatory minimum ICDtence and the prohibition against probation. The 

statute was intended 10 free the sentencing judge to exercise. 

on modon of the Government, a prudco1 discretion. by c:Iisre. 

gardins. where tbcrc has been subslanlial governmental assis· 

tance by Ihc defendant, both the affinnative mandate 10 

impose_ minimum prison IeIltencc and the nep&ivcmandare 

of Section 3S61(a)(1) DOt 10 grant pobation to a Class A ora 

Class B offendea'." 

U.s. Y. Do.ia&i. No. 88·S161 (4th Cit. Dec. 15. 1989) 

. (Russell, 1.). 

Other ReceDt Cases: 

U.s. y.Rosa. No. 88-3692 (3d Cir. Dec. 8,1989) (Stapleton., 1.) (defendant in conspiracy that began before and ended 

after Nov. 1. 1987. properly sentenced WIder Ouiddincs 

despirc claim he withdrew from the conspiracy befeft lhcodefeudant failed to Maffumatively renounce" conspiracy befeft that date: remanded for resentencing. however. for dis· 

trictcourt tomakc specifIC fmdingsrequin::d by Fed. R. Crim. 

P. 32(c)(3)(D) when defendant disputes blformation in presenlCnce report, here the govenuncnt·s version of offense). 

U.s. Y. Jordan. No. 89·1774 (7th Cir. Dec. 7. 1989) 

(Cummings, 1.) (holding defendant not entiUed to notice before sentencing hearing that district court would departdefendant was ""not unfairly surprised. with new evidence exinformation" at the hearing and was allowed to contest all 

(actors used to detennine his sentence). Cf. U.s. y. NUllOPtlTtI.flT1F.241409(9thCit.1989)(defendantmUSlbegiven 

noDccofandopportunitytocommentonfactorsthatmayconstiUdC grounds for departure prior IOseatencing. Fed. R. Crim. 

P. 32(a)(I»; U.s. Y. Cerwulles, 878 F.2d SO (2d Cit. 1989) 

(same); U.s. v. Otero, 868 F.2d 1412 (Sth Cit. 1989) (same). 

Constitutionality 

u.s. Y. Cyrus. No. 88·3156 (D.C. Cir. Dec. 12, 1989) 

(Mikva. 1.) (higher penalties in Guidelines for possession or 

cocaine base (crack) than ror cocaine do not violate equal 

protection. due process, or the eighlhamendincnl). 
Guideline Sentencing Update 

VOWMII 2 • NUMB. 19 • JANUARY 12. 1990 

Guidelines Application 

J}£PARTUItES 

DiItrk:t court boIds IUbstaatJal aulstaace departure 

sbould appl, to those who llelp to aonerate pel'SOlll ...... 

peeled 01 criminal aetiYit)'. Defendants assisted a federal 

investigation by providing information that heIpcd 10 demonstraIC that anotherpcrson had not commiucd. a aimc, and the 

aavemment moved for a downWMd deparIurc pursuant 10 

U.s.s.G. f SKI.I.p.s. However, tbal section onlyaUowsdeparture for substantial assistanc::e Min the investigation or pr0-

secution of another person who has committed an offense" 

(emphasis added), and not for exont'l8ling 8DOIher person. 

The court concluded thal assisting in the exculpation of 

another was a "mitigating circums~ of I kind. or 10 • 

degree, not adequarely taken inlO consideration by the ~. 

tencing Commission," 18 U.s.c. § 3SS3{b). and chereforc It 

had the power to depart downward. The court also found. that 

the benefit to the government, namely stopping '"the expense 

of. fruidess inquiry and the diversion of effort from more 

promising wort," was anolher circwns&ance not considered 

by the Commission that wammled departure. 

U.s. v. Huss, No. 89 CR 760 (N.D. D1. Dec. 20, 1989) 

(Zagel, J.). 

Other Recent Cases: 

U.s. v. SU1r/n1I!rs. No. 89·5116 (4th Cit. Jan. 2, 1990) 

(Wilkins, J.) (when sentencing court departs downward 

because defendant's criminal history category has been 

"exaggerated" by minor offenses, it must guide departure by 

refela1CC 10 appropriaIe lower aiminal history categories, 

U.S.s.O. § 4Al.3, p.s.; in this case COW1 should use the 

criminal history category that would result absent consideration of the minor offenses). 

U.s. v. SlTtmge, No. 89-5826 (6ah Cu. Dec. 28, 1989) 

(per curiam) (unpublished disposition) (affuming upward 

depanure. from 27-33 month range to 66 months. because 

case is "sufficiently unusual" -". combination of mental 

iUness and a prior aiminal history that leads strongly to the 

conclusion that the delendant is likely to continue to engage 

in conduct tbal has the very real potential for death or serious 

injuries toothers," and "psychiatric evaluations indicated that 

intensive long-term psycboLherapy would be necessary"). 

U.s. v.Maddalena.No.89-1S33(6ahCit. Dec. 21.1989) 

(Kennedy, J.) (remanding for resentencing-district COUrt 

mistakenly believed it could not consider defendant's efforts 

to avoid drugs as basis for downward departure). 

U.S. v. Geiger. No. 89-1429 (5lh Cit. Dec. 20, 1989) 

(Reavley, 1.) (amrming upwarddepanure, from 21-27 monlh 

ranac 10 120 mond}s. because defendant's aimina1 history 

score did not adequa&ely ",Oeet seriousness of prior criminal 

CODduct--three earlier drug convicdons were consolidated 

for seot.eIK:ing and thus oounled as one offease..rte U.S.s.O. 

f 4AI.2(a)(2) & commenL (n3), and the current offense was 

commiUtd wbUedefendant wason probation and oat on bail). 

U.s. Y. Speight. No. 88-0245 (D.D.C. Dec. 12, 1989) 

(Oberdorfer. J.) (pursuant to U.S.8.G.1 SK2.13, p.a., depaningdownwardfrom 188-235 month range tomandailocymini. 

mum of 120monlhs,lObeservedconaurently widt unexpired 

SlIfe scntencc. ""because defendant's long hisUy eX menial 

illness establishes that he acted with signifiCIDdy reduced 

mental capacity at the time he commiucd.the offensesj. 

CR.IMINAL HISTORY 

Trio or district court cases aplores defiDltioD of' 

"aime of'violence" UDder GuidellDes.ln N.D. ru.thecourt 

had todcccnnine if possession of. weapon by I convicu:d felon was I "crime of violence" under thecarcer offender guidelines. U.s.s.G. §§4Bl.l,4BI.2. Concluding thatdelendant's 

prior burglaries and the present offense 'were "crimes of violence," the cOUrt held: (I) that it could "consider the circumstances of the offense in deciding whelher it was a 'aime of 

violence. - .rte also MaMaleM, supra ("'court bas the discJ'e.. 

lion to consider evidence other than the statute in determining 

whether an offense was • "crime of violenc;c'j; (2) '"that the 

crime of possession of a handgun by a conviclCd felon by its 

nature invohes I substa.nt.ia1 risk that physical force may be 

used against another person"; and (3)"that the aime of 

burglary, which involves breaking and enteri~g into a building without permission of lIle owner, clearly mvolves as one 

of its elements the use of physical force agains&. property and 

is I aimc of violence." (Note: An amendment to § 4BI2, 

effective Nov. 1,1989, deleted reference to 18 U.S.C. § 16and 

amended the dei'milion of"aimc of violence. to See U.S.S.G. 

App. C. amendment 268.) 

U.s. v. Coistolt, No. 88CR843 (N.D. Ill. Dec. 12,1989) 

(Plunkeu. J .). 

A COUrt in S.D.N. Y. had to detennine whether two prior 

burglaries of motel rooms constituted "crimes of violence" 

under the career offender provisions. 1be government 

claimed that I motel room was considered a "dwclling" under 

the law of lIle state of conviction, and that U.S.S.G. 

t 4B 1.2( I )(ii) (Nov. 1989) provides that "burglary of a dwelling" is a aime of violence. NevertheleB.the Court held they 

were not violent crimes. Noting lhe pan of lIle definition in 

§ 4B 1.2(I)(ii) that states "or otherwise involves conduct lhat 

presenls a serious potential risk of physical injury to anolher,» 

Not for Citation. (Jwitktille Scnlellcillg UpdDle is provided for infonnation only. It should not be ciled. either in opinions Of otherwise. 

83 
84 

Guideline Sentencing Update 

the court determined that .. the clear thrust of this section is 10 

c:ategorize crimes using physical force against persons as 

violent crimes. ... Absent any showing that [defendant's] 

blqIary convictiQns involved the use of or threaIened usc of 

violence apinst persons. it would be a byperteclmicaJ and 

distoncd interpretation of the Guidelines 10 classify these 

offenses as pior violent felonies." 

U.s. v. JO#woIl. No. 89 CR 0176 (S.D.N.Y. Dec. 21. 

1989) (Sweet. J.). 

In D.D.C. the court had 10 determine whedlc:F defendant 

could rec:ei'VC a downward dcpanuIc for diminished capacity 

undcrU.S.s.G.1 SK2.13.p.s. That section allows dcpanuIc, 

in part. if the cW'lent offenses were "non-violent" Using the 

amended dermition of"aiJne ofviolcnce" in 14B 1.2(1), the 

courtconcJ.uded that neilherof defendant·s offeosca-possessian wilh inu:nt 10 disaibute cocaine and possession of a 

weapon by I fdon-were violent The court concluded that it 

should only consider the nature of the offenses charged, not 

the actual circumsaances of their commission. It held that. 

"[wlbile both drug trafficking and possession of a weapon by 

a felon on occasion may present same risk of injury 10 a 

person, the crimes are not themselves ones that .•• necessarily 

pose such a risk by their very nature." 

U.s. v. SpeighJ. No. 88-0245 (D.D.C. Dec. 12, 1989) 

(Obetdorfer. J.). 

DETERMINING OFFENSE LEVEL 

U.s. v. Pierce. No. 88-2985 (5th Cir. Jan. 4. 1990) 

(Jones, J.) (atrmning upward adjUSlment for obstruction of 

justice, U.s.S.G. § 3CU. for attempting 10 flee anest and 10 

inflUC'nCC testimony of wilDCSS). 

U.s. v. Salyer, No. 89-1485 (6th Cir. Dec. 21. 1989) 

(Cantie. Sr. J.) (defendant convicted of conspiracy 10 inrerfere 

witbcivilrighlS,forbumingcrosson blactcouple's lawn. was 

properly given upward adjUSlment under U.S.S.G. § 3Al.1 

for victim ~bility-defendant"should have mown" the 

victims were "particularly susceptible 10 the criminal conduct" because of their race. and the offense guideline did not 

already incorporate that factor, see § 3Al.l. comment (n.2». 

u.s. v. Ewuu. No. 89-1758 (8th Cir. Dec. 14. 1989) 

(Fagg.J.)(pursuantIOU.s.S.G.§2Dl.l.commenL(n.12)and 

§ 2D 1.4. commenL (n.2), sentencing court properly approximatedand used in sea.ing offense level theamountofmethampheaamine defendants were capable of producing. 22.5 kilograms, not .0688 kilograms actually seized). 

U.s. Y. WUIiDm.r. No. 89-313S (D.C. Cir. Nov. 29,1989) 

(WaId, CJ.) (role in offense adjusunent for being "manager" 

of I criminal activity, U.S.S.G. I 3Bl.1(c), applies only 10 

defendant's role in offense of conviction-adjustment may 

not be applied 10 defendant convicted of possession of iUegal 

weapon who admitted running a crack operation in house 

where weapon was found). Cf U.S. v. Foster, 876 F.2d 377, 

378 (5th Cir. 1989) (courts should not apply adjustment for 

"usc of special skill." U.S.S.G. § 3B 1.3. "unless such a skill is 

used 10 facilitate commission or concealment of 'the offense' -the one charged in the indictrnent-and not an y other 

crime or crimes that may have been revealed during presentence investigation"). 

Volume 2· Number 19 • January 12,. 1990. Pa,e 2 

Sentencing Procedure 

u.s. v. Garcia. No. 88-2557 (10th Cir. Dec. 29. 1989) 

(Ebel, J.) (beId"'that the sentencing guidelines apply 10 assimilative crimes. but that the sentence imposed may not ex.c:eed 

any maximum sentence and may not fall below any mandatary minimum sentence that is required uDder the law of &he 

state in which the crimes occur"; also hdd '"the COIDmen&aI)' 

10 I 2XS.1 of the sentencing guidelines. whic:.b 'require[s]' 

COUI1S 10 apply guidelines applicable 10 analogous federal 

crimes in detennining senlMc:eS for assimDad'VC crimes. has 

DO legal effect 10 the extent that it exceeds the IesHestrictive 

mandare of the Senteacing Reform Act of 198410 give only 

"due regard' 10 analogous federal sentencing guidelines"}. 

Determining the Sentence 

u.s. v. BfIkhIiIIri. No. 88 CR 889 (S.DN.Y. Dec. 18. 

1989) (Sweet. J.) (Defendant sentenced for offense that 

occum:d prior 10 conviction and sentencing for earlier, sepande offense should receive a consecutive, not concurrent. 

tmn of imprisonment for current offense. Although the 

Guidelinea ""are here not particularly helpful," .,11he sentencing facron set forth at 18 U;S.C. t 35S3(a)(2) ••• favor 

making the SCIlICnCeon the insIantoffenses run consecutively 

with die term of impisonment imposed on the [prior] c0nvictions. "The term of supervised release imposed in this case 

would also be consecutive 10 the tmn of supervised release in 

the earliC'Z offense. The court noted that imposing concwrent 

senlences when, as here. the second lam is shorter than the 

rust. "in effect would require [defendant] 10 serve no time for 

the [secondoffenseJ," and "thus would tail entirely 'IOrencet 

the seriousness of the offense, 10 promoce respect for the law. 

and 10 provide just punishment' for his behavior. 18 U.s.C. 

§ 3553(a)(2)(A).,,}. 

Appellate Review 

DEPARTURES 

u.s. v. Denardi. No. 89·3365 (3d Cir. Dec. 19, 1989) 

(Seitz, J.) (18 U.S.C. § 3742(a) does not authorize appeal 

ofdistrid court's discretionary refusal 10 depart &om an 

otherwise valid guideline sentence). kcord U.s. v. TlICur, 

No. 89-1222 (1st Cir. Dec. 19. 1989) (TorrueUa. J.). See 

also U.s. v. Draper. 888 F.2d lJOO (6dI Cir. 1989); U.s. 

v. FrQlU, 886 F.2d 973 (7th Cir. 1989): U.s. Y. COIOII, 884 

F.2d 15SO (24 Cir. 1989); U.s. v. Fosse". 881 F.2d 976 

(11th Cit. 1989). 

OVERLAPPING GVlDELINE RANGES 

U.s. Y. Williams, No. 89·3135 (D.C. Cir. Nov. 29. 1989) 

(Waid. CJ.) (noting agreement with u.s. v. BerminghDm. 

8SS F.2d 925, 930-31 (2d Cir. 1988). that wben a dispu~ 

sentence "falls within eitlter of two arguably applicable 

Guidelines ranges and it is clear that the same sentence would 

have been imposed under either Guidelines range, the coun 

need not resolve the dispute .... Where it appears. however, 

that the district coon chose a sentence because it was at the 

low end of the applicable Guidelines range, the court should 

remand for proper resentencing."). 
Guideline Sentencing Update 

GMiJlIi,., S-..a.., U,.-,.. wiI1 be oIiatr:ibu1cd pcriocticall)' by Ibc c-to WOIIn;.clp .. CICba' jqdici.Il peacIIIIIIl ct..-w.t WcraI _ dociAoaI.-Ibc--=1 __ .... _ ct1984 Iftd 1987 .. tba Scnt.c:in& GaWen- AlIbaufb" public:atiaa _, •• to" SeaWllciq ~ .. poIiq __ ctd. u.s. s-.o. 

..,CUI . roa iD .. _ct.,.,..._haIdiDp, iI ........ toftlPll' SID' ~iDlO'1 i tOllpalia..~.ItaIdcmIlhGaW __ tod.Oaid Ii_.pe&,. 

--... -=-wy. tad CICba' IIIIICriaII iNIMd by .. s .-me Comm.iIIiaIfw"" iDf ___ 

PlllWicdcll ct GttMrIiM I. .... ..., U".,. ~ 111M -.eoa-npnIe 11.. a III, alllilM .......... h IIrooald _ be ~dmd a .... ladad_ araftll:Ul 

paticy ctlhec.... 0.. __ ct poIiq tba c-..,...m. oaI' ....... illBoud. 

VOWMI! 2 • NuwaD 20 • JAHUAity 26.1990 

Adjustments 

Secoad Circuit bolds that IIiIbt from ..... est, wItbout 

more, does Dot COIIStitute obItrudioD 01 Jusdce. Defeodant 

pled guilty to dnc counts of bank burglary. When be was 

dclecled at one of the banks he went to gn:allengths to avoid 

arrcsa. iDcluding running across rooftops. hiding undea' a boat. 

pulling loose from an offICer twice. and jumping a fence. In 

light of 1hesc efforts. the senlCncing court enhanced defendant's offense level for"obsIruction of justice," pursuant to 

U.s.S.O. § 3CI.1. 

The appe1lale court vacated and remanded, holding that 

"flight rrom arrest. in ilSdf. does not constitute obstruction of 

justice under ••• § 3C 1.1." The court determined that "Guidelines § 3C 1.1 contains a clear mens rea requirement that limits 

its scope to Ihose who 'willfully' obstruct or attempt to 

obsttuct the administration of justice •.•• [W]e are convinced 

that the word "willfully' . • • requires that the defendant 

consciously act with the PlD'pOse of obstructing justice. We 

therefore hold that mere flight in the immedialC aftermath of 

acrime, without more, is insufficient to justify a section 3Cl.l 

obstruction of justice enhancemenL " 

The court noICd, however. that flight from arrest may still 

be considered in sentencing: "a defendant who flees in Older 

toavoidapprebensionmay be sentenced to the maximum Lem1 

within the applicable guideline range, while one who VOIW1· 

Wily sWTCnders may be sentenced to the minimum." 

U.s. \I. Stroud. No. 89-12S8 (2d Cit. Jan. 8, 1990) 

(Meskill. J.). 

Other Recent Case: 

U.s. v. Carroll. No. 88-2260 (6th Cit. Jan. 9. 1990) 

(Ryan.J.) (role in offenseadjusunent, U.s.s.O. § 381.1, for 

organizer or leader requires at least one ocher "aiminally 

n=sponsible" person in offenso-may not be applied where 

only orhc:r participants were undercover agents). 

Sentencing Procedure 

TeDlb Cireult bolds lbat seDteDdDI court may use 

evldeace from co-coaspiraton' trial to resolve factual 

dispute. Defendant pled guilty to drug charges. The senlCncing court, relying on testimony from the trial of two ~ 

conspirators. increased his offense level under U.S.S.O. 

§ 381.1 (a) for being an "organizer or leader." Defendant appealed, citing U.S. \I. Costellanos. 882F.2d 414 (lIth Cit. 

1989) (2 GSU '12), which held that evidence from a coconspinuor's trial could nOl be used to resolve a dispute over 

drug quantity because the defendant had no opportunity to 

cross-exam ine the wimesses and present evidence 81 that trial. 

Tbe appdJaIc court affirmed. finding "Do constitutional. 

statutory, or JI'OCCdur8l rule •.• that would bar the tmteDCing 

judge', CODSidctatioa of ldevant and mliabIe informaIioD of 

the type used iD this case. .. Noting its difl'errnce with ecr"l1aMI, the court beld Ibal "the coasdtulional requhancnts 

mandIacd iD a aiminallrial as to cooftontaIioD and crosseXlmination do not apply at aon-capital senteDCing proceedings. .. and c:onc:luded Ibal "the beuet role ••• is Ibal reliable 

bearsay-iDcluding testimony from a separate triaI-may be 

used at sentcIlCing to~ine the approptial.e punishment. .. 

U.s. v. Bemditll.. No. 88-2586 (10th Cir. Jan. 10.1990) 

(Brown. DisL J .). 

"ftb Cllait OUtiiDtI procedure wIleD pia adpulatioD ladlcata more serious offense. DefClldant pled guilty 

to a drug offense. but facts in the plea agreement indicated he 

commiuec:l a more serious offense. The government c0ntended he should be sentenced pursuant to U.S.S.O. 

§ 18 1.2(a), which in this case would have resulled in a fouryear sentence, the statutory maximum for the offense of c0nviction. The court, however. sentenced defendant toprobation 

for five years. The government appealed. 

The appellate coun nmwaded and outlined the proc:edw-e 

for sentencing under § 18 1.2(a). The court held that "the determination that the stipulation contaiDed in or accompanying 

the guilty plea 'specifically establimes a more serious offense' than the offense of conviction must be expressly made 

on the record by the coon prior to sentencing."1D making Ihat 

decision "the trial court must follow the directive contained in 

Fed. R. Crim. P. 11 (f) and satisfy itself that a 'factual basis for 

each essential element of the crime [bas been] shown.' .. 

The court also dct.ennined that a court may "depart from 

the guidelines and sentence below the statutory maximum for 

the offense of conviction when the guideline calcu1ations for 

the stipulated offense yield a sentencing range aheM the 

swotor)' maximum •••• provided thal approprial.e and adequale reasons for the depanure are assigned. ••• We find 

noching in either the relevant statutory or guideliDc provisions 

••• which would make departure inapplicable to abe senlCncina pocedw-e for guilty pJea convictions. .. 

U.s. v. Martin. No. 89·1011 (Sth Cit. Jan. 11, 1990) 

(Politz. J.). 

Departures 

Sixth Circuit bolds lbat district court Deed Dot explain 

reasoas lor Dot IOllowiDg goverDmeDi recommendation 

lor substantial assistance departure. but suggests "it 

would be belprul." Defendant pled guilty to a drug charge. 

Not for Citation. Oui.cklu..e Se"te"ci"8 Upd4te is provided (or infonnation only. It Ihould not be cited, either in opinions or otherwise. 

85 
86 

Guideline Sentencing Update 

His sentencing range was 63-78 months. but the government., 

pursuant to the plea agreement., recommended a departure to 

48 months for defendant's substantial assislance, U.S.s.G. 

f SK1.l. Without comment.i.ng on die government's recom· 

mendation, die court imposed a 63-monlb sentence. Defendant appealed, claiming it was reversible emx f« the court to 

fail to SUIte any reasons for imposing die 63-montb sentence. 

Tbe appcUate court affumed, basing its decision on U.s. 

11. Duque. 883 F.2d 43 (6th Cir. 1989). 1'htl'e, the court held 

abe scnlCllCing judge was not required "to SUIte with panicularity his reasons for setting a sentence that falls within abe 

guidelines where abe guideline range was less than 24 

months." rd. at 43. &e also 18 U.s.c. f 3SS3(c)(I). 

1bc court also held that"section SKI.I. is discretionary 

• • • • Defendant docs not point to any pnMsion in the 

guidelines « OCher authority which requires a leII&encing 

judge to ~Iain abe refusal to grant a motion for a departure 

from the guidelines range. Although the not.cs to section 

SK 1.1 specify that Je8SOIlS must be staled for a downward departure based upon a defendant's cooperation, there is no 

converscrequirementthatacourtexplainitsdeci.siontorefuse 

a departure and impose a senlellCC within the guidelines. " 

Tbe court noccd. however, that "'when abe government 

has made a recommendation based upon a Rule II plea 

agreement obligation to do so. it would be helpful, even if not 

required. for a district judge to indicate why he is not following the recommendation." 

U.S. Y. Jones. No. 89-1374 (6th Cit. Jan. 10, 1990) (per 

curiam) (unpublished disposition). 

Other Recent Cases: 

U.s. Y. Carey, No. 89·1826 (7th Cir. Jan. 12, 1990) 

(Flaum, J.) (vacating downward departure for "cumulative 

effect" of defendant', age and physical condition, fact that 

voluntary restiwtion was almost complete, and offense was 

single act of aberrant behavior-disuict court's reasons 

"were. in ~ impropec and otbecwisc not suffICiently artieulalCd"; also, reasons for departure must be staled at time 

of sentencing in open court, not in memorandum fUed nunc 

pro 11UU'). 

U.S. Y. Riva/'a. No. 89·1159 (2d Cir. Dec. 21. 1989) 

(Feinberg, I.) (remanding to senlCllCing court for more explicit fmding on whether dea1h of victim "resul1Cd" from 

defendants' aiminaJ activity, U.s.S.G. § 5K2.1, p.s.: facts 

supporting such a departure must be proved by preponderance 

of the evidence). 

U.s. Y. Boshell. No. CR-88-361-S (E.D. Wash. Jan. II. 

1990) (McNichols, J.) (downward depa.rtUre wananled because '"blindly applying the Guidelines" to defendant., who 

wenlto uial. would be unfair and counter to "every essential 

purpose underlying" the Guidelines where co-conspirarors 

who pled guilty in order to be sentenced under pre-Guidelines 

law received much lighter sentences; also, consistent with 

18 U.S .C. § 3661, personal characteristics may be considered 

despite § SH 1 recommendations to the contrary pursuant to 

28 U.S.C. § 994(e»). 

Volume 2· Number 20· January 26.1990' Page 2 

Criminal History 

u.s. Y. Kirby. No. 88-5869 (6th Cit. Jan. 16. 1990) (pel' 

cmiam) (adjudication of delinquency and subsequent commitment may becoasidered in criminal history compuwion). 

U.s. 11. CarroU. No. 88-2260 (6th Cit. Jan. 9, 1990) 

(Ryan. J.) (criminal bisUJry poims may be added to escapee's 

score pursuaM to f 4Al.1(d) and (e». kcord U.s. 11. Wright. 

891 F.2d 209 (9th Cir. 1989); U.s. 11. Vickers, 891 F.2d 86 

(5th Cit. 1989): U.s. Y. Goldbawn. 879 F.2d 811 (10th Cir. 

1989): U.s. Y. Ofcltiltid. 877 F.2d 151 (3d CU. 1989). 

U.s. 11. HearriA. No. 89·1020 (8th Cir. Jan. 3, 1990) 

(Gibscla., J.) (for purposes of criminal livcliltood provision, 

U.s.s.O. f4Bl.3. ~ of criminal conduct" does DOt 

require separalecriminaJ offenses but may mean plaDnedacts 

over period of time duriDg single course of condoct). 

Determining the Sentence 

CONSECUTIVE OR. CONCUlUtENT SENTENCES 

u.s. Y. Walford. No. 88-5197 (41b Cit. Jan. 16, 1990) 

(Wilkins; J.) (affmning Guideline senlellCC for conspiracy to 

run consecutively to 5CnlellCCS on related substantive counts 

that occurred before Nov. I, 1987, even lhougb Guidelines 

would require c:oncurrent sentences if substantive offenses 

wc.reconttolled by Guide1ines. see II 3D1.2(bXl), SGl.2(c) 

and (d); also holding that burden is on defendant to show 

GuideUnes should not apply because he wilbdrew before Nov. 

I, 1987, from conspiracy that continued past that date). 

OFFENSE LEVEL 

u.s. Y. Gurgiolo. No. 89·3519 (3c:l Cir. Jan. 12, 1990) 

(Gibbons, CJ.) (pursuant to Drug Quantity Tables, U.S.s.G. 

§ 201.1. crimes involving Schedule m subslances may not be 

given a base offense leoml above 20-acc0rdingly, heroin 

equivalent for purposes of combining with Schedule I and n 

substances cannot be more than 59 grams; $0, drug quantity 

includes total wcighlO( substance. not "pure" weight of drug). 

RESTITUTION 

U.s. Y. Milchell. No. 89-1795 (81b Cit. Jan. 2, 1990) 

(Heaney, Sr. J.) (reversing order of restiwtion because there 

was no fmding defendant was able to pay die amount-sell· 

ICllCing court must make "an infonned decision," supported 

by evidence and "consistent with abe defendant's ability to 

pay as set forth in Ihe Cornmenwy to U.s.s.G. § SEl.l j. 

Challenges to Guidelines 

u.s. 11. Boshell, No. CR-88-361·S (E.D. Wash. Jan. 11. 

1990) (McNicho1s.J.)("consistent willa 18U.S.C. § 3661.tbe 

relevance of die factors set forth at U.S.S.G. § 5Hl in rendec· 

ina a departure detmnination is a mauerof judicial discretion. 

and such discretion may not be proscribed, pre-emptcd or 

limited by the Sentencing Commission"; also holding Guidelines unconstitutional as applied to defCDlant!"ho "would be 

penalized for going to trial" if sentenced under Guidelines, as 

evidenced by much shoner sentences forco-conspirators who 

pled guilty and were sentenced under pre-Guidelines law). 
Guideline Sentencing Update 

GlliMIiM S-..cv., Upt/Iw will bo diatribuled pariocIicIll, by Ihe C-so inf_ ~ aod GChcr ju.dici.al pcmmncI of ocIcc:IoII fedenl_ deciaions GIl Ihe 1CI'IIaI.cin, __ 1cP1a1ial of I''''.IrId I 9f7 aod Ihe Scnt.enc:iaa ~ AlIhauplbe pabliclliaI_, _.so Ibe Sallmcin, 0uidcIin .. 1II0 poliq AaIl:nlCnIa of Ihe u.s. s_ 

in, Commil&i!llll ill Ibe _t of ~ cue baWiDp.1l ia _ ..... ded so npaIt Scmlllnl:ina c-iaiGII poIicieIcr acci'l'ilia. Rcadaa moukt _ ..... so !he~. poIic, 

.......... -"17, -' ada mac.i&la iauoed by" s..-q C II.n' .... tar lIUdt inf-uoa. 

Pllbticalial ttl GwiMIiM S""",..a.., U".,., aipi6OIlb.t Ibe c.u. .......... it u • ~ -' valuable walk. It Mould _ bo caa.cidfll'ed • _ .... Iioa oiaffici&1 

poiiq ttllhe c.... On mall«l ttl polley Ihe C-tpeab aal, IItraup kII Boud. 

VOLlJMB 2 • JANt1AJ1.Y 31, 1990 

Index for Guideline Sentencing Update, Volume 2 

ne foUowingis an index of cases reported to d.uein the second volumeofGSU, throughi.ssue.20,covering the firstyearafterMistrena 

v. U.$ .. 109 S. CL 649 (1989). Cues from the first GSU meta. coveri:na Volume IIIIld pre-Mi.strella cues., are not included. 

Cases are arranged by subject maUer, wirh the flllt flYe major headings roughly foDowina the format of the Sentencing Guidelines. 

Wilhin each grouping cues are cited in reverse chronological order, wilh appelWo court c:ues listed ahead of district court cues., reponed 

cases ahead of unreported. Thenwnbenin bncbts It the end of achciwion indicate the issue in2GSU in which the cue wu sununarized. 

Supplemen.bIl indexes will be issued periodicaJly. 

Table of Contents 

A. Relevant Conduct 

1. USED TO I>ETBRMINB OFPI!NSB LEVEL 

B. Offense Conduct 

1. WEAPONS PosSESSION 

a. During Drug Offense, § 2Dl.l(b)(1) Enhancement 

b. Firearms Offenses, § 2K2 

2. DRUG QuANTITY 

a. Setting Offense Level 

b. LSD-Weight Includes Carrier Medium 

3. DRUG PuRrrY 

4. 0nm:R SPBCIFIC OFFENSES 

C. Adjustments 

1. ROLE IN nm OFPI!NSB (§ 3Bl) 

2. OBmtUCI1ON OP JUsncB (§ 3Cl) 

3. MUL'I1PLE COUNTS (§ 301) 

4. ACCEPTANCE OP REsPONSIBILITY (§ 3EI) 

S. Ommt 

D. Criminal History 

1. CALCULATION 

a. Proper to Apply § 4A1.I(d) and (e) to Escapee 

b. Improper to Apply § 4Al.1(d) and (e) to Escapee 

c. Other 

2, CARBER OFFENDER PROVISION (§ 4Bl.l) 

a. "Crime of Violence" Determination 

b. Other 

3. CiuMINAL LIVELIHOOD PROVISION (§ 4B1.3) 

E. Detennining the Sentence 

1. CONSEaJTIVB OR CONCURRENT SENTENCES (§ 50 J) 

2. SENTI!NCING FACfORS 

3. PROBATION 

4. REsmunON (§ SE1.I) 

S. CHAll..ENGB TO GUIDELINE SENTENCE 

F. Departures 

1. CRIMINAL HISTORY 

a. Upward Departure Warranted 

b. Downward DepaI1J.lre Warranted 

c. Upward Departure Not Warranted 

d. Computation-Use Category That Best Represents 

Defendant's Pri<x Criminal History 

2. AOORAVATING CIRCUMSTANCES 

a. Upward Departure Warranted 

b. Upward Departure Not Warranted 

c. Computation 

3. MmGATlNG CIRCUMSTANCES 

a. Downward Departure Warranted 

b. Downward DepaI1J.lre Not Warranted 

c. Downward Departure Not Required 

4. NOTICE REQUIRED BI!PORB DEPARTURE 

S. STATBMBNT OP REAsoNS FOR DEPARTURE 

6. SUBSTANTIAL ASSISTANCE (§ SK1.1. 18 U.S.C. 

§ 3SS3(e) 

a. Departures 

b. Procedure 

G. Sentencing Procedure 

1. PLEA BARGAINING 

2. BURDBN OP PROOF 

3. FAcrtJAL DISPUmS 

4. 0nmR 

H. Appellate Review 

1. PROCBDURB FOR RBvmw OF DEPARTURES 

2. DISCRETIONARY REFuSAL TO DEPART DoWNWARD 

3. CLBARL Y ERRONEOUS STANDARD 

4. OVERLAPPING GUIDEUNE RANGES DISPlJ"fE 

S. 0nmR 

I. Challenges to Guidelines and Sentencing 

Refonn Act 

1. Do NOT VIOlATE DUE PROCESS 

2. VIOlATE DuE PR<X.."ESS 

3. RWECIlNG CHAllENGES TO SPECIFIC PROVISIONS 

4. UPHOLDING CHAllENGES TO SPECIFIC PROVISIONS 

J. Decision to Apply Guidelines 

Not for Citation. Guichlint StllWlcillg Updmt is provided for informalion only. It should not be cited. either in opinions or otherwise. 87 
88 

Guideline Sentencing Update 

A. Relevant Conduct 

I. USED TO DETERMINE OFFENSE LEVEL 

Stt tWo B. Orreo.se Conduct: 2. Drug Quantity 

U.S. v. Martin. - F.2d - (5th Cit. Jan. II. 1990) (plea 

establishes more serious offense. § IB1.2(a» [#20]. 

U.S. v. Shoneeth.887 F.2d253 (IOthCir. 1989)(§ IB1.8(a). 

incriminating statements made pursuant to plea agreement) [#15]. 

U.S. v.Garza.884F.2d 181 (5thCir.1989)(§ IBI.2(a).facts 

in plea agreement establish more serious offense) [# 13]. 

U.S. v. Restrepo. 883 F.2d 781 (9th Cir. 1989) (conduct not 

resulting in conviction not grouped) [#12]. 

U.S. v. Williams. 879 F.2d 454 (8th Cit. 1989)(conduct in 

dismissed counts) [#12]. 

U.s. v. Wright. 873 F.2d 437 (lst Cir. 1989) (conduct in 

dismissed counts and past behavior) [#6]. 

B. Offense Conduct 

1. WEAPONS POSSESSION 

a. During Drug orreo.se, § lDI.I(b)(I) Enbancement 

U.s. v. Mocciola. 891 F.2d 13 (lst Cir. 1989) (acquittal on 

charge of using weapon during drug offense) [# 18]. 

U.S. v. Otero, 890 F.2d 366 (11th Cir. 1989) (per curiam) 

(unaware co-conspiratorpossessed weapon) [#18]. 

U.S. v. Green. 889 F.2d 187 (8th Cit. 1989) (gun unloaded 

and in different room from drugs) [# 18]. 

U.S. v.Burke,888F.2d862(D.C.Cir.1989)(requitesshowing of scienter) [#16]. 

u.s. v. Restrepo. 884 F.2d 1294 (9th Cit. 1989) (burden 10 

prove weapon not connected to drug offense) [#13]. 

U.s. v. McGhee, 882 F.2d 1095 (6th Cir. 1989) (burden 10 

prove weapon not connected to offense) [#12]. 

U.S. v. Vasquez. 874 F.2d 250 (5th Cir. I 989)(no connection 

between drug offense and weapon) [#7]. 

b. Firearms OOenses, § 2K2 

(Note: § 2K2 was amended, effective Nov. 1. 1989.) 

U.S. v. Williams. 879 F.2d 454 (8th Cir. 1989) (stolen 

fueann. § 2K2.2(b)(l» [#12]. 

U.S. v. Wilson. 878 F.2d 921 (6th Cit. 1989) (§ 2K2.l(b)(2). 

gun held for collareral) [#9). 

U.S. v. Pope. 871 F.2d 506 (5th Cir. 1989) (gun collection. 

§ 2K2.2(b)(3» [#5). 

2. DRUG QUANTITY 

a. Setting Offense Level 

U.S. v.Gurgiolo,-F.2d-(3dCir.Jan.12.1990)(schedule 

III substances, heroin equivalents) [#20]. 

U.S. v.Evans.891 F.2d686(8thCit.1989)(amountofdrugs 

that could be produced, not amount seized) [#19). 

U.S. v. Gerame. 891 F.2d 364 (1st Cu. 1989) (convert 

money into estimated quantity of drugs) [#18]. 

U.S. v.Garcia.889F.2d 1454 (5th Cit. 1989)(amountunder 

negotiation in uncompleted transaction) [#18]. 

U.S. v. White. 888 F.2d 490 (7th Cir. I 989)(drug amounts 

from separate transactions) [#16]. 

Volume:Z • Index • January 31.1990· Pale:Z 

U.s. v. Smith. 887 F.2d 104 (6th Cir. 1989) (Jan. 15.1988 

GuideJjnes amendments, dismissed count) [#14]. 

U.s. v. Allen. 886 F.2d 143 (8th Cit. 1989) (drug amounts 

distributed before Nov. 1, 1987)[#13]. 

U.s. v.Baker.883 F.2d 13 (5th Cir.)·(percuriam) (use of drug 

quantity. rather lhan purity, not improper), cert. denie4. 

110 S. CL 517 (1989) [#13]. 

U.s. v. Castellanos. 882 F.2d 474 (lIth Cit. 1989) (evidence from co-<:onspirator's trial) [#12]. 

U.s. v.Roi¥rlS.881 F.2d95 (4th Cit. I 989)(amount of drugs 

sought in conspiracy) [#5]. 

U.s. v. Mann. 8T1 F.2d 688 (8th Cir. 1989) (drug amounts 

from prior sale) [19]. 

U.s. v. Paulino. 873 F.2d 23 (2d Cir. 1989) (per curiam) 

(drugs in relevant conduct fa: minimal participant) [#5]. 

U.s. v.Sailu.872F.2d735(6thCir.1989)(drugsinrelevant 

conduct) [#5], 

U.S. v. Perez. 871 F.2d 45 (6th Cit.) (uncompleted 

transaction). cert. denied, 109 S. CL 3227 (1989) [##4]. 

U.s. v. Sarasti. 869 F.2d 805 (5th Cir. 1989) (drugs not in 

indictment a: offense of conviction) [#4]. 

U.S. v. Graham. 710 F. Supp. 1290 (N.D. Cal. 1989) 

(number. not weight., of live marijuana plants) [#6]. 

U.S. v. Moreno, 710 F. Supp. 1136 (B.D. Mich. 1989) (used 

only amount of drug in offense of conviction) [#l]. 

b. LSD-Weigbt Includes Carrier Medium 

U.S. v. Daly. 883 F.2d 313 (4th Cit. 1989) [#13]. 

U.s. v. Taylor. 868 F.2d 125 (5th Cit. 1989) [#3]. 

U.S. v.Bishop. 704F. Supp. 910(N.D.lQ~a 1989),aff'd.-

F.2d - (8th Cit. Jan. 22. 1990) [#1]. 

3. DRUG PuRrrv 

U.s. v. Baker. 883 F.2d 13 (5th Cit.) (per curiam) (purity 

considered in sentencing within range). un. denied. 110 

S. CL 517 (1989) [#131. 

u.s. v.Davis, 868F.2d 1390 (5th Cir. 1989) (no offense level 

reduction fa: low drug purity) [#3]. 

4. Onmt SPECIFIC OFFENSES 

U.s. v. Bolden. 889 F.2d 1336 (4th Cir. 1989) (check kiting 

scheme. § 2Fl.1(b)(2» [#17]. 

U.S. v. Savage. 888 F.2d 528 (7thCir. 1989)(§211.6,Failure 

10 Appear. not unconstitutional) [#17]. 

U.S. v. Lee. 887 F.2d 888 (8th Cit. 1989) (offense level 

increase in "failure 10 report" guideline, § 211.6) [#15]. 

U.S. v. Leeper, 886 F.2d 293 (lIth Cit. 1989) (per curiam) 

(interference with administration of justice enhancement 

in perjury guideline, § 2J1.3(b)(2» [#15]. 

U.S. v. Medeiros. 884 F.2d 75 (3d Cit. 1989) (escapes from 

secure and non-secure facilities. § 2Pl.l) [#12). 

U.S. v. Scroggins. 880 F.2d 1204 (11th Cir. 1989) ("loss" 

under theft guideline § 2B 1.1(b» [# 11]. 

U.S. v. Underwood. 880F.2d 612(lst Cit. 1989) (procedure 

for offenses with no specific guideline) [#10]. 

u.s. v. Fu.ente-Kolbenschlag. 878 F.2d 1377 (11th Cit. 

1989) (per curiam) ("manufacturing" counterfeit currency, § 2B5.l(b)(2). using "special skill," § 3B1.3) [#11]. 
Guideline Sentencing Update 

u.s. v. Reyes-Rulz. 868 F.2d 698 (5th Cit. 1989) ("related 

offense" under § 2Ll.l(b)(2» [#3]. 

C. Adjustments 

1. ROLE IN THE OFFENSE (I 381) 

See also G. Sentencing Procedure 

u.s. v. BeauJie..:. - F.2d - (10th Cit. Jan. 10,1990) (may 

use evidence from co-conspiratoC'S' utal) [#20]. 

U.S. v. Carroll. - F.2d - (6th Cit. Jan. 9,1990) (§ 3Bl.l 

requires other "criminally responsible" person) [#20]. 

U.s. v. Williams. 891 F.2d 921 (D.C. Cit. 1989)(§ 3Bl.l(c) 

applies only to offense of conviction) [#19]. 

U.s. v. Lanese. 890 F.2d 1284 (2d Cir. 1989) (I 3Bl.I(b) 

requires specific finding) [#18]. 

U.s. v. Stern, 884 F.2d 581 (6th Cir. 1989) (pet cwiam) 

(table. unpub.) (effect of plea agreement) [#13]. 

U.s. v. HayMs, 881 F.2d 586 (8th Cir. 1989) (I 381.1(a) 

increase despite acquittal on related charge) [#11]. 

2. OssnUC11ON OF JuSTICE (§ 3CI) 

U.S. v. Stroud. - F.2d - (2d Cit. Jan. 8, 1990) (fleeing 

arrest. requires intent) [#20]. 

U.S. v. Pierce.-F.2d-(5th Cir.Jan.4,I990)(attempting 

to flee arrest and influence wimess testimony) [#19]. 

U.S. v. Breit, 872 F.2d 1365 (8th Cir.) (giving false name 

when arrested), cert. denied. 110 S. CL 322 (1989) [#5]. 

u.s. v. Galvan-Garcia. 872 F.2d 638 (5th Cir.) (throwing 

marijuana out of car during high-speed chase). cert. 

denied. 110 S. Ct. 164 (1989) [#7]. 

U.s. v. Rafferty. 710 F. Supp. 1293 (D. Hawaii 1989) (false 

infonnation at arrest. false testimony) [#7]. 

U.s. v. Peoples. No. 88-202344 {W.O. Tenn. Mar. 27. 1989) 

(throwing drugs away when fleeing authorities) (#4]. 

3. M1JL11PLE COUNTS (13Dl) 

U.S. v. Restrepo. 883 F.2d 781 (9th Cit. 1989)(conduct not 

resultiiig in conviction should not be grouped) [#12]. 

U.s. v. Cain, 881 F.2d 980 (lIth Cir. 1989) (pet curiam) 

(retaining and concealing stolen U.S. Treasury checks. 

§ 285.2. willfully possessing checks, § 281.1) (#12]. 

U.s. v. Moore. 877 F.2d 651 (8th Cir. 1989) (per curiam) 

(separate bank robberies not grouped) [#9]. 

U.S. v. Pope. 871 F.2d 506 (5th Cir. 1989) (possession of 

pistol by felon. unlawful possession of silencer, 

§ 30l.2(d» [#5]. 

4. ACCEPI'ANCE OF RESPONSIBILITY (§ 3El) 

See aho H. Appellate Review 

U.s. \/.Scroggins.880F.2d 1204 (11th Cit. I 989)(deniedfor 

continued drug use after arrest) [#11]. 

U.S. v. azyas, 876 F.2d 1057 (1st Cit. 1989) (denied for 

committing perjury at utal) [#9]. 

U.S. II. Perez-Franco, 873 F.2d455 (ISlCit. 1 989)(for count 

of conviction, not dismissed counts) [#6]. 

U.S. v. Nunley. 873 F.2d 182 (8th Cir. 1989) (effect of 

stipulation in plea agreement) [#5]. 

U.S. v. Ligon. 716 F. Supp. 1009 (W.O. Ky. 1989) (burden 

of proor on defendant) l# 121. 

Volume 2· Inde.x· January 31.1990· Page 3 

U.S. v.Lester.No.89-13-A{W.0. Va.Aug.2,1989)(denied 

for lack of candor) [#12]. 

{Note: This reduction is now available to career offenders. 

See U.s.S.G. § 481.1 (Novo' 1989). Some courts had previously held otherwise. See. e.g .• U.S. v. RodriguezReyes, 881 F.2d 155 (5th Cit. 1989} [#12]; U.S. v: Huff. 

873 F.2d 700 (3d Cit. 1989) [#6]; U.S. v. Alves. 873 F.2d 

495 (1st Cir. 1989) [#6].) 

s. 0rm:R 

U.S. v. Salyer.-F.2d-(6thCit. Dec. 21.1989) (§ 3A1.l. 

victims vu1ncrable because of race) [# 19]. 

U.s. Y. FIU1IlI!-Kolbenschlag. 878 F.2d 1377 (11th Cir. 

1989) (per curiam) (not "double-enhancement" to apply 

1381.3 and 1 2BS.1 (b)(2). "manufacturing" counterfeit 

currency) (111]. 

D. Criminal History 

1. CALCULATION 

a. Proper to Apply § 4AI.l(d) and (e) to Escapee 

U.S. v. Carroll. - F.2d - (6th Cir. Jan. 9,1990) [#20]. 

U.S. \/. Wright. 891 F.2d 209 (9th Cir. 1989) [#18]. 

U.S. v. Vickers. 891 F.2d 86 (5th Cir. 1989) (per curiam) 

[#18]. 

U.S. v. Goldbaum. 879 F.2d 811 (10111 Cir. 1989) [#10]. 

U.S. \/. Ofchinick. 877 F.2d 251 (3d Cir. 1989) [#9]. 

U.S. \/. Jimenez. 708 F. Supp. 964 (S.D. Ind. 1989) [#3]. 

b. Improper to Apply § 4Al.1(d) and (e) to Escapee 

U.S. v. Bell. 716 F. Supp. 1207 (D:Minn. 1989) (applying 

§ 4Al.1(d) improper double counting) [#10]. 

c. Other 

U.s. v. Kirby.-F.2d-(6th Cir.Jan. 16. 1990) (percunam) 

(delinquency adjudication and commitment) [#20]. 

U.s. v. Williams. 891 F.2d 212 (9th Cit. 1989) (juvenile 

conviction. commitment to juvenile ball) [#18]. 

U.s. v. Landry. 700 F. Supp. 908 (D. Minn. 1989)(invalid 

conviction may not be counted) [#4]. 

2. CAREER OFFENDER PROVISION (I 481.1) 

a. ··Crime or Violence" Determination 

U.s. v.Maddalena.-F.2d-(6thCit.Dec. 21.1989)(may 

consider circwnstances of offense) {#19]. 

U.S. v. Baskin. 886 F.2d 383 (D.C. Cit. 1989) (may review 

circumstances of prior convictions) [#14]. 

U.S. v.JoMson. No. 89 CR 0176 (S.O.N.Y. Dec. 21.1989) 

(burglaries) [#19]. 

U.S. v. Colston, No. 88 CR 843 (N.D. Dl. Dec. 12, 1989) 

(bwglary and possession of weapon by convicted felon, 

may consider circumstances of offense) [#19]. 

b. Other 

U.S. II. Belton. 890 F.2d 9 (7th err. 1989) (offense that 

occurred during and was related 10 current offense) [#17]. 

U.S. II. Sanchez-Lopez. 879 F.2d 541 (9th Cir. 1989) (not 

double enhancement or unconstitutional delegation 10 

states) [#9]. 

89 
90 

Guideline Sentencing Update 

3. CRIMINAL LIVEUHOOD PROVISION (I 481.3) 

U.S. v. Hearrin. 892 F.2d 756 (8th Cir. 1990) (defining 

"pattern of criminal conductj [#20]. 

U.S. v. Hewitt. 719 F. Supp. 199 (S.ON.Y. 1989) (may not 

use factors here and as basis for §4A1.3departure ) [#11]. 

(Note: Effective Nov. I. 1989. § 481.3 was amended to 

replace the "substantial portion of his income" language. 

U.s. \/. Nolder. 887 F.2d 140 (8th Cir. 1989) [#15], had 

previously dermed that term in a manner consistent with 

the amendment) 

E. Determining the Sentence 

1. CONSECtrl1VE OR CONCURRENT SENTENCIlS (I SGl) 

u.s. v. Waiford.-F.2d-(4thCir.Ian.16,199O)(sentence 

for conspiracy may be consecutive to sentences for pre. 

Guidelines substantive offenses) [1120]. 

U.S. v. Darud. 886 F.2d 1034 (8th Cir. 1989) (per curiam) 

(sentence for offense that servC'Ai as basis for parole 

revocation) [#14]. 

U.s. \/. Fossett, 881 F.2d 976 (11th Cir. 1989)(consecutive 

sentences required) [#11]. 

U.s. \/. Wills. 881 F.2d 823 (9th Cir. 1989) (cannot require 

consecutive sentences) [#11]. 

U.s. v. Bakhtiari. No. 88CR 889 (S.ON.Y. Dec. 18. 1989) 

(offense occurring prior to conviction and sentencing for 

earlier offense) [#19]. 

2. SENTENCING FACTORS 

U.s. \/. Ford. 889 F.2d 1570 (6th Cir. 1989) (information 

given by defendant to probation officer) [#18]. 

u.s. v. Soliman. 889 F.2d 441 (2d Cir. 1989) (foreign conviction) [#17]. 

U.s. \/. Garza. 884 F.2d 181 (SthCir.1989) (plea agreement 

establishes more serious offense) [#13]. 

U.S. v. Stern._884 F.2d 581 (6th Cir. 1989) (pu cwiam) 

(table. unpub.) (effect of government recommendation. 

plea agreement) [#13]. 

3. PROBATION 

U.S. \/. Harry, 874 F.2d 248 (5th Cir. 1989) (per curiam) 

(maximwn length of probation. § 581.2) [#7]. 

4. RES1TI1.l110N (I SEl.l) 

U.s. v. Mitchell, - F.2d - (8th Cir. Ian. 2, 1990) (order 

must account for defendant's ability to pay) [#20]. 

5. CHALLENGE TO GUWElJNE SENTENCE 

U.S. v. Boyd, 885 F.2d 246 (5th Cir. 1989) (per curiam) 

(lesser sentence given co-defendant) [#14]. 

F. Departures 

1. CRIMINAL HISTORY 

a. Upward Departure Warranted 

U.s. v. Geiger. 891 F.2d 512 (5th Cir. 1989) (conSOlidation 

of prior convictions. current offense committed while on 

bail) [#19]. 

Volume 2· Index - Ianuary 31.1990· Page 4 

U.S. v. Coe. 891 F.2d405(2dCir.1989)(lilceiihoodoffuture 

crimes) [#18]. 

U.s. v. Jordan. 890F.2d 968 (7th Cir. 1989)(seriousnessof 

criminal pasll10l reflected) [#18], 

U.s. v. Dorsey. 888 F,2d 79 (11th Cir. 1989) (consolidation of prior offenses), cert. denied. 110 S. Ct 756 

(1990) [#16]. 

U.S. v. Puman. 888 F.2d 128 (6th Cir. 1989) (per curiam) 

(table, Wlpub.) (old convictions not COWlted. evidence of 

drug trafficking) [#17]. 

U.s. v.Jadson,883 F.2d 1007 (llthCir. 1989) (per curiam) 

(consolidation of prior offenses) [#14]. 

U.s. v. Joan, 883 F.2d 491 (6th Cir. 1989) (category VI 

inadequate) [#13]. 

U.s. v. Roberson. 872 F.2d 597 (5th Cir.) (category VI 

inadequate. prior convictions consolidated), cert. denied. 

110 S. CL 175 (1989) [#6]. 

U.s. v. Sturgis. 869 F.2d -54 (2d Cir. 1989) (per curiam) 

(other criminal conduct not accounted for) [#2]. 

U.s. v. Spraggins. 868 F.2d 1541 (IlthCir.I989)(evidence 

of uncharged criminal conduct) [#4]. 

U.s. v. Fisher. 868 F.2d 125 (5th Cir. 1989)(for"egregious" 

criminal history of repeat offenses) [#3]. 

U.S. v. Luna-Trujillo. 868 F.2d 122 (5th Cir. 1989) (large 

amount of drugs in similar prior offense) [#2]. 

b. Downward Departure Warranted 

U.s. v. SlU1'In'U!rs. - F.2d - (4th Cir. Jan. 2, 1990) (score 

"exaggerated" by minor offenses) [#19]. 

c. Upward Departure Not Warranted 

U.s. v. Hewitt. 719 F. Supp. 199 (S.ON.Y. 1989) (factors 

already used forcriminallivelihood enhancement) [# 11]. 

d. Computation-Use Category That Best Represents Derendant's Prior Criminal History 

U.s. \/. SlU1'In'U!rs. - F.2d - (4th Cir. Jan. 2.1990) [#19]. 

U.s. v. Anderson, 886 F.2d 215 (8th Cir. 1989) (per curiam) [#14]. 

U.s. \/. Cervantes. 878 F.2d 50 (2d Cir. 1989) [#8]. 

U.s. v.Rios. 876 F.2d 24 (5th Cir. 1989) (per curiam) [#8]. 

U.s. v. Lopez. 871 F.2d 513 (5th Cir. 1989) [#5]. 

2. AGGRAVATING CIRCUMSTANCES 

a. Upward Departure Warranted 

U.S. \/. Strange. 892 F.2d 1044 (6th Cir. 1989) (per curiam) 

(table. unpub.) (menw illness. future dang("J'-ousness. 

need for long-term psychotherapy) [#19]. 

u.s. \/. MahJer, 891 F.2d 75 (4th Cir. 1989) (replica of 

handgun, not covered in Guidelines) [#18]. 

U.S. v. Jordan. 890 F.2d 968 (7th Cir. 1989) (fleeing arrest 

resulted in injury to government agent, continued use of 

and dealing in drugs) [#18]. 

U.s. v. Lucas. 889 F.2d 697 (6th Cir. 1QS9) (psychological 

injury to robbery victims) [#17]. 

U.S. v. Pitman. 888 F.2d 128 (6th Cir. 1989) (per curiam) 

(table. unpub.) (evidence of drug trafficking) [#17]. 
Guideline Sentencing Update 

u.s. v. Warters. 885 F.2d 1266 (5thCir. I 989)(if misprision 

derendant guilty or underlying orrense) [#15]. 

U.S. v. Kinnard. 884 F.2d 581 (6th Cir. 1989) (per curiam) 

(table, unpub.) (high purity of cocaine) [#13]. 

U.S. v. Lopez-Escobar. 884 F.2d 170 (5th Cir. 1989) (large 

number of illegal aliens) [1#13]. 

U.s. v. CrllMfordJ~83 F.2d 963 (11th Cir. 1989)(amountof 

drugs in simple possession offense, role in offense that 

does not rise to defmition of § 3Bl.I) [1#14]. 

U.s. v. Rodriguez, 882 F.2d 1059 (6th Cir. 1989) (illegal 

entry into United Swes while serving f<eign senrence. 

dependence on aiminal activity. propensity 10 commit 

future ai.mes) [1#12]. 

U.s. v. Ramirez-de RoSIU. 873 F.2d 1177 (9th Cir. 1989) 

(high-speed chase) [#7]. 

U.S. v. Velasquez-Mercado. 872 F.2d 632 (5th Cir.) (large 

number of illegal aliens, molested passengers, highspeed chase). cert. denied. 110 S. CL 187 (1989) [#6]. 

U.s. v. Roberson, 872 F.2d 597 (5th Cir.) ("extreme conduct." i m.8). cen. denied. 110 S. CL 175 (1989) [#6]. 

U.s. v. Salazar-Villarreal, 872 F.2d 121 (5th Cit. 1989) (per 

curiam) (reckless conduct while fleeing arrest by driver 

of illegal aliens) [#5]. 

U.s. v. JlIllTez-Ortega. 866 F.2d 747 (5th Cir. 1989) (per 

curiam) ~session of weapon in drug case despite acquittal on weapon charge) [1#1]. 

U.S. v. Ryan, 866 F.2d 604 (3d Cir. 1989) (amount, purity, 

packaging of drugs in simple possession) [#1]. 

U.s. v. Valle, 716 F. Supp. 1452 (S.D. Fla. 1989) (rerusing 

10 retwn large swn of slOlen money) [#11]. 

U.s. v. KiJcumura, 706 F. Supp. 331 (D.NJ. 1989) (terrorism) [#2]. 

U.s. v. Coleman. No. 88-200374 (W D. Tenn. Feb. 27, 

1989) (unusual danger of crack cocaine) [1#4]. 

b. Upward Departure Not Warranted 

U.s. v. Rivaila. 892 F.2d 223 (2d Cit. 1989) (explicit fmding 

required for "death of victim," i SK21) [#20]. 

U.s. v. Coe. 891 F.2d 405 (2d Cit. 1989) (short timespan of 

robberies, raise claim to have weapon) [#18]. 

U.s. v. Aguilar-Pena, 887 F.2d 347 (1st Cir. 1989) ("community sentiment, "local airport's security) [#15]. 

U.S. v. Hernandez-Vasquez, 884 F.2d 1314 (9th Cir. 1989) 

(per curiam) (high-speed chase where defendant not 

driver) [#13]. 

U.s. v. Edwards. 883 F.2d 76 (6th Cir. 1989) (per curiam) 

(table, unpub.) ("unproven suspicion" orfense more serious, refusal 10 assist authorities) (#13]. 

U.s. v. Rodriguez, 882 F.2d 1059 (6th Cir. 1989) (national 

origin. inability 10 speak English) (#12]. 

U.s. v. Musick, 875 F.2d 1294 (7th Cir. 1989) (supplying 

drugs through courier 10 persons possessing weapons) 

[#9]. 

U.S. v. Lopez. 875 F.2d 1124 (5th Cir. 1989) (guideline not 

severe enough, drug addiction) [#8J. 

U.S. v. Uca, 867 F.2d 783 (3d Cit. 1989) (number of guns, 

traceability, and unlawrul purpose) [1#1]. 

Volwnc 2 • Index • Jl.!lUary 31, 1990· Pagc S 

c. Computation 

U.s. v. Roberson, 872 F.2d 597 (5th Cit. 1989) (recommended guideline range is point or rererence ror departure and must be correctly calculated) [#6]. 

3. MITIGATING CIRCUMSTANCES 

a. Downward Departure Warranted 

U.s. v. Maddalena,-F.2d-(6th Cir. Dec. 21. 1989)(may 

consider defendant's efforts to avoid drugs) [#19]. 

U.S. v. Yellow Earrings. 891 F.2d650(8thCir.1989)(victim 

"substantially povoked" assault, § 5K2.10, p.s.) [#18]. 

U.s. v. CMilpe, 889 F.2d477 (3dCir.1989)(mayconsider 

deparIure for duress or coercion under i 5K2.12) [#16]. 

U.s. v.Rodriguez, 724F.Supp. 1118 (S.D.N.Y. 1989)(successfuI drug rehabilitation) [#16]. 

U.s. v. Concepcion. 721 F. Supp. 493 (S.DN.Y. 1989) 

(completed old law sentence before resentencing) [# 13]. 

U.S. v. Bell, 716 F. Supp. 1207 (D. Minn. 1989) (applying 

i 4Al.l(d) to escapee is double-counting, earlier sentence likely 10 be increased) [#10]. 

U.s. v. Boshell, No. CR-88-361-S (E.D. Wash. Jan. 11. 

1990) (personal characteristics. applying guidelines 10 

defendant unrair compared 10 co-conspirators sentenced 

under pre-Guidelines law) [#20]. 

U.s. \I. Speighl, No. 88-0245 (D.D.C. Dec. 12, 1989) (significantly reduced mental capacity, definition of "nonviolent," § 5K2.13, p.s.) [1#19]. 

U.s. v.Batisla-Segura. No. S 89CR377 (S.D.N.Y.OcL 19, 

1989) (no knowledge or control of drug amount) [# 16], 

U.s. v. Sadler, No. 88-10055 (D.ldahoOct. 2. 1989) (education and skills, other personal characcerisrics) [#17]. 

U.S. v. Gonzales, 88 CR 559 (S.DN.Y. July 27, 1989) 

(ramily ties, "peripheral" involvement) [#11]. 

U.s. v. Hon. No. 89 CR 0052 (S.D.N.Y. May 31, 1989) 

(personal characteristics, civil remedies available) [#9]. 

b. Downward Departure Not Warranted 

U.s. v.Carey,-F.2d-(7thCir.Jan.12.1990)(cumulative 

effect of personal characceristics. restitution) [#20]. 

U.s. v. Williams. 891 F.2d 962 (1st Cir. Dec. 15, 1989) 

(lack of weapon. inerfectiveness, addiction, desire to 

refonn) [#18]. 

U.S. v. Bolden, 889 F.2d 1336 (4th Cit. 1989) (lack of prior 

criminal record, possible loss of employment making 

restitution more difficult) [# 17]. 

U.S. v. Medeiros. 884 F.2d 75 (3d Cir. 1989) (escape from 

non-secure racility. § 2Pl.1) [#12]. 

U.s. v. Natal-Rivera. 879 F.2d 391 (8th Cir. 1989) (cultural 

heritage) (#11]. 

c. Downward Departure Not Required 

U.S. v. Paulino, 873 F.2d 23 (2d Cir. 1989) (per curiam) 

(sound discretion of court not to depart) [#5]. 

See also H. Appellate Review 

4. NOTICE REQUIRED BEFORE DEPARnJRE 

U.S. v. Jordan, 890 F.2d 968 (7th Cir. 1989) (not before 

semcncing hearing) [1118). 

91 
Guideline Sentencing Update 

92 

u.s. v. Cervantes. 878 F.2d 50 (2d Cit. 1989) [#8]. 

U.S. v. NUllO-Para. 877 F.2d 1409 (9th Cit. 1989) [1#9]. 

U.S. v. Olero. 868 F.2d 1412 (5th Cit. 1989) [#3], 

S. STATEMENT OF REAsoNS FOR DEPARTIJIlE 

U.s. v. Carey. - F.2d - (7th Cit. Ian. 12, 1990) (must be 

at time of sentencing, in open court) [#20]. 

U.s. v. Smith. 888 F.2d 720 (lOth Cir. 1989) (brief statement 

insufficient) [#17]. 

U.s. v. Cervantes. 878 F.2d SO (2d Cir. 1989) (clearly 

identify aggravating factors, reasons for using particular 

criminal history category) [#8]. 

U.s. v. Mlclrel. 816F.2d784 (9thCit.1989)(clearlyidentify 

factors warranting departure) [#8]. 

6. SUBSTANTIAL ASSISTANCE (I SK1.l, 18 U.S.C. 

13SS3(e» 

See also I. Challenges to Guidelines 

•• Departures 

U.s. v. Daiagl, 892 F.2d 31 (4th Cit. 1989) (allows probation for Class A and B felonies) [#18]. 

U.S. v. Campbell, 704 F. Supp. 661 (E.D. Va. 1989) (from 

78-97 month range to 14 months) [#1]. 

U.S. v. Akhtar, No. 89 CR 0264 (S.DN.Y. Aug. 1. 1989) 

(from 97-121 month range toa year and a day) [#12). 

b. Procedure 

U.S. v.Jones,-F.2d-(6thCit.Ian.IO.1990)(percuriam) 

(table, unpub.) (need not explain refusal to follow government recommendation for departure) [#20). 

U.s. v.Justice,877F.2d664 (8th Cit.) (requirementforgovernmentmotion), cert. denied, 110 S. CL 375 (1989) [#8). 

U.s. v.Donaliu. 720F.Supp.619(N.D.III.1989)(maynot 

depart absent government motion) [#12]. 

U.S. v.Nelson. 717F. Supp.682(D.Minn.1989)(declining 

to order government motion, found no bad faith) [#11]. 

U.s. v. Huss. No. 89 CR 7(fJ (N.D. III. Dec. 20, 1989) 

(applicable to-exoneration of another) [#19]. 

U.s. v. Galan. No. 89 CR 198 (SDN.Y. Iune 8, 1989) (in 

camera determination of whether prosecution refused in 

good faith to follow agreement) [#8]. 

G. Sentencing Procedure 

Stt also F. Departures 

1. PLEA BARGAINING 

U.S. v. Martin, - F.2d - (5th Cir. Ian. II, 1990) (plea 

stipulation establishes more serious offense) [#20). 

U.S. v. Shorteeth, 887 F.2d 253 (lOth Cit. 1989) (incriminating statements pursuant to plea agreement) [#15]. 

U.S. v. Stern, 884 F.2d 581 (6th Cit. 1989) (per curiam) 

(table. unpub.) (government "concession" that defendant 

is "minor participant") [#13]. 

U.S. v. Garza. 884 F.2d 181 (5th Cit. 1989) (facts in plea 

agreement establish more serious offense) [# 13). 

U.S. v. Turner. 881 F.2d 684 (9th Cir.) (need not inform 

defendant of offense level and criminal history category 

before accepting pica), uri. denied. 110 S. Ct. 199 

(1989) [#12]. 

Volwne 2· Indrr:x· January 31,1990' Pqe 6 

U.S. v.Sweeney. 878F.2d68 (2dCit.1989){percuriam)(no 

withdrawal of plea for underestimation of range) [1#9]. 

U.s. v. Fernandez. 877 F.2d 1138 (2d Cu. 1989) ("where 

feasible. should" advise defendants of likely sentence 

before accepting plea) (1#9). 

U.S. v. Parker. 874 F.2d 174 (3d Cit. 1989) (when plea 

agreement establishes facts relevant 10 sentencing no 

further proof 1'e4uired) [#7). 

U.s. v.BenMtt, 716F. Supp.1137 (N.D.1nd.1989)(a1lowing withdrawal because of miscaJculations of estimated 

guideline range) [# 10]. 

Z. BURDEN 011' PROOF 

u.s. v. McDowell, 888 F.2d 285 (3d Cit. 1989) (on patty 

auempting to adjust sentence) [1117]. 

U.s. v. Rtstrepo, 884 F.2d 1294 (9th Cir. 1989) (on defendant 10 prove fIrearm not connected to drug offense. 

§ 2Dl.l(b)(I» [#13] • 

U.S. v. Davenport. 884 F.2d i21 (4th Cir. 1989) (on defendant when challenging constitutionality of prior sentence) [#13]. 

U.s. v.McGlree, 882F.2d 1095 (6thCir.1989)(ondefendant 

to prove "clearly improbable" weapon connected to offense, § 2Dl.l(b» [#12). 

U.S. v. U"ego-Linares.879F.2d 1234 (4th Cir.) (party seekingadjustment), cert. denied.lI0S. CL 346(1989) [#10). 

U.S. v. Parker. 874 F.2d 174 (3d Cit. 1989) (when plea 

agreement establishes facts relevant to sentencing, no 

further proof required) (#7]. 

U.S. v. Ugon. 716 F. Supp. 1009 (W.D. Ky. 1989) (on 

defendant for acceptance of responsibility) [1112). 

U.S. v.Lovell. 715 F. Supp. 854 (W.D. Tenn. 1989)(onparty 

seeking adjusunent. on government when evidence favors neither party) [#10]. 

U.S. v. Landry. 709 F. Supp. 908 (D. Minn. 1989) (preponderance of evidence to prove relevant conduct) [#4]. 

U.S. v. Clark, No. CR. SCR 88-60(1) (N.D. Ind. May 11. 

1989) (party seeking adjustment) [#7]. 

3. F AcnJAL DISPUTES 

U.s. v. Beaulieu. - F.2d - (lOth Cit. Ian. 10, 1990) (may 

use evidence from co-conspirators' trial) [#20]. 

U.S. v. Rosa. 891 F.2d 1071 (3d Cit. 1989) (defendant 

disputes government version of facts in presentence 

repon) [#18]. 

U.S. v. Castellanos. 882 F.2d 474 (11th Cir. 1989) (drug 

quantity dispute may not be resolved with evidence from 

co-conspirator's trial) [#12]. 

U.S. v. Burch. 873 F.2d 765 (5th Cit. 1989) (must resolve 

before sentencing or departure) [#7). 

4.0TIIER 

U.S. v. Cook. 890 F.2d 672 (4th Cit. 1989) (exception 10 

Fed. R. Crirn. P. 35 to amend incorrect sentence) [#17]. 

U.S. v. Soliman. 889 F.2d 441 (2d Cit. 198~HcolTSideration 

of foreign conviction) [# 17]. 

U.S. v. Jackson. 886 F.2d 838 (7th Cit. 1989) (per curiam) 

(no right to counsel at presentence interview) [#14J. 
Guideline Sentencing Update 

u.s. v. Sharp. 883 F.2d 829 (9th Cir. 1989) (per curiam) (no 

sentence below statutory minimum for mitigating circumstances) [#13]. 

U.S. v. Duque. 883 F.2d 43 (6th Cit. 1989) (reasons for 

sentence within range not exceeding 24 months) [#12]. 

U.S. v. PilllO, 875 F.2d 143 (7th Cit. 1989) (Application 

Notes used to explain Guidelines) [#7]. 

U.S. v. Brittman. 872 F.2d 827 (8th Cit.) ("two-track" 

sentencing procedure approved), cert. deni4d. 110 S. CL 

188 (1989) [#5). 

U.S. v. Ware.709F.Supp.l062(N.D.A1a 1989)(noprebial 

resolution of Guidelines dispute) [#5]. 

H. Appellate Review 

1. PROCEDlJRE FOR REVIEW OF DEPAR'roRES 

U.S. v. Hertll.llJdez-Vasquez, 884 F.2d 1314 (9th Cir. 1989) 

(per curiam) (remand when court relies on proper and 

improper grounds) [#13]. 

U.s. v. Rodriguez. 882 F.2d 1059 (6th Cit. 1989) (three-step 

procedure, improper reasons may not require remand if 

proper reasons also given) [#12]. 

U.S. v. Diaz-VillaJane. 874 F.2d 43 (1st Cir.) (three-step 

procedure), cerl. denied. 110 S. CL 177 (1989) [#6]. 

2. DISCRETIONARY REFUSAL TO DEPART DOWNWARD 

U.S. v. Denardi. 892 F.2d 269 (3d Cit. 1989) (not appealable) [#19]. 

U.s. v. Tucker. 892 F.2d 8 (1st Cit. 1989) (not appealable) 

[#19]. 

U.S. v. Draper. 888 F.2d 1100 (6th Cir. 1989) (not appealable) [#16]. 

U.S. v. McCrary. 887 F.2d 485 (4th Cit. 1989) (per curiam) 

(reviewed for reasonableness) [#15]. 

U.S. v. Franz. 886 F.2d 973 (7th Cir. 1989) (not appealable) 

[#15]. 

U.S. v. Colon. 884 F.2d 1550 (2d Cit.)(notappealable). cerl. 

denied. Papathanasion v. U.s .• 110 S. CL (1989) [#13]. 

U.S. v. Fossett. 881 F.2d 976 (11th Cir. 1989) (not appealable) [#13]. 

U.s. v. Buenrostro. 868 F.2d 135 (5th Cir. 1989) (uphold 

unless refusal in violation of law) [#2]. 

3. CLEARLY ERRONEOUS STANDARD 

U.S. v. Sanchez-Lopez. 879 F.2d 541 (9th Cit. 1989) (minor 

or minimal participant) [#9]. 

U.S. v. Ortiz. 878 F.2d 125 (3d Cir. 1989) (aggravating role) 

[#9]. 

U.S. v. White. 875 F.2d 427 (4th Cir. 1989) (acceptance of 

responsibility) [#7]. 

U.S. v. Daughtrey. 874 F.2d 213 (4thCir. 1989)(minimalor 

minor participant) [#7]. 

U.S. v. Franco-Torres. 869 F.2d 797 (5th Cit. 1989) (acceptance of responsibility, obstruction of justice) [#4]. 

U.S. v. Spraggins. 868 F.2d 1541 (11th Cir. 1989) (per 

curiam) (accept.1nce of responsibility) [#4]. 

U.S. v. Buenrostro. 868 F.2d 135 (5th Cir. 1989) (minimal 

participant stalus, § 381.2(a» [#2]. 

Volume 2· Index· January 31,1990· Pqe 7 

U.S. v. Mejia-Orosco, 867 F.2d 216 (5th Cit.) (role in 

offense. § 3Bl.l(c», cert.denjed. 109 S. CL 3257 (1989) 

[#2]. 

4. OVERLAPPING GUIDELINE RANGES DISPUTE 

U.s. v. Williams. 891 F.2d 921 (D.C.,ci~.1989) (may be 

unresolved if same sentence would be imposed. remand 

if sentence chosen because at low end of range) [#19]. 

U.s. v. Turner, 881 F.2d 684 (9th Cit.) (may be unresolved 

if same sentence would be imposed), cert. denjed. 110 S. 

CL 199 (1989)['11]. 

U.S. v. Fuente-Kolbenschlag. 878 F.2d 13TI (lIth Cit. 

1989) (percmiam) (appealable if party alleges guidelines 

incorrectly applied., 18 U.S.C. § 3742(aX2» ('II]. 

s. 0nmR 

U.S. v.Ruiz-Garcia. 886 F.2d 474 (1st Cit. 1989) (summary 

review for meritless-appea1s) [#14]. 

U.S. v. Wilson. 707 F. Supp. 1582 (M.D. Ga. 1989) (denied 

in forma pauperis status for frivolous appeal) [#4]. 

I. Challenges to Guidelines and 

Sentencing Reform Act 

1. Do NOT VIOLATE DUE PROCESS 

U.S. V. Pinto, 875 F.2d 143 (7th Cir. 1989) [#7]. 

u.s. v. Allen. 873 F.2d 963 (6th Cir. 1989) [#7]. 

U.S. v. Selulc. 873 F.2d 15 (1st Cir. 1989) [#7]. 

U.S. V. Briltman, 872 F.2d 827 (8th Cit.), cerl. denied. 

110 S. CL 184 (1989) [#5]. 

U.S. v. Vizcaino. 870 F.2d 52 (2d Cit. 1989) [#2]. 

U.S. v. White. 869 F.2d 822 (5th Cit.) (per curiam) (also 

statutory and other constitutional chaUenges), cert. denied. 109 S. Ct. 3172 (1989) [#3]. 

2. V lOLA TE DUE PROCESS 

U.S. v.Roberts.No.89-OO33 (D. D.C. Nov. 16, 1989). stayed 

in U.s. v. Holland. No. 89-0342-01 (D.D.C. Jan. 11. 

1990) [#16]. 

3. RFJEcnNG CHALLENGES TO SPECIFIC PROVISIONS 

U.S. v. Cyrus. 890 F.2d 1245 (D.C. Cit. 1989) (higher 

penalty for cocaine base than for cocaine) [# 18]. 

U.S. v.Francois. 889F.2d 1341 (4thCir.1989)(dueprocess 

challenge to substantial assistance provisions) [#17]. 

U.S. v. Savage. 888 F.2d 528 (7th Cir. 1989) (§ 2J 1.6, Failure 

to Appear. mitigating factors not considered) [1#17]. 

U.S. v. Koonce. 885 F.2d 720 (lOth Cit. 1989) (prosecution 

for crime used to enhance prior sentence) [#14]. 

U.S. V. Restrepo. 884 F.2d 1294 (9th Cir. 1989) (burden on 

defendanuoproveftreann not connected to drug offense. 

§ 2Dl.l(b)(l» [#13]. 

U.S. v. Sciarrino. 884 F.2d 95 (3d Cit.) (reliable hearsay in 

guideline sentencing findings). ce~. denied. 110 S. CL 

553 (1989) [#13]. 

U.S. v. Baker. 883 F.2d 13 (5th Cir.) (per curiam) (drug 

quantity, nOl purily, to set offense level), cert.denied. 110 

S. CL 517 (1989) [#13J. 

93 
94 

Guideline Sentencing Update 

U.S. v. Sanc~z-Lopez, 879 F.2d 541 (9th Cir. 1989) (career 

offendc:c provision. § 481.1) [#9J. 

U.S. v. Ayarza, 874 F.2d 647 (9th Cir. 1989) (§ SKU, p.s., 

requirement for government motion), cert. de,.ud, 110 

S. Ct 847 (1990) [#7]. 

4. UPHOLDING CHALLENGES 1'0 SPECIFIC PaOYlSlONS 

U.s. v. Lee, 887 F.2d 888 (8th Cir. 1989) (offense level 

increase in "failure to report" guideline, § 2)1.6) [#fI5]. 

U.s. v.Curran. 724 F. Supp. 1239(C.D.D1.1989)(substantial assistance provisions, § 5K1.l and 18 U.S.C. 

§ 3553(e), violate due process) [#f14]. 

U.s. v. Bos~II, No. CR-88-361-S (E.D. Wash. Jan. II, 

1990) (§ SH I, personal characteristics; unconstitutional 

as applied to defendant who went to trial when co-conspirators pleading guilty to be sentenced under preGuidelines law given much lightc:c sentences) [#20]. 

Volume 2 • Index • ]UlUary 31,1990· Page B 

U.s. v. Roberts. No. 89-0033 (D.D.C. Nov. 16, 1989) (substantial assistance provisions. § SKU and 18 U.S.C. 

§ 3553(e), violate due process) [#16J. 

J. Decision to Apply Guidelines 

u.s. v. Garcia.-F.2d-(1OthCir.Dec. 29,1989)(assimi~ 

lal.ive crimes) [#19). 

u.s. v. Rosa. 891 F.2d 1071 (3d Cir. 1989) (conspiracy 

begun before and ending after Nov. I, 1987) [#f18]. 

U.s. v. Tharp. 884 F.2d 1112 (8th Cir. 1989) (conspiracy 

begun before and ending after Nov. I, 1987) (withdrawn 

from bound volllJlle--q)inion to be republished) [#f13). 

U.s. v. Davis, 718 F. Supp. 8 (S.D.N.Y. 1989) (conspiracy 

mostly before Nov. 1,1987) [#13]. 

U.s. v. Norquay. 708 F. Supp. 1064 (D. Minn. 1989) (not 

applied to Major Indian Crimes Act) [14]. 
Guideline Sentencing Update ~ ~ U"."...m bo diIIdbIateclpeciocllMllJ .". .. c....toial_jIIdpI .... CIIhar jDdidd f*IGIIDCIl ~ ............ --dociIiaaI_"--=a --tcpIatiaa ~ 1"" .... 1917 ...... S- I.., 0gIdetipes AJrIIauab" pgWicIciaa _,.l'IIf«to" SaIt-"'I ()ricIcIjrw .... fM*7 ~ ~ Iba u.s. s--. 

iqC' jeeLwill_OIIIIIal~ ..... _baldiap."._ ...... to .... ,....,.C ".kapoticiel.ICIi.YiIica ...... lbauWrcf .. to .. OuideUra.paIiq 

....-. 

~ 

c "". II". ___ ........... .".., •• *, Oc lee. far __ ial~ 

~a..w.liM '-1IIncIa,r U".".lIipi&I __ c.. .... k •• NpCIIIIi1IIe and nhIIb1e WGIk. It 1Ibau.Id ... bo ____ • ~datioa_1IfticiaI 

patic:J ~ .. C-011 ....... ~paIiq .. c.....,..a..., ... ill! s-L 

VOl.VMB 3 • NU'MBII& 1 • Paltu.uy IS. 1990 

Sentencing Procedure 

FACTUAL DISPUTES 

D.C. CIrcuit holds eourt may.ot use evlcleace tram 

the trial of aaodIer to determlae drq quaDdiy. Two 

defcndanls were iDdJctedon dnccounlS of disIribudng PCP. 

DefendantChandlerwt'llt.olrialandwasconvictedofdislno. 

uling one kilogram or IIlCJIe of PCP. Defendant Osborne pled 

guilty to diSU"ibuling 100 grams or more of pcp, and the 

sentencing judge used the one kilogram figure from Chandler's case 10 set Osborne's offense level. 

The appe11ate court beId. and the government conceded, 

that it was emlC to usc the amount from Qaodler's Irial in 

Osborne's sentencing, "for Osborne was not a party to that 

trial and cannot be bound by the.vcrdict." Accord U.s. v. 

Cast4llanos. 882 F.2d 474 (11th Cir. 1989). BUI see U.s. v. 

Beaulieu. 893 F.2d 1177 (10th Cir. Jan. 10, 1990) (may usc 

evidence from co-c.onspiraUx"·s biaI). The court added rhat 

"the govrnunent will bear the burden of establishing the 

amount of pcp Osborne distributed by a preponderance of 

the evidence." 

U.s. v. Ch.andkr. No. 88-3110 (D.C. Cir. Jan. 30. 1990) 

(pt-z cmiam). 

PLEA BARGAINING 

Seventh Circuit bolds court need not inform defendant of probable guideline miDimum before accepting 

plea, but recommends witbhoidiDg acceptance of plea 

until after submission of presentence report. Defendant 

argued that because the offenses to which be pled guilty did 

not have mandatory minimum sentences, Fed. R. Crim. P. 

II(c)(l) required the sentencing court 10 infonn him of the 

minimum senrence he could receive lD1der the Guidelines 

before it accepted his plea. 

The appellate court beJd that "the Sentencing Guidelines 

do not impose a 'mandatory minimum penalty' wilhin the 

meaning of Rule 11(c)(I). and the district judge did not err 

in failing 10 infonn [defendant] of the ultimate sentencing 

range that he would libly face OIl his convictions. .. See also 

U.s. v. Foreman. No. 89-3686 (6th Cir. Feb. 2. 1990) (per 

curiam) (unpUblished disposition) (cowt not required 10 infonn defendant of offense level and criminal history category before accepting plea); U.s. v. Turner. 881 F.2d 684 

(9th Cir.) (same), cen. denied. 110 S. CL 199 (1989). The 

counagreed with U.S. v.Fer1lfl1llkz. 877F.2d 1138.1142-43 

(2d Cir. 1989). that due process does not require courts 10 

advise derendants of their likely sentencing range before 

accepting guilty pleas. 

Howc\'Cl', the court noted its "agreement with the .•• 

poposal in F el7llllldn that district courts withhold their 

aa:epcancc of guilty pleas Wltil after the pI'CSCWCIlCC report 

has been submiued 10 the court and abe court has bad an 

oppor1UDity to review the information with tbe defendant and 

counseL ••• Like the Second Cbtuit, we decline to rmd that 

Rule 11 requires theCOUlt to predict the applicable sentencing 

range. but we believe that defendants will be able 10 make 

more intelligent choices about whether 10 accept a plea bar· 

gain if they have as good an idea as possible of the likely 

Guidelines resulL Further. we DOCc that such a practice would 

ac.cml with the ••• policy statement at section 6Bl.l(c)." 

The court also reiterated its ":request that disttict courts 

endeavor to pesent their reasons for imposing sentence in 

some concise. easily accessible form. " 

U.s. v. Salva. No. 89-1556 (7th Cir. Jan. 23, 1990) 

(Cudahy. J.). 

Other Recent Cases: 

U.s. v. Howard. No. 89-30093 (9th Cir. Jan. 25. 1990) 

(Fernandez. J.) (agreeing with U.s. v. McDowell. 888 F.2d 

285(3dCir.I989),and U.S. Y.Urrego-UMru.879F.2d 1234 

(4th Cir.), cert. denied. 110 S. Ct. 346 (1989), that "the party 

seeking to adjust the offense level should be required to 

persuade the court that such an adjustment is merited," and 

facts must be proved by a preponderance of theevidence; also 

holding the government "should bear the burden of JI'Oving 

the facts necessary to establish the base offense levelj. 

U.s. Y. Kirk. No. 89-3020 (10th Cir. Jan. 22, 1990) 

(Kane. Sr. Dist.. I.) (following Urrego-Unares. supra. that 

burden of proof is OIl party seeking sentencing adjustment, by 

prepondemnce of evidence). 

U.s. v. BIIl7U. No. 88-3161 (D.C. Cir. Jan. 12. 1990) 

(Mikva. J.) ("suggestfmg] that future plea agreements explicitlyaddress the possibility that the bialjudge may depart from 

the Guidelines, even if such a departure is not recommended 

by the government or the probation officerj. 

U.s. v. Wivell. No. 89-5104 (8th Cir. Jan. 3. 1990) 

(Bowman. J.) (requirement of 18 U.s.C. § 3S53(c) that sentencing judge "state in open COWl the reasons for its imposition of the particular sentence" is met when "the reasons 

appear on the record of the sentencing proceedings in open 

coun"-there was"noerror in thecoun's ftdlurelOarUcula1e 

specific reasons in the written memorandum"). 

U.s. v. Ameperosa, No. 89-00589-01 (D. Hawaii Ian. t 8. 

1990) (Kay, 1.) (holding 18 U.S.C. § 3500 (Jencks Act) 

Not for CltatiOQ. GuideliM &ntl.!"-Cillg Updmt! is provided for infonnation only. It snould not be ciled., either in opinions Of otherwise. 

95 
96 

Guideline Sentencing Update 

"should be e:x.tended ro providing government witnesses· 

statements ro defendants at [contested] sentencing hearings, 

where Ihc defendant has pled guilty" and "factual alJcgadons 

by I Government witness IIl'e relevant ro both the validity and 

terms of Defendant's senrcnc:ej. 

Appellate Review 

N1Dtb Circuit sets staDdard ror review of departures, 

holdseouns must &lvespedllcreasoasror esteDtol depar- . 

tare. Noting Ibe three-stcp procedure setforth in U.s. v. DimVUlqftIM. 874 F.2d 43 (1st Cit), een. deni4d. 110 S. Ct. 1 TI 

(1989). abe court "'agrec[d] wilh the Fust Cilcuit that the 

question of whccbe:r departure on • ~ ground is permissI"bJc under the Guidelines is a quesdon of staIUfOr)' c0nstruction that we .mew de Il0\'0.'' The court also ""ill effect. 

agrec[d] with the second step of the FltSt Orcuit's analysis, 

since we wiUapply dIocompanion standards of clearert"CX'and 

abuse of disaedon"· to -u.c detcnnination of wbcchcr Ihc 

particular case is one whc2'e there should be a dcparIurc. .. 

The court di.f'femI. however, on Ihc SlaDdard &bat should 

be used for tbc third stcp-revicwing tbc Je8SOI1ableoess of 

lhcextentofdlodeparture.FmdingthatIheFltStCircuitused, 

in effect. an"abuse of d.isaetion" standard. the N"mtb Circuit 

held Ihat it would"tevicw thee:x.tent of any departure from Ihc 

Guidelines de novo." Thecoun ICaSOIlCd that"the choice of a 

pan.icular sentence should be accomplished in I carefully 

guided manner •••• That is. it should always be pursued with 

an eye on the Guidelines categories themselves, and wilh an 

adherence ro the concept of di.scIet.e changes in offense a . 

history levels fm disa:etc reasons. " 

In Ihc pn'lSCOt case. the court upheld the reasons fm the 

depaJ1urc. but remanded because the sentencing court "failed 

ro indicate how it arri~ at Ihc scnrcnc:e that it imposed." 

U.S. V. Gayoll., No. 89-30096 (9th Cir. Jan. 30, 1990) 

(Fernandez. J.). 

Departures 

u.s. v. Ceja-Hunaruln.. No. 89-30152 (9th Cir. Jan. 30, 

1990) (per curiam) (reversing upward departure based on 

immigration defendant's anticipated deportation upon release 

that prevents court from imposing fme or supervised release-"Sentencing Commission would certainly have been 

aware of the practice of promptly deporting aliensj. 

U.s. v. Cluue.No. 89-1502 (1st Cit. Jan. 29, 1990) 

(CampbeU,CJ.)(delendant'sconvictionon IScounts ofbank 

robbery. while multiple count adjustment procedure in 

U.S.S.G. f 301.4 provides same penalty for six or more 

counts, was aggravating circumstance warranting upward 

departure from range of 57-71 months ro 120-month term). 

U.s. v. WUlitJnLS, No. 89-1134 (8th Cir. Jan. 22, 1990) 

(Bowman,J.) (upwarddeparturewamulled fordefendantwho 

pled guilty to using telephone in commission of drug offense 

because of her "significant involvement" in the underlying 

offense; agreeing with U.S. v. Correa-Vargas. 860F.2d 3S (2d 

eir. 1988), that court may consider quantity of drugs in 

underlying offense as factor in depanure decision). 

Volume 3· Number I· February IS, 1990· Ptae 2 

u.s. v. S4IIChez. No. 89-1356 (5th Cir. Jan. 19, 1990) 

(Davis. J.) (upward departure warranted for defendant's 

continuedunlawfulconductwbilconpre..Ilialrelease,q.U.s. 

v.Jordtua. 890 F.2d 968 (7th Cit. 1989) (upholdiDa deplnure 

partly based on cootinued c:riminal conduct wbile awaiIing 

UiaI); same c:onduct also used to deny ~tion fm acceptance of JeSpOIlSl'bility). . 

U.s. v. SWill, No. 88-~161 (D.C. Cit. Jan. 12. 1990) 

(Mikva. J.) (when facts providing basis for dcpar1ure are 

contained in presenaeoce report.. and because defendant bas 

opportunity ro challenge departure at sentencing bearing and 

rfsbt ro appeal senaeaco. DCiIhcr the Guidelines ftOl' Fed. R. 

Crim.P.32Iequiresadvaacc aodcoof decision 10 depart).S« 

U.s. Y. Jordtm, 890 F.2d 968 (7th Cir. 1989). Cj. U.s. Y. 

CtTWIIIIU, 878F.2dSO(2d Cir.1989) (nociceandopportuDity 

to c:ommentlequimd prior to sent.eDCiDg); U.s. Y.NlIIIO-PaTa, 

8nF.2d 1409(91bCit.1989)(same);U.s. v.Ouro,868F.2d 

1412 (5th Cir.I989) (same). 

U.s. v. Kennedy, No. 89-3399 (6dI Cir. Jan. 9. 1990) 

(Milburn. J.) (senleDCing court's statement that it departed 

because of defendant's "'long history ofvio1alion of the law" 

undetaTed by prior punishment was not suftlciently specific; 

also, when departing upward because of inadequate criminal 

history score court should fltSl consider next higher criminal 

history category). 

U.s. v. While. No. 89-3003 (10th Cir. Jan. 8, 1990) 

(Tacha. J.) (upward depanure warranted because consoUdalion of prior offenses for sentencing underrepresented defendant's aiminal history, and cmrent offedSc was c:ommiaed 

while defendant was out on bail: disaicr cOOn poperly used 

higher criminal history caaegory ro guide departure). 

Adjustments 

u.s. v. Sanchez, No. 89-1356 (Slh Cir.1an. 19. 1990) 

(Davis.J.) (defendant's c:ondnued unlawful cooduet wbile on 

preaialldease justified denia1 of acceptanCCof responsibility 

reduction; same conduct used as basis tor upward depar1Ule). 

Offense Conduct 

WEAPONS POSSESSION 

u.s. ". WiUilutu. No. 89-S460 (6dI Cir. Jan. 25, 1990) 

(Contie, Sr. J.) (abuse of discretion to give U.S.s.O 

f 2Dl.l(bXl) cobancemeat to co-conspiralars DOl present at 

commission of crime where weapon was aDegedIypossessed, 

when co-conspiraror who possessed weapon was not given 

same enhancement). 

Challenges to Guidelines 

u.s. v. Holland. No. 89-0342-01 (D.D.C. Jan. 11.1990) 

(Greene. J.) (slaying decision in U.S. v. Roberts. No. 89-0033 

(D.D.C. Nov. 16, 1989) (2 GSU #16), "iiiSofar-as it broadly 

holds unconstitutional the sentencing law and the guidelines 

in their entirety"; court will "apply the statute and the guidelines pending disposition of the current appeals"). 
Guideline Sentencing Update 

GtMIIiMS_IItdItc Uptl.u wm .. ~ ~." ... c....fOlaf_;.aq.llllllodIII' judicUl ,.....afll ....... r..tenlClllllll ..... OIIIbe ...... 

nI-lePIaIiaI fIl19l41111111'" I11III ...... ..,..,.. QnideIjee ~ ... pubI.icatioa _,nIw .... S ' '. 0uWIIiDII1IIIII paIIcIf ____ fila. U.s. ..... .,0 ! 'm ........ fIllIIIII«IIaa_IIDIdIIp.i& .............. Senfeerin.C ' riOll,.,...nClliw_ ......... nIw.lbeGri1 II ,ptIIiq •• _ ., .................... ." ... S ... a ... C If n_IUdIW ___ 

~fIlo.w.iMr-.... ",U".. ..... _ ... c. ....... i& •• ...,..lM ............ wadl.h...w ....... ,_ •• ,1J1 I ,n' I _CIkiIl 

JlClllcJfl ... c.....O'_ fIl,..., .. c.-...... ealJ~ ....... 

VOWMB 3 • NUMB.. 2 • PaaUAJlY 28. 1990 

Departures 

Foartla Circuit lIoids "put Hqulttall b, reasoa 01 

IasaDltJ ., be. basis for departure f'roIIl tbe GaIdeUD. 

HIlle." Defendant pled guiJlJ 10 drug charges. His criminal 

history caregcry was IIIId. die pideline range was 27-33 

months. Defendant's criminal history soore did not iDclude 

two lCQuiUaIs by reason of insanity: one for second-degree 

murder and .aempted murder, and one (ex' (our counts or 

aaempted murder. The district court c:oncluded &hal ca&egory 

I did not adequardy reflect the serious aat1R or dcf'endant's 

criminal history, US.S.O. § 4Al.3,depar1cd upward lOcalegory IV, and senrcnced dcf'endant 10 Sl months. 

Affuming. the appellate court noted: "It is undisputed 

that the OuideliDes Manual nowhere mentions ex' lakes inlO 

account acquiuals by reason of insanity." The court also noted 

that -[a] verdict of not guilty by reason of insanity establishes two facts: (i) the defendant commiued an act that c0nstitutes • aimi.naI offense, and Oi) he c:ommiaed the act 

because or meow illness. ••• The fact that. person has been 

found, beyond a reasonable doubt. 10 have commiucd a 

criminal act cedainly indicates dangerousness.·" (Quoting 

JOMs Y. U.s .• 463 U.S. 354. 363-64 (1982).) The court 

coocluded: ""From these observations. it plainJy follows. and 

we so hold. that an acquiUal by reason of insanity is reliable 

informadon that a district court may consider in assessing 

whetMz a defendant's aiminal history category ... &dequardy rd1cccs [his] past aiminal conduct ex' his potential fex' 

future aiminaJ behavior." 

U.s. v. McKtnley. No. 88-S137 (4th Cir. Feb. 6, 1990) 

(Ellis. Dist. J .). 

NOTICE 

u.s. v. Miclultl. No. 89-1274 (5th Or. Feb. 15. 1990) 

(Smith. J.) (sentencing roun need n~ priex' to the sentencing 

hearing. give notice to defendant that it intends to ignore 

presentence report recommendalion and depan-dtere is no 

requirement Ihat the c:oun issue ies IatEative factfmdings and 

sentence prior to the hearing; case remanded, however, 

because one or district coun's two reasons for departing was 

not S11ppOI1Cd by evidence in the record). 

U.s. v. Acosta. No. 89-10050 (9th Cir. Feb. 2. 1990) 

(Pregerson.J.) (requimment for notice or departure met when 

"[a]U of the factors identified as bases for departure by the 

court when it imposed sentence were listed as possible departwe grounds in the presentence report and commented upon 

by [defendant's] counsel before sentencing"). 

SUBSTANTIAL AssLWANCE 

• U.s. Y. CoIutaII. No. 89-1704 (8dt Or. Feb. 7, 1990) 

(Magill, J.) ra gowmmeat moIioa is reqairod befare a court 

may depart from die mandaItxy minimum lellleDCC under [18 

US.C.] 13SS3(e)"--IeaaI from abe gowmmeatoudiDing 

defendants' coopendion were not the ""functional equivalent" 

or a f 3SS3(e) motion; irplcaagreement binds government 10 

fde madon court may enfarc:e that ~ ex'. plea may 

be withdrawn, but there was 110 such agreemaU beIe). 

STATEMENT OF REAsoNS 

U.s. v. Newsmrte. No. 89.1379 (6Ib Cit. Jan. 31,1990) 

(Nelson, J.) (remanded because district court failed to make 

specific finding in qJeIl court of aggravaling circumstance 

that would justify upward departure). 

Otber Receo. Cues: 

U.s. v. VQIIDyke.No.89-SS02(4thCir.Feb.I2.1990) 

(wiDdos,J.) (holding thai. "'rehabilitaliveconduct" aftu am:st 

and before sentcncing-bere drug abuse treattoent and counseling innw.es about drug abuso-was not a factor on which 

departure could be based because such conduct is aa:ounted 

fex' in aca:ptance of raponsibililJ guideline, § 3El.l). 

U.s. v. Evidefllt. No. 88-S2OJ (8th Or. Jan. 29. 1990) 

(Bowman, J .) (discretionary refusal by district court to depan 

downward is not reviewable), For other clicuits Ihat have so 

held. see 2 GSU /nda (Appe1late Review: Discretionary 

Refusal to Depan Downward). 

U.s. Y. Rttves. No. 894111 (5th Cir. Jan. 18. 1990) 

(Duhe. J.) (affuming upward depanure because dcf'endants 

intended bribe to be much larger than amount aclUally paid). 

U.s. v. Drew. No. 88-2661 (8dl Cit. Jan. 17, 1990) 

(Bowman. J.) (upward dcpanure wamnted for attempt to 

murder government wilnCSS-Obstruction of justice guideline, US.S.O,. § 3CU. does not adequaldy account for this 

conduct). . 

U.s. v. Mills. No. 88 CR 956 (SD.N.Y. Jan. 17. 1990) 

(Haight. J.) (combination of "exlraOntinary circumstances. .. 

resulting in the "tota! absenc:eof respons1ole adults" toeare for 

defendant's children if she were incarcetated. wamutts downward departure for "family ties and responsibilities" under 

U.S.S.G. § SHJ .6, p.s.). 

U.s. v. FueflUs. No. 89..()()lS6-A (B.D. Va. Dec. 28. 

1989) (BUis, J.) (upward departure warranted under U.SS.O. 

§ 5K2.0, p.s., because the "Guideline range for [Continuing 

Not ror Citation. Gwid.tllillt ~IIWICj", Updm#l is provided for information only. It should not be cited. either in opinions 01' otherwise. 

97 
98 

Guideline Sentencing Update 

Criminal Enterprise offenses] is manifestly inadequate in its 

failW'C ro acc:ounl adcqua&cly for abe dimensions and duration 

ofIhisCCE.-which spanned a decade and involved nwnerous 

participants and large amount of cocaine). 

Adjustments 

ROlE IN THE OFFENSE (I 381) 

u.s. v. AnderSOll, No. 89-100S9 (9th Cir. Feb. 8.1990) 

(Stotler, DisL J.) (bank robbery defendant lXO()etly cl&uified 

u cqanizc:r or Ieadcr'. pursuant 10 U.S.s.G. f 3B 1.1 (c), even 

Ihougb codefendant was unaware of crime un&il aflet its 

cammissioD bec.use of defendant's 1ri<:.teIy. and cn.ricc 

court ISSUIIled that codefendant was DOt criminally responsible forrobbery). BIU .r« U.s. v. Carroll, 893 F.2d 1502 (&11 

Cir. 1990) (adjustment under 13B 1.1 (c) requires at least one 

other MaimiDaIly respoasible- person in offt"llSC). 

u.s. v. Gtwdoll. No. 89-5003 (4th Cir. Feb. 2, 1990) 

(Wilkins. J.) ("'mitigating role adjustments apply only when 

tbete has been group conduct and a panicuJardefendantis Jess 

culpable than other members of the group--minor partici· 

pant status. U.S.S.G.13Bl.2(b), DOt appropriale for defendant convicted of cocaine possession absent evidence of 

group conduct). 

OBSTRIJCnON OF JUS1'ICE (§ 3el) 

U.s. v. Werlinger, No. 89-S269 (8th Cir. Feb. 2, 1990) 

(Lay, CJ.) (not applicable for eonceaJment of crime whea 

concealment is element or offense, here embezzlement). 

U.s. v. BoUr. No. 89-50170 (9th Cir. Jan. 24, 1990) 

(ScJuocder.J.) (rejecting defendant's argwnent that his misstatements 10 probation offlCet' regarding his criminal histoly 

were imnuuerial and thus not grounds for enhancement because probation officer could ha\'e secured ''rap sheet .. showing defendant"s 1nJe aiminal past). 

U.s. v. PellSoll, No. 88-2640 (8th Cir. Jan. 12, 1990) 

(Heaney. Sr. J.) (afflrming enhancement for lhrea1ening a 

wilness and providing false information that delayed in\'eSli· 

galion of defendant). 

ACCEPTANCE OF REsPONSI8D.rrv (§ 3EI) 

U.s. v. Gtwdoll, No. 89-5003 (4th Cir. Feb. 2. 1990) 

(Wilk.i~ J.) \in order for section 3El.l of abe guidelines ro 

apply, a defendant must fn acc:ept responsibility for all of 

his criminal conduct." not just for count of conviction). Ac· 

cOt'd U.s. v. Moslwwitz. 888 F.2d 223 (2d Cir. 1989); U.s. v. 

TeUez. 882 F.2d 141 (Sth Cir. 1989). BUI if. U.s. v. PerezFrQllCO. 873 F.2d 4SS (1st Cir. 1989) (defendant need only 

accept responsibility for count ro which he pled guilty as pan 

of plea agreement). 

U.S. v. Evideltle. No. 88-5208 (8th Cir. Jan. 29, 1990) 

(Bowman, J.) (escape defendant's "past failure to accept 

responsibility for his criminaJ conduct. and his demonstrated 

propensity for flight, properly could be considered by the 

sentencing court in evaJuating" defendant's present claim of 

accepaance of responsibility). 

Volume 3 • Number 2 • February 28, 1990 • Page 2 

Criminal History 

CALCULA. TION 

u.s. v. Mad:btN:, No. 89-S0231 (9th Cir. Jan. 23,1990) 

CPa' curiam) ("'Section 4Al.1 sentence enhancements apply 

10 8enIcnCeI abel are pending appeal" -if' prior conviction 

n:verscd defendant Mwould have Ihe right 10 petition for 

resentencing,. 

U.s. v. McC1'IIdde1l. No. 89-S0246 (9th Cir.Jan. 23. 1990) 

CPa' curiam) (not irppoper ., apply U.S.s.G. f 4Al.l(d) 

enhancement for commiUing offense while on unsupervised 

probaIioo fel'tIIff'lC offense). 

Cmmw. LIVELIBOOD PROVISION (1481.3) 

U.s. v. CWucewsk.i. No. 89-1160 (3d ar. Jan. 18. 1990) 

(Becker. J.) (holding wnioa of U.S.s.G. 14Bl.3 in effect 

before Nov. I, 1989, ""is inapp1icab1c 10 defendanrs whose 

yearly profll from crime is less than 2000 times die hourly 

minimwn wage"; court noted that defendants sentcnc:cdafter 

Nov. 1. 1989. are covered by amended guideline. which 

incorporatC$ same limitation). 

Offense Conduct 

DRUG QUA.NTI1Y 

u.s. v. Bishop, No. 89-1221 (8th Cir. Jan. 22, 1990) 

(Gibson, J.) (weight of LSD includes weight of carrb' 

medium). AceDl'd U.s. v. Daly. 883 F.2d 313 (4th Cir. 1989); 

u.s. v.Rost', 881 F.2d386(7IhCir.I989); u.s. v. Taylor. 868 

F.2d 125 (Sth Cir. 1989). BIU see U.s. v:HetIly, No. 89'()177 

(D.D.C. Jan. 18, 1990) (Gesell. J.) (disagreeing with DdIy. 

holding weight of carrier medium should not be included). 

Sentencing Procedure 

PLEA. BA.RGAINING 

u.s. v. Moya. No. CRl-88-262-D {N.D. Tex. Feb. 1. 

1990) (Fitzwater. J.) (court not bound by amount of drugs 

stipulated to in plea agreement. see U.S.S.G. If IBl.3(a), 

6B 1.4(d), p.s.; in addition, court may not restrict itselC ro 

senlCncing defendant on amount in plea agreement if relevant 

faclSshowlargerquantityinvol\'ed,st'eU.S.s.G.§§6Bl.2(a). 

p.s.,2Dl.l(aX3». 

Challenges to Guidelines 

u.s. v. Evilkltle. No. 88-S208 (8th Cir. Jan. 29. 1990) 

(Bowman.J.)(escape guideline. U.s.S.G.1 2Pl.l.adeqU8lCly 

distinguishes types or escapes and complies with s&atutory diff1:.tive). Seetllso U.s. v.Medeiro.r, 884 F.2d 7S (3dCit. 1989). 

u.s. v. Belgard, No. 88-3173 (9th Cit. Jan. 25. 1990) 

(Fernandez, J.) (rejecting constitutional challenges ro role of 

probation offlCetS under Guidelines). 

u.s. v. Bud:N:r. No. 89-1438 (8drCir. ian. 22. 1990) 

(Sneed, Sr. J.) (holding that "100 10 1 ratio" of cocaine ro 

cocaine base in U.S.S.G. § 2Dl.l(c), Drug Quantity Table, 

does not violate due process or prohibition against cruel and 

unusual punishment). 
Guideline Sentencing Update 

GIoMdiMs."RCU!t U,.,.wlDlIe........,~..,. ... c-lAiaf_,....._ .... jMicUl...-..fIl ............. _____ ... ...... 

............. fIll914 _1917_ ... S..::ina0ui ..... A.IIhautIt ... pdllia __ ,........ . ,Oui ..... _paliq __ fIl ... u.s. s-. .. 0 '! ........ fIl ...... _ ....... " ................. II· *,0 ! ia ..... ~ ............ .r ...... On'd "_.paIiIIf _"'1 , ................. ..,. ......... 0 ·._tror ... W ___ 

PIa"ud .. fIlGMdiM 14M""" U,.,. ........ c.... ..... il •• ~ .. "..... .... I& ...... baD ·d..... • ..... aIIIIid 

paIk::J fIl .. o... 0. __ fIlpaliq ... c-...... ..., ....... I111 ...... 

VOUJIoIB 3 • NUMB. 3 • MAacH 9, 1990 

Criminal History 

NiDtb Circuit IimIIi "applicadoll aGte" to U.s.s.G. 

f 4AI.2(aX2), aplaoldl leparate cootlDa 01 a.YktIoDa 

far arelated oft'e .. dultwere a.lOIidated far IIDteDC-

.... Defendant had three piorconvicdoos lhatbad heeD aliisolidated far IeIItcllCing. although the offenses weR fadualIy 

unrelated.. Defendant argued abe Ihrce CODVictions sbouId be 

trcatedasoncaenteDc::e under 14Al.2(a)(2) becausetheywae 

""mlared cues" accring 10 Application Note 3 of that secIioD: 00Cases are CODSideml relaIed if they ••• were consolidated far IriaI or senlCllCing." The sentencing court found the 

cases were not ~Iatcd and counted them separatdy. 

The appelJaJe COUlt aff1l1Ded. ~jccting "'that part of 

ApplicatioD Nocc 3 tbat suggcscs thai. cases consolidated. f(l' 

sentencing are to be deemed ~1aIed. These application notes 

are DOt binding law, they are only advisory commentary to 

assist in the application of the stalUlC."1beCOUltIW1Ollcd: "A 

defendant convicted of multiple unrelated offenses who f(l'-

tuiUJUSly is sentenced for aU offenses by one judge atone time 

would subseqUClldy face Jess punishment when his points are 

totalled Ihan another defendant who commiaed the same 

crimes but was sepande1y sentenced on successive days or on 

the same day by diflemll judges. Aside from offending the 

legislative intent and public policy involved. such a result 

would be meqw . .table. .. . This appears 10 be the fll'Sl court 10 reach Ibis conclusion. 

Other courts have allowed de:panures when foUoWing Note 3 

resulted in a criminal history scam thai. wKlclleplesented the 

seriousness of a defcndant'scriminal history. See. e.g. , U.s. \I. 

WIaiIe, 893 P.2d 276 (lOch CU. 1990); U.s. \I. Geiger. 891 

F.2d 512 (5tb Cir. 1989); U.s. \I. Dor." 888 F.2d 79 (11th 

eir. 1989), cot. de_d. 110 S. Ct. 756 (1990). 

U.s. \I. Gross. No. 89-10098 (9th eir. Feb. 27. 1990) 

(HaIJ.J.). 

Other Reent Cases: 

U.s. \I.DaddlllO.No.88CR 763 (N.D. ID.Feb. 16.1990) 

(Williams. J.) (in determining criminal history score f(l' 

"pior scnaencc of imprisonment" under U.s.s.G. 14AI.1. 

.. the COUlt should count Ihe full time in a pri(l' senrence that 

was "imposed.' regardless of time served on that sentence," 

see I 4A 1.2(bX 1). 

Departures 

SecmdCIraUtTec ............ Dldplecoaatsprocedwe. U.8.S.G. f 3DLI-..5, toplde dep..-turel .... OD 

ada 0I.1IcoDd1ld DOl ........... CIDMIctIoa. Defendant 

was indicledon six cbIrges~1aring to an IIItADplto aid iIlepl 

airy m alieDs. He pled guilty to one COUIll, ad the disttict 

courtdepartcd upward baed on theestabJisbed facts underIyiDa the COUIIIs IbIlwcn dismitstd 

TbeappeUatecounaananded.and setfMbthepocedure 

the district court should foUow in dtAamining the extent of 

depanure in such a situadon: "[G]uidance is found inidaUy in 

the multi-c:ountanalysism sections 3Dl.l-oS. Since the Commissioncarcfully ~ a system far aggregating acts of 

misconduct that JeSuIt in conviclion (or stipulaIioD in connection wUh a plea). Ihalsys&em must inidaDybe used by ajudge 

contemplating enhanced punishment for acts of misconduct 

not JeSulting in conviction. where the acts of misconduct 

constitute offenses for wbicll guidelines have been cuablisbed. "The court stressed that the resulting calculation pr0-

vides only initial guidance: iT]he judge need not depart 

upward aU the way 10 the aggregate guideline range resulting 

from that calculation. On the ocher band. the judge is not 

limited 10 that range in especially serious cases •.•. (A] 

departwe beyond theaggreprc guideline range wouldsdll be 

available despire the use m multi-c:ounl analysis. to 

The court found "'funher guidance" in the SlrUCtu.re of 

the senlCnclng table. NoIing Ihal it bas already ruled that 

courts must ~fer to me next IUgber aiminal history wbeo 

departing upwanI bec:ause of an inadequace criminal history 

scam. the court held that "when an offense level is deemed 

inadeqU8le and a judge is contemplating a 5K cIepanln by 

moving [in] the sentencing IabIe to a more aerious level. the 

judge should consider theaext higher levels insequeac:elOdeIt.mIine if they adequaldy rcflcctthe seriousness of thedeCeodant's conduct. "The court found this p1JCedure "CODSistent 

wilh the caution we have indicated is apptOpiiale far upward depar1ures. to 

U.s. \I. Kim. No. 89·1221 (2d Cir. Feb. 15. 1990) 

(Newman,J.) . 

TlUrd Circuit IaoIds that combiaatloD of radon, 

wbldl by themselves could Dot support departure, cUd Dot 

Justil)' departure UDder 18 US.C. f 35S3(b). Defendant 

U.S. v.Schweilrs. No. 88 CR 763 (N.D. m. Feb. 16.1990) pled guilty to sending a duQrening communication through 

(Williams. J.) (allhough conviction that was reversed is not themaDwilhtheintenttoCltlOltmoney.Defeodanlclaimcdhe 

ordinarily counted in criminal history calculation. court will was eligible for downward depart_ under U.S.S.G. 

count it here because it was ~versed on technical grounds and I 5Kl.13. p.So, "diminished capacity." because he was a 

there was ~IiabJeevidence that defendant intended 10 commit compulsive gambler. He also argued thai. the combination of 

the ai~ourt distinguished it from actual conviction by his gambling addiction and lack of intent 10 cany out his 

assessing only two instead of three criminal history points). threats could justify depanure. 

I Not , ... Cltatloa. CMilkliM SellUllCi", Updllu i. pn:wided (01' inform.lion only. 11 ahou1d not be cited. eilhcr in opinioru or <llherwisc. 

99 
100 

Guideline Sentencing Update 

The appellate court agreed with the disaict cowt that no 

depanure was warranted. A condition for departure UI'Id« 

I SK2.13, the court found. is that the offeuc wu non-vioteoL 

Deteodant'llI'gUIIlalt-thal his crime wu DCID-vioIcal because be did DOt actually use vi~ust fail bec:luse 

"[c)rimes of violence ••• include situalions whele forte is 

threaI.eDed but DOt used." Tbc court found. tbIt compulsive 

gambling could only be consideIed a pound for dqJInurc 

UDder I SK2.13; because defendant's aime wu not aoa-yjo.. 

1entand I SK2.13 was thus unavaiJablc , comp.dsive pmbIiag 

wu DOt 1 YIIid JI'OUDd for departure UDdea'rbe GuideUnes. 

Tbcoounalso held Ihatdcfcaclant'lpmblinaand lick of 

inreot to cary out his IbreaIs-which could DOtjusUCy departure individually-did DOt warrant departure evca when 

combined. 'I1IeIefacun_DOt~sucbtbatdqJlnurc 

is permiaccl under 18 U.s.S.C.1 3SS3(b). and die court em· 

eluded lbat ... combination of typical facial does DOt present an unusual case" penniuing depanurc UDder 13SS3(b). 

See U.s. v. Corey. 89S F.2d 318 (7dl Cit. Jan. 12, 1990) (vaCllling depanurc based CXl "cumulative effect" of factors). Bill 

cf. U.s. v. Mills. No. 88 CR 956 (S.D.N.Y. Jan. 17, 1990) 

(combination of "extraordinary ein:umst.ances" Yt'8I'I1Wed 

depanurc under U.S.S.G. 1 SHl.6, p.s.) (3 GSU '2). ", ~ 

U.s. v. Ro~lt. No. 89·S819 (3d Cit. Feb. 21,' 1990) 

(Seitz. Sr. J.). 

SUBSTANTIAL ASSISTANCE 

U.s. v. WilSDlt, No. 88·S21S (4dl Cir. Feb. 21, 1990) 

(Widener,J.)(when deparling pursuant 10 18U.S.C. 13SS3(e) 

"lherc is no lower limit placed on the court's authority"-che 

court is notreqWred 10 impose a scntenceeXimprisonment but 

may impose probation). 

U.s. v. RUllCh. No. 89-1286 (2d Cit. Feb. 20, 1990) 

(PraU.J.) (when pica &gJeeIIlenl '"provides that the prosecuur 

will move for a downward departure under the sentencing 

guidelines in return for the defendant's good faith effort to 

provide subslanliaJ assistance. cvaJuatioa of defendant's el· 

fort lies in the disaetion of the prosecul« and may be 

reviewed only on a showing of prosecutorial misconduct or 

bad faith," neither or which occuned hae; also upholding 

requiJancnl for government motion in U.s.S.G.1 SKl.1, p.s., 

apinsl consIilUlional challenge). 

U.s. v. Lewis, No. 88-3030 (7dl Cir. Feb. 20, 1990) 

(Manion,J.) (requUement eX govcmmentmotionin U.S.S.O. 

1 SK1.1 does not violate statutory mandaIe in 21 u.s.C. 

1 994(n) or due process). 

NOTICE 

U.s. v. He1'1tlJlUkz. No. 89-1912 (lstCit.Fcb. 22.1990) 

(Breyer, J.) (defendant was not deprived of notice because 

presentence report did not specific:ally recommend depar. 

ture.-lhe report contained dlc information that warranted 

departure. defendant received the report weD before sencenc:-

ing, and the court allowed argument on the departure at the 

sentencing hearing). Set also U.s. v. Burns. 893 F.2d 1343 

(D.C. Cir.lan.12.1990)(advancenoticeoCdecisionlOdepan 

not required when Cacts supporting departure are in PSI and 

deCendant has opportunity to challenge depanure at sentenc· 

ing hearing). 

Volume 3 • Number 3 • March 9. 1990 • Pile 2 

Determining the Sentence 

CONSECUrIVE 0& CONCtJRItENT SENTENCES 

u.s. v. Rogul, No. 89·5029 (41b Cir. Feb. 26. 1990) 

(PbiUips. J.) (q:reeing wiIb u.s. v. FDlMtl. 881 F.2d 976 

(11111 Cit. 1989),tbIt U.s.S.G.1 SGl.3.requirinaimposition 

of coalCCUtive ICIItaICe when offense 'is Commilled Wbi1c 

defcadaatis lCI'Viqanexpiftid term ofimpiloameal.may be 

recoaciled wida diIcredon 10 impose CIOIIIeCutive or c:aacurreatlelllCaCeS pIDted in 18 U.S.C. f 3584(I)-recoaci1ia«i0ll 

it ac:h.ieWId by aDowinc departure wbeD dW would be appro-

~ under the GuldoIineI or SIaIUte). Cf. u.s. v. WUl.r.881 

F.2d 823 (9Ib Cir. 1989) (I SGl.3 coaftida widlI3584(1)-

c:oun:a nain diIm:doa to impose cauocutive or COI1CUI1aIt 

senIeIICCS). 

Adjustments 

CAItEEIt OJiRNDEIt- PROVISION (I 481.1) 

u.s. v. Wallace, No. 89-1S41 (81b Cir. Feb. S, 1990) 

(Beam. J.) (rejecting claim that due process requires filing of 

information pursuant to 21 U.S.C. I 851(1)(1) bcbe prior 

offenses may be used in sentencing dcfendantucareeroffca-., 

det;alsoboldingthat"(t]hepenaltyrangeunder1beguidelines 

for career offenders is neither imItional nor excessivej. 

Sentencing Procedure 

BURDEN OF' PROOF 

U.S. v. FredD'id:s, No. 89-6lO9 (lOth Cit. Feb. 28,1990) 

(MclC.ay, J.) (approving prepondemnce of evidence standard 

for sentencing factors., including proof of uncharged criminal 

conduct). 

U.s. v. Rodrigllez. No. 89-lS27 (6Ih Cit. Feb. 23,1990) 

(Kennedy, J.) ("when a defendant seeks to eslabUsb facts 

which would lead to a sentence reduction UDder the Guidelines, he shoulders the burden of proving those facts by a 

snponderancc ~ the evidence" --berc. -court held government met ilS bwden of proving amount of drugs in offense. 

and defendant had burden 10 prove less was involved; c::ourt 

explicidy rejected U.s. v.DoIIua. 701 F.Supp.138(B,D. Tenn. 

1988) (placing burden of proof of aU facts on govrmmcnt». 

Relevant Conduct 

u.s. v. Gu.erre1'O. No. 89-13S9 (7ab Cir. Jan. 30, 1990) 

(Wood. J.) (relevant conduct includes drua lrWISICtions of cooonspiraIors that derendant "was awn of or that he should 

have reasonably foreseenj. 

Appellate Review 

OVEI.LAPPING GUIDELINE RANGES 

U.S. v. LlUler. No. 89·1767 (8th Cit. Feb. 22. 1990) 

(Henley, Sr. J.) (remanded for resentencing because offense 

level was incorrecdy calculaled although senlCnCe imposed 

was wiU'lin corrected guideline range, disIrict court senrcnced 

at bottom of what it thought was applicable guideline range 

and "might very weU have sentenced me defendant to Cewer 

months imprisonment" had it known careet range). Accord 

U.S. v. Williams. 891 F.ld 921 (D.C. Cir. 1989); U.s. v. 

Bermingham, 8SS F.2d 92S (2d Cir. 1988). 
Guideline Sentencing Update ~s. .. .., U,-,. wiD lle4iatrilluud ~'1If lhaC-", W-judpl ....... )adic:id,......a rllUc:ud fodInI_ ................ ........... ", 19M .. 1917 .... s.c--. OtaidIIiDa.Allllalp "palII.ic:alias _,.«", .. s.u-in&~" paIiq ___ rI .. u.s.ailiaC i pi ."ClGlMltrllllpGltiq _1IoldiDp, i& __ ........ .....-......... Can . 'Im paIiciIIcrr~ ........ 1IbouW.".,"' .. oa •• ra • paic)' 

.. ,' 'l!f ................. .". ... s....c:in&C_d i .... 1IICb1af ___ .... vi-n",~,.fMdI" U,..,. ....... c-w ..... II. anllpClllliblll" ~ ... k ....... _ .--......sa liN ral ald,.,._cdIci&l 

paIiaJ rI .. e.... 0. __ rI paic)'''' C-.,..a cIIIlr tIIrGuF ira a-.L 

VOUlld 3 • NUlIIIIIIl .. • M.u.at 2l. 1990 

Departures 

MlnGAnNG CIRCUMSTANCES 

Eiabtb Circuit upholds downward departure based 

OD .DUUal pel'lOlUll CirCumstaDca, DotwitbstaDdl1ll 

u.s.s.G. If 5HI.5 aDd 5111.6, p ... Defendant. an American 

Indian Uving on a reservation, was conviacd of two assault 

counts.. The pidcline range was 37-46 months. but the 

district court depaned 10 impose a 24-month lenn. citing 

defendant's inlOxication at the time of the offense. lack of 

prior criminal record. exeeIlenl employmenl hislOry, c0nsistent efforts 10 overcome the ad'YCl'SC living conditions on the 

reservation,andnumcrouslcuersofsupponfromthecommunily. The government appealed. 

The appellate court found that two of the reasons given 

for depanurc-inlOxication and lack of a prior record-were 

adequately accounted for by the Guidelines and were not pr0-

per grounds for dcpanurc. The court held. however. that the 

other reasons given by the district court "are appropriate and 

are supported by the recad." While recognizing that "Guideline policy statements indicate that previous employmcDt 

recordand family tics and responsibilities and community tics 

are 'not ordinarily zelevant in deccrmining whether a sentence 

should be outside the guidelines.· .. sec U.s.S.G. II SH1.S. 

SHI.6. p.s.. the court concluded that defendant's "case presents mitigating circumstances in these areas of a magnilude 

'not adequately caken into consideration by the Sentencing 

Commission in formulating the guidcUncs.· See 18 u.s.C. 

I 3SS3(b) •••• We believe that the district court acted within 

its discretion in sentencing [dc(endant] below the Guideline 

range. and that [defendant's} excellent employment history, 

solid community lies. and consislent efforts to lead a decent 

life in a diffICult environment are suffICiently unusual to 

consdcute grounds for a departure from the Guidelines." 

This appears to be the fust zeponcd appellate court 

decision specifically upholding a departure based on facrors 

that f S81 swes are "not ordinarily rdevant" in sentencing. 

The SbtthCiJcuit. without discussing § SHI. has zemanded a 

case after fmcling the district court mistakenly believed it 

could not consider a defendant's efforts 10 avoid drugs as a 

basis for downward departure. U.s. v. Maddalena. 893 F.ld 

81S (6th Cir. 1989).8.., cf. U.s. v. Care" 89S F.2d 318 (7th 

Cir. 1990) (vacating downward departure that was based on 

the "cumulative effect" of various personal circumstances. 

incJuding defendant· s age and physical condition, § § SH 1.1. 

SHIA, p.s.). 

U.S. v. Big Crow, No. 89-5275 (8th Cir. Mar. 7, 1990) 

(Heaney, Sr. J.). 

CRIMINAL HISTORY 

EleVIDtIa CIrC1Jit holds departures based OD post-plea 

CODduct mould be lulded by procedure Ia U.s.s.G. 

,4AI.3, uslal appropriate crIIDlDaI bIstor7 catepr'J as 

refereaa. Defeodant pJed guilty to bribing • Florida public 

offICial WbiJc free on bond pending sentencing be was 

charged with a similar offense in Virginia. and with possessionof a fuearm by a convic&ed felon. Thelaaercharps wae 

IrBDSfCl'l'Cd 10 Florida.. bUt were "not consolidated. with the 

bn'bery offense and deCendant did not plead guilty 10 Ibcm 

until after senteacing for the brib«y charge. For the bribery 

offense thedislrictcourt dc&ennincddepanure was warranted 

because of the second. similar offense, and imposed a 42-

month sentencc. double the top of the guideline range. The 

fl.l'e8l1n offense was not considered. 

The appeDate court remanded. fmding that the dislri.ct 

court made an "'unguided departure" pursuant 10 U.S.s.G. 

§ SK2.0. p.s.. when it should have used the procedure for 

criminal bislOry departures set forth in § 4A1.3. Noting that 

the Guidelines"do not explicitly address the manner in which 

post-plea offenses should be faclOrCd'ioto the guidelines 

sentencing process. .. the court held .. that Guidcllncs I 4A 1.3 

is controUing where. as here. a departure involves post-plea 

offenses. "The court reasoned that "[p]ost-plca offenses. no 

less than offenses which occur prior 10 the entry of a pica. 

implicate the concerns which led 10 me ~on of a criminal 

history category with guided departure provisions. .. 

The court also concluded that using the I 4AI.3 proccduze for post-plea offenses would help avoid disparale tIeItment of defendants. Here the 42-month sentence was twice 

the uppel' limit of the guideline range. whereas if defendant 

had been convicted ofboth post-plea offenses bcforesenteacing on the bn1Jcry charge.8CCOW1ting for lhoseofTcnses in his 

criminal history instead of depaning would have n:suJtc:d in a 

maximum sentence of27 months. The court held that following § 4A 1.3. rather than aUowing unguided c:IeparuRs under 

I SK2.0. "is in keeping with the aims of guideline sentencing" 

10 limit disparity in sentencing. 

U.s, v. Fayelle, No. 89-S306 (lIth Cu. Mar. 8. 1990) 

(Ha1chett. J.). 

AGGRAVATING CIRCUMSTANCES 

Sixth Circuit holds district court may Dot use selliDcriminating iaformatioa as basil-for !lepanure if 

USS.G. f 181.8 applies to the plea agreemenL Defendant 

pled guilty 10 a firearms charge, and the disUicl coun departed 

upward because of the dangerousness of the weapon and 

Not for Citation. a .. id~IUut S~IIWlcillr Updal~ is pro\lided for infonnation only. II should not be cited. either in opinions or Oiherwise, 

101 
102 

Guideline Sentencing Update 

defendant's involvement with drugs. Thedcparturedecision 

was based, in part. on incriminating infonnation the defendant 

provided 

The 

pursuant 

appellate 

10 

c:oun. 

the plea 

remanded 

~ 

for consideration of 

whether U.S.S.O. I IDl.8 applied 10 this plea ag:reemcnL 

Section ID 1.8 prohibits a court. in seuing the guideline range, 

from _g sclf-inaiminaling information p~ by a defendantlOthegovemmenL 1bec:ounbdd lbat"ifinformalioo un- der, 1 B 1.8, or its equivalent in Ihc form of a plea agmement. 

was not 10 be used "in determination of the applicable guideline range.' then it ccnainly sbouId not be used by the district 

court 10 depart and 10 enhance the sentence.-1be SCDtencing 

court must "set out with particularity the ex1ent 10 which he 

consida'cd. if alaD. information pvm wbicbmight be subject 

10 11 B l.8(a) limitarions in respect 10 Ihc depanure. -

On other issues reJaling 10 the depanure. the c:oun deIetmined that "the nature of the fa:earm. whelher it is automatic 

and intended 10 be used in the drug uade." and defendant's 

involvement in the crack cocaine uadc. are factors that may 

warrant departure, but the fact Ihal defendant came from out 

of town 10 engage in the loc:al drug uade is not. 

U.s. v. Robinson, No. 88-4020 (6th Cir. Mar. 13, 1990) 

(WeUford, 1.). 

SUBSTANTIAL ASSISTANCE 

Third and FJeventb Circuits bold substantial assistance departure may not be made absent government 

motion, but that evidence or cooperation may be considered in 5entencinl within guideline range. The Third Circuit held thal"the district court was without power 10 depart" 

underU.s.S.O. fSKl.l.p.s .• "in theabsenceofagovemment 

motion based on defendant's cooperation." Citing 18 U.S.C. 

, 3661. however. the court remanded for resentencing because "the district court was requiJed 10 consider defendant's 

cooperation when sentencing within the guideline range, 

though it retained discretion as to whcCher to give effect to 

that cooperadon." 

The Eleventh Circuit held Ihal the "pJain language" of 

18 U.S.C. § 3SS3(e) and U.S.S.O. f 5K1.1,p.s., makes it clear 

that "without a motion by the Oovernment requesting a 

c:Ieparbue. thedistri.ctcoun. may notdepan from the guidelines 

on the ground of substantial assisIancc." Such assistance may, 

however. be considered underU.S.S.O. f IBI.4 indetcnnining what sentence 10 impose within the guideline range. 

U.s. Y. Br""". No. 89-3512 (3d Cir. Mar. 6, 1990) 

(Seitz. Sr. J.). 

U.s. v. Alomin. No. 88-3919 (11th Cir. Mar. 8. 1990) 

(Tjoflat. CJ.). 

Adjustments 

ROLE IN THE OFFENSE 

u.s. Y. Tetzlaff. No. 89-2175 (7th Cir. Feb. 28, 1990) 

(Cummings. I.) (U.S.S.O. § 3D 1.1 (c) applies only to offense 

of conviction, not to other "relevant conduct" -adjustment 

for managerial status was improper where defendant was sole 

participant in offense of conviction). Accord U.S. v. Williams. 

891 F.2d 921 (D.C. Cir. 1989). 

Voiume 3 • Number 4 • Man:b 21,1990 • Pace 2 

MVL TIPLE COUNTS 

U.s. v. Egson, No. 89-2418 (8th Cir. Feb. 28,1990) (per 

curiam) (district comt poperIy found offenses of cocaine 

distriburion and illegal acquisition of food stamps Vt'C'R not 

"closely Idated" so at 10 require grouping under U.s.s.O. 

, 301.2, even though they arose from the same b'3nSacr.iorrthe "offenses involved separare and disr.inct socia in~ 

and thus Vt'C'R not ~uired 10 be grouped lOgelher' at closely-

!dated counts under section 301.2j. 

Appellate Review 

Ibi:vIEW OF DEPARTURES 

u.s. v. Ura-BQlTQZQ, No. 88-5161 (9th Cir. Feb. 28, 

1990) (George. DisL J.) (scumg fonh fivc-aq» procedure for 

review of depart.ures: "(1) whether the district judge adequately idenrifJed the 'aggravating or mitigating circumstance' (hereinafter 'circuinslance'): (2) whelhe.r the identi--

fled circumsl3nCe actu8lly existed; (3) whelhe.r the circumstance was adequately taken inla consideration by the SenlenCing Commission; (4) if not. whether the circumstance 

should result in departure; and. (5) whether the extent or 

degree of departure was unreasonable"). 

Holding rerusal to depart downward Is not 

appealable: U.S. v. Bayerk. No. 89-5166 (4th Cir. Mar. 9, 

1990) (BulZner, Sr. I.); U.s. v. Morales. No. 89-10168 (9th 

Cir. Mar. 5.1990) (SkopU, Sr. I.); U.s. v. Waldrop, No. 89-

5671 (6th Cir. Feb. 28, 1990) (per curiam) (unpub. disp.). 

Holdinl derendant may not appeal extent 01 downward departure: U.s. v. Pigilelli. No. 89-1357 (1st Cir. Mar. 

2, 1990) (Selya. J.); U.s. v. Wright. No. 88-3948 (lIth Cir. 

Mar. I, 1990) (per curiam). 

Criminal History 

u.s. v.Schweihs. No. 88 CR 763 (N.D. Dl.Feb.16.1990) 

(Williams, J.) (holding that ties 10 cqaniz.ed crime, absent 

"specific acts leading 10 some kind of [criminal] adjudication," do not support departure under U.S.s.O. § 4Al.3(e); 

however, in this casedefendant' s proven connection lOorganized crime warrants a departure under 18 U.s.C. I 3553(b) 

because he "'used that association 10 carry out the aimes of 

which he has been convicted" -court analogized use of chose 

ties 10 use of a weapon, and caJculaJed the length of cIcpatwre 

by reference 10 the specific offense characteristic increase for 

use of a fueann in the guideline for the offense of conviction). 

Offense Conduct 

u.s. v. Gaddy. No. 89-8223 (11th Cir. Feb. 20, 1990) 

(Tuttle, Sr. 1.) (offense level increase in U.S.S.O. 

f 2A4.1(b)(4XA), for kidnapping victim not released within 

30 days, may be applied when victim was murdered within 24 

hours; court also noted departure under tf.5.S.G. § 51<2.1, p.s .• 

death of victim, would have been appropriate). 
Guideline Sentencing Update 

VOl.lIMll 3 • NUMB. S • ArItIL5. 1990 

Determining the Sentence 

CoNSECUITVE OR CONctJIUtENT SENTENCES 

TIaIrd Circuit hoIdssenteDee for crbDeseommlttecl oa 

parole ... yl'Ull COIIcurreatiy or consecutively to lIlIeSpired te ... for parole violation. Defendant pled guilty 10 

several crimes hec:ommiued whilcon parole,.and hisseafmCC 

forlhoseoffenseswasmadcconsccutivelOthewae.xpiredtenn 

he bad 10 ICI'Yewbcn bisparolc was revokod.The district court 

found it was campelled 10 make the 1CIms consecutive under 

u.s.s.G. § 50 1.3 (1987), which stated. in part. M(i]f lithe lime 

of SCIlceocing, the defendant is already serving one or more unexpired sentences. thea the sentences fortheinstanloffense(s) 

shaD run c:ansccutivcly 10 such unexpired sencences .••• " 

The appellace court remanded for resentencing, holding 

that § 501.3 conflicted with 18 U.S.C. § 3584(a) and district 

couns retain the discretion 10 impose consecutive or concurrent sentences granted in § 3584(a). Accord U.S. v. Wills, 881 

F.2d 823 (9th Cit. 1989). The court noted that the recent 

amendment to § 501.3, effective Nov. 1,1989 (afeer defendant was sencenced), would not prohibit concunentsentcnces 

in acaselikelhis where theoffenses werecommiucd whilcdcfendant was on parole. The court aJso distinguished U.s. v. 

Fossett, 881 F.2d 976 (lIth Cir. 1989). fmding that the facts 

of that c.uo--defendant was sencenced for escape from a 

federal comctiona1 facility while serving a Ierm of imprisorr 

ment_Mcarry different sCllIcocing ramifications." Cj. U.s. v. 

Rogers, 897 F.2d 134 (4th Cir. 1990) (agreeing with Fossett 

that § SO 1.3 may be reconciled with § 3584(a) by allowing 

depanure to COIICUI'I'Cnt scncence when appropriate). 

U.s. v.Nouingham,No. 89-SSS3 (3dCir. Mar. 19,1990) 

(Scirica. J .). 

Departures 

CRIMINAL HISTORY 

u.s. Y. Keys, No. 89-6104 (10Ih Cir. Mar. 30, 1990) 

(Tacha. J.) (holding Mthat a prison disciplinary record may, in 

appropriace situations. bea proper basis for an upward departure" under U.s.s.G.14Al.3, p.s.). 

U.s. Y. H~, No. 89-1476 (5th Cir. Mar. 26, 1990) 

(Johnson. J.) (atruming upward departure on basis of inadcquale criminal hisaory score from 18-24 month range to 

statuIOr)' maximum of 60 months, despite failure of district 

cowt to farstconsider next highercriminal hisra:y ca&cgory or 

to explain why that was inadequate; court distinguished U.s. 

v. Lopez. 871 F.2d· SIS (5th Cir. 1989) (error 10 bypass 

guidelines and not consider next higher criminal history 

category), because MLope: was confined to Ihose cases where 

a defendant', c:riminal histay caaesory is Iow"--bere. deleadant WI8 in carqo.y V). 

U.s. v.AllM.No.89--3OC)5(D.C.Cir.Mar.20. 199O)(pcr 

curiam) (wIleD dcpIning because of inadtApl'te criminal 

history acc:n. .. diEct court should (I) idcnlify abe c:omct 

GuideJinescat.eaorY. (2) consider whethel'upwardadjuSUDeQt 

wilhin abc Guidelines aiminal history cacegories is inadoquale and. if such adjustment is inadequaIC. (3) Slate why a 

sentence longer than one allowed by the top criminal history 

category is in orderj. 

U.s. Y. Carey, No. 89-5298 (Sth Cir. Mar. 14, 1990) 

(McMiIlian.J.) (affinning departure above statutory minimwn for defendant convicted of possessing a rarearm as a 

convicted feloo-defendant's sent.ence was e:nhancec! WIder 

18 U.S.C. § 924(eXl) toaminimum of 15 years, superseding 

the guideline rangeof27-33 months, see U.s.S.G. § 50 1.1(b), 

butcourtimposed 19-yearsentenc:ebecauseoftheseriousncss 

of defendant's prior offenses and because two prior convictions for the same type of offense failed to deter him). 

MmGATING CIRCUMSTANCES 

U.S. Y. Hays. No. 89-S029 (6th Cit. Mar. 29, 1990) 

(Brown, Sr. J.) (remanding because district court med in 

departing downward for career offender based on small 

amount of drugs and non-violent criminaf hisIory~ 

factors were considered by Commission in formulating 

U.s.s.G. f 4B 1.1 and could DOl be used as mitigating circumstances warranting departure). 

U.s. v. Br~r. No. 89-5371 (6th Cit. Mar. 29, 1990) 

(Wellford. J.) (remanding because JeISOIIS f« downward 

departure to home delention and probation for embezzlement 

defendants-depec of community support. continued community involvement. famity ties. degree of remorse and 

prompcness of restitution, aberrant nature of c:cnduct. no 

useful purpose f« incan::cradon, and victim's rec0mmendation of cIemeacy-were adequaIcJy CXlIISide.red by SenlCncinc Commission; court directed that possible aggravadng 

factors should be considered on remand and DOled Commission'sconcemlhatwhice-collaraiminalsbelrCalednodifferendy from others). 

AGGRAVATING CIRCUMSTANCES 

U.S. v. Chiarelli, No. 89-3563 (3d Cir. Mar. 14, 1990) 

(Cowen, J.) (proper 10 depan upward pursuant to U.S.s.O. 

§ 5K2.14, p.s., on basis of threat to public safety caused by 

Not rOf CltaUon. GuilhliM SettWte;II, Updale jl provided for infonnauon ooIy. 11 should not be ci1ed. eilhcr in opinions or otherwise. 

103 
104 

Guideline Sentencing Update 

defendants' high.speed escape attempt through crowded 

urban area:-offense guideline, 128 1.2, does not accounl for 

this risk of bann from receiving stolen property; improper to 

depart under ISJU.O, p.s., on basis o("Ihe mapitl. oflbe 

dIievery" beamse Ihat is acoounled (or in 12Bl.2(b)(I». 

U.s. v. GIIlIrlIl. No. 89-3278 (6th CU. Mar. 14, 1990) 

(Boggs. J.) (aff"mning upward deparr:ure-exIc of defendant's cocaine dealing and his dependence 011 dealing for 

liveUhoocl wtft not refJecled in base offense level, x. 

U.s.s.O.1 SHI.9. p.s.). 

U.s. v.Batu.No. 89-2S58(5th Cir.Mar. 7.1990)(Policz. 

J.) (atrll'lDing upwll'ddcpanure (or bank robbers who. cIuriDa 

cac:ape aaempc. briefly toot elderly man hosIap. commandeered.YaIl whicIeIll gunpoint. invaded pcOpIcs'lIomeI 

to get vehicles. and rued upon pursuing law enf'on:emcnt 

offICials). 

Criminal History 

CALCVLAnON 

u.s. v. Lewis. No. 89-6122 (6th Cir. Mar. 21, 1990) 

(Milburn. J.) (proper to apply U.s.S.O. 14Al.1(d), adding 

two criminal history points (or committing offense while 

under criminal justice senteAce, to defendant convicled ci 

faillft to report. U.S.S.G. l2Jl.6). 

U.s. v. lUMMI. No. 89-2142 (7th Cir. Mar. 12. 1990) 

(Wood. J.) (agreeing with five other circuits dull U.S.s.O. 

f 4Al.l(d) and (e) may be applied to escapee). 

U.s. v. BlICQI'o. No. 89-3483 (3d Cir. Mar. 14, 1990) 

(Hutchinson, J.) (rejecting due process and ex post facto 

challenges 10 use of defendant's prior adjudicalions of juvenile delinquency under Stale law in dcta'miaing criminal 

hisfOlyscore, U.S.S.G.14Al.2(d)(2».S«G/IOU.s. v. Kirby. 

893 F.2d 867 (6th eir. 1990) (per curiam) (juvenile convielioas may bccOnsidaed): U.s. v. WilliDm.r, 891 F.2d 212 (9tb 

ar. 1989) (not a violation of due process to use juvclliJc 

convicUon e~ Ihough there was no righllO jury trial in 

juvenUe adjudication). 

Adjustments 

ROLE IN THE OFFENSE 

u.s. v. Fllller, No. 89-1880 (1st Cir. Mar. 12, 1990) 

(Campbell. CJ.) (reversing as clearly C'ZIODeOUS rmding Ihat 

defeadant who pled JUilty 10 conspiracy to discribuce marijuana qualified for adjustment as "an organizer • leader, manager. or supervisor" under U.S.S.O. I 3Bl.l(c): 1be evidence indiclled that [defendant] did not. rely on the auistancc 

of ochers, but instead engaged in a number of privaac drug 

distributions. in which he essentially did all the wort himselr. 

... {I]n the absence of any evidence that [defendant] exercised 

conuol over these persons or was otherwise responsible for 

organizing them in the commission of the offense. the mere 

fact that [defendant] had dealt with a large quantity of marijuana does not suppon a rmding that he was an organizer, 

leader, supervisor, or manager"). 

Volume 3 • Number S • April S. 1990. Pap 2 

ACCEPTANCE OF REsPONSlBlLrrY 

U.s. Y. Cross, No. 89-1865 (6thCir. Mar. 27. 1990) (per 

curiam) (affinning denial of .xqHance of responsibi1it.y 

IeducCion because defeadaDt refused to provide fiDInciaI 

informadon necessary to assess his Ibility 10 pay 8 fine). 

VICI1M-REl..ATED ADJUSTMENTS 

U.s. v. 1101'«. No. 89 .... 204 (5th Cir. Mar. 29, 1990) 

(Cialt. CJ.) (vicdm ofObaruction of julticeoffeale was DOt 

"usually wJnenbIc,w U.s.S.O. I 3Al.1, 10 deleadlal's 

acheme 10 ""fixw vic.'s c:rimiDaI C8Ie wbeD biI"aalyJ81icu-

... ...,..bility 10 Ibc crime was IUs prior ~ and 

DOt IF or UD .... physiall or meatal problems). 

Relevant Conduct 

u.s. v. IItwlfO, No. 89-l1SO (6Ih Cit. Mar. n. 1990) 

(Guy, J.) (rernandiDg (or reaancncilll! diIaict C(U\ erRd in 

calculating base oft'enseJevel (or drug c:oaspiraUD by .... 

amount injury wrdiCl. SOOormorc gnmwofcoc:ainc. Ndeapit.e 

the fact that lite court (ound by a preponderance ci die 

evidence chit Ibc conspiracy inYOl'¥ed 0Yel' five kiloparuw; 

21 U.s.c. t 841(b), undcrwhich defendants wa'e1al1alCed" 

" ... forth penalty povisions only and not separaIC 'lesser 

included' offenses. As such. lite sentencing judp. not the 

jwy. bas the prcroptjve to make 8 dclenninllion of the 

quantity of drugs involved in the scheme and to semcnc:e accadingJyj (r.v', ill part 710 F. Supp. 1136 (E.D. Mich. 

1989) [2 GSU '1]). 

U.s. Y. Autoll. No. 88-8802 (11th Cir. Mar. 8.1990) (Ilia 

Sr. J.) (proper to consider quantities of drugs not included in 

counl of convicdon: ""We hold thai the district court was 

cc:m:ct in c:onsidering the toW quandty o( cocaine involved in 

the 'same c:ourse of conduct or common achane or plan .. the 

offense of conviction' under Sentencing Ouidelines 

11Bl.3(a)(2). In so doing. we join six out of 1C'VeIl cUcuits 

that have addressed this question"; proof is by 8):l1'Cp011Ct«-

IJICC of evidence). 

Offense Conduct 

u.s. v. Roberts. No. 88-2125 (lOth CU. Mar. 15, 1990) 

(Seymour. J.) (upholding SCDcence pursuant to U.s.s.O. 

11 B l.2(a) because pleaesaablished more seriousolfClllOIhan 

offense of conviction; rejeding claim Ibat I IBl.2(8) is 

'"unconsdlutionaUy vague" because it does DOl defme ""IIxn 

terious offensej. 

Challenges to Guidelines 

u.s. v. F(J()Ie. No. 89·1715 (8th Cir. Mar. 15. 1990) 

(Bowman, J.) (rejecting claim Ihat Ouidelines are invalid 

because prosecUlOl' has discretion either to charge usc of a 

rltCatm in the commission of a dru& offense as subslandve 

offense under 18 U.S.C.I924(c), which.reQtJ!rcs mandat.cxy 

minimum sentence of five or &en years consecutive to lOy 

other term, or to charge the firearm me "merely" as specific 

offense characteristic that would enhance sentence for drug 

trafftcking offense, e.g .. U.S.S.G. § 2Dl.l(bXl». 
Guideline Sentencing Update 

a-iM1iIM s~ U,.. will M~~.",_c.-toirlf_jodpI" OIIbIrjuclidll...-a fll .............. CIIIUIt cleciliapa • 11M-=, 

.. ann lcplatia:t fll1914 .. 1917 uwtlhl '-..... 0ericWin- AlIbaup IhI JNbIicatia:t -, .«to 11M S 'Em", <Juidctiia. uwt pcIicJ 1U_1a of 11M U.s. Sin. c-miolicMl ill 1IMI-.a.I flll'llpOftiq _1IaWiap,.iI _ ..... tonpclll s.n-:iaa C ....... pcIic:ieI ar~"""IhauId ... to 1lMl000000000, policy 

1U'-IlI, C 111lq,'" 0IIbIr ........... "' ... S.-odtIa C III '1IicMI,. ..... W---. 

PIabIicaiGII fllGtlilllIiM ~ U",.,.1ipifieI1hat .. e.. ...... u, IWpGIIIilllo ...... bIe 1I'IIIk. k .... _ bc ____ •• 'IIIIMDdaIioD arallkial 

patiq flthee .... 0wI-. fl policy .. c.....,.. GIll)' dnuab ira BouL 

VOWMB 3 • NUMJIIIl 6 • APm. 'D. 1990 

Departures 

Ninth Cireuit bolds extent 01 departure mould be 

plded byaaalogy to relevant pldeliDes, not by comparison to pre-GuideDna sentendna practices. Ddendantpled 

Ply CO eight counts of bank robbery and atrempt.ed bank 

robbery. Under the multiple cowns guideline. U.S.S.O. 

§ 3D1.4. his offense level was increased fi~ le~Js for having 

more than fi~ offense units. resutting in a guideliDe range of 

51-63 monlhs. The disrriCl court depaned and imposed a 120-

mooth sentence because of the number of offenses. see 

§ 3D1.4, comment (backg'd). The court identified tbereason 

for departure by refming to the presentence report's explanation of its recommendation for depanure. and stated I.hal the 

exaent of departure was based on a comparison to a senlence 

it had imposed in a pe-Guidelines robbery case. 

The appellate COtD't held that departure was wananted, 

and that incorporating the pesentence report in the statement 

of reasons adequately identified the aggravating circumstance. The court held. however, that the exlent of depanure 

was unreasonable for two reasons. rU'Sl., the district judge had 

"indicated that the departure was deccnninedatleastin pan by 

his own sentencing history prior to the guidelines. This 

perpetuates the kind of senaencing disparity between individualjudges that the guidelines were designed coavoid. , .. It was 

inappropriate for the district judge to refer to his pre-guidelines sentencing habits in setting the amount of depanure. It 

Second. ~ court determined that the Sent.eacing Commission intended district courts to guide departures by anal· 

ogy to relevant guidelines when possible, and found that by 

analogy to § 301.4 the district coon could have added one of· 

fense level for each of the uncounted robberies. resulting in • 

range of 63-78 months. The coon held the 120-month sent.eace "so gready exceeds the amount suggested by analogy 

that the amauntof departure is unreasonable. "1becourt noted 

that it did ''not imply that a deparb1l'e by analogy always must 

be on a sbiet proportional basis 10 the guidelines sentence. 

Factors other than the number of offenses may be considered. 

.•• [and t]here may be many other factors justifying resullS 

diffem\t from those derived by analogy ..•. We hold only that. 

based on the Jegiumate factors mentioned by the district judge 

in his initial sentencing, 120 months is unreasonable." 

U.s. v. Pearson, No. 89-50117 (9th Cir. Apr. 6, 1990) 

(Boochever, Sr. I.). 

Seventh Circuit outlines procedure for extent of departure when Criminal History Category VI is Inadequate; also recommends imposition of consecutive sen· 

tences, when appropriate, In lieu of departure. Derendant 

pled Ply CO one count of dealing in firearms without a 

license and one count of being a felOD in possession of a 

fuearm. His criminal history put him in categtXy VI. and the 

gujdeIine range was 21-27 months. Jrmding that defendant's 

criminal bistclrycar.e8Ol)'~ tbelCl.iousnessof 

his aiminal past, Ihe disIrict court departed to give 6O-moolh 

tams 011 each count. conc:urrent wilb each ocher and a state 

sentence defendant was stIYing. 

The appelbue court beld thallhe extenlof depanu:re was 

unreasonable, and in reinanding gave insIructions oil how CO 

calculate the degree of depanure: "'For any gi~n offeue 

level. the Ouidelines sentencing range incRases rougbly t.ea 

CO fifteen percent from one Criminal History Category CO the 

next highercategtXy.ln the case of a CategOl)' VI defendant, 

• sentencing judge can use Ibis leD to fifteen percent increase 

to guide the depanure. For example, if the grounds justifying 

a conclusion that Category VI is inadequalC would normally 

have warranted. one calCgory increase .•.• the sentencing 

judge should consider sentencing the defendant within a range 

len CO fUleen percent higher than the range correspoocling to 

Criminal History Category VI."1be court found that the one 

valid aggravating circumstance in this case did not warrant the 

departure 10 more than double the lOp of the guideline range. 

In remanding. the coon also noted that the district COW1 

should consider imposing consecutive senlCnceS, pursuant to 

iasdiscretion under t8U.S.C. § 3584(a)andU.S.s.O. §S01.3 

(Nov. 1989). instead of departing: "While disbict courts are 

given broad discretion on whether to impose consecutive or 

COOCl.llTellt sentences, we urge them to refrain from departing 

upward (rom the Guidelines and then imposing the sentence 

concurrent with an unexpired sentence if they can accomplish 

the same length of i.ncarccration by sentencing wUhin the 

Guideline range and imposing the sentence to run consecutive 

10 an unexpired sentence." 

U.s. v. Schmude. No. 89-1478 (7lh Or. Apr. 9. 1990) 

(Kanne, I.). 

Sixth Circuit bolds coaduct ia dismissed touat was 

not proper ground tor departure, but rather relevaat 

cODduct Ibat sbould bave been used to calculate otrense 

level. Defendantpled guilty to conspiracy to maintain. "crack 

house." A second coune. dropped as part of the plea agree. 

ment, chargeddefendanl with unlawful possession with intent 

to distribute crack and cocaine within 1,000 feet of a school, 

an offense subject to enhanced penalties:'-The -district court 

departed, sentencing defendant to 96 months instead of within 

the guideline range of 41-51 months. The coon based the 

departure on the conduct in the dismissed offense and, citing 

Not for Citation. Guideline Scllullcillg UpdaJe is provided for information oo1y. It should no\. be cited, cilhcr in opinions oc otherwise. I 

105 
106 

Guideline Sentencing Update 

U.S.S.O. § 5K2.14, p.S., ",heextteme Ihreauo society" posed 

by crack. 

The appellalc court remanded, holding the disuiet coun 

eaed wben "it considered the location of the crack bouse as a 

justirICation for an upward departure when it should have 

considered this conduct in calculating the defendant's base 

offense level. The guidcliDes are clear that conductotber than 

that for wbicb the defendant bas been convicted may be 

considered by the court in determining the appropdatc sentencing range. •• '. The operation of this crack bouse close to 

two schools clearly is 'conduct that was part of the same 

course of conduct' as the conspiracy." 

"Coasidcration of the location or the crack bouse in this 

case implicales section 201.3 of the guidcIines. which ~ 

vides that the base offense level is to becalculaud'conesponding 10 double the drug amount involved ••• for disll'ibuting 

or manufactwing a controlled substance ••• wilhin 1000 feet 

of a schoolyard.' That is, the consequenc:c in this case of con· 

sidering the location or the craclc bouse is 10 double the quantity of drugs consideled in calculating the base offense leveL " 

The court also held that the dangers involved in running 

crack houses bad been adequately considered by the Sentenc· 

ing Commission in fonnulating the Guidelines, and therefore 

depanure wu not warr8rucd under f 5K2.14. p.s. 

U.s. Y. McDowll. No. 89·3345 (6th Cir. Apr. 13, 1990) 

(Guy,J.). 

CRIMINAL HISTORY 

U.s. v. Ctull14-DomingJU!z. No. 89-2346 (5th Cir. Apr. 6, 

1990) (Reavley, I.) ("8 history or arrests that did not result in 

convictions .•• is not the type of 'rellable infonnation' that 

justifies a depanurc" undCr U.S.S.G. § 4A 1.3), 

NOTICE 

U.S. \I. A.nders. No. 89-546S (6th Cir. Apr. 4, 1990) 

(Keith, 1.) (notice requirement satisfied when pe,sentenee 

repon specifieaUy identifies factors warranting deparcure or 

court advises defendant it is considering departure based on 

particular factors and allows defense counsel oppor1Unity to 

comment). 

Adjustments 

ACCEPTANCE OF REsPONSIBILITY 

u.s. \I. FleeMr. No. 89·5474 (6th Cir. Apr. 9, 1990) 

(Suhrheimicb, DiaL J.) (not error to allow accepwx:e of 

responsibility reduction, U.S.S.G. § 3EI.I, for defendant who 

raised enttapment defense at trial). 

Determining the Sentence 

PROBATION 

u.s. 11. DelioiDcono. No. 89·1847 (1st Cir. Apr. 12, 

1990) (Cyr, Dist. J.) (remanding sentence of probation conditioned on 1.000 hours of community service-4efendanl's 

guideline range required that a sentence of probation be 

coupled with some form of intenniuent confinement, and 

community servicecannotbe substituted forconrmement,see 

U.S.S.O. §§ SCI.1(c)(2). SCI. I (e». 

Volume 3· Number 6· April '1.7, 1990, Pille '1. 

Sentencing Procedure 

u.s. v. Rodriguez-Gonzalez, No. 89-1346 (2d Cir. Mar. 

27,1990) (FeinbelJ, J.) (conduct that is the subjcctofaprior 

acquiual may be used to justify sentencing enhancement 

under the Guidelines, here an enhancement unda- U.S.s.G. 

f 201.1(b)(1) for possession of weapon ~ drug off~ 

after acquiual under 18 U.s.C. I 924(c». Accord U.s.v. 

Mocciokl. 891 F.2d 13 (lstCir.1989).SeealsoU.s.1I.lsom. 

886 F.2d 736 (4th Cir. 1989) (acquiucd offense used for 

counterfeiting guideline enhancement); U.s. Y. JlIIJ1'ezOrte,a. 866 F.2d 747 (Sth Cir. 1989) (per curiam) (used 

fordeparture); U.s. v. Ryan. 866 F.2d 604 (3d Cit. 1989) 

(departure). 

U.s. Y. Luna, No. 89-00024-P (D. Me. Mar. 23, 1990) 

(Carter, CJ.) (agreeing with U.s. \I. BetUllieu. 893 F.2d tt 77 

(101b Cir. 1990). that reliable evidence &om a triallD whicb 

defendant was not a party may be used to decenninc drug 

quantity for sentencingpmposes). COlllra U.s. 11. Castellanos. 

882F.2d474 (11thCir.1989);U.s. \I. Chand1er.894F.2d463 

(D.C. Cir. 1990) (table, unpUblished disposition). 

Appellate Review 

u.s. \I. lAn,. No. 89-1464 (8th Cir. Mar. 28, 1990) 

(Huntcr, Sr. Disl J.) (joining Sixth and Tenth Circuits in 

adopting three-step procedure for review of depanures in 

U.s. 11. Diaz·VillajtIM. 874 F.2d 43 (1st Cir.), cert. denied, 

110 S. Cl 177 (1989». 

Relevant Conduct 

U.s. \I. Riw!ra. No. 89-1843 (5th Cir.Apr. 3.1990) (Jolly. 

J.) (remanding for determination whether quantity of drugs 

sold by co-defendants should be auributed to defendant: 

"In the absence of a finding that [defendant) knew or sbouJd 

have known of the distribution of heroin by his co-defendants, or in the absence of a joint undertaking or plan. the 

quantities of heroin dislributed by persons other than [defendant] should not have been included in the calculation of his 

base offense level. j. See also North. infra (reversing use in 

base offense level calculation of drug quantity that c0-

conspirator had obtained and sold without knowledge of or 

benefit to defendant). 

Offense Conduct 

WEAPONS POSSESSION 

u.s. \I. North. No. 89·1870 (Sth Cir. Apr. 2,1990) (Lay, 

CJ.) (reversing adjuSlment for possession of rRamlS during 

commission or drug offense, U.s.S.G. f 2Dl.l(b)(1): one 

weapon was inoperable repJ iea of nineteenth century revolver, the others belonged to defendant's son and it was 

"clearly improbable" they were connected wid! offense). 

Note: The Ninth Circuit has withdrawo.V.s. '" Restrepo, 883 

F.2d 781 (9th Cir. 1989) (conduct not resulting in conviction 

may not be used in setting base offense level) (2 GSU #12). 

and granted rebearing. See 47 CrL 1015 (1990). 
Guideline Sentencing Update 

GtMtMIiM s.tu.a.., Upt/4u will be dialril:uled paWicaIJ,.,. .... C-IOW_)MIp and ather judic:idJlCDClllDd., ..... w-I_4ec:iIioaa ............... __ JcPladaa 0{1914 and 1917 Uld dw ScntaIc:inc 0IlMIII .. IJIbauah dIo paWicaIiaa _, .erto 1M Senunc:in. GuidciDII .. pa&, __ ar1M u.s. s.r-- .. C.....,; .. k. ill dIo-.to{ n:pGI!ia._1IoIdiap. kill -. ........ to .... 1rt ",.c "lI'd .ca poIicieI orlClirili& .......... ..". .... O., Ii,a,,., __ 111111".iii '"'1 ... ather....w. ...... .,. ... S ."'C ""'c= ....... W,.Mim ~arCitlltltlliMs"....., u,.,.~ .... c.....,../l •• ....,..,. .. VIlaaW. ....:It.lta-w-.be--w..l. Ri. lII.m. orGilldal 

,.,ar .. c-. Os ...... arpolic)' .. c... ...... ..., ..... ill B-s. 

VOLUMB 3 • NUWlI!Il 7 • MAy 18. 1990 

Relevant Conduct 

Hinda Circuit reissues Rutnpll oplnloa. The N'mdl 

Circuit has wilhdrawn ill earlier opinioo in u.s. Y. Restrepo. 

883 F.2d 181 (91h CU". 1989) (2 GSU '12). and held that 

quantides of drugs in counts on which • defendant is not 

convicled may be used to set Lhe offense level: ""The Senr.eacingCommission's intent is clear: Amounts of drugscalcuJated 

on die basis of conduct or which Ihe defendant is neither 

charged nor convicted butlhat were 'part of the same course 

or conduct or common scheme or plan as the offense or 

convictioD' maypropetly be used to adjust the offense level" 

The court also agreed with ocher cin:uits dill "the stan--

dard of proof required for facaors enhancing a SCIlfeDCC is a 

preponderance of evidenc::e," but round that a-wndemanding intaprelalion or the preponderance SI8ildard is panicularly appropiatc for enhancement of a senrenc:e under abe 

Guidelines."Thus,lhecourt held~ when a prc:pondcraDce 

of the evidence scandard is used in aiminaJ sentencing 10 

increase the period of confmement. it means a suffICient 

weight of evidence 10 convince a reasonable person of abe 

probable exisrence of the enhancing faclOr." 

U.s. Y. Restrepo. No. 88-3207 (9th CU. May 8, 1990) 

(Boochever. Sr. J.). 

Departures 

AGGRAVATING CIRCUMSTANCES 

increues in 10-15" iDcIaDcnll if c:alCgOI'1 VI is~), 

and coacIuc'ed that • timiII!r approach MIhouId be ased (or 

depanura bucd OIl die ICrioasDcss or die aime •••• In 

departing the judge IIIou1d compare the seriousness of die 

aggravaling factors at band willa tbasc die O:Jaunission COIlsid.erecL Congress prescribed &he metbod of IDtlogy for 

aimcs without guidelines. 18 u.s.C. f 3SS3(b), ID4 it is 

equally appropriate for aimes with guideliDel but widIout 

suffICient detail in Ihe lisrs or aggravaring and mirigaring 

circumslances. So if possessing a gun d\U'ing a sale clevares 

the offense by two leu, the judge might conclude dial 

buying a gun wilh drugs e1eYates die offense by four Ie1Ids. 

an upward 'departure' of two levels." BIU cf. U.s. 

Y. Rodrl,uez-CtUtro, No. 89-S0093 (9lh Cir. May 10. 1990) 

(Hall, J.) (citing MOIlleM,ro-Rojo. Ul/ra. upholding upward 

depanure and flDding that ... districlcourt need DOljustifythe 

amount of its sentence by explicit analogy," aIthougb court 

"urge[d] district courts 10 fuDy explain abe reasons for abe 

degrees of Iheir depanuresj. 

The COlI1 also suggested that "[a]n a1&emale meIhod of 

compulingupward c:lepanuJcsistoaeattheaggravaringfac1« 

as a separare aime and ask bow die defenoant would be 

rreatedifconvicttxlofil. ••• SeeUIIild.SIlltUY.Kim.896F.2d 

678,684-86(2dCir.199O).nxommendinglhisanalogylOthe 

grouping rules as abe standard way IOddennine dleamowuof 

departure. .. The COWl round chat doing so in tbis case would 

result in a guideline lUge of 70-87 months. The court 

emphasized that "[s]ince this is wbat [defendant) would bave 

received had he been convicted of fencing. a 'depanure' 

should DOlexcccd tbislcvcl.lt wouIdduowlbcllnlClUreofdle 

guidelines out of tilrer to say chat a defendant may I\'ICdve 

more timeona -departure' dian hec:ould havereceiYCdbad be 

been convicted or Ihe aime leading die judge 10 depart." 

U.s. Y. Ferra. No. 89-1507 (7d1 Cir. Apr. 24. 1990) 

(Easterbrook. J .). 

Stwnda Cirtuit recommends approaches to calculating extent or departures based on &eriousne5S or crime. 

Defendant was convicacd of drug and fueanns offenses. The 

district c:oun dcpancd from tho guideline aange of 41-S1 

months to a 120-monlh term. The COlI1 found departUre was 

warranted because defendant's criminal bistory calCgexy 

undenepresented the seriousness of IUs criminal bi.st.ory and 

likelihood of fl1tUle criminal acavity, and because the offenses of conYicdon--sc1ling two guns and 5.83 ounces of 

cocaino-uDderst the scriousne.ssor defendant'saiminal 

activity, a large-scale fencing operation in which stolen guns Other Recent Cases: 

were frequendy purchased witb cocaine. U.s. Y. Hawkins. No. 89-6191 (lOeb Cir. Apr. 20, 1990) 

In remanding because the district COlI1 f'aiIed to explain (Moore. J.) (DisrrictCOll1departed upward. fmding Ihalbank 

why it selected 120 monlhs.&he appellare court stressed Ihat robbery defendant's false claim or possessing a weapoa and 

"[e)verydeparuuemustbe'reasonable'inextent"andcouns threaltotiUreUerwereaggravatingciR:wnstances.AppeI1ate 

should 8lrempllO "link Ihe extent or departure to &he structure court remanded, bolding Ihat threat or intimidation is an 

of Ihe guidelines." The COWl referred to procedures for com· element of die offense of robbery and that ""use of a weapon 

punngaiminalhistorydepanures,seeU.S.s,G,§4A1.3.p.s. [under U.s.S.G. § 51(2.6, p.s.] does nor-inclUde claimed 

("use. as a reference. the guideline I3Dge for a defendant with possession of a nonexistent weapon," see also U.s, Y. Coe. 

a higher or lower criminal history caregoryj; U.S. v. 891 F.2d 405 (2d Cir. 1989). District court also departed 

Schmude. - F.2d - (7th Cir. Apr. 6, 1990) (suggesting pursuant 10 § 51(2.9, based on defendant's admitted met 

I Not (or CltatiOfi. Guith/w SelltelKillf Update is provided for informacion only, It should DOl. be ciled. either in opinions or cthc:fwise. I 

107 
108 

Guideline Sentencing Update 

habit. but appellate court held" fact that defendant has an addiction, withoulmore. does notsuggesl a connection between 

&he ctwged offense and additional criminal conduct to which 

§ 5K2.9 applics." Departure based on fact defendant ..... 

lOwly missed" career offender status also vacafled: "'One is 

eithetacarceroffenderoroneisnoLNoallowanoeis made for 

'elose cases.' ••• It is not a province of district judges eo elas· 

tieize the consttaints within which that defInicion exists. "). 

U.s. v. BellMtl. No. 89·30130 (9dl Or. ArI. 11, 1990) 

(Canby, J.) (affinning upward deper'IIR for defendant c0nvicted of using telephone to fadUtatc disuibatioa of cocame. 

from 8-14 month range to 24 monlhs, based 011 *unusually 

large quantity of cocaine" --lact thatoffense Ie'vcI forcrime is 

notcorrdated to quantity of drug does not preclude deper'IIR 

based on larpamountof drug in underlying offenso).Aa:onl 

u.s. v. WlllUmu. 895 Fold 435 (Bth Or. 1990); U.s. v. 

Crawford. 883 F.2d 963 (11th Or. 1989); U.s. v. CorredVargas, 860 Fold 35 (2d Or. 1988). 

U.s. Y. Pridgen. No. 89.()()86 (5th Cir. ArI.6, 1990) 

(Jones. J.) (upholding deper'IIR from 41-51 month range to 

97 months for robbery defmdanl who. as puleX plca bupin 

to dismiss a separaIe charge of kidnapping during robbety. 

had stipulated to that conduc:t-thc four-level enhancement 

fortidnapping during bank robbery, U.s.S.O.12B3.I(bX4), 

"doesnot ••• takeintoaccounttheuniquclyseverepunishment 

prescribed by CongICSS" for such an offense. namely a lenyear minimum. and is"i.nadequale 10 reOccttheseriousness or 

&he conduct" in lhis case, se~ 18 U.s.C.13553(b». 

U.s. v. Gomez. No. 89·S02S4 (9th Or. ArI. 2. 1990) 

(Boochever. Sr. J.) (affuming depanure to 24 months from 

1-7 month range for defendant convicted of transporting 

iUega! aliens bccausc of "dangerous and inhumaDe"lreaIment 

of the aliens-sevenadults and one child were placed in small 

sealed compartment over exhaust. system in van). 

MITJCA TJNC- CIRCUMSTANCES 

U.s. v. Alvarez-CartUnas. No. 89·30060 (9th Cir. Apr. 

27, 1990) (Fernandez. J.) (rejecting det'endan,., claim that 

possible dcpon.ation wananlCd downward depanure-"possibility of dcpon.ation is not a proper ground for deper'IIR"). 

Cf. U.s. Y. (Aja-ll~l1IIJIIIkz. 895 F.2cl S44 (9t.h Or. 1990) 

(per euriam) (reversing upward depanure based on anticipaled dcponation aft.el' release). 

CRIMINAL HISTORY 

U.s. v. MOnleMgro-Rojo, No. 89-50134 (9th eir. ArI. 

12. 1990) (Hall. J.) (holding that. under abuse or discretion 

standard for review of the exlCnl of a departure announced in 

U.s. Y.lira-BartlUQ,897 F.2d981 (9th Cit. 1990). ".district 

coun's depaned sentence may reasonably be higher than any 

sentence authorized by an adjacent criminal hislOry category 

wilhout the court having to explain why a sentence within the 

adjacent category would not have sufficed. ••• [T]he district 

court's failure to explain in any detail why itdeparted as much 

as it did ... does not by itself constitute a sufficient ground for 

resenlencing"; also, disciplinary problems during prior prison 

Volume 3 • Number 7 • May 18. 1990· Page 2 

tenD may p .. ovidc basis for departure. accord u.s. v. Keys. 

899 F.2d 1000 (lOth Cir. 1990». 

Adjustments 

Rout IN OFFENSE 

U.s. Y. DeCicco. No. 89-2080 (7th Cit. ArI. 20, 1990) 

(Flaum. 1.) (reversing finding that detendant. who"orpnized" unknowiAS panieipants in fraud scheme. qualifaed for 

enhancanenl under U.s.s.O. I 3Bl.l(c) IS an "orpniza'. 

supervisor or manaaer in any criminallClivity .. : ."1.W)e find 

Ihat the Senacncin& Commission incendccll3Bl.1 to apply 

only to sicuarions where the offender organizes or leads 

criminally responsible individuals"). &cord U.s. Y. Carroll, 

893 F.2d 1502 (6th CU. 1990). Bill $« US. Y. Alulet'lOft. 

895 Fold 932 (9dl CU. 1990) (I 3B1.1(c) applicable wbc:n 

codefendant ariekcd into offense). 

Determining the Sentence 

SENTENCING FACTORS 

u.s. Y. DIIJIIU. No. 89·30136 (9th CU. Apr. 27, 1990) 

(A1arcoo. J.) ("(D]isIrict court may, but oecd DOt. consider 

the defendant's dIanIda' as described in Ieuers to the court 

or probadon orrlCe asa basis for finding a seoceace within the 

OuideUne range"--concluding that U.s.s.O.1 SHl.6. p.s.. 

Family TIeS and Responsibilities. and Community TIes. 

applies to departures.lIOlto IdjUS1mentS wilhin the guideline 

ranse, and 18 U.s.C. 113553 and 3661 allow use of. such 

information in senrenc:ing). 

RESTI1'1JTION 

U.s. Y. Owens, No. 89-1819 (8th Cit. Apr. 24, 1990) 

(McMillian. J.) (mnanding order of restitution because disariet court thought restitution was mandaIory-although 

U.s.s.O. § SEl.1 Slates that restiblUon"shall be ordered ••• 

in accordance with 18 U.S.C. I 3661(d)." this language 

"tequire(s) only that restilUtion orcIem be imposed in accordance with the [Victim end Wilne$$ ProIeaioa Act) and not 

thalrestitution shall be ordered in evaycasc";aIso. indigeacy 

does not bar • restitution order. but c:ouns should mate 

specific findings IS to indigent's ability to pay). 

Criminal History 

CAREER OFFENDER PROVISION 

u.s. Y. River:, No. S 89'()396 (D. MeL Apr. 9, 1990) 

(SmaUdn. J.) (holding. pursuant to U.s.S.o.14Bl.2(3)(B). 

that defendant was not career offcader becIusc ICD&el1CeS for 

two prior felony convictions should not becountcd separately 

under 14AI.2-"accident of geography" caused defeodant to 

besenlenCed separaldy fortwo robberies witIUn twelve days. 

one in Baltimore City and one in Baltimore County, second 

prison tenn was made concurrent with fllSt term. and cases 

"no doubt ..• would have been consolidared for Irial and/or 

sentencing" had they occurred in same jurisdiction; court also 

found that "the two prior IObbery offenses wcie commiued 

pursuanttoasingleplan"and"arenottobeseparalClycowlled 

for career offender purposes," I~e § 4A 1.2, comment (n.3». 
Guideline Sentencing Update 

VOLU'fIII 3 • NUMBII. 8 • JUIIIlS. 1990 

Departures 

AGGRAVATING CIRCUMSTANCES 

FIftIa CIrcuit holds district court sboald IRk e.xtent f1I 

departure to peultJ UDder uaJoaous pIdeIIne. Defeadant was convic:led of two drug offenses. and his pideJine 

range was 70-81 months. 1be Jearacing court depancd to 

impose coocurreat scaaenc:es of 300 IIIOIIlhs because dele&-

daIu bad involvecla miDor in Ihe offcDIcI 

1be appcUarc court zemandod for aacntcacing because 

defeadant bad DOl boea Biven pqx:r DOdce of tho inIeat to 

depart. and also beca.use tho CXtalt of depanurc wasumeasonable. The COW1 found thal u.s.s.G.1 2Dl.2, wbic:b enhances 

the base offense level for ""Drug Offeascs • • • Involving 

Underage ••• Individuals. - provided guidance as to -what 

senteaee would be appropr:iaIe for the invo1~ of juvonDes in drug ttaf6c:Idna. " Had defendant been convic:led of a 

drug offense iIAoIviag a minor undec 21 U.s.C.I84Sb and 

senleDCCd pu:rsuantto 1201.2, bismaximum sencence would 

be lOS months. 1be court coocIuded Iba1 "a1Ihough ••• the 

disIric:t court is DOlSlrictty bound by the adjusaneat spc:ciC'aed 

in section 201.2, ra] should explain its mISODS for aoiD& 

beyond iL" Set. U.s. v. Fema. 900 F.2d 1057 (7th Or. 

1990) (mcommeuding that courts lllempl to link exteDl of 

depanurc to llllloaous guidelines). 

U.s. Y. Landry, No. 89-3275 (5th Cir. May 30. 1990) 

(l0hns0n. J.). 

Other Recent cases: 

U.s. Y. Shwntm. No. ss.8885 (lIlh Or. June 4,1990) 

(TjOOal. CJ.) (affumingupwanldeparture fordefendantCQ&o 

victcd of drug oIfeascs who had bmught. her I0Il iDlo drugII'IffICkin& business and caused hisftlSUltilag chemical ctepen.. 

dence; ex&cDt of depanure. from 214-30 mooth range 10 40 

monlhs, was reasonable COIIIpIftId to cabancements for 

similar agraYating factors under' ocher guidelines). 

U.s. Y. MUler, No. 89·2765 (5cb Or. May 30. 1990) 

(Smith.J.) (counmay DOl base upward departure on fact thal 

defendant. whose bank robbery convictions from IOveral 

diffeRllt jurisdictions were consolidated for sentencing. 

could have received far grearer punishment bad he been sentenced separately in eachjurisdiction-Sentencing Commission "must have contemplated and intended Ibis difference. " 

~,U.S.S.G. §§ 3D1.4 and SOI.3; court also mcd in using 

defendant's alcohol dependency as basis for departure. set 

§ SH1.4, p.s.). 

ccnce investigatioD repqrt in dopaning upward'"; also. deparun for "disrupIioa at sovemmenlll fuIlction,. U.s.s.G. 

I SK2.7. ~ was paper for defeod8Dl who helped iIqal 

aliens frauduleotly apply foramncsty. tbcrebycompmmisiDg 

peI'IIIIICIl's amnesty JXDII8ID). 

US. Y. (Aloft, No. 89-1249 (2d Cir. May 18, 1990) 

(W'IDteI',J.) (counened in using quanddesofdrugs innieYant 

conductubasis fordisc:R:donaly upward departure instead of 

factoring them iDeo Ibc base oft'ense IcYcI-mosc qnan@ics 

must be consicIered. in selling the base offense le¥eJ. se, U.s. 

Y. Sc.r. iIrfra). 

U.s. Y. FrtlMlill. No. 88-3257 (71h Cir. May 7.1990) 

(Kanne,J.) (upward departure warnnted foc defendants who 

continued to use or deal drugs while out on bond for current 

drug chaJge). 

U.s. Y. Richisoft. No. 89-10080 (9Ih Cir. Apr. 20. 1990) 

(pCl' curiam) (defendant's akobol and cocaine abuse may 

provide basis for upwanl departure.. but disuicl court must 

articulate why defendant·s dependency was wausual-bnpage ofU.s.S.G.1 SRI .4, p.s.. -suggCSlS'lhat Ibc Commission meant to CorccIoscc:onsideradon of(drug or alcohol] dependency only as a ground for downward depanurc.1eaving 

opea the possibility of taking drug or aIcoboI abuse iDIo account in detamining wbcre within Ihc Guidelines a JeDttnCe 

should ran. or whether an upward departure is warranted. if 

cxtraordinaryciraunstancesexisl"; also rcmanCled fordistrict 

court to stare specific reasons for aiminal history depanute 

from auegory I to caaegory IV insaead of to lower category). 

MITIGATING FACTORS 

U.s. Y. Pouy. No. 89-1879 (1st Cir. Apr. 30. 1990) 

(Bowncs. Sr. J.) (reversing downwarddepanure. holding Ibal 

under (acts of Ibis case it was improper 10 base departure on 

grounds Ihat defendant was pregnant at lime of Jear.cnciDg, 

she may have panicipaled in offcnsc only to lOalongwbh her 

husband. her husband's imprisoameat would affecl her, and 

there was no halfway house near her home; appeUare court 

also rejected Ihe usc of a ~ty of the c:irc:umstaDcesapproach to determining whether departure is justified). 

CRIMINAL HISTORY 

u.s. v. Robison. No. 89·3724 (6th Cir. June 1. 1990) 

(lones..l.) (vacating depa.rtureto careerotrcnderstaWS based 

on aiminal activity nOI counled under carMI" offender guide--

line: "districlcourtcannolarbiuarilychangetherequirements 

U.s. v. Murillo, No. 89·3261 (5th Cir. May 23. 1990) for career offenderstaws established by the Sencencing Com-

(lohnson. J.) (holding that il is within district coun's discre- mission simply because il feels that [defendant] • gOla break'" 

tion to "rely[ ] solely on information contained in a presen- in sencencing on a prior offense). Ste also U.s. v. Hawkins. 

I Not for Citation. GllitkliM ScIll'III~i", Upc/Qlc is prtWided for infonnation only. It should 00l be cited. eilhcr in opinions or otherwise. I 109 
110 

Guideline Sentencing Update 

901 F.2d 863 (lOCh Cir. 1990) (improper 10 depart based on 

fact defendant "narrowly missed" can=et offender stalUS). 

U.s. v. Brcwm. No. 89-5346 (8ch Cit. May 10, 1990) 

(Lay. CJ.) (holding thal dislrictCOUJtS are notpmbibilCdfrom 

considering downward departure, Pursuant to U.S.s.O. 

• 4Al.3, for defendants who are to be sentenc:ed undeI'carea' 

offender guideline, • 4Bl.l). 

Adjustments 

ROLE IN THE OF'FBNSB 

u.s. Y. Petrit. No. 89-3127 (10th Cit. May 25, 1990) 

(Babcock. DisL J.) (agreeiDg willi u.s. Y. Tt!IZII:tJf. 896 F.2d 

1071 (7&bCir.199O),lhatadjuscmencsUDderU.s.s.o.13Bl.1 

apply only 10 offense of conYicdoa and DOlID "defeadant's 

role in ocher criminal coaduct for wIUcla be wa DOl coavictedj.AccordU.s. Y. WilIUutu.89IF.2d921 (D.C.Cit.1989). 

OBSTllVC110N OF JUS11CE 

u.s. Y. While. No. 89-1598 (7ch Cit. May 24, 1990) 

(Coffey, J.) (obsUuc:Uon of justice enhanc:emenc" U.s.s.O. 

• 3CI.l. is appUcable to defendant fJccing am:sl "'where the 

facts dem<Jnstratc dearpbysical cndangcnneat of ochers." in 

this case from high-speed chase Ihrough resideDtiaJ area). 

U.s. Y. Altman. No. 89-1419 (2d Cir. Apr. 19, 1990) 

(Miner, J.) (remanded because disUitl court erred in not 

allowing medical testimony IlseotcDcing bearing bearing on 

whether defendant had the n'lquisile meow scate for obs1ruc. 

lion of justice under U.s.s.O. , 3CI.I). 

ACCEPTANCE OF REsPONSIBILITY 

u.s. Y. BrD.%lOlI, No. 89-5651 (4ch Cit. May 8, 1990) 

(O&apman.J.) (laD8I'lding dmialO(m:luction-disuictcourt 

inconectJy found 1hat possibility of ldIabilication is a necessary clement of acc.cptance of responsibility, U.S.s.G. 

, 3E 1.1, .ad chus cm:d in denying m:luction to defendant 

whose menial c:ondition seemed to Pftdudc IdIabilitalion). 

VIC11M-RELATED ADJUSTMENTS 

U.s. Y. JOIlU. No. 88-3371 (Ilch Or. Apr. 30. 1990) 

(iJOOat. CJ.) (upholding fandiDg Ihat bank teller was ..... 

~ 

ticulady susceptible" toaimeofbank lan:eny and was thus a 

victim .. under U.s.S.G. , 3A1.1). 

Criminal History 

CAItEER OFFENDEIt PROVISION 

u.s. Y. Mt:NeDl. No. 89-2570 (7th Or. Apr. 20, 1990) 

(Manion, J.) (ag=i.ng wich u.s. Y. Willi4ms. 892 F.2d 296 

(3d Cir. 1989), chat unlawful possession of a guD while firing 

it is a Mcrimeof viotcncc" under U.s.s.G. ,4BI.2(I». 

See also U.s. Y. Brown, supra. 

Sentencing Procedure 

Sentencing Factors 

u.s. v. Emanuel, No. 88-119 (S.D. Iowa Apr. 11. 1990) 

(Vietor. CJ.) (rejecting government's contention chat it has 

power to limit extent of any sentence reduction under Fed. R. 

Crim. P. 35(b)-"once the government rues a motion for JeVolume 3. Number 8. Iune IS. 1990' Page 2 

duction of sentence the sole power 10 n:duc:e the seruencc and 

10 determine the extent of any reduction rests with the court"; 

however, '*the court should accord considerable weight 10 the 

goycmmcnt's view of how mucb to m:lucc the scnt.enccj. 

0mEa 

U.s. Y. JOItU. No. 88-3371 (11ch Cit. Apr. 30, 1990) 

(ijOflat. CJ.) (10 order ""to limit the objcclions cognizable on 

appeal" IDd racruwc appclJale review, court exetclscs its 

supervisory po'NCr to insuuct district COUJtS ""to elicit fully 

I1'ticu1aICd objections. following imposition of seatcac:c. 10 

Ihccourt'su1timatcfuidingsoffactandc:oaclusioosoflawj. 

Offense Conduct 

DRUG QUA.N1TlY 

u.s. Y. Schtlper, No. 89-1405 (2d Or. May 16. 1990) 

(W"lOtcr. J.) (district court is RqUired UDder Guidelines 10 

consider in the base offense level ~ quantities of 

drup chat wereneithetseized norcharpcl in the indicImeDt if 

Ihey were pan of the same scheme or plan as Ihc offense 0( 

convictioD. Me U.s.s.O. t IBI.3(8)(2» • 

FIR.EA.RMS OFFENSES 

U.s. Y. Peopiu. No. 89·10333 (9th Cit. May 29, 1990) 

(per curiam) (agreeing with U.s. Y. Williams, 879 F.2d 454 

(8th Cit. 1989). that enhancement onder U.S.S.O. 

, 2IC2.1(b)(2) forstoleo firearm dOesDOlrequire participation 

in or knowledge of Ihc Ihcft by defendant). 

U.s. Y. Agrdkra-Zapata. No. 89-1219 (5th Cit. May 9, 

1990) (Garwood. J.) (10 Older 10 apply-enhancement for 

possession of weapon during drug offense, U.S.S.G. 

I2DI.I(b). based on co-dcfendant's possessic.ll of weapon. 

d.i.sIrit:t court must flOd Ihat posseSsion was bown or "'leasonably foreseeable" 10 Ihc defendant; burden of proof is on 

government. by preponderance of evidence). 

Relevant Conduct 

u.s. Y. Braxton, No. 89-S6S1 (4th Cit. May 8. 1990) 

(ChIpman. J.) (proper to delamine offense guideline based 

on stipulation Ihat CS18b1isbes IIlCft serious offense where 

there is DO pl~ agreement but defendant oalty IgRled 10 Ihc 

facts of chc more serious offense: Mstipulalion" in U.s.s.G. 

IIBI.2(a) "is DOl used in a resuictive way 10 chat only an 

agreement designaIed as a ·stipdalion· would comply with 

the guideline. ••• There is DO requiR:mcnt in chc guidelines ••• 

that chis stipuJ:ation must be in writing. It is only nccess.-yIhat 

Ihc facts presented to Ihc court CSlablish a more serious crime 

and chat the defendant agree to Ihc stalemetll of racu. j 

Appellate Review 

u.s. Y. Franklin, No. 88-3257 (7th Cir; May 7, 

1990) (Kanne. J.) (remand not automatically required when 

distria coon relies on both proper and improper grounds for 

upward depanuro-"the sentence can beupheld if, standing 

alone. the proper factors justify the magnitude of departure"). 

Accord U.s. v. Rodriguez, 882 F.2d 1059 (6th Cir. 1989), cert. 

tknied. 110 S. Ct. 1144 (1990). COnlra U.s. v. HernandezVasquez,884 F.2d 1314 (9th Cir. 1989) (remand required). 
Guideline Sentencing Update 

VOI..l1loC£ 3 • NUMBER 9 • JULY 6. 1990 

Departures 

AGGRAVATING CIRctJMSTANCES 

NiDdI CIrcuit IaoIds upward departure to ~uaIize 

seDteoee wida dlat of cocIereadaDt Is Dot permissible; also 

Iaolds type aDd DUIDberofweapoas8l'e iDvalid grouDclsrOl' 

upward departure iD V.s.s.G. f 2K2.1 ol1'ease. Defendant 

pled pilty 10 one COUIIt of aiding and abeuing in providing 

false IWemeDIS in fuarms acquisition, and was scnCCPCed 

under. I 2K2.1. The disttict court depaned from the guideline 

range of 4-10 moolhs 10 impose a t'NO-year tenn. 

The departure was partly based on the two-year sentence 

given 10 acodefendant. In reversing,lhe appeUatccourt DOled 

&hat thc codefendant had confessed 10 8I1tQthQ" offense. and 

Ihus had not pled guilly 10 thc same aime as defendant. and 

that defendant had ncgotiared a more favorable plea agreemenL 1bc coon found it may be approprialc in some cases 10 

look behind the plea agrCcmcnllO assess the actual culpability 

of I defendanl. but ~ are two other important pinciples 

&hat must also be c:onsidered. ••• Plea bargaining is a aitk:aJ 

lOOt in the aimiDaljustice syUem. ••• Were thc plea bargaining process 10 lose ilS effectiveness as a result of judges 

ignoring the bencfdS of the plea bargain 10 which defendants 

are ailed, Ihe consequences for boIh the aiminal and civil 

justice systems might well be disastrous." 

The court also found such a departure ""would seriously 

frustrate .. the Guidelines sc:bcme and goal of limiting judicial 

discredon: "Judges would be able 10 delcrmine a defendant's 

senlCnCe DOl just oolhe basis of what the Guidelines provide 

wilh respect 10 his conduct but. also on what lhey provide wiLh 

respect 10 the c:oaduct of any of his co-defendants. Tbere is 

Iitlle indicalion in Ihe Ouidelines that the Commission conc.emplaled so ~ve an approach. ••• In short. an upward 

depanure for pmposes of equalization is not permissible." 

The court also found Lhat upward depanure based on the 

type and DU.IDbez' of weap0ns-46 AK-47 rifles and 2 ocher 

rifles-was not permitted under the Guidelines. 1bc coon 

held that the Senrcncing Commission had adeqwuely considered and rejected bodt cin::urnstances in detennining a sentence under 12K2.1. q. U.s. Y. Uca. 867 F.2d 783 (3d Cit. 

1989) (upward departure based on number of guns improper 

for defendant sentenced under U.s.S.G. § 2K2.3 (1987». 

The disIrict court had also based its departure on the 

~ that defendant committed the offense "for no ocher 

!aSOII than to satisfy his greed. .. The appellate court found 

that "profit is a primary motivating factor in many if not most 

types of crimes," and Ihus greed is not an unusual or extraordinary circumstance lhar. warrants departure. 

U.s. lI. Enriquez-Munoz. No. 89-10256 (9lh Cir. June 28. 

1990) (Reinhardt. J .). 

MlnGAnNG CIRCUMSTANCES 

U.s. Y. Morales. No. 89-1210 (2d Or. May 30, 1990) 

(Cardamone. J.) (pmonaI characteristics of defendaDllhat 

made him --panicu1arly vulnerable to in-prison vk:timiza.. 

lion" -namely his "diminutive size. immature appearance 

and b_ual orientation" -were proper grounds for departure 10 the saiaurory minimum beealJse Mjt is plain I.hat Ihe 

Commission did DOt c:oasidc:a'" vulnenbility 10 die exteDt 

revealed in this rccord--whete the only means for prison 

officials 10 protect [defendant] was 10 place him in soIiIary 

confinement"; also, scnlCncing court did not improperly rely 

on faclOrS iD U.s.s.G. § SHU, p.s., that should not ordinarily 

be used as grounds for departure). 

CR.IMlNAL HISTORY 

U.s. Y. RusseU. No. 89-6142 (10th Cit. JUDe 20. 1990) 

(Sclh, Sr. J.) (holding that in dcfcnnining reasonableness eX 

extent of depaI1un:s above criminal history.ta&cgory VI. ~ 

should affcrd the trial judge due deference and DOt "lighdy 

overturn decerminalioas of the appropriaIe degree of departure'''; court declined 10 impose any son of rormula f« 

computing such departures. finding that the Sentencing 

Commission "would have provided such a formula had one 

been intendedj. Su alSD U.s. Y. Berllhtudt. No. 89-6323 

(lOCh Cit. June 11.1990) (McKay.J.) ,Because ihcSentencing Commission has provided 110 guidance for deltnnining 

Ihe reasonableness or upward departures from ta&cgDly VI. 

we must simply use 0lIl" own judgment as 10 wbetbcr Ihe 

scnleDCe imposed is proponionallO the aime committed. in 

light of the past aiminal history. j. q. U.s. Y. ScIuruitU. 901 

F.ld SSS (7th Cir. 1990) (suggesting increases in 1001S% 

increments if car.egory VI is inadequale). 

U.s. v. Gardner. No. 89-6289 (10th Or. June 18, 1990) 

(Ebel.J.) (affirming departure 10 Iowcrendofc:arecroffcnder 

range bccausecriminal history CllCgory VI undem:peseaICd 

defendant's aiminal bisrory-,tllhough defendant was DOl a 

"c:arecroffcndd" bccauseaseconcl violent felony was too old 

10 be counted. his "aiminal history dosely RSemblcd I.hat eX 

a c:arecr offender and Ihe district court's decision 10 SlenleaCe 

defendant by rd'ezenc:c 10 Ihe career offender provisions was 

reasonable. particularly whcre.as here, the district cowtchose 

to seauence him 10 the lower range ror a ~ off~. 

U.s. v. Suzey. No. 89-2780 (7th Cir. May 17.1990) (per 

curiam, unpub. disposition) (aCruming upward departure 

based on similarity of crime 10 prior offense, accord U.5. v. 

Carey. 898 F.2d 642 (8th Cit. 1990): u.s. v. Luna-Trujillo. 

868F.2d 122(SLhCir.1989).andLheadditionalfaclOrofproximity in time 10 similar prior offense. accord U.s. v. Sturgis, 

Not for Citation. Gui.d"'in~ ~"u"cjllg Updal~ is pr(}v;ded for information only~h should nOl be cited. either in opinions or oc.herwiS(:. 

111 
Guideline Sentencing Update 

869 F.2d 54 (2d Cir. 1989». Set also U.s. Y. Chavez-Botello. 

No. 89-30175 (9th Cir.JWlC5, 1990) (per curiam) (similarity 

between current offense and prior offenses is not considered 

in Guidelines and may provide basis for depanure). 

SUBSTANTIAL AssISTANCE 

U.s. Y.HoMVd.902F.2d894 (llthCir.I990)(",sentenCing court is obligaled to rule on a [U.S.s.G.] section 5K1.l 

motion 81 the time of sentencing." and may not poscpone &he 

ruling on the basis that most of defendant's qreed-upoa 

cooperation had not yet occurred at time of senaencing and 

government could 1aIcr file motion under Fed. R. Oim. P. 

35(b) for reduction or sencencc). 

Adjustments 

ROLE IN mE OFFENSE 

u.s. y.Pnakos,No.90-1055(1stCir.June21,1990)(per 

curiam) (when finding defendant was organizer or leader of 

criminal activity involving Mfive or more participants." 

u.s.s.G •• 3Bl.1(a),maycountdefcndanusoneofthe five). 

VICTIM-RELATED ADJUSTMENTS 

U.s. Y. While.903F.2d457 (7th Cir. 1990)(enhancement 

for "vulnerable victim," U.S.S.G. § 3Al.1, property given 10 

defendant who took sixty-year-old man with respiralOry 

problems hostage during escape attempt). 

U.s. Y. Schrotdir. 902 F.2d 1469 (10th eir. 1990) (reversing "official victim" enhancement under U.s.S.G. 

§ 3A1.2 for defendant convicted of intersaatecommunicalion 

or I threat 10 inj~ding an offICial victim under § 3A1.2 

must be the object of &he threat. wIlereu here the off1Ci.a.1 

merely received a threat dircct.cd at others). 

ACCEPTANCE OF REsPONSIBILITY 

U.s. v. OliverQS. No. 89-1380 (2d Cir. June 4, 1990) 

(percwiam) (~ing with U.s. Y. Pere:-F,anco. 873 F.2d 

4SS (1st eir. 1989).lhaldefendant need only accept responsibility for offense of conviction, and not also for counts chat 

have been dismissed). Bid see U.s. v. Gordma. 895 F.2d 932 

(4th eir. 1990) ("'defendant must ••• accept responsibility 

ror all of his eriminal cond..:tj. 

Determining the Sentence 

CONSECtmVE OR CoNCURRENT SENTENCES 

u.s. v. Garci4,903 F.2d 1022 (51b Cir. 1990) (agreeing 

with u.s. Y. Walford. 894 F.2d 665 (4th Cir. 1990), chat 

sentencing courts have d.iscretion 10 impose consecutive 

scnaenccswhcndefenclantisconvictedofbothGuidelinesand 

pre-Guidelines offenses). 

U.s. Y. Miller, 903 F.2d 341 (5th Cir. 1990) (agreeing 

with U.s. Y. Rogtrs. 897 F.2d 134 (4th Cir.I990).and U.s. v. 

Fossell. 881 F.2d 976 (llthCir. 1989). that district courts did 

not have discretion under the fonner version of U.S.5.G. 

§ 5G1.3 to impose consecutive or concWTent sentences, but 

that courts could depart to impose CODCUJTent SCDtences when 

appropriate). Comra U.S. v. Nottingham. 898 F.2d 390 (3d 

Cit. 1990) (§ 5G 1.3 conflicts with statute, district courts relain 

discretion); U.s. v. Wills.8S1 F.2d 823 (9th Cir. 1989)(same). 

Volume 3· Number 9· July 6,1990' Page 2 

Criminal History 

CAREER OFFENDER 

u.s. v, SelJa. No. 89-10309 (9th Cir. June 14. 1990) 

(Schroeder, J.) (rejecting defendant's argument for bearing 10 

determine whetha" his two p-evious bank robberies '\tIeR 

"erimesofvio1ence"WlderW'Cefoffenderprovision,bolding 

""that persons conviaed of [hank robbery under] 18 U.s.C. 

• 2113(a) havebeeaconvictcdofa 'erimeofviolence' within 

the meaning of Guideline Section 4B 1.1. WeconcludedJatthe 

elements of &he erimes of which defendant was previously 

convicted. and not lhe particular conduct of the defendant on 

&he day the crimes were c:ommiucd. should concroL Funhet 

satellite facwaI hearings should not be requUed as alDlllCl' of 

course ill order to def.ennine whether thedefendanl bas .. viousIy bcea conviclcd of crimes m vioteoccj. Cj. Taylor Y. 

U.s.. 110 S, CL 2143, 2160 (1990) (holding thal, when 

determining wbethcr a prior offense was a -violent felony" 

under 18 U.s.C. § 924(e), Ca.reerCriminals Amendment Act 

or 1986, ttial coun. is required ""to look only 10 the fact of 

conviction and lhe SlatulOly defmition of the prior offense," 

and not 10 the facIs Wlderlying &he conviction). 

Sentencing Procedure 

EVIDENCE FROM ANontER TRIAL 

u.s. Y. CasteUlJII()s. No. 88-3535 (11th eir. June 13, 

1990) (Tjonat. CJ.) (vacating prior OPinion. 81882 F.2d 474 

[2 GSU '12], and clarifying earlier bolding: "cvidence presenledattheUialofanochermaynot-withoutl1lOl'e-be used 

10 fashion a defendant's sentence if the defendant objc:c1s. In 

sucb a case. whele &he defendant has not had &he opponunity 

10 rebut &he cvidence or genera1ly 10 cast doubt upon its 

reliability, be must be affCX'ded chat opportunity .It was never 

&he position of chis panel that a senrcncing coun. may DOt 

consider testimony from the bial of a third party as a maucrof 

law; rather, we were of &he view that a senlelldng counmust 

follow the procedural safeguards incoIpcntcd ill section 

6Al.3ofthcguidc1ines •• ,.j.C/. U.s. y,Beaulieu.893F.2d 

1177 (10th Cit. 1990) (may usc reliable cvidcncefmmanodler 

trial).BId su U.s. v. Chandler, 894 F.2d463 (D.c. Cit. 1990) 

(per curiam) (&able. unpub.) (emr 10. USC cvideDcc from 

codefendant's tria110 detennine drug quandty). 

Appellate Review 

OVERLAPPING GUIDELINE RANGES 

U.s. Y. Dillon, No. 88-3505 (7th Cir. June 20. 1990) 

(Kanne, J.) (upholding senlCl1CC even though disuict cowt 

eaed in plating defendant in criminal history c:atcgory D 

instead of category I, because resulting SCIIIenCing ranges 

overlapped and conduct that caused court to usc c:atcg<l')' D 

could haveboenused IOsenlenccdefendant81upperendoflhe 

lower rangc-disputes over proper criminal hislOry category 

need not be resolved if resulting ranges CLveriaP- and Mit is 

reasonable to conclude that the same sentence would have 

been imposed irrespective of the outcome of the dispute"). 

Accord U.s. v. Williams. 891 F.2d 921 (D.C. Cir. 1989); U.s. 

v. Turner. 881 F.2d684(9lhCir.),cert.dtnied. 1l0S.Ct.199 

(1989); U.S. v. Bermingham. 855 F.2d 925 (2d Cir. 1988). 

11~2======================================================= 
Guideline Sentencing Update ~S.C'Ad. U"".bII6Ia:ibuIeoIpd ' .. ..,,"' .. c.... .. W-~ ... __ JadicW.--.&., ............ _____ .. ...... __ .......... 1* ... 1917 ..... e i lCd' 'iI" ~"r'lhEd ,_, .......... $ i 1~ .. ,..,_ ..... Ul.a-. "0 ; 11 ..... _.,...,....._ ........ 1111 .......... ..,... $ ! IC ! '.poIIcirn.DIIIhtIi& ................... N.' .,.." 

« E 11.1 , ... __ .....w. ..... "' .... d IC f! ....... W---. 

MlIaIian"~ 'DA'"" u,... .......... cw. ..... Il •• .....-wa ............... ltnllnnnW ... mll.,.,. . 'd • .aicirI ,.."., .. ew..0a_ .,poI:iq .. c.....,..., ........ ..... VClILUMII 3 • Nmaa 10 • AIIouaT 22. 1990 

Adjustments 

ACCII7I'ANCB 011' REsroNSIBIUI'Y 

Nlatb CIraIt IIoIdI nlusal to pat IIC:fIePtuceolreIpODSlbmtJ redDCtloD IDa,. lICIt be INIIed 011 c:oasdtatIoIIaD,. prot.ected coa.dDd. DefcndaDt pled piIty to auarmecl 

bent robbery. AkI mest delendaDt bid roqaeIIecIlD ... -

Dey. did DOt provide Ill)' aatcrnents 10 Iboaulborilica orlSlist 

ia dlelDwsdpdoo.lIICldidDOtoft'crtolDlkcJalitudon uadl 

after Ids gailty plea. FoUowiDg Ibc ftICOIDlDCDdalioa ill die 

pn:seDteacc repon.the clisuict court denied Ibo olfcme IcveI 

RIducdoa for a::cepcanc:e ollelpODSibility because deleadant 

had DOt wlwuarily surrendered lOautbariliesor assisted in Ibc 

rccovay of the money. factors listed ia the c:ommeatary lID 

u.s.s.O.1 3El.l. Defendant appeaIed.lIgUiDg tbat basing 

the denial on this ~ conduct-impennissiblypunisbed 

him ror exercising FalIh and Sixth Amendmeal rights. 

The appellalc court beld that ... deIerminins a delendalu',accepQmCcof tapOnSibilily .ascnfCDCing court cannot 

consider against a delCDdant any coostitutioaalJ protcaed 

c:onduct. wbecher it occurs bcfcn or after the entry ofa plea. 

•. , 11ws.1bc district court may DOt balance agaiast evidence 

0( remorse or ac:c:epcance 01 respons1Dilily. cite fact that die 

delendant reqUCSled counsel. or relied upoa die privilege DOt 

10 mate any statement to the police or to assist them in 

gathering incu1pauxy evidence. This consuuction of section 

3El.l will avoid an unconsIitutional applic:alion of die Senaencing Ouidelinci." VacatiDg and ftlIDIDdiDg.dlecourt CODcluded Ihat -,p]cnalizing a dcCendant for failing to provide 

evideaceapinsthimsdf or to make incriminaling scaremenas 

violates his CODSlitudooally protcctecI rigbls. - DcfaIdaalllsoarpcd that lbe diSlric:t.courtared in COlIsicIeriDg only bisJR-Pleaconduc:t" wbiJe ignoring bia conduct 

and star.emerU aria' be bad pleaded piIty. Wdhout specifically rulina 011 this issue. she appeIJaIe court diIedtd cite dislrict court 011 ranaod to "'Inake an express finding regarding 

wheth« it bas considered [deleadant',] post-pJea conduct. .. 

U.s. Y. Wdli. No. 88-3092 (9th Cir. Aug. 6. 1990) 

(AIan:on. J.). 

U.s. Y. Simpson, 904 F.2d 6J7 (llIb Cir. 1990) (due 

process does not requireeilher sentalCing judge or probadon 

offlCCl'toinfonndefendantthathissencenoemaybefavorably 

adjusted under Guidelines for acceptance 0( responsibility). 

ROLE IN THE OFFENSE 

U.s.y. Foreman. 905F.2d 1335 (9thCir.I990)(abu.seof 

position of IrUst enhancement. V.S.S.G. § 3Bl.3. was pr0perly given 10 police offacec who showed her badge and 

identified herself as active police of racer to DEA agents and 

Los Angeles police who stopped her for questioning in airport; fact dlatdefendant was DOt.-casful ill conceaIi.., bet 

olfeaae doeI DOtJRC1ude~ 13BI.3 appIieI lID 

.aeqa 10 caaceaI). 

U.3. Y.DrrIbd. 9OSP.2d l304(9daOr.199O)(1ftinDiD& 

13Bl.3eabanc:emcnt lor" olpolidon ollnlSt lor aigbtlime jInbar wbo coauuiaecl ... ...,. defendmt bid 

keys to bat. WOIbd uosupcrvisod,.lDCl bad acc:ea to areas 

DOt opea to public). 

OBS'l'llUC110N OF JIJSTICE 

U.s. Y. MGIOI,907 P.2d 214 (2d Cir.199O) (eahaDc:emcnt 

under U.s.s.O. I lel.l for obsIruc1ioa of jasdcc poperty 

given for false tesIiJDony Ilsuppasioa bearing). 

U.s. Y. DilIoIt. 90S F3d 1034 (7* Or. 1990) (I leU 

eahancemeat popedy givea 10 deleadaDt wbo p~ false 

name for soun;.e of cocaine. ~ tbou&b be nanacd and 

provided lrueaameshe oextmomiDg--govenuDcexpeadcd 

resources pursuing false lead. and deleudaDt rec:dYed accepaanceofreapoasibilityreduclioa rorsubsequcat~). 

U.s. y,lAjUJIt. 90S F.2d 1315 (9da Qf.1990) (llel.l 

eobancemeat propcdy Biven to dcfaIdaIIt who. wbilc ia jail 

awailing scnteociDg for wire fraud charges. c:ooIiDued those 

actiYides using jail tciepbono-dd'cadant suppUed IIIIferial 

falsehoods to probaIioo offic:et by misleading officer that be 

had accepccd rcsponsibillty for his crimcs..1DCl also impeded 

the JCMDIDCDl', iavaliption of Ilia IICtividciby causing it 

to expand she invesligarim lID include die IaIt.r activity). 

Criminal History 

CALC1JLA.TlON 

u.s. Y. HIIIIlq.906 F3d 1116 (6dI Or. 1990) (Q)QUIlitment to juveaile facility is MiDlpisoamcD(' for purposes of 

u.s.s.O.14Al.l(c) enbanc:emeat forcommiaing cum:at offense"'less than two years afta'release &om imprisonmcntj. 

CRIMINAL LIVELIHOOD 

u.s. Y.lrvb&. 906 F.2d 1424 (l0dI Or. 1990) (five to 

seven moalbs was Msubstanlial period of lime- witbiD defmi· 

doa of""paaem of aiminal conduct' ia criminal Jivc1ihood 

provisioa. U.s.s.O.14Bl.3). 

Offense Conduct 

DauG QUA.NTI1Y 

u.s. Y. HavellS. No. 89·2115 (lOth G. Aug. 6, 1990) 

(McKay, J,) (com:t may estimate drug quantity in aaempt 10 

manufaclUre methamphetamine offense. even though at time 

of arrest drug could not be manufactured because precursor 

chemical absent. see U.SS.G. § 2D1.4{a), comment (n.2». 

Not 'or Citation. G"itklw MNt:N:ing UpdoJt: it provided fOf infonnation only. IIshoold no( be cited, either in opinioIu or otherwise. 113 
114 

Guideline Sentencing Update 

DEPARTURES 

MITIGATING CIRCUMSTANCF.S 

SecoDcl Cirealt boIcIs lovtnmaeDt must bave DOtke 01 

dowDwanl cIepIrture, but ..... ,allan CO lift lUlf"adeat 

aodc:e was "llarmless error" Ia C1a1s case; .... departure 

alrU'Dled claplte Improper aroaad becaaseodler pouadI 

were sufl"1Cieat. DcfcodaDl pled guilty 10 bribery, lOCI 1bc 

pidc1iDCrauacwas 15-21 monIhS, Tbedislriclcourtimpoled 

a dno-yar tam of probUioo. exptaiaiD81bc dcpInurc was 

jUIIified by cldendalll"1ac.t of ac:rimioalRlCGld.bisemploymeDlRlCOldIiaccCXllDiag to 1bc U.s .. aad &be ........ J ..... 

oflbebn"belyll'lasacUoa. .. TbePSIdidDOdDdicafc .... lUlo 

was wamIDIcd aad I.be court did DOlIDDOUlllCe abe dcpInurc 

UIUiI after 1Iocb)*lies bad .... a1bo -tcncma bearin&-

Notiq dIIlilbad held ill pevioas easel dIIc clefeadtall 

must be stveaDOCiceofupwarddc:panurapriorlDimposidoD 

of SCDtenoe. 1bo appcIIaIc court held ""dIe a:De rule tbouJd 

apply 10 tbc gcnuameal ill abe CODIcxt of dowaward dqw1UreS.. Howcver.lhecourtlhea bcldthat~faiJu.reoflhcdi&­

trict court to give I.be goyemmeal DOIice ofil$ iDleoUoa to depart was barmIess cnor. "The court reasoned tba tbc govemmeat bad.. ill fact. alIeady II'gUed apiDsl ODe of tbc deputute 

grounds. and dill its ocher II'gUIDeDII would ~ failed. 

TbeCOUl'lbeld &hedepututeappsopiarceVOD Ibough one 

of the Ibrec grouads lack of a criminal ~dearly 

improper. Cf. Zamarripa. infr4. A11hougb downward deparlure OD abe basis of employmcut history is ordiDarily DOl warranled. U.s.s.G.1 SHl.5, p.s..1boCOUl'ldc&crmiDed cbat"oace 

it is coup&ed wi&h &he Ihint factor-cbcDDusuaJ cln:ums&anccs 

of the offc:ase--4bc district court was justified ill CUlSidering 

appellee's ease to besufflCieody exceptiooaIlO jusIify dqJarlure.. The ddeadant's use of a personal cbect for tbc bribe. 

Mia die distritt COWl's view, reflected an I.IU« lack ••• of 1bc 

sophisti<:adon usuaUy showD by penoDS bribing .. off"adal. 

Thus.abepicmrcpaintedof appellee is one of a perIOD witb 811 

cnUreJy stable bacqround. iadicaltd by bis cmploymcat 

biscory, IDd whose unusually UIISUJ'IqJtidou coaduct in 

uncb1aking Ihc bribery constibllCd a midpdng factor -of a 

kind. or toO a degree' not adeqwuely considered by the 

Guidelines." Bille/. U.s. ".Pozzy,902F.2d 133 (lstCir. 1990) 

(rcvemng downward departure based OD agpogadoD ofpersoaal factors); U.s. Y. Brewa-, 899 F.2d S03 (6lb Or. 1990) 

(same); U.s. Y. C .. ey. 895 F.2d 31S (7111 Cir.199O) (same). 

U.s. Y. Jagmohalt, No. 90-1045 (2d Cir. July 13, 1990) 

(MeskilI.J.). 

U.s. Y. Golf, No. 89·5656 (4111 Cir. July 6,1990) (Wilkins. J.) (vacadng dowuwani departure based OD defendant's 

drug addictioo. receipt of drugs ins&ead of money for panicipatiooia<X>DSpilacy,resporm'bililyforyoungchi1dral.1onger 

sentence chan co-conspirator will1 more serious aiminaI bisray-Guidelines accounted for fd three factors and differences in conduct accounted for different sentence of co-con5pisala; court also held that "viewing the[ se] facrors cumulatively" does DOl provide justification for departwe, accord 

U.s. v.Rost'n.S96F.2d 789, 792 (3dCir. 1990) ,combination 

of typical factors does not present an unusual casej). 

U.s. v. Brand. 907 F.2d 31 (4th Cit. 1990) (vacating 

downward departure based on personal circumstanees of 

Volume 3 • Number 10· AUpA 22, 1990 • Pace 2 

defendant and abe Mdevastadng impact .. bcr imprisonment 

would have on her two young chi1dmt-eppelIac:ourtfound 

that si1uadon was DOC. so out of Ibc ordinary as 10 W8m1nt 

exeeptioo to pDenIl pobibidcll in U.s.s.G •• SHl..6, p.s.. 

apinst dcpadlllos baed on family tics lOCI ~). 

ClUMINAL lIJsToay 

U.s. y.!..aU, No. 89-S0266 (9cb CU. July 20,1990) 

(Price. St. Dill. J.) (pursuaIII to U.s.s.G.,4Al.2(e), commeat. (o.S). coavicdoa.t 100 old to be counr.cd ill criminal 

bisIory ICIIR may provide basil fordeplnuro 0DIy iftbey_ 

"evidcacc of IimiJarmilCODdUCl'" as canoataft'a. dcprcure baed panly on 014 assault coaYicdaaa. for ddeadaDt 

CODVicaed of J!USia& forged cbec:b.must be remlDded). 

Sentendng Procedure 

EVIDENCE FaOM ANaraEa Taw.. 

u.s. Y.NotnrII~Io.No. 89-10221 (9dIOr.JaIy 18.1990) 

(Rymer, J.) (reliable eridenc:e from IIIOCIa'IriaI may be ased 

to adjust offense level 'Wbea deCendaDt bas aodce lOCI opperblDity 10 c:haJleuge). kctH'd u.s. Y. CtntdImto.r.904 F.2d 

1490 (11th Cir.I990); u.s. Y. B.,. ... 893 F.2d 1117 (10d1 

Or. 1990). Bill '" u.s. Y. CMIuIIu, 894 P.2d 463 (D.c. Or. 

1990) (per curiam) (1IbIe) (enor to DIe IlDOUDt of drugs 

sepmrdy bied c:odefendant convicted of disaibutiDg). 

Appellate Review 

EXTENT OF DEPARTURE 

u.s. Y. Vizcarra-Angulo. 904 F.2d 22 (9lb Or. 1990) 

,defendant may DOt chaDcoge OD appcaI. lbe extent 01 a 

doWDward deparlurCj.kcord u.s. Y. Parler. 902 F.2d 221 

(3dCir.I990); U.s. Y.Lt:/tHt.llldBMll. 901 F.2d641 (8IbCir. 

1990); U.s. Y. pig#reuJ. 898 F.2d 3 (1st Cir. 1990); U.s. Y. 

Wright. 895 F.2d 718 (11111 Cir. 1990) (per curiam). 

PROPER AND IMPROPER GROUNDS 

U.s. Y. 7Am4rrlptJ, 90S F.2d 337 (10Cb Cit; 1990) (depIrlure based OD propel' and improper gmaads must be raaande4}.kcord U.s. Y. HtmaIIdn-Varquez. 884 F.2d 1314(9d1 

Cit. 1989).Cf, U.s. Y.Miclrael. 894 F.2d 1457 (SIb Or. 1990) 

(n:mandcd because appeIlaI.e court could DOt decermiDe Ibat 

improperfacurwas DOt necessaryptrtofbasis fordcplr1lR). 

Bill '" Jagmoltan,l:IIprtJ ('"two of the Ibrec JIOUDds relied on 

by Ihe court are suffac:icat to SUSIIin abe deplr&w:oj; U.s. y, 

Frllllklbt, 902 F.2d SOl (7e11 Or. 1990) ("JeAtaIce CID be 

upheld if, aanding alone. the proper fac10n justify tbc magailUde of depanmej; U.s. Y. Rodriglle~. 882 P.2d 1059 (6dI 

Cir. 1989) (upheld because"seen IS a wbole,lbe ICIIeDCe is 

permissiblej, cut. di:nkd. 110 S. Ct. 1144 (1990). 

Decision to Apply Guidelines 

u.s. Y. Norqllt.lY, 90S F.2d 1157 (8111 Cir. 1990)(Guidea 

lines apply to violations of Indian Major Crimes Act, 

18 U.S.C. § I1S3, limited by maximum and minimum sentences established by state law). Simitar...c:onclusions willi 

respect to the Assimilative Crimes Act, 18 U.S.C. f 13, WCl'C 

reached in U.s. v. uaJu. No. 89-50266 (9th Cir. July 20. 

1990) (Price. Sr. DisL J.), and U.s. v. GlJTcia. 893 F.2d 250 

(lOth Cir. 1989), cert. denied. 110 S. CL 1792 (1990). 
Guideline Sentencing Update 

VOl.llN! 3 • NUloCBl!It 11 • AUOOIT 31,1990 

Probation and Supervised Release 

REvOCATION OF SVPEIlvt.s.ED R.BLB.A.sB 

Ninth CJmdt boIda addlUooaI tenD or superYtsed release 

may Dot be ImpoeecI when original term Is revoked. DefCDdant 

had completed IUs prison term and was ICI"VhJ& IUs tenn of supecvised rdcuc wbcn be violalCtd a condition of rdcuc. The court 

revok:edrelease.senteoccddefendmt 10 al().moothtenn of'imprisonmeor. and imposed a new 24-mooIb term of su.peni.sed reIea.se 

10 follow incIn:eradon. Defendant was also ordered 10 pay 

restitution and a fmc relating to the violation. 

In wbllappears 10 be the fint n::portcd appellate decisiOll OIl 

this issue, the cira1it court reversed and ranm:Icd. holding that 

18 U.S.c. f 3S83(e) and U.s.S.O. § 7AI.3(b), p.s..donot permit 

impositiOll 01 an additionalrenn of supenised rcleue afterrevoc:ation. When revocadoo is discretionary, the statute and guideline 

allow a court to "tend and/otr modify the tam 01 supervised 

releuc. or to revob release. Following the tules of statutory 

intc:rprdatim, the court concluded dtal "a district court is DOl 

permincd 10 revoke a person'. supervised release, order a tam of 

incarceradon and then order anolher term of' supervised release." 

The court also held dtal neither the statute nor tbe guideline 

authorizes imposilionofrestitution or afme when apersonviolalcs 

a c:ond.itioo of supervised release. 

U.s . ... BWtezhad.907 F.2d 896 (9th Or. 1990). 

U.s. Y. LocItard. No. 89-50469 (9th Or. July 26. 1990) 

(Thompson. J.) (affU"l'Ding two-year sentence imposed after revocation of two-year term of supccvised releaso-court may «require 

thc penon 10 ICrYC in prison all or put of the tam of'supervised 

release without aeC:nl for time previously saved on postrcIeasc 

supervision." 18 U.s.c. § 3583(e)(3». 

REvOCATION OF PROBATION 

Eleventh CIrcuIt holds that sentence Impo5ecI after probation reYocation Is lbnlted by sentence autbOrtzecl for original 

otrense. Def'endmt'. probation was revob:d aft« he \Ii.oIaIed one 

of'itsconditions. His guideline range for the1mdc:dying offensehad 

been 4-10Il'lOlllM. and his sentence was three yean' probation with 

fourmoolhs served Ila community treaanaIl cc:nECr. Aficrrevoc:alion Ihc probation officer calculalCtd a new guideline sentc::nc:e. 

using both the original offense and the conduct underlying tbe 

probationviolation (simple poueaiaoofdxugs),foral'll'lgC of' 12-

18 months.. The dislrictcourtdetennincd dlat the OuideIinesdo not 

apply 10 sentences after probation revocation and that Ihc statulOry 

maximum for the original offense concrols, and imposed an 18-

subc:bIpf.a' A [18 U.S.c. If 3551-3559J 11 the time of the initial 

UDdcrcboGuideliDea. 

~."1he court 

.. 

fClIICludcd 

""JeataIce1bll 

that. 

wuavailable, 

fer defeodaDrs 

•• atthetimc 

~ 

of cbo initial ~"1DeIDI1be oripnal piddine ICIJreociog 

rm,ge.and ""!he oriaiDIl detamiaIdaaI of tocal offaue IeYd and 

c:rimioIl bistory CIleJ«Y, based upon relevmt fldS eslIbIishcd 11 

the time of IiCI1CCDCing. ddimit Ibe seataJcea tbIl wen then available. The probation officer's usc of the guidelines [in this c:ase}-

addi:og the base offense IeYeJ. fer Ibe post-senlc:Dcing conduct that 

vioialCtd probation 10 the toW offaue level for the offCIDSC of 

conviction-wu clearly inc:xlmlc:t in light of section 3565." 

The court added thIl thcquestian of wbetbermd 10 what extem 

~ 

the dislric:t court may dcpll1 is also COIlttolJed by "'1bc relevant 

facts qinally before the c:ourt"TaIhe:r than 011 the 

canduc:t that constitured the prot.tion violation."lC departure was 

available 11 theoriginal se:oterlclna, boweva', 1ata'CClDduc:tmay be 

used in deciding wbetber to dcpIl1 when SCDIeDCina for the pr0-

bation revocation. Also, the later conduct may be used in determining where to senlenCe wilhin the guideline range, and wbetbeol' 

to impose a di.scrWonary tam of' supervised release. 

U.s. Y. Smilh. 907 F.2d 133 (II th Or. 1990). 

Departures 

ClUMINAL HISTORY 

u.s .... SmiIh.No. 89-1512S1 (8tb Or. July 7:1. 1990)(Amold, 

J.) (affuming downward departure fer c:arcec oamder, from 292-

365 momh range 10 240 mDIUbs-"'Thc relatively minor nature of 

[defendant's] aimes, the brie.fncss of'his ean:er, md his [young] 

age 11 the time thc crimes wen conm1iued make this an unusual 

case. The fldOn tbIl make the appellant a CIR:iCI' offClldec are only 

bIreIy present. "). 

u.s. 11. Gaddy. No. 89-3037.(7th Or. July 26. 1990) (Flaum,J.) 

(departure may be based an pendins dI.arp of'similar aiminal 

eonduct, su U.s.s.G. f 4Al.3(e), p. .. (deplrture may be considen:d for fJrior similar Idult aiminaI coaduct not resulting in a 

aiminal convictionj). Bill if. U.s, Y. Cmttu.-Dombtgun. 898 F.2d 

968 (Sib Cir. 1990) (histay of arresu. without more. cannot 

provide basis for dc:parIwe, citing U.s.s.O. f 4Al.3, p.s.). 

u.s . ... MOllleMgro-Rojo.908 F.2d425 (9th Or. 1990)(vacaling earlier OPinion. 900 F.2d 1376 [3 GSU '7]. and holding that 

departure IJ1USt be ranandcd bec:ause district court did not Itatc its 

reasons for extent of'departure; disciplinary problems during prior 

prison tmn provide basis for deplll1UJ'e). 

month prison term and three-year term of supervised release. AGGRAVATING ClRCUMSTANCES 

F"mding this to be a "case of fU'Sl impression for the cowts of U.S. Y. Doering, No. 89-50092 (9th Cir. JuJy 26, 1990) (per 

appeals," the appellate court reversed and remanded. holding that curiam) (vacating upward deplll1UJ'e imposed piiUy foi pwpose of 

the guideline sentence from the original oaense limited the sen- securing psychiatric treatment for defendant-language of Guidetenee that could be imposed on revocation. TIle relevant statute, lines. §§ 5HU and 5K2.13, and of 28 U.S.C. § 994(k), "makes 

18 U.S.C. § 3565(a)(2), allows a court to "revoke the sentence of I abundantly clear that the need for psychiatric treatment is not a 

probation and impose any oilier sentence that was available under , circum<;tance which justifies departure''). 

r-;ot for Citation. Guid~liM &fll~l1€iflg Updau is provided for information only. It should nol be cited, either in opinions or otherwise. 115 
116 

Guideline Sentencing Update 

Adjustments 

OBSTRUCJ'ION OF JUSTICE 

FIfth arcuJt holds obstruc:UoD or Justice eabaacemeDt II 

DOt applicable to c:oaduct that eecurred Wore. IlGt durlu&. 

InvtstfpQoD 01' proIICUtfon of orreme. Defendmt aue:mpted to 

abip 6Iarma i1lepl)y and used III alias wbc:.D be J&YC IbeplCbao 

to tbc sbipp«. The IICIIltCnCin& court bcId IhIl tbc lAIC of tbc alias 

impodcd the iDveItiptioo of tbc offcme and WIIl'1IDIOd the 

mbanQr:mac for ot.Iructioa of juslice. 

The appena", court rew:ned. buiD& its dceisioa OIl tbc plaiD 

IquIge ofU.s.s.O. f 3CU: WJ.'btn is simply DO cMdcocc &bit 

(doCCIlCId) wi1fuUy impeded or obstIuc&ed tbc admiaiIIntioD of 

jusdce. or ""m:p'ed to doeilbcr. tbuiItg * ~dIitM or ptwec:ud.oftofbiloffimo.[DclendmlJdidnotmisaep_ollliaida'uity 

to law eofoInle:merJl ofl"aca~ be misreprcIeatcd it to Fedcnl Ex· 

pal. At !bat time, (be) was unaware thai any bMltiaatioo was 

tUios place IDd ~on hIId not yet bcgua. Hia iDIeol dearly 

was DOt to impodo tbc i.nvestigatioo or prosec::uIioa ofhis oft"-. 

Hia inrt:at wa &0 disguise hirnIeJf in such a way 10 thai his crime 

wouklJOuapunishcd. ••• Were we toCOlmtau'IlIceanoft"ctlSClevcl 

iJx:nue in Ibis instance, Ihcn ~ would demand rbal we 

pennit k in a cue in wbic:h the defendant wan a mast. wbcftbe 

dilpi.Iea hiI 'VOice" be leaves town. uses g1011'CS, milO fOl1b. Tbis 

iloot tbc rypoof cooduc:tinlended tobec:ovendby SeccioaXl.l." 

In a lII«cuo. tbeFiftbCircuitrew:nedan obstructioa enbancomeal giwn to III assault defendant who bad CCIIlCICalcd the· sun be 

used immediately after committing We offense but bef'ore me 

irMstigaJioa bad begun. 

U.s. V. W"droft,904 F.ld 234 (5th Cir. 1990). 

U.s. v.l.wIa. 909 F.ld 119 (5th Or. 1990) (percu.riam). 

U.s. v.Lueddd:tl,No. 89-1988 (7thCir. July 27. 1990)(Cudaby. 

J.) (doCcodml c:mvicted of pt2jwy mI obstrudioa of jusIice 

oft"cmes properlyftlCCiwd 13CI.I enhancemeolforobstrudioa of 

justice for oddiliONll acts of inlafcrence with We investiplioo of 

thoIo offc:nses. Ult U.s.S.O. f 3CI.I, comment. (0.4». 

U.s. v. Goddy, No. 89-3037 (7th Cir. July 26. 1990) (Flaum. J.) 

(I 3CU obstruction c::nh.ancemmt properly gi'Yal &0 defendant 

who pve falle IJIIDe after am::st and falsely claimed be hIId DeYeI' 

been am:sted and bad DO fingctprints co fllo-<leCendanlgIVC In1e 

name two days after III'n:st but '"bchad gone aufl"lCieody forward to 

constitute ID attempt" to obstnu:t justice). SItIt 4lso U.s. v. 

B~ 904 P.2d 1250 (8th Cir. 1990) (use of alia aft.er anest 

w&n'lDlcd eobaDcement for obstruction of justice CMlQ 1bough 

police actually mew defendant's !rUe ideutity-'" XI.I specifically COCOillpUlel an Gltempl to impede or obIIruct justicej 

(dua:Jaing prior dceisica. at 897 F.ld 309, on tdaring). 

U.s. v. Gan:i4. No. 89-S0S89 (91h Or. July 25,1990) (Noonan. 

J.) (I3CU obstruc:tioa Cl'Ihancemenl should not bave been giveo 

to defeodanl foc brief atfempl to evade am:.st; alIO noting 1hat a 

pending amendment to 1 3CU. to take effect Nov. 1, 1990, wiU 

exclude flight from III'n:st a III obstruction of justice). Accord U.s. 

v. Stroud, 893 F.ld S04 (ld Cit. 1990). 

U.S. v. Perry, 908 F.ld56 (6IhCit. 1990) (obslrUCtionenhancement properly given to defendant who fled jurisdictico while on 

bond pending sentencing and lhcreby delayed sentencing for Ibe 

eight months he was at large). 

VICTIM-RELATED ADJUSTMENTS 

U.S. II. Creech, No. 89-6199 (lOth Cir. June 26,1990) (Moore, 

1.) (reversing vulnerable victim finding, U.S.S.G. § 3A 1.1, for 

Volume 3 • Nwnber 11 • August 31, 1990 • Page 2 

defcndanl who threatened to harm family of rccauIy manied 

individual-«lUIt held that victim's rcoent maniage may bave 

made theaimc possible, but did notmake him "'vulnenble" within 

1J1CA!linS of guideline enbanoemeDl). 

ROUt IN 11m OFt'BNSE 

u.s. v.BaritofItiIt.907P.2d 1494 (5lbOr. 199O)(wbco i:Dpoe:.. 

ina U.s.s.O. f 3BI.I(a) enbancemeot for bcina 1ad«of ~ 

activity involviD& fM: or IDCR parricipanIa. tmIcDC:irc comt 

(I) IlIDStmaU speciflC fmdins that fM: or~ partic::ipInrI were 

involved. q. U.s. v. I:..tuutu, 890 P.ld 1284 (2d Or. 1989) 

(f 3Bl.l(b) reqwn=lIp~cific fmdiDg of the ideotiries of the five or 

IOCR puticipmu). uh. daie4. 110 S. a. 'r1I17 (l~ (l) may 

COQDl doCeodaat u CDC of the pu1icipants. tICCtJI'd U.s. Y. Predrln. 

907 P.2d 7 (Ill Cit. 1990) (per curiam); md (3) may calcuJate 

"'iofenaliaJly" theoumbc:rof paI1icipanls. ""provided IhIlIbe comt 

does not loot bcyoad We oifmre of convictioo." s« abo U.s. v. 

PttIIil,903 F.ld 1336 (lOOt Or. J990) (I 3D 1.1 adjustmeaCI must 

be baed caly co offcme of convidica. not rdatcd <:caduct); 

u.s. v. Tlttzl48. 896 F.2d 1071 (lib Cir. 1990) (same); U.s. v. 

Williams. 891 F.2d 921 (D:c, Cir. 1989)(same». 

Criminal History 

CA.REBIl OFJiENDERS 

u.s. v. JDIIU. 908 F..2d 36S (8th Cir. 1990) (careeI' offeoder' 

proviIioa. U.s.s.O. 1 4B 1.1 , is ambiguous .. to wberbeI- a delcadm1 wbopJeaded guilry to., but has not yet been seruenccd for, two 

priorviolcm felonies may be sentenced a carceroffc:ndc:r; '"rule of 

leuily"thusprccludessentencinguca:reeroffender,butlCUlmCing 

c:owt may depart upward undet' 1 SK20 because of tbc unusual 

cin::umstancc:s and use 14Bl.1 to guide extenl of depanure). 

Offense Conduct 

POSSBSSION OF WEAPON DURING DRUG 0n1!:NSB 

u.s. v. Garcia,No. 89-10332 (9th Or. July 31. 1990)(Cloy.J.) 

(proper' to apply U.S.S.G.1 2Dl.1(b)(1) e:nhIncemml &odefmduJl 

who wa in bac:beat of car Wiled in drug offense and driw£ bad 

weapco under fioocma1-driver's possessico ofwClpOll was "'reaSODIhIy foreseeable" by dc(~ su U.s.s.O.IIDI.3. c;om.. 

meat. (0.1), in light of &he Jarge amount of drugs involved). 

DRUG Qu.UI7ITY 

u.s. v. CJrley, 909 F.ld 359 (9th Cir. 1990) (foUowin& 

iDsIruction 11 end ofDru, Qumtity Table,. U.s.s.O. '2Dl.l(c). 

base oft"e:ose level iI dctennined by IJ.UlJbcr of uarijuana pllDll 

wbeD live plants IItC seized. by weight for dried plants). A.L:cord 

u.s. v. Bradley. 90S P.2d 359 (t Hit Cir. 1990) (per curiam). 

Appellate Review 

OV£IU..APPING GUIDELINE RANGES DISPtJTE 

u.s. v. Willard, No. 89-5244 (4th Cir. July 18, 1990) 

(Murnaghan. 1.) (senrencing judge may not sentence wilhiD III 

ovc:rtlp and deliberately avoid resolving a fllClWll dispurc IOlcly 

because of !he existence of that overiap, unless Ihe court makes"l11 

exptess delermination that We senlence would be We same under 

either of !he poI.enlially applicable ranges in the absence of any 

dispute as 10 which range applies"). 

EXTENT OF DEPAR11JRE NOT ApPEALA.B.LE 

U.S. \I. Del1ll, No. 89-2786 (7th Cir. July 27. 1990) (Flawn. J.) 

(the rule thaI the extent of a discretionary downward departure may 

not be appealed by defendant also applies 10 substantial ASSistance 

departures un,j,:r U.S.S.G. § 5Kl.l, p.s. and 18 U.S.c. § 3553(e». 
Guideline Sentencing Update 

VCII..mE 3 • Naa.. 12 • s.ra-.U. 1990 

Offense Conduct 

FVUa CIrcuit 1IoIdI .... applJ'lalpldellDe Illllte8dlDeRt 

eft'edhe Wen _ ..... but .......... wIdda coaId 

result .. Iaqer -teace. YIoIata IS post facfo daaIe; 

sdelata'reqafndforeahencanestforpossc:ssIoaolwapoa 

dariq dra& oII'ease commlUed belen Ncmmbe:r 1989. 

Del'endanl pled guilty roadrugcbargeand wasghala two-level 

incR'asc forpossession 01 a firearm during the offeasc. U.S.S.O. 

f 2Dl.l(b). Tbe disUict court found Ihat defeadanl possessed 

Ihe fuarm andlhal sbedid so during a drug oft'eose. but did DOl 

make the fiDdina « sc:icnr« Ihal defcndanr argued should be 

rcqu.iJMfoUowiDg US. v.Bwte. 888F.24862(D.C. Cir. 1989). 

The court in Bwte based its dccisioD OIl .. eadier 'IIaSion of 

U.s.s.O.IIB1.3(a)(3). balding dw.it"Rquirc[d) a~oC 

scienteruncb' 8OCIioo 2Dl.1(b)"lhata defendant posse Sscd Ihc 

weapon "'infcnIionalIy. ~y or by criminal ocgIigcoce. " 

Tbe Fiflb Circuit "agrce[d] wida the D.C. On:uillhat die 

[fOl1Da'] vasioo «IIBl.3(a)(3) ••• 'opcraIC(d) 10 ~ a 

showina 01 scicata' UDder seaioa 2Dl.l(b). - Tbe quesabI in 

this case. bowcw:r, was wbedIet Ihat versioo oll1Bl.3(a)(3) 

should be applied 10 Ibis defaadant,. or the amended 'IIaSion. 

dfectiveNov.l,I989. thatdelc&ed the scienter Jan&uage rdied 

on inB",u. The Senrencing Reform Actor 1984. all8 U.s.C. 

§ 3553(a)(4) and (5). staleS that senaencing courts"shall c:on--

side.r"" guidelines and policy stalemefttS "Ihatarc in elfec::ton she 

dalc&bedef~issentalCCd. "DeCendantwasanesrcdbeCole. 

but sentenced after. 1 I B 13(a)(3) was amended,. and applying 

Ihe amended guideline m.ightaesult in a Jon&er se:a1t.DCe than if 

she eadier version wac applied. 1bis. the court held. would 

violale Ihe ex post facto clause: -vit!l.'e the disIricl court now 10 

fmd &bat [defendant] Iachd tbe scienItr n:quircd by Ihe poNOV'CIIlbtI' 1989 w:rsion of 1 IBl.3, its enhanameat 01 a 

semence and« the cunaat 'VerSion (wbk:h does DOl requiIe 

scienter) would obviously vio1ale the ex post facio clause. ••• 

Because ameodeclllBl.3 may iDaease [defendant's] pmisbment,sheamendment is DOt simply a change in pocedurewhicb 

does not atrec::t a maaer of substance." 

Rtmanding,1he court insauctcd the disIrict court 10 follow 

the vasionofllB13 ineffectwhcndcfendanlwas~and 

determine wbecher she possessed &be fll'C3l111 ""inIentionally. 

n:ckIessly or by criminal negligence. .. 

US. v. Suarez, No. 90-1052 (51b Or. Aug. 30, 1990) 

(Wiener, J .). 

FIREARMS OFFENSES 

US. v. Smilh, No. 89-2346 (6th Cit. Aug. 6, 1990) (per 

curiam) (the "cross reference" provision in Conner U.S.S.G. 

§ 2K2.2(c) (Jan. 1988) (now § 2K2.1(c)(2», which directs 

c:ouns 10 use picIeIine fa{OIbero8'ealedefeadaal; IISII:dfilann 

IOcommItiClhen:saldn& ofI'cmeJevellsllf&bc:rlblDdIIlhlhe 

12K2.2 aft'eIL'se. *app1ieI1O". well. fedaIl ofI'eaa"; 

1Iawewr, tbellaleolfcalcllllllallomeetlbofDdcntddiPilioa 

« die offenso....heIe e.g.. '"'dIe discrict court most IppIy die 

pideliocs' dcfmitiOll of Igm'ftled ISIIUIl 10 ddamiDe 

wbcIber a sr.are asauIt otrease IS applied 10 a defendant's 

oonduct faDs wiIhin Ihe guidelinea' panIIDCtaIlS Ihe base 

offense of agravared auaidtj. 

0rImR SPECIFIC OFJIENSES 

US. v.G",",".No.~S0391 (,9IbCir.July 16.199O)~ 

Da. J.) (for enbancemcrl for bodily iqiury (rom an assault. 

U.s.s.G.I2A2.2(b)(3), .... vicdm ..... .acaoalylOlhevicdm 

ollhe aggravated assauICoi which die defcadaal is COIlVidtd. .. and enhancement is not applicable 10 injury infliCttd in re1aIcd 

assault charge that was dismissed). 

Probation and Supervised Release 

REvOCATION 01' SuPEaVISED RI!:Lu.sB 

SewatJa Cin:aIt IaoIdI ._ 01 iacarceratioD Imposed 

anu revoc:atba of supenfsecI release II DOt limited ., 

guideIiDe_teaceautllorized ror ........ oIrease; lIIowem t 

totaileDgda or Iacarcentioa lor oIrease ad lor rewcadoa 

is Umlted b1 statute. DeCendantbacl heeD flelceoccd lOa IbrecmondI prison &enD and twc>year period G supeiviscd rdcase. 

A.&zldcascfrom prisoobissupervisedrebse was re\'Obd for 

violaDon of se\'UII conditioas,andlhe disaicl court atmced 

him lOa yearandaday inpisoo.DcfeaclnllpCdlhatabeteml 

imposccl upoa l'C'¥CC8I.ioac:ouJd Idacecd tbe maximum tam 

under she Guidelines for laisorisial offense. which bec:laimed 

was eight monlhs. 

The appeUarc COIIIt.ur1lDlCd the fIeIlfeDCC. boIdin& Ibat 

18 U.s.C.I3S83(e)(3) and &be JesisIative bisIay estabUsb abe 

inraIt 10 allow. disIrict court 10 ~ die penIOIl [whose 

superviscdldeaseisJe'WW] IOleI'YeiDprisoaaDorpartoflbc 

temlof supervisedmlease." A£t:oNU.s. v.LocbIrd.-F.2d-

(9th Or. July 26. 1990). lb.-'"die disttict court did DOl err in 

fixing [defendant's] period of posl-rdcase iDc:artcraIion at a 

temllhal exccc:dcd the maxim .. allowable initial scn&eace. .. 

q. U.s. v.Smith. 901F.2d 133(l1IhCir.199O)(serueaceafter 

revocation of probatioII Iimi&ed by aentence authorized for 

ariginal offeme. 18 U.s.C.13S6S(a». 

The court noted. however.1hat defendant's possible tenn or 

incarceration after revocation was limited by the length of 

supervised release allowed Wlde.r § 3S83(e)(3) less the time 

served prior to release. Section 3583(e)(3) states that "a peroon 

whose Ierm is revoked under thisparngraph may not be required 

Not for Citation. GwUkIitv: S<nl~l'\Ciflg UpdtJl~ is provided {Of infonnaLioa ooly. It should not be cited, eilher in opinions or otherwise. 117 
Guideline Sentencing Update 

10 sene ~ than ••• 2 years in pria>n iflheotTense [(<<wbich 

the person wascoovicted] was a C1ass C« D (etony.-1bec:ourt 

held lbatlbis Jan.&ua&c""places absolutcUmifsoo the IOCIlIcoglh 

of Ibc a::DIenCe .. offenderClllIen'epe-" posHeIeaso. for 

eachClllqOtyofaime. Because [defendant] cammlaed.CIass 

D fdony.1OCIioG 3S83(c)(3) limits his toIaI prison alalCC for 

d1at aimo 10 two years. ••• mile maximum IIIowabIc prison 

It'IIImCelbcdislriclCXJUl1c:ou1dba\'Cimposcdupoo(ddeadant] 

wbea RMJkina his supervised rdease [was IimiItldJ 10 lWaIt)'-

oaclDOlltbs. two,... less Ibc dno moadIsleMd piarlO his 

supervisedr.dt:ltsc. • Bill tf.IAcIuzrd.$IIpN (alIirmin&lW01I* 

p:iaaa lam dcrD'OCllioDf«det"eadaDc 'tIbocxiPdYc:om--

miaccI Oass C fdoay lad sened 9-manIb tam). 

U.s. Y. DiIJonl. No. 89-30S6 (7dJ Or. Aug. 17. 1990) (Jxz 

curiam). 

Criminal History 

CALcvu.11oN 

u.s. Y. Ed/ord. No. 89-4862 (SIb Cit. Aug. 20, 1990) 

(JolIn ... J.) (when cabdatin, aiminIl bisfary II:'ltR UDder 

u.s.s.G. f 4Al.l, .. di.sIrict court may c:onsider • • • priCX' 

~misdemc:ancrconviaioos forwbichlhedefcndant 

did DOt ~. eenn of imprisonmcnl"). 

Departures 

AGGRAVATING CIRCVMSTANCES 

u.s. v.Bamu.No.89-6179(6chCir.Aug.13.199O)(Guy. 

J.) (affuming upward depanuie for dclenda COIJYieIed of 

being felon in pc::aessioo of 6rc:arm--4cfend bad priCX' 

convicciooforsancoft'eme.commiaediDslantoft'eueoolytwo 

months aftt71dcaso fiom prison on cadi« offense. and "'pesaibed gujdeUne ranac wooId ha\'C auIred in • tenfaICe less 

than Ibcsentence thedefendant received on his pricI' cmvicdoo 

for die same offense"). 

MmGA11NG CntCVMSTANCES 

u.s. Y. PGTUr. No. 90-1046 (6dl eir. Aug. 30. 1990) 

(NcIsoa, J.) (disIricl CXJUI1 may DOt make dowaward dcpanure 

for IOIc purpose ofbarmonizing IlCiIIIaICe wi&b lhar.of ClOdcfea.. 

dant wbea dcfendanIs' conduct and RICOIds wen diaimUar). 

AcconlU.s. v.Eluiquez-MWIOZ.906F.2d 13S6(9daeir.199O). 

u.s. Y. Whitehorse. 909 F.2d 316 (8&h eir. 1990) (downwn depanurc fOr escape dclendant lPPopiale because of 

"'prison oft'"dals· iJl..advisecI decision 10 Idcase (ddeadant] 011 

unmpervised fudough despite her aIooboIlddicIion: fact Ihat 

defendant would lose two monIhs of"good time- aediIs for 

escape. and defendant·s need f« &n:aIJDent 0UISide ofpisondclendant failed 10 mum 10 prison becallse Ibe immedilfdy 

went on drinking spree d1at prison officials should ba\'C f(I'Cscent and Ihe circwnstances of this case were DOl consida:cd in 

Guidelines; also proper wider these (acts to depart and impose 

sentence c:oncwrent to term being served. despile p-ovision in 

US.S.G. § SOI.3 10 impose consecutive sentence. which 

effectively resulted in no additional time served for escape). 

SUBSTANTIAL ASSISTA.NCE 

US. v. Brown. No. 89-6342 (10th Cit. Aug. 29, 1990) 

118 (McKay,J.) (govemment's confidentiaJ memorandum to court 

Volume 3· Number 12· September 11.1990'.,.,e 2 

oudioing defendant", assistance is not "funcIional equivalent"" 

of government motion to depart under 18 U.s.C. f 3SS3(e)« 

U.s.s.G. §SKl.l.p.s.). q. U.s. v. CNe.man.89SF.2dSOl (8th 

Or. 1990) (Jcaas oudiniD& defc:ndantt

, c:oaperllioa an: DOt 

""funcdonal equivalent"" of modon). 

Adjustments 

ROLE IN THE OFFENSE 

u.s. y.Zweber. 89-3023S (9Ih eir.Aug. 31,1990) (F'Iefcher. 

J.) (""dcfendaus could r=vcrcducDoas (as miDor (11' minimal 

participalltnmderU.s.s:o. I 3Bl.2] ooIy for .... ill tbr.ir 

cm:a.e.d canvicdoa. but DOt"" ill IbcllDCblrpdaacl uncoavidIedc:caspiracy').S« • U.s. Y.1ItrioItIb&. 9IJ7P.2d 

1494 (Sib Or. 1990); U.s. Y. PeIIlt. 903 P.2d l336 OOlb Or. 

1990); U.s. Y. T etzlI:tJ/. 896 P.2d 1071 (7Ib~. 1990); U.s. Y. 

W"dliams. 891 F.2d 921 (D.c. Or. 1990). 

Aa::EPTANCB OF Ib:sroNsusILlTl' 

U.s. Y. Wad:in.r. No. 90-4205 (Sib Or. Aug. Z1. 1990) 

Oobnsoa, J.) (affinDiog dcaiaI olleducdoa for Icceplauc:e d 

responsibility for dcfeodaal COIIYic:II:l4 of JIOSleaina IIOIea 

uasury cbecb who used drup wbiIe OIl tdcaIc peadinc 

~ul conduct poviding basis for denial of 

ftducdoo need DOt be reIaICd 10 oft'emc d conYictioa). 

U.s. Y. Romlrez. No. 90-1329 (2d Cir. Aug. 17, 1990) (per 

curiam) (affuming dcniaIofledllCtioaevealbougbdislriclcoart 

impopcdy based denial in pan on dclcndanl',1dbsaI101IXqIl 

Ie$pODsibWtyf«conductoutsidcoft'cascof~U.s. 

v.OIivems, 90SF .2d623(2deir.l99O}-chczew=odIet. fttid 

reascnsf«lhecbUal.and""we [can] aftinn onlhltodlet [dearly 

pcnnissibIc] basis notwishsIanding die coun·, Je1iance 011 one 

Oawcd bam: u.s. Y. Slwitlgo. 906 F.2d 867 (2d Or. 1990). 

Sentencing Procedure 

FAC'I1.JAL DISPUIES 

u.s. Y. FDI'tieT. No. 89-S179ND (8Ih Cir. Aug. 22, 1990) 

(AmokI,J.)(rcYcrsingrmdinglhataddidoaalamoUlCoCcoc:ainc 

was pandrdewnl conduct chat should be indudcd ill oftCase 

Ievd-court based finding &hal cocaiDc bcbIpd 10 ddendanl 

011 mubiplc bearsay wiIbout making indepadeal fiadiag Ibat 

Ihe bcarsay was Id.iabIc; hearsay is admissible • llellfadng 

bearings. bur. "'beaIsay stUemenIS Idmiaed apiast.ddendant 

••• vioIaIc theCoafronwioa Clause unIess.coun6nds .... die 

dcdaIant is unavai1abJe and dial Ibere an: iadicia of Idiability 

supponiDg Ihc In.dhfuJness of Ihe hearsay IClfclDeIUS"). 

PLEA BARGAINING 

u.s. Y. Kempu. No. 89-6197 (6ch Or. July 19, 1990) 

(Cootie. Sr. J.) (error 10 n=ject plea IgleemClllIhal aipu1afaIlD 

amount of drugs in offense.. and thereby 10. specific pideIine 

range. and stnl.CnCe defendant using larger amount from 

presentence repon-plea agreement coruained binding recommendation for specifIC sentence pursuanuoFed. R. Crim. P. 

11 (eXl Xc), and while court may reject such a plea ag:RlemCnl 

if it concludes guideline range was incorrectly c:aJculaltd. see 

US.S.G.§§6Bl.2(c).p.s .• and6B1.4(d).p.s .• itmustthenafl'c:xd 

defendant opportunity to withdraw guilty plea. U.sS.G. 

§ 6B1.3. p.s. (citing Fed. R. Crim. P. 1l(eX4». 
Guideline Sentencing Update 

GtIlMIIW.s......., u,."wiII....... • .. p«iDdi:.Dr.,."C--"W_jDofp .. --jadidIl....-.a .............. _ ......... ---, ........... 1 .... 1917....... . ,OIIIIHi_ AIdIaaP .......... _'rclcr ..... ~OniHiw .. paIiq--... UJ.s.-:iaa 

O· .,.. ill .................. _ ....... 1& ........... "1IIIpOIls. *' c-.... poIidM Gl'MdYiIi& ..... tIoouW ........... Oihli-. poIiC)' .".--,11 II "11 ................... .,. .. 1. "Ie !, ...... __ .... 

JIrtIWi~Mi ••• ~r ... ..,u,.., .......... c...i ... & •• II.1 ,! ............... 1& ............ _8' M,.. • ..... Cl6:idpaliq 

!' .. c..c.O'_.paIiq ... c::-. ...... -, ...... ..... 

VCIl.IMl 3 • Nuaaa 13 • SIIP'1'8WII!It 21. 1990 

Probation and Supervised Release Criminal History 

REvOCA.TION ()II' SvraVISED RmBU£ CAItEEIl OJ.nrma PROVISION 

ItIneaa 0maIt aftirms Impcllltloa ftlWtaa tI.. ElewDCIa Orcuft boIds dmunstanas tI prtdbfe orpel wised ..... after nwocatloa. DeteadarJl bad bceD JeD- teases lboaIcIaot be ..me_ .. -mme ftI'rioIeDce" cidertc:nced under Ibe Guidelines 110 one ".. ill J1I'isoa Ind two)'all .ID ..... ID a cate wI'Ic:m ck:fCDdallt was ICIIIaICed beb:e Ibe 

of IUpI2 risecl ~ AffI:t defcadalt 'Violated Ibe rams of.. Novemb« 1989 guideline ameodmeots., Ibe disIrict court 

release.1he disIric:l CXQ't revoked supervised release and iDa- looked. Ibe actual cimll"s&anc::aof defendan&t.priormbbcry 

plied. two-yearpison term. Defendant argued &bat be IhoaJd and burglaryoO'enses and dctcImined dIey WCleDOl"c:rimesof 

bave bcm ICDIaK:Cd WKIcr Ihe ~ to. six-monda tam. violenec" und« U.s.s.O. f 4B 1.2 and defendant was lbeletore 

.c:aIodNion b-.d on 1I'ealing lheaiminal conductthat YioIaIaI nota "c:arccrotrender." Alletnalively ,lheoourt held tbal evmif 

his conditions of release IS 8 GuidcUnc oft'ensc and IheB (Jed. dcCendanl qualified ~ 8 c:arccr offender a downward departure 

king him for Ihe time rervecl ill pisoa CIlIhc original offense. was wananted because Ihc caaecr otrcndtl sentcoc:o-wilb • 

1beappoD-courtaorcd lhatlherc""isnospecificpovision mngcof262-321 moacbs inSU'.acfof 46-51 moa&bs-wouId be 

for a DeW guidelinecalclllatim upoD revocalioD" or supcniscd. . "grossly unfair and grossly CICCSSi~ .. 

Idcase. Thus. aleDlalCing court is 10 be guided by 18 U.s.c. Tbe appeUaIc CXQ't RM::I'SCd. boIding Ibat ""Ibe guidelines 

§ 3S83(e)(3). which scares Ihat a court may '"mob alCrm of pohibit the seaceocing CXQ't from I'C'Vicwing Ihe undcdyiag 

supervised release and require the peISCIllO serve ill pisoo aD fads of a convicUoo 10 detenniae wheaheI' it is a aUne of 

or pan of &be term of supervised. teblse. "nc appeIJaIe CXQ't violence for caaecr offcndtl purposes. .. The scnteocing court 

determined tbalirs nmew of scntcnces Ihat are ""imposed for.. shouJdonlyeumiDe wbcdIc:r &beol'fcnse"1las IS 80 eIcmeaI the 

ol'fcnseforwbic:hlheteisnoapplic:ablesent.eacingguiddine"is use. aaanpraI use. or tbreaIcncd use of physical forc:e,." or 

limited",18U.s.C.13742(eX4)towbedla'tbetcntence"is wbdhet""lbe generic. JaIbcr Ihan Ihe parsic:uB' na'l1le of !be 

pIainIyum::asonabJc. "andbeJdthatlhe~yeartamimposcd predicaleoft'ensc"invohuasubstanlialriskthalforc:ewouldbe 

in this case ..... not plainly UlIl'CISOOabIc.. .. used. ""Once the court deItnnines &hat Ihe defendant bas bccD 

The N'JDlh On:uit 1m also atrumed imposidoo of Ihe full convicu:d of a crime that usually involves a risk of harm. the 

tenn of supetYised Idease. Se~ U.s. v. Lodr:ard. 910 F.2d 542 inquily ends; it does not mallet wbelher &hat risk has maIUrCd 

(9th Or. 1990). The Seventh C'ucuit. however, bas held that the into actua1 hanD" and"evidence establishing thepar1icularCXlllength of incart:eaIion for revocation of supetYised Idease is duct of the defendant on lheday lhecrime wasc:ommiaecl docs 

limited by tbemuimum tam aUowcd under §3S83(e)lesstimc DOlbcaronlhatinquiry." kaJrdU.s. y:Sera.-F.2d-(9Ib 

StnCdrCl'theoriginaloffense.Se~U.s. Y. Dillard. 910F.2d 461 Or.June 14.1990}. Contra U.s. Y.MeNd. 9OOF.2d 119('hb 

(7th Or. 1990) (per curiam). Cr. 1990); U,s. Y.MtIoddakna. 893 F.2d 81S (6dtOr.I989). q: U.s. v. Sc:roggiJts. No. 89-8910 (lIth Cr. Sept. S, 1990) U.s. Y.McV'ICG".907F.2d 1 {lSlCir.199O)(punuanttoU.s.s.0. 

(per curiam). §4B l,2.commcnt.(a..l )(1988).hoIding&batdcCcncIaN.·saaual 

conduct ill pior "'Iarocny from Ihe penon" offense which is 

Adjustments notlistedinDlXe l-was"crimeofm&eaoej; u.s. Y. r".".900 

ROLE IN TIlE OfFENSE F.2d 1039 (71b Cir.199O) ("We n:ad [I4B l,2.applicadDn DOIC 

U.s. Y. ReUI. No. 89-S158 (10dI Or. Aug. 20,. 1990) (Bal- 1 (1988)] IS w:stiD&. scnr.encing court with dte disc:Iaioo to 

dock., J.) rcdefcndant was an organizer or leader of a aiminaJ explore the underlying facts of. prior convicdaa wbea dial 

accivity I.bat was exlCnSive undeI' § 3B 1.1 (8)" where drug con- . coovidion is DOloneoCtheaimes spccificaIly enumerated in the 

spiracy MjnYOlved the defendant and dwe subontinaIcs (four appIicaIion nore. j; U.s. v. C4ner. No. 89--3516 (7th Or. Aug. 

pal1icipanIsdirccdy or indin:cdy controlled by the defcndant). 23.1990)("Tenydocsnotrequireasenlel1Cingjudgetoexpl<R 

and rd.ied upon the bowing services of atJeast twodrugsuppli- the underlying facts oC a prior conviction Ihat is idcnIified as a 

en to supply hWldreds of customers over a three.week periodj. c:rime of violence in Ihe Coounentaly to § 4B l.2j. The appeUare court also held that a flnding that defendant's 

MULTIPLE CoUNTS prior offenses in~lved only Ihe lhn:at. but not acmal use. of 

U.s. Y. Porkr, 909 F.2d 789 (4th Cir. 1990)(money 1aun- violence is not anadequare ground fordepartUie froni lhecm.e.r 

detingoffcnsc need not be grouJX'!d Wlder U .5.5.0. § 301.1 with offender' guideline. BUI Jet! U.s. v. Baslin. 886 F.2d 383 (D.c. 

gambling counts, even though laundered money came from Cir. 1989) (in determining whedler departure is appropriale 

gambling proceeds-apart from origin of money. laundering "sentencing judge retains discretion to examine the facts of a 

and gambling offenses were not "closely-related" within defi- predicate crime to determine whether it was [in fact] a crime of 

nition of § 3Dl.2). violence notwithstanding the Commentary to the guidelines' 

I'ot for Cllalion. Gl.luuliM St::n1t::l!.Cj.~g Updo,u is provided for WormaLion only. It should noc be ciled. either in opinions or OIherwise. 

119 
120 

Guideline Sentencing Update 

predetaminedlistof(violent]crimesj,cm.denled.llOS.Ct. 

1831 (1990). The court also held lhal depaIture"on the grounds 

lhat che sen&encc was simply 100 harsh" was improper. 

u.s. v. GonzoleI..u,pez. No. 89-8093 (lIm Or. Sept. 7, 

1990) (Cox.J.) 

u.s. v. O'NetIl. 910 F.24 663 (9dl Or. 1990) (oft'eases d 

being a fdon in poacssioa d a fheann. ... wiIh a deadly 

weapoa.andvebicubrmanslauglUa'''quaIify.vioIcntfcloaies 

under Guideline 4B 1.1 j. 

CALcul.A.l1oN 

U.s. v. AlcMle. No. 89-10547 (9dl Or. Au&. 30. 1990) 

(NoonIn. J.) (ndJea driYioc CODYictioa is ........ amc 

infnIdioa.w U.s.s.G. I 4AI,2(c)(2), and IbeId.'IIe may be 

included ill c:riaUaaIldsIory caIcuIadoa--4elcadaDl'. afteate 

did not meet dcfmidon d ~-ill U.s.s.o. I 181.9, 

commeaL (a. I). and Guidelines ndaer dian .. law shouJdbe 

asec1 to deCermiDc Ibis quesIion). 

Departures 

AGGRAVATING CmClJMSTANCES 

u.s. v. Fou.rd. No. 89-Sl58 (8da Or. Aug. 29.1990) (per 

cmiam) (because nochiDg in &be Guidelines ~icalCl1bat 1be 

Commission c:onsideml &be c:in:umsaance d a bankruprcy 

INStCC embezzling aIaIC funds ••• 1be disIrict COUll did DOl at 

in IaIcins into coasicIerarioo [defendant's] posidon as a bankruptcy U"USCeO as a basis f(ll" upward departure- to 36 maarhs 

from ranF d 12-18 mon1bs; JX'OIXI'to base depIrun on 

U.s.s.G. f 2Fl.l,comment. (n.9) rtheoffensecauscda Iossd 

c::oof"Jdcnce in an imponant insIilDlionj.cvcolhougbdeleodant 

was seata10ed under f 2BI.l-""abe court may depart from 1be 

guidelines. CYeIlIhougb abC n:asoa far depanure is IisIcd elsewhere in Ihc pidclincs: U.s.s.G.1 SK2.O, p.s.). 

U.s. v. QvptnIu. No. 89-30290 (9dl CIf. Aug. 23, 1990) 

(WatJace. J.) (aftinning departure 10 108 months from 51-63 

momhmngefordefemtantwho biRld lWOjlM:niJcs toaaanptlO 

murder his wifo-cherisbm::aw:dlOochen by JivingjlneniJes 

• rifle and insuuc:tingthc:m 10 ciaherrua Ihe wifo's c:arolf a road 

with a IoggiDg IIuck ar blow up her hoUse nilcr. wae not 

aa:ounltldfariaabeguide1inecaJculand'"aaDandarisk" 

may provide basis for ~ U.s.s.G.IIBI.3. ccmment. 

(nA): also, disUict court lC8SOn8bIy c:akulared extent of departure by analogizing 10 guidcIinct-fo f 2A1.1(b)(2) f(ll"poIsession of the weapon by juveniJes ancIlO f lA1.1 forlherisk to 

orher&-end increasing deCeadant',oft'cnsc level acaxdingly). 

U.s. v. CQStTo-CervanIa, 911 F.24 222 (9Ih CIf. 1990) 

(unpropec 10 depart upward on basis lhal bank robbery deCendant was partof"organizedgroup" - "lheGuiddinesimplicitly 

rake into account participation by a robber as a member of a 

ring" in the role in offense guideline. U.s.s.G. f 3B I). 

MmCA11NG CIRCUMSTANCES 

u.s. v. Harrington. 741 F. Supp.968 (OD.C. (990) (Court 

depaned downward 10 6O-monah stannary minimwn from 97-

121 month range for rust·time drug offender with long history 

of addiction because defendant's substantial progress in drug 

treatment programs since arrest indicated likelihood of successful rehabilitation. Court found-afier a report from amicus 

Volume 3· Number 13 • Scpcc:mba- 21, 1990· Pqc 2 

appoinled 10 resean:b Ihe issuc>-dlat che Guidelines did not 

preclude downward depanure under these circumswK:es: 

""Examination of 1he four comers o( the Guiddiacs and official 

comment on Ibem povidca DO irMfic:ation dill dte Commission 

IddIasecl dtecased afirstoffcadcrdruc actdictfoundbyexpert 

opiniao tobealblyc:andidatof(ll"IUCCaSf1d ...... Cordrug 

tddirWln. • • • Nei1bet docs 1be Scnrencins Commission'. 

aejectioa d adcficdon as a factor to beeaosidc:ftd iaacarenc:iDg, 

Scnrencins Guideline f SHI.4 pn.2. esrabtisb Ihat abe Sentr:nciDa Commiajon considcnd dte Iikdibood d succasful 

IreaIJ'«IaC for Iddicdoa." CcaIlIllo defermined 1baI.1IIbouab 

Coop:ss "'rcjccfed ....... neat as a __ d promodng 

R:habiIi&adoa" in passiD& 1be ScarcaciD& R.eIcrm N:J. d 1984, 

il"did .. f<m:lose considcnIdoa d a dcfeDdarc', pospect 

d Idtabililllion as a fa::tor to be COIlSidcIed ill deIcnainiag 

1be duniIIiaodaprisoalelllePOe. j.SatbD U.s. v.MtJddakM.. 

893 F.24 815 (61b Or. 1989) (1JeI1IenCina court may considt.'.r ..... .endanI., efl'0IU to sray away fn:xn drugs as a basis for 

dtpIniDaj. 

CRIMINAL HISTORY 

U.s. v. Dycu. No. 89-6S94 (61b Or. Aug. 29, 1990) (per 

curiam. anpibIisbcd) (aff'uming upward depatIuro for defendant wiIh hisUlly d serious lOCI rqaIfd fin:arms ofI'cnscs and 

19 criminal hista'y pHnts: extrat of dtparCUIe. from 24-30 

IDODIh anF 10 46 mondJs. was reasonably baed 00 "a bypoIhccicaJ aiminaI hisUry auegory vm into wbk:b a c:riminal 

bisuxy ICCX'C of 19 would f'aUj. 

U.s. v. Williams. No. 89-3084 (7th Or. Aug. n, 1990) 

~ 

(RippIe.J.) (convictioas mace than fifteen years old that are not 

of similar miscanduct." U.s.s.G. f 4Al.2(cXl), 

commetIl (n.8), properly used (II" departure ... part 01 an over· 

all assessment ollhe defendst's aiminal bw::tgIwncf' under 

f 4AI.3 whea such convictioas CXlI1stiaur.ed -retiable information' indka1ing IIKIe cxtmsive aim.inaI c:onduct chan ocherwise aet1ccu:d by Ihe criminal history c:atqory"; although 

pier anest ft'JCOOI ilseIf cannot provide baSis for depanme. 

""Ibc guidelines aDow the disbict court 10 80 beyond abe anest 

ftlCad icsdf and 10 consid« wbeth« 1be underlying facts 

evidence -prior similar adult ccnduct not RSUIUng in aaiminal 

oonviction ... under f 4Al.3(c». 

SUBSTAN'TlAL ASSISTANCE 

U.s. v.Damer, 910F.2d 1239 (SlbCir.199O)(percuriam) 

(aftinning disuict coun's rd'usallO grant downward dcpanure 

far subsIanIial assislance after government made U.s.s.G. 

I SKU moc.ioo-"ance die r,ovanmentbas filedilsSK1.1 m0-

tion. applic:ation of downward departure is 1eft 10 the disaecion 

of die sentencing c:oun." and htIc the court did not abuse ill 

d.isaedon in sentencing defendant within the guideline range). 

U.s. v. Peralta. 741 F.Supp.1197 (D. Md.199O) (m m.aking 

downward departure for substantial assistance under 18 U.s.C. 

§ 3SS3(e) and U.S.s.G. § SK1.1. sentencing court "bas no 

authority 10 consider faetas ocher than Ihose relevant 10 

substantial assislance" --dle cowt's "soepe of c:.Iiscretion 10 

evaluate the value of substantial assistance does not include 

the right to consider uruelated grounds for a departure such as, 

in Ibis case. the alleged exb'aOrdIDary family citcwnstanccs or 

emotional state of the defendamj. 
Guideline Sentencing Update c;.,iM1iM~ U,.,. wiIl"~pcriooIic&1t1", .. c.... .. iaI_jDdpI'" __ jDIIiciI1,.--....... w.nl _____ ....... 

__ ....... I"" .. I'I7 ..... S_z~QIi+F_ ~ .. pvWi ___ 1 ....... SC '.ci.OuidcrtIiDeI"paIiCJ ............ us.SM' .. 

C ....................... _IrocWiae&.Il._ ........ ....,... ........ C w" " poIiIiM_IICIMIiA ............... Oui.,. .paiq 

....... =..., ............ iIIIRIN "' .. SalMac:iDac-;.;.. ..... iaI ..... ......... fIIGMiMIiM~U,.,.litaifi-cbIl .. ~Il •• i Hc .......... ....t," .... __ rmri d rd... "'imwoliddpolq 

fII .. Crcr& 0. ___ fllpotieJ .. c-tipCI'b -'1""'" illloa4. 

VIJUJMl 3 • NmGBl 14 • 0cn.lIat 12.1990 

Adjustments 

ROLE IN THE OFJi'ENSE 

FVIb 0raaJt IIoIds that releYaDt coodud d&It "'diredI7 

brought about" a«ease flCODvlcttoa IIUl1 beCODSklered ror 

role III oft'east 1dJusCmeDt. Defendant pled guilty toonec:ount 

of seUing·two ounces of ampheWnine. Bel' o«case IcYd was 

increased underU.s.s.G.13Bl.l(a), Morganizerorlead«ofa 

criminal acdvity that involved five or more penoos." based OIl 

b« role in the rdaIcd manufacturing and disUibutioD scheme. 

In affirming. the appelJaIe court held IhaI. "'die 'offense' for 

13B 1.1(1) purposes includes 'criminal activity' greal«in 5Cq)C 

thantheeuet,.ormorelimiCt.d.activityc:ompisinglbedemenls 

oftheofl'ensecbarged." ReJevantoonduct IhaI. Mdimctly brought 

about the more IimiIcd sphere of Ibe elements oC the specifIC charged offense" may be c::omidered. ... . 

In U.s. v.BIITboIIlin, 907F.2d 1494(SlhClr.199O),IhcFIfth 

Circuithad held ... section 3B 1.1 (a) focuses upon Ihcnwnbec 

oftransactiooaJ participants. which can be infenwially 00UIlItd 

povided that the court does no( 1001: beyond the offense of 

convictiora 10 enlarge the class of pan.icipm&s." and IhaI. 'a 

section 3B1.1(8) adjusunenr. is anchored 10 the U3nsaCtioo 

leading 10 the conviction. .. The court in Ibis case stated that 

"[o)ur holding is an application of the Barbo1llin holding •••• 

The 1 381.1 (a) adjusunent in Ibis case was 'anchoRld 10 the 

tnmsaclion leading 10 the conviction,' because the disttict court 

incorporated and considcted the very activities and persons 

('particlpanIs') Ihat dim::Ily lead 10 Ihc ranal distnbutioo [by 

defendant] of the _phcwnine produced as a RlSUlt of Ihose 

acdvides of those persons. • • • The offense of conviction 

invo1Ycd the last link of. continuous chain of tmnsactioa in 

manufacIuri.nc. diSlributing. and recalling amphecamine. .. 

1bIee other cin:uias have held IhaI. wbea coundng Ibe 

number of pat1icipants.13B 1.1 applies only 10 Ibe offense of 

c:onvicIioa. S« U.s. v. Peuil, 903 F.2d 1336 (lOOt Or. 1990); 

U.s. v.Tetd4f,896F.2d 1071 (7thCII'.199O);U.s. v. Williams, 

891 F.2d921 (D.c. Cit,I989).BIII ~t U.s. v.HQ)YIU.881 F.2d 

S86 (8th Cit. 1989) (affuming § 3Bl.l(a) iraase based on 

!devanl conduct). 

U.s. v. NQIIIMi. No. 89-1970 (5th Or. Sept. 20, 1990) 

(Barksdale, J .). 

U.s. v. NIITu-Molina. No. 89-S0706 (9th C'lf. Sept. 10, 

1990) (Leavy, J .)(reversing rmding that defendant convicted of 

conspiracy 10 import cocaine was "organizer, leader. manager, 

or supervisor" pursuant 10 UsSS.G. § 3Bl.l(c}-defendant 

could be considered manager or organizer of trucking business 

warehouse wherecocaine was stored. but there were"oo facts to 

suppon the conclusion that [he] exercised control or was other· 

wise responsible for organizing, supervising. or managing oth· 

ers in the commission of the olTcnse" of conviction). 

OBSTRUC'I1ON OF J1JS11CE 

U.s. v. Hlllallo No: 90-1072 (7dl Or. Sept. 25, 1990) 

(Ripple. J.) (holding dial "'Ibe iDsdncdvc fJigbt d. aiminal 

Ibout 10 becaugbtbythe law'" does DOtcoastitufcobstrucaiOD d 

jusUce. U.s.s.o. 1 3Cl. I). Accord U.s. v. Gr.909F.24389 

(91b Or. 1990); U.s. v. Stroud. 893 F.2d S04 (2d Or. 1990). 

u.s. v.Rodriquez-Madas. No. 89-10442 (9ch Or. SqJc.13. 

1990) (pctc:urlam) (aCfinniDg~U.s.s.o. f 3CU obsuucdOD of 

justice enhancement for giving false une _lime of mat). 

Accord U.s. v. SabuiI. 910 F.2d 1231 (4th Cit. 1990) (using 

false name 8llimeofancstand unIiJ anaignment belexcmagis1r3Ie had "'mat.eriar' effect OIl government investigation). 

U.s. v. Edwards. 911 F.2d 1031 (SIb Cit. 1990) (affirming 

U.s.s.G. § 3CI.l obsInICtion enhancement for defendant who 

failed 10 inform authorities d when::abouls of co-<:OnSpi..'1IIOr 

alief being instructed 10 do so). 

VICJ1M .. REuTED AD.J'l5'TMENTS 

U.s. v. Crtt'o No. 89-5611 (8th Cir. Sept. 25.1990) (I..anon.. 

Sr. DisL J.) (revasing u.s.s.G.I 3Al.l "'vuJnerabIe viajm" 

finding-eYen if victim of involuntary marislaugh&er offeuse 

could be consXIeted vulnerable because oC inIoxkadOD. there 

~ no evideacc that deCeodam knew extefl d. yk:I;im's inIoxication or Lhalhc inlended lOc:xploit Lhal vulnaability).But if. U.s. 

v, Boise. No. 89-30071 (9lh Or. Aug. 29,1990) (Wright. J.) (af· 

ruming rIDding Ibat six-weck-old baby was "'vulnerable victim .. 

under 13Al.1 and rejoctjng argument LhalI3Ai.I rtquin:s de.. 

fendant 10 in1entionally sdec:t victim because of vulnaability). 

u.s. v. WilIM. No. 89-S2OIJ (4th Cit. Sept. 4, 1990) 

(Wilkinson. I.) (revening finding that recipients of letters dial 

fraudulcolJy oiciled flOls for IGmado viaims WfR "vulner--

able victims .. underU.s.s.G.I 3Al.l-dcCeada.nt scat 1c:Ut.zs81 

random. and fact &bat ""persons targt:Ccd migbl be sympaabetic 10 

thec::auses for which funds wet'Cfiaudulendy aoJ.iciaed may have 

"made the aime possible. but it did DOt confer upon the victim 

thedegRlCoCYUlnerabilityforwbicb IlAl.l permiuan upward 

adjustmerll.-u.s. v. Creeda. 913 F.2d 780 (10th Cit. 1990». 

ACCF.1'TANCE OF REsPONSIBILITY 

U.s, .... Mourning, No. 89-7005 (5th Cit. Oct. 1. 1990) 

(Ciatt. CJ.) (for accepcance of responsibility reduction under 

U 5,S.G. § 3Et ,I. defendant "must fintaa:epl responsibility for 

all of his relevant criminal conduct." as relevant conduct is de.. 

rUled in USS,G, § lBl.3(a); reduction properly denied money 

laundering defendant who did not accept responsibility Cor drug 

activity underlying offense of conviction). Accord u.s. \/. Gordon. 895 F.2d 932 (4th Cir. 1990); U.s. v. Henry. 883 F.2d 1010 

(11th Cir, 1989).Colllra U.s. \/, Oliveras. 905F.2d623 (2dCir. 

1990); U.s. \I. Perez-Franco. 873 F,2d455 (ISl Cir, 1989). 

Not ror Cltalion. G ... Uklilll! Stllltllcillg Update is provided for infoflTlaUoo only. It should not be cited, either in opinions or od1crwtse. 121 
122 

Guideline Sentencing Update 

Probation and Supervised Release 

REVOCAnON OF PRoBAnoN 

u.s. v. Von Washin,lOll. No. 90-1423 (Bah Cit. Sqx. 28. 

1990) (per curiam) (~wilh U.s. Y. SmIJJa. 9f.11 F.2d 133 

(11ah Cit. 199O).1hat when p-obation is revoked pursuanllO 

18 U.s.C.I3S6S dcCaIdant must be resentenced wiIhin auicfo. 

Unemnge applicable to original offense d conviction; in resell1enCing. the ccnduct that caused the ~ may be coosidaed fa' Ihree purposes: n:considering the inidaI dec:isioo d 

wbethertodepart(butany depanurc must be supported by r.:u 

&bat ~ ~ It sentencing for the original oft'ense): 

deciding wbdbet 10 aMItinuC or Ie\'Okc prob;Uioa: cIcttnniniDg 

the IppOPdesauenoc wilhin theapplicable pidcline range). 

Criminal History 

CALCt.ll.A nON 

u.s. Y. Crosby. No. 89·3932 (6th Cit. Sqx. II, 1990) (Marlin. 1.) (sentt.ftCing court property included in criminal bisUy 

scare a prior IIaIe drug conviction that was also an element d 

defendant', condnuing criminal enraprise off~ 

u.s.s.G. i 4Al.2(aXl) defU'ICS"'prior sentence". a sentcoce 

imposed .... a' conduct not pan d the instant offense: the 

Guidelines make an e.xception for CCE offenses. which necessarily in\'OlYC c:ontinuous criminaladivity. in f 201S. commenL (0.3): "A sencenc:e resulting from a conviclioo SUSIained 

prior to the last overt act of the instant (CCE) offense is to be 

coosidered a prior sentence under § 4A l.2(aXl) and not part rl 

the inslant offensej. 

CAREER OFFEllo'DER. PROVISION 

U.s. Y. Goodman. No. 89-6170 (Sah Cit. Oct. 1. 1990) 

(Duhc. 1.) r(w]hm the instant offense is not one d &hose 

enwnem&cd." as a"aime of violence" in the rommentary to 

U.s.s.G. f 4Bl.2.. court may "look be)utd the race of the 

indictmenl and oonsider all facts disclosed by the reconr; . unlawful ~ of weapon by coovicted felon. who jn.. 

&ended to usc it to muicvc anocher weapon wi&h which he bad 

pnMously dtreaIened • group d people. was Maimc of vjo. 

lencej. q. U.s. Y. Alvorez. No. 89·2670 (7ah Cit. ScpL Z7, 

1990) (Bauer, CJ.) (unlawful ~ d weapon by coo.. 

viacd felon pqlCd.y considered "aime of vioIenc:c" wbcrc 

defendant sauggled wiah arresting ofrlCa' while holding CuDy 

loaded p); U.s. Y. McNeal. 900 F.2d 119 (71b Cit. 1990) 

(unlawful possession dweapon by coovicled felaa isMcrimed 

violence"wberedcCendantfued weapon); U.s. Y. W'dliam.t.892 

F.2d 296 (3d Cit.) (same). cerl. denied. 110 S. CL 322 (1990). 

u.s. y.JOMS. 910F.2d760(11lhCit.I990)(percurlam)(""a 

prior state court case wherein the defendant entel's a nolo plea 

and adjudication is wilhheld can be used as a 'cooviction' to 

make the defendanl eligible for career offender swus Wlder 

Section 4B 1.1 of the Sentencing Guidelines." even though 

defendanl was placed on probation for that offense). 

Departures 

AOORAVATlNG CIRCUMSTANCES 

u.s. v. Bahr, No. 89-1165 (lOth Cir. Sept. 12. 1990) 

(Tacha.l.) (atruming upward departure of three offense levels, 

from 51-63 monlh range to 70-month tcml, because "use of 

expJosives for intimidation during a bank robbcry is anaggravat· 

Volume 3 • Number 14 • 0cI0ber 12, 1990· Page 2 

ing faculr DO( c::oosidered by Ihe Sctuencing Commission in 

Guidelines section 283.1 .•• [and] abduction at gunpoint is an 

aggravating facto' notc::oosidered by IheCommission in Guidelines 8CCtioo 2Kl.6" (Illegal usc a' postessioa d C"JqJlosives». 

U.s. Y. T1tomt.u. No. 89-2071 (8dl Cit. Sepc. 11, 1990) 

(WoIlmao. 1.) (affirmiD,g depalun. from 8-14 monIb anae 10 

6Omoruhs.fordefeadantconviacddpossessioad6reannsby 

conviacd (elm based OQ "da.ngaous IIIIUrC rl!be firearms 

(AK47 msault rifle and 9 DUD. pistoI]. me fact Ibal dtey were 

fuDy Joaded.and !beassaulliYCDllUr'ed(dekwwlar.'.) 1983 c:ooviction forsecond~ robba:y and 1eCXIOd~"""". 

U.s. Y. George. 911 F.2d 1028 (Sah Cir.199O) (percuriam) 

(affinnin& 

~ 

depanure from 1S-21 month rqe 10 SO-moodl 

c::oovictecI d counta:febin& Oedjurisdiclion wbenleleased on bondafta'conviccioolDd before IeIIfCnClng, and escape cbarps ~ DOt 1:Iought against him). 

MmGA11NG CntcuMsTANCES 

U.s. Y. D«lM. No. 9O-108S (hI Cir. Sepc. 10. 1990) 

(Campbell. 1.) (vacaring dowDW8'd depanurc fa' dcCendaol 

conviacd of mailing c:h.iId pomograpby: SeoIcocing C0mmission rdecplaldy CIODSic:Iered ""IIlefuU mage d CCDdIICl" COYtnId 

by lheldcvant guideline. including defendant', "passiYC" c:ooduct"lt the very least seriouscnd rllbis range"; factlbaldefcadant~OOIerwiseext.mplary~andr.her .. ugnuw;l 

fordepal1ure; andmncem that Bun::audPDsons docsllOloffer 

meaningful counseling prognun"docs IIOljustify adowawani 

deparIure. absentex:c:epcional cin:umslances and '. rIDding Ibat 

the defendant has an exccpcional need (or, or abi6ty 10 respond 

to, treaImeIlt. ... u.s. Y. Sllldley. 9f17 F.2d 2S4 (1st Or. 1990». 

Sentencing Procedure 

BURDEN OF PROOF 

u.s. Y. NtwmIIII. 912 F.2d 1119 (9Ih Or. 1990) (when 

defendant cbaUenges c:onslicutionaJ.ity rl prior axaYbioo used 

in computing criminal hisUxy scac. '"the ulLimalc bunIca d 

p'OOC ••• lieswiah thedcCendant"; ~IbcGoYemmentsceb 

Ihe inclusion rl the prio' conviccioo in a aiminal bisUxy ICOrC 

caJenlation. its proof of the factrl conviccioo would sabsfy its 

initial burden. Thea ••• thedefmdant would bnethe bunIcn 10 

eslabWta the consdtubonal invalidity dthe piorcoaviccioo ilr 

puI'J)C)a of delamining the criminal bisUxy catt"&OIY"--poof 

must be by ~ rl the evidence). AI:t:tNYl U.s. Y. 

UllltI'. No. 9(}.14S7 (1st Cit. Sepc. 28, 1990) (SelYie J.~ 

U.s. Y. BrDWII. 899 F.2d 677 (1ah Or. 1990); U.s. Y. Dawmpori. 884 F.2d 121 (4th Cit. 1989): U.s. Y. DideIts. 879 F.2d 

410(8ahCit.I989). 

Decision to Apply Guidelines 

u.s. v. RL.C .• No. 9().S048 (Bah Cit. Sqx. 12., (990) 

(Heaney, Sr. 1.) (when scnlenCinc juvenile under 18 u.s.C. 

f S037(c), "')he phrase "mWmwn Ieml of impisonment that 

would be aulhorized if the juvenile bad been Iried and convicted 

as an adult' prohibits a cowt from sentenclngajuvenile lOatenn 

of impM:>runent greaIet than the juvenile could have received 

had he been sentenced as an adult under thC senrencing guidelinesj. Contra U.s. v. Marco L .• 868 F.2d 1121 (9th Cir.), cerl. 

denied. 110S. a. 369(1989) C'max.imum IeCm ofimpisooment" 

is "!hat ICmI prescribed by the statute dcftning the offensej. 
Guideline Sentencing Update 

V0LUWB3 • NUIGIIt 15 • Novm.casa 8,1990 

Departures 

AGGRAVATING ClawMsTANCES 

nird Ciraalt bolds extreme departures require 

clear aDd coavladaaltaDdanllarllldsllDderl1iDldepartare ad biper ICIIDdanI flladaala:lblUtJ lor ...... r. 

elldorses v:se fll aaaJoo to reIeYut pldellDes Ia IIeUfq 

exteat 01 departure lor ........ tlq draa_Itaaces. 

Defendant was c:onvided of scvaal expIosivcslDd passport 

offenses. The guideline range was 27-33 moalbs. bulthe 

district court departed to impose • 3()..year tam after c0ncluding defendant was a temxistCOlll'leCCCd wi&h theJapancse 

Red Army andbacl planned to usetheexplosivcsin.~ 

mission ••• to till and seriously injure scares of people. - Sa 

u.s. v. Kibmllra.106F. Supp. 331 (D.NJ. 1989) (2GSUI2). 

The court held chat the Guiddincs did DOtaccowuforterrorist 

activity. that dcCeadaDl"s conductimplicaled sevenl grounds 

for dcpanurc Usced in U.s.S.G. f SK2, and dIat defendant's 

cri.m.inaI history car.cgory significantly ~ the 

seriousness of his criminal past and Ihe 6kc1ihood of furthc:r 

criminal activity. 

The appe11asc c:aurt. noting that this was ""apparendy the 

largest dcpanurc ••• since the scnlCDCiDg guidelines became 

effective." affumcd the disuict court". findings of fact and 

conclusion &hal dcpanure was wammtcd.. but bcld that the 

extent of dcpanurc was nOi pmpcdy determined and J'C-o 

manded for reseateDCing. In afIinning &be disuict court's 

fmdings. the coutt made several rulings 011 significant pr0cedural issues regarding departures. 

rust. for. dep/IrIlR of this magnitude &be court held chat 

"lhefactfanc1iDg UDdcdying ahatdcpanurclDust bec.aablisbed 

at least by clear IDdcoavincinacMdeace.. .. (Note: Tbedisttict 

court had bcld Ihal. prepoodcrance of evidence was surr ... cient. but held akcmatively-aod the appeJlaIc court 

agrecd-Ihat its fmctings met the dear ad c:ouvincing standard) 1bc coun recognized that ~ is ovcrwbclming 

authority in our sisler cin::ui1S for the JJlqXJSidoa dill pidcline sentencing factors need ooIy be provea by • preponda'. 

ance of evidence, ••• but we DOle that in aonc of chose cases 

did the operative facts involve anything remotely resembling 

a twelve·fold, 330-month dcpanurc from the median of an 

applicable guideline range. .. The court did DOl further specify 

how large a departure required this heightened SIandard. 

and UDUSUIl as Ibis one. - Tbc court held .... ""at. tealCDCing 

beariDa where Ibo ooait depms upwads dr'ItDUb11y from 

Iboapplicable gaidelinelll'lllt ••• Ibocoartlboald ex""",,, Ibo 

aoW.ity of Ibo drcumSUPlOel, IacIuding otbeI' ccxmbonIiDg 

eYidenc:e.lDddeU:nDinowbedla'lbolranay~1Ie 

RIUOOIbty 1I'UItWa'dIy. -'Ibis "kI&amediareltllldard" u Jess 

ICrictdllll .... ucd forbtarsay"CIIlOII&IIl rriaJ. butsaoager 

Ihaa .... ased in Ibo ....... yaietyllCOlaaCiaa bcIriDg.-Cj. 

U.s. Y. FtJl'tier. 911 F.2d 100 (BIb eir. 1990) \beanaY ..... ments admiUcd agaiast. delendaat ••• vioJaIc the Confiontalion Clause unless • court finds that the declarant is un-

.vaiJablcand .... thereareiadiciaofre1iabilitysupponingthe 

wthfulnessoCthe bearsayallClDelllSj (3 GSU.12). As with 

the factfmding. &becourtbc1d that &be hearsay evideoceadmit· 

.ed by &be district court met this beigbt.cDed standard. 

Tbc court also upbcld tbe disUict court", fmdings that cbc 

guideJincs applicable 10 &be offi::nscs of c:oavic:doo did DOl 

adcquaaely IIXOUDt for dcfeadant", coaduct. but bcId that the 

ex1eIlt of departure was unreasonable and should have been 

caladaaed by c:omparina the eggraVllin& c:in:um$llDCA1 10 

analogous guidelioes 1bc court "cadorse(d) tb[e] genenl 

approach" &akeo byotherciR:ui1S Ibat*bavc reccnt1y begun to 

look 10 the guide1inesthemsclvea for guidance in determining 

the reasonableness of a departure. .. and c::c.:IIOlCIudcd that "anal· 

ogy 10 the guidelines is • useful and appaopriale tool for 

deu:tmining what offense JcvcI • deferadalll'. c:onduct most 

c1ose1yresembles. .. Sa U.s. Y • .l..andI)'. 903 F.2d 334 (Sdl Or. 

1990); U.s. v. PearstHlo911 F.2d 186 (9Ib Cir. 1990); U.s. Y. 

Fernl. 900 F.2d 1057 (7cb Cir. 1990); U.s. Y. Kim. 896 F.2d 

678 (2d Cir. 1990). Tbc court RlCOgIIizccIIbalIhis IDClbod 

cannot always be ""mechanically applied" ad Ibat IDIlogies 

10 the pidelila "a'C necessarily IIl(ft ~ chan 

appUcatioas of the guidelines. .. 

Rada'tbaa simplyaemand, bccaascitwu"c:oavinc:edbcyond aay doubt 1bal1bodis8ict court would impose as high. 

seolCDCe as possible up to 30 years," &be appeUarc court 

proceeded to~wbctber""R:asoaabJcaaJocye:dstcd ro 

support &he SCDICDCe imposed. -1bc court concluded that &be 

maximum ICIIICDCe imposab1c W8S 2621D0Dths, based OIl an 

offense level 32 and aiminaJ bisIory caleSOI)' VI. and J'C-o 

mandcd for resentencing Moon.sislent with Ibis opinion." 

u.s. v. Kik.umura. No. 89·5129 (3d Cir. Nov. 2. 1990) 

(Becker. J.). Similarly, the court concluded Ihat a higher standard of 

admissibility was required for hearsay statements relied on to MmGA TING CIRCUMSTANCES 

malcea depanureofthis size. "'Nonnally, hearsay stalements U.s.v. Phdrr. No. 90-1284 (3d Cir. Oct. 19,1990) (Cow. 

may be considered at senlencing ••• "if they have some en,I.)(reversingdownwarddepanureforthcftdefendantwbo 

minimal indicium of reliability beyond mere allegation.' . . . after arrest had made Mconscientious efforts" to ovem>me his 

However. we believe that [this] st.a.ndard. like the preponder· heroin addiction and whose rehabilitation might be hindered 

ance standard. is simply inadequate in situations as extreme by incarceration: "We read policy statement 5H1.4 to mean 

Not for CllaUon. G"idtllintl Scllltlfu:illg Updau is providerl for information only. h should flO( be cited. either in opinions or otherwise. 123 
Guideline Sentencing Update 

that dependence upon drugs, or separation from such adependency. is nola proper basis fora downward departure from the 

guidelines"). Colllra US. v. Maddalen.a. 893 F.2d 815 (6th 

Cit. 1989): US. Y. Harrington, 741 F. Stapp. 968 (D.D.Co 

1990): US. v.Floyd. 738F.Supp.I2S6(D.Minn.199O);U.s. 

v. Rodrl,ua. 724 F. Supp. 1118 (S.D.N.Y. 1989). 

CRIMINAL HISTORY 

US. v. F Of'kMr.rry. No. 89-2291 (1om Cit. Oct. 26.1990) 

(Logan. J.) (courtarcd in departing upwanI in offeose level. 

iDsccad of criminal bisIary C8lCfP)', for cW"eadInc who iIJo. 

plIy poacssed firearms three times aft« coavicdoo for 

possession « fia:arm by feloo-conunissions « Ibc IIIDC 

crime ""ale demeacs of a c:rimiDal bis&ory c:ar.eaorY. _ • 

offcasc level," and "couns cannot dqmt by oft'eue level 

when abc criminal history CIIC8OI'Y pIOYCS iDldequatej. 

US. v. Lawrence. No. 89-30284 (9dl Or. Oct. 10. 1990) 

(Norris. J.) (holding that Dei_ ScnteociDg Reform Aclaor 

Guidelines probibitdownward deparbUefor can:croffendcr). 

Accord US. v. Brown, 903 F.2d S40 (8th Cit. 1990). 

Probation and Supervised Release 

REvOCATION OF PROBATION 

u.s. v. Telltz. No. 89-6177 (11th Cit. OcL 30.1990) (per 

curiam) (Defendant had been scntcnced undcrpe-Guide1ines 

Jaw 10 three years' probation alter clistric:t court bcJd tbe 

Guidelines uncoostiwtional. aDd the sentence became final 

wbenoeithcrpartyappeaJcd.Howcvcr,defcndant'SseotaK';C 

alter probation revocation is stilllimiled by the sentence authoriz.cd by the Guidelines for his original offeasc.18 U.s.C. 

§ 3565(a)(2). See U.s. v. Smith. 911 F.2d 133 (11th Or. 1990).}. 

Adjustments 

ROLE IN 1UE OFfElolSE 

US. v. McMillen. No. 90-3079 (3d Cit. Oct. 29, 1990) 

(SUIplcm. J.) (vacaled and remanded-dis&ri court sbouJd 

have (ound thal misapplical.ion of funds defendant. who was 

a bank manager widl authority 10 approve loan appIicaIioas. 

was in "position of privaJe trust." U.s.s.G. 13Bl.3; also, 

because dcCendant pcnonaUy approved his 0WIl fJluduat 

loan applicalioos. his position as manager "significlDlly 

facilitated the commission or concealment of the offeascj. 

US. v. Hill. 915 F.2d S02 (9dl Or. 1990) (uuct driYer 

for moving company. convided of conspiracy to commie 

theft of an intersWe shipment, was in "position of b'USl" per 

f 3B 1.3 vis-a-vis rhe owners of the goods stoJcn..-«fendant 

had unwatched and exclusive control of goods for extended 

period of time without oversight by owners ad used that 

position to facilitate the offeosc). 

Criminal History 

JtNENnE COSVIC110NS 

u.s. v. Unger, 915 F.2d 759 (1st Cit. 1990) (federal 

rather than state law is used 10 delennine whether a juveniJe 

offense should be counted in criminal history score under 

V.S.S.G. § 4AI2(c), and court may "look to ahesubstanceof 

the underlying St.a1e offense in order co detennine whether it 

faJls within" the guideline). 

Volume 3· Number IS· NOYember 8, 1990· Pace 2 

Offense Conduct 

Dave QUAN11TY 

US. v. Callihan. No. 89-7085 (10th Cir. Oct. 12. 1990) 

(ADdtnocl. J.) (toca1 weight of IIIlpbelaminc preculSOI mixture, _just weigblof c:ootroIIccllUbstancciDmixsme. bused 

to caJcu1a&e base oft'easc level UDder U.s.s,G~ 1201.1). 

Determining the Sentence 

F'INBS AND REsTmmoN 

US. v. Hid:ty. No. 89-1459 (6dl Cit. Oct. 24, 1990) 

(Milburn. J.) (mnanclcd-deady atoacous for court to find 

tbIldefendant wilh ancontesIecl Del wor1b ol.IeastS50,OOO 

wu UDIbIc 10 pay IDY fine UDder U.8.8.0 •• 581.2). 

us. Y. Labal. 915 P.2cl603 (loeb Cir. 1990) (YICaIing 

imposilion of fiac to offset COSII of iacwcIndoa wbeo 

punitive fine was _ imposed: 10 .. c8dditiaall fiac· UDder 

I SEl.2(i) cannot be imposed lIDless tbecourt first imposes a 

punitive fme WIder I SEl2(a)j. 

Sentencing Procedure 

PaocmtJRAL REQtJI'IrEMEH1S 

us. Y. Lopez-CtlWlSOs. 915 F.2d 474 (9tb CU. 1990) 

(upholding DisUict of Idaho local rule &bat nqu.ires parties 10 

lodge objections to paeafeDCC IqXIt pier to sentcrICing 

is 

hearing. 

Id iDconsisu:al 

leaving Ia&a' 

wilb 

objections 

Fed.. R. Oim. 

to clisc:mioa 

P. 32(a) 

of 

or (c) 

~ 

nquiRments for opportunity to comment on presa1feDCC rcpons). 

Decision to Apply Guideline$ 

us. v. Marmolejo. No. 89-8079 (5th Or. Oct. 26. 1990) 

(Clark. CJ.) (Appellafe court agreed with US. Y. Garci4. 

893 F.2d 2SO (IOlb Cir. 1989), em. *1fI4Il. 110 S. a. 1m 

(1990). Ihal GuideliDcs apply to Assimilative Oimes Act 

(ACA). 18 U.S.C. f 13, but the sentcnce is limiaed by state Jaw 

maximum and minimum scatenc:cs. AcCDl"tl u.s. Y. YOWl,. 

No. 89-5016 (4th Cit. 0c:L 12. 1990) (Cbapman. J.); U.s. 

Y. Lt •• 908 F.2d SSO (9cb Cit. 1990). For defendant sen· 

tenced WIder tbe ACA wbose probIlioD was rcwtcd. the 

disUicl court properly scntcnced him to Iix-mootb prison 

lenD plus onc-year lam of supeIYised release. evca Ihoagh 

state law provided for parole but DOl supervised rdease: *'For 

ACA purposes. we hold Ihal wbea Ibe IIpplicable state law 

provides (or parole. a scnfeDCC of imprisoIl.1CIIt plus supervised re1ease is elike punisluDent· wbeD tbc period of 

imprisonment plus Ihc period of supenised release does not 

exceed rhe maximum scn&cnce aDowabic under swe law," 

which here was ten ycars.). 

US. Y. BtaT, 915 F.2d 1259 (9tb Cit. 1990) (for aimes 

covered by Indian Major Crimes Act. 18 U.s.C. f 1153. 

Guidelines should be applied only to ofl"enscs dw are defined 

and punished under federal JaW; burglary of a private residence is not defmcd under federal Jaw. so defendant should 

be sentenced in accordance with state-law).-Cf. U.S. v. 

Norquay, 905 F.2d 1157 (8thCir.I990) (holding that Guidelines apply to Indian Major Crimes Act. although sentence 

must be within maJtUnwn and minimum senlences imposable 

under state law). 

124================================================~====== 
Guideline Sentencing Update 

VCIUllIl 3 • NUMIBI 16 • DIIaIIaa 14.1990 

Sentencing Procedure 

us. Y. Hemrtl-FlgfIef'tNJ. No. 89--S0660 (9dl Cit. New. 

14. 1990) (ReIabardt. S.) ~ Iballbc exdu.sioD ~ 

COUIIICI tiom peaerateDOe inI«vicwI JeIYCS 110 mdonaI purpose. we exadse our JUpa'¥isocy power over die orderly 

administraliOll~jusdce 10 hold thatwbeo. fedelaldcfeadaat 

zequesrs that his auomey be pcrmiacd DlCCOIIlpany Idm •• 

prc:seare.nce interview. the probation officeI' must booor Ibal 

zequesLj. 

Offense Conduct 

WEAPONS POSSESSION-D1JJUNG DRUG OFFENSE 

SeftDtb Circuit hoklseourts ma,.ot, Ji'UUa ad NiDtb 

Circ:uiCs bold courts IDa" consider relevaot CODduct Ia 

addltiou to ofl'euse of cODvictioD for U.s.s.G. f 2DLl(bXl) 

eDbaDcemeut. In the Seventh Circuit case. defendant was 

involved in drug sales and weapons possessioo at one Jai.. 

denc:e. but was conviacd only of possessing with inlcnl 10 

distribute drugs that wa'C at 8DOlbcr RSideDce leveral miles 

away whele DO weapons were found. The disbict court increased the offense level under 1 2D1.1(bXl). fmdiDg that 

the weapons were used 10 facilitale "'Ibc drug business" at 

both residences. 

The appellate court reversed, holding that the guns found 

at the first residence could nOl be used for the enhancemenL 

"Defendant's ~ion of the weapons was con&cmpora. 

neous with his commission of the offense. but it is clear from 

the Guidelines andcoundecisions thatCOOlemporaneity isnot 

enough. 1bere must be some proximity of the weapon 10 the 

contraband (If lIOlaiso 10 the defendant or some person UDder 

bis contro).- Su U.s. Y. Vasquez. 814 F.24 2SO (Sib Or. 

1989) (I 2D1.I(bXI) improperly appUcd-cun that defendant admia.ed owning during period of dru&-dealing was 

several miles away from drugs in offense of c:onviction).1be 

Sevcnlb Circuit DOled that "(l)heIe Deed DOt be an euct 

proximity of the COObaband and weapons. 10 long as 0Iher 

evidencc c:onneclS the weapons 10 the crime: see. e.g •• U.s. Y. 

Pauiino,887F.2d3S8(1SlCir.1989)(I2Dl.J(bXI)p-operIy 

applied whele drug supply in one apartment and guns in 

different apartment in same building where drugs were sold). 

The cowtconcluded. however. that"l 2DI.1(bXl) says that 

the weapons must be possessed 'dwing the commission of the 

offense: and this must mean the offense of conviction." 

U.s. \I. Rodrig~z-N~z. No. 89-2203 (7th Cir. Dec. 3, 

1990) (Fairchild, Sr. J.). 

The Ninth Circuit defendant pled gUilty to a distribution 

offense involving only drugs found in his car at the time of 

arrest. Numerous weapons were (ound "only later at his place 

ofbasiness.somc m.iIef ctisaaoL - GiveR die IUIIDber of weapODSIIId Ibo aIeIll of cWendanI-. ilwalYeIIICIIl in chp.1bc 

discril::tcourtfouDd Mjt wuc:leldypobablo _die lIIeapo111 

wem lellleclro dill oftCaIc-. applied 1201.1(b)(1). 

AftitmiDa. die IJ1PC'IaIe coartaacbed Ibcopposkecooclusioa Croaa .... oflbo Se¥eada CiICUit npadiDa-wbedla' 

IbcItalDlOl)' Ianguap -durin& dlecommiabtofdaeaft'easc· 

Idea 10 Ibc offease of c:oavicIiaD. CII' to die eDIiIe COIIIIe of 

crimiDIl coacIuct - FiadiJig ... ""1be Janguqe of die pido1iDec ••• makc[s] cJeardlll-speciflCoft'eusccbanlcttrlslics ••• 

shaD be dctenniDed 011 tile basis of ••• all such aces and 

omissioas thal wa'C part of tbc same course of conduct Gr 

conUD()D ICbcme or plan IS Ibc offeaIc of cooYicd.oa.-

U.s.s.Q.11 B 1.3(a)(l).tbecoundelamiDecllbat."offease-in 

1 2Dl.I(bXI) "'incIudcsaIl conduct that was part of abc same 

scheme.· Tbeteforc.1be district COUll 1Jropcdy looted 10 all 

of tbc offense coaduct, DOt just tbc crime of coavk:tion. -

U.s. Y. WUlard, No. 89-30206 (9t.b Cit. Nov. 27. 1990) 

(Norris. J.). 

ID die Fifth CimIit. defendant did DOlpossess a weapOD 

duriag tbe commission of tbc dru& oft'cuse 10 wbicb be pled 

guilty. but was giveo tbc I 2D1.1(b)(I) enhancemeot 

because be "dearly possesacd a fiRarm- cIuriDa abc RIa1cd 

cbug conspiracy and co-conspiJafon possessed guas when 

arrested. The appe11alccourtaffumed. bolding. like the N'mth 

Circuit._ 1 lBl.3(a){2) applies 10 l2Dl.l(bXl) IDd abc 

seolCrlCiDg court could "consider Idattd Jdevant conduct • 

U.s. Y.Pmdk.917 F.2d879 (StbCir. 1990). 

SPECIFIC OFFENSES 

U.s. Y. N~lsoll. No. 89-50S78 (9tb eir. Nov. XI. 1990) 

(Poole.J.) (upholding application of offense Jcvel inaase in 

1 2J1.6(bXl), based on stalUlOry maximum of ancbIyiDg 

offense. for defendant who failed 10 appear for trial but was 

O'VCOtUaIlyacquiu.cdoflheundcdyiDgcbarps;cIistinguisbed 

US. Y. Lu. 887 F.2d 888 (8th Cir. 1989). wbicb invalidated 

l2Jl.6(bXl) insofar u it applied 10 defendant who failed 10 

Jeporl 10 prison qftt:r trial and sentencing 10 only a tiaction 

of the stacutory minimum). 

U.s. Y. RothmDn. 914 F.24 708 (Sth C"U'.199O) (m conspiracy guideline section caJUng for thrce-Jevel reduction 

"unless the ddendant or a ~ completed all the 

acts the conspiralors believed nccc:ssary on their part for the 

successful completion of the offense: § 2Xl.1(b)(2). term 

"the offense" refers to underlying offense, not the con· 

spiracy-thus defendant convicted of money laundering 

conspiracy qualified for reduction because conspirators were 

arrested afler receiving money but before they could begin to 

launder it). 

l\ot for Cilalioo. C,,;.ulin.e ~1ll.tflCjllg UpdaJe is provided for infonnation only. 11 should no! be cited, either in opinioru or otherwise. 125 
126 

Guideline Sentencing Update 

Challenges to Guidelines 

us. \I. Swtulger. No. 90-1583 (8th Or. Nov. 19, 1990) 

(per curiam) (remanded for reseotcDCing-wbcll usc of 

amended Guiddines ineffectat 1imem -lCaCin&iDsteId m 

those iDeft'ectlldmeof offense increascddeCeadaDt',oft'case 

level, ~tenciDgundcr Ihe amended Guidelines violated the 

ex post facto clause of the CoastibltioDj. AcCDrd U.s . .,. SUIII'ez. 911 F.2d 1016, 1021 (5th Cir. 1990). 

Departures 

MmGA11NG CmC'UMSTANCES 

U.s . .,. nora. No. 89-2S7IWM (BIb Or.Nov. 27.1990) 

(Arnold. I.) (rcvenillg dowoward depadum for defcadaat 

convicted of buDding ad PosleSsing pipe bomb fouD4 ill 

truck of IDIIl wbo was having afIIir wiIh detaadatt, wife, 

boldina dial &'I _ maacr of law U.s.s.a. • SlC2..1o. p.s. 

(V"lClim ',Coacluca),couJd not suppart_clcplauac ill lbiac:ue: 

M Ac:c:JIICCID forlbcp:opcx1ioaalily ofrbcdefeadaDt',rapoa.e 

is manifesred by Ihcrcrms of I SK2.10 •••• Tbougb cenaiaIy 

wrongful ad provocative. adultery does IIOtjustify blowing 

up die adukaa'si. 

U.s . .,. RuJ:/kJ:., No. 89·3080 (8tb 01'. Nov. 21, 1990) 

(Brighe. Sr. 1.) (districtcourtenoo.eously believed itc:ouJd DOl 

depart downward UDder U.s.s.G. f SK2.13, p.s.. bccauscdofendant's signi6candy reduced mental c::apacir.y ""was DOl the 

sole cause of his drug~ offense" -appe1laIe court "'in-

&etpret{s] scctbl SK2.13 to authorize _ downward departure 

where. IS hc=. _defendant's diminished capacity comprised 

a conttibucing fac&oc in the oommission of Ihe offensej. 

U.s . .,. Nelson, No. 89·5270 (6th Cit. Nov. 20, 1990) 

(Ryan, 1.) (affinnecl downward dqJarturc imposed to avoid 

MtmreaSOIlCd disparity" between defendant's senlt:nCe and 

much lower sentences of cocSefendants who rec:eivcd cIepartlUeS f(l' cc::IOpCI3don with aulhorities-Mdistrict c:ouns ••• are 

not pn:cluded as a matter of law from deparcing from die 

guideUnes in ~ to generally conform one c:onspiratoI"s 

senlCnCC to the sentcnc:es imposed on his c:o-conspirafor"; 

remanding for resentencing. however, because cxrau. of doparture was "'unreasonable" in light of .. substantial factual 

differences between [defendant's] case and his confedel'-

ares' ,tt espcciaDy his lack of coopc:r.ltion). 

CRIMINAL HrsroRY 

U.s. \I.Coilins.91SF.2d618(IUbCir.I990)(courtmay 

considtz successruJ completion of inlervening !We criminal 

sentence. wbicb occurred betwceo tommissioa of and sen· 

IeI1cing on instant offense, as evidence that defendant Mbas 

demonsttar.cd his d.ecennination to avoid futwe crimcs" and 

will be less likely to recidivate; such a depar1ure must be 

guided by the procedlR in U.s.s.G. § 4Al.3). 

COMPUfAnON-DEPARTURE ABOVE CATEGORY VI 

US. V. Glas, No. 90 CR 434 (N.D. Ill. Nov. I, 1990) 

(WiUiams, J.) (departing upward for criminal history category 

VI defendant with 39 criminal history points, COUIt exttapolated from sentencing table to create new criminal history 

categories for every three criminal history points above IS, 

with three-month increase in minimwn sentence for every 

new level; defendant's 39 points resullCd in criminal history 

Vommc 3 • Number 16· Dcam~ 14. 1990· Paae 2 

calegQl)' XIV and.. with offense level of 10,. minimum IICDIt:nCeof 48 mouths), Su also US. v.Dycus, 912 F.2d 466 (6tb 

Or. 1990) (per curiam) (table, unpubI.isbed) (afruming use of 

hypotbedcal caregory vm for 19 aimiDal bisaory poilus). 

Adjustments 

ACCEPTANCE ()lI' REsroNSI.BD..ITY 

u.s. ".PipeT.No. 89-30325 (9tb Or. Nov. 9,199O}(per 

aaiam) (ap:cing willa u.s. ". Puez-Fnw:tJ, 873 F.2d 455 

(1st Or. 1989), tbal".defeadaalmust sbow coaIririca for rbc 

crimeofwbidl be was coaviclcd.bathcacedDOtacccptblamc 

for all c:rimeI eX wbidl be may be ICCIIICd'" eo qaaUfy f(l' 

~of""PO"sillilityJedacdoa. t 3B1.l).Accord u.s. 

1'. Oliwnu. 90S F.2d623 (2d Cir. 1990}; U.s • .,.IlD,m.899 

F.2d 911 (10IIa Or.) (didt), em. daJe4. 111 S. Q. 113 

(1990); U.s • .,. GIIotriI. 898 F.2d 1120 (6da G'.199O) (didt). 

COIfInJ u.s . .,. "DfITIIiItI. 914 F.2d 699 (Sell Or. 1990); u.s. 

.,."".909 F.2d436 (1 Ida Or. 1990); u.s. ". GtIrtltM. 895 

F.2d 932 (4th Or.),ct'I't. denied. 111 S.a. 131 (1990). 

VICI1M-R:o..ATm ADJumIENTs 

u.s • .,. Rocha, 916 F.2d 219 (Sib Or. 1990) (affumed 

finding Cbal17-year-old male kidnap victim "was UDusuaDy 

vuJnemb1edue toagc. "U.s.s.G. f 3Al.I-"itisasonablcto 

believe that (be] was chosen IS the kidnapping victim because 

ofbis young agej. 

Relevant Conduct 

u.s . .,. LmwellC¥, 915 F.2d 402 (81b Cit. 1990)(quaotitics of coc:ainc that detcadant purchased and disaibuted 

during die course of die marijuana ~ be was c0nvicted of, but that 1to'eR:not part of the same "commoascbeme 

or plan" &'I the marijuana offense, may ai11 be included u 

!devanl conduct under U.S.s.G. f IBl.3(a)(2) because the 

cocaine wu ""part of the same course of conduct- to possess 

and distribute drugs). 

Criminal History 

CAREER On"ENDEIl PROVISION 

u.s. ". Btchr. No. 89·S02AO (9th Or. Nov. 20. 1990) 

(ReinhaJdt. 1.) (m delenniniag wbccher prior rdolly was 

"aimceX violeDce- under U.s.s.G. f 48 1.1. "'we do DCl loot 

to die specifIC conduct which occasioned [defendant's] burglary convictions. but only to Ihe statuIOry defmitioa of the 

crime. We bereby adopt Ihc so-c:alled 'catepical approacb' 

thallhcSupremeCourthashdd ~8pplopiarer(l'delamiaing 

whether someone is a can::er aimina1 UDderdaeArmedCalecr 

Criminal Ace. 18 U.s.C. f 924. Su Taylor.,. Unile4 StIIIU. 

110 S. Ct. 2143, 2159 (1990)"; affanned flDding that daytime 

burglary is violent aime). 

US. v. Houser, 916 F.2d 1432 (9tb Cir. 1990) (vacaIod bocausc it was error to classify defendant as can::er 

offender under § 4Bl.1-two prior drug offensc-s were ""part 

of a single conunon scheme or plan." § 4Al.2(a), comment. 

(n.3). and were only charged and tried sepawdy ~usc they 

occurred in different counties). See also U.S. v. RiW!rs. 733 F. 

Supp. 1003 (D. Md. 1990) (two prior violent felony convictions should not be counted separately because "accident of 

geography" led to separate sentences for related offenses). 
Guideline Sentencing Update 

VOUlIIE 3 • NUMBIIIl 11 • 1ANUARY 3.1991 

Departures 

Teatia Clmdt holds that ilmDarly situated cocIeIaadaats IhoaId receive equlY8Iaat deparCureL Tbmc codofendants pled pill)' 10 maialliaing I aact boule. Tbey were' 

sentencecl sepntoIy and an Raived upwanl departures 

based 011 die amount of drugs involved in the cft'ensc. Two 

dctcndanlS received senr.enccs of 36 and 72 moalbs. adju.slcd 

upward from raagcsof 15-21 and 3().31lDOftIhs.respcc1ively. 

Defendant hue.. however, received I departure from I 3()..31 

month range to I 120-month senr.cnce. 

The appellate court remanded: "'Because of the disparity 

in Ibe senlCDCe given [defendant] as opposed 10 those given 

(his codefendants]. when each departure was based on the 

same conduct involving Ibe same quantity of drugs, we must 

reverse and remand for resentencing. The sentencing guide. 

lines incorporalC Ihe principles of equality and propodiooaIity. Their purpose is 10 narrow abe 'disparity in senlt:DCeS 

imposed ••• forsimilarcriminal coaductbysimilaroffendm..' 

• . • The district court's disproportioaaI upwanf departure 

from [defendant's] guideline sentence range thwaru abe very 

purpose of die guidelines and is therdore invalid.. Oiven that 

the Ihree defendants berc were 'similar offenders' engaged in 

'similarcriminaJ conduct' with respect to the reason given for 

Ihe.ir upward depanme.lhey should have received equivalent 

upv.'8rd departures." 

The court noted that Ibis case "is distinguishable from 

cases in which disparaae sentences 'Were upheld because the 

disparil)' was explicable given the facts in the respcc1ive 

records. ••• Here. 110 distinguishing factors were offered or 

appear in the record." 

"lbecourtrejedecl,however,dctendant"sclaimLhatanupwanI depart.w'e could not be based on the amount of drugs in 

the offcnseof operating I crack house: "quantity of drugs is a 

valid facurtoCODSider in delerminiDg whetheran upwanf departure from Ihc senftnec fori premises violation is aptXOprialC." See Illso U.s. Y.Bennett, 9OOF.2d204 (9lhOr.I990)(dcpanure for Jargequantity of drugs in telephone offense); U.s. 

Y. Correa-VQI'gas. 860 F.2d 35 (2d Cir.1988)(same); U.s. Y. 

CrDll{ord.883 F.2d963 (II th Cir. 1989)(dcpanureforquantily of drugs in simple possession offense); U.s. Y. Ryan, 866 

F.ld 604 (3d Or. 1989) (same. plus purity and pacbging). 

U.s. Y. SQI'din, No. 89-6189 (1001 Cu. Dec. 18. 1990) 

(Seymour, J.). 

First Circuit iastructs district courts to characterize 

!feparture sentences as either upward or downward, eVeD 

when both upward aad downward "interim calculations" 

are made, in order to determine which party has tbe right 

to appeal. Defendanl pled guillY to embezzlement charges. 

The district court depaned upward four offense levels from 

abe guideline sentencing range (OSR) because abe amOWlt 

embezzled. over SII adUioa. was IUMandally in excess or 

the bigbestlIDOaIItin die applicable picIdiac. 1becourtalso 

.departcd dowDwInl two JcwIJ 10 IewanI defeadant for his 

subscaadaI ISsfslaace, U.s.s.O. I SKl.1, p..I. Defendant 

appealed the upward deparcure IDd qued the downward 

deparIure sboaId have been greater. 

The appeUaIc court upbeId the seatcace. batmjedecl""the 

characferizatio of ~"I senteaco IS ODe embodying 

dual ~ cbaracfcrizadaD employed boch by the 

district court and by the UdpnIs. -1be court reasoned dun 

"decisions to increase or deaase oft'ease levels prior to the 

imposition of a sentence, or I court's assessment of count.etvailing considerations before passing sentence, can onJy be 

seen as inlfrim calculations. Whether or not circumstances 

exist that might support dcparwres in both directions. it is indisputable &bat Ihe sent.encc fmaJ11' imposed can only fall be--

low, widlin. or above the GSR.1n ocher"Mllds., in any given 

sentencing, thetccan be at mostoacdepaltUlCo up or downa phcoomenon determined by the actftlSUllof aU iIUerim calculalions. Hence. to describe. senIaICe IS ~g of two 

deparIures. one up and one down. is neccssariJy inaccurate. .. 

The distinction is imJXl1lnt because. barring error in 

applying theOuidclines. ".decision todepartcan oalyconfer 

a rightofappealononepany." See 18U.s.C. f 3142(a)(3)and 

(b )(3). "But in each case, the prime benefICiary of the departure ••• may not appeaL" Here. for example; "'where the 

sentence actually imposed was lbove the GSR. the only 

cognizable deparIure was upward and the only pany entitled 

to appeal the deparIure decision was the defendant" To 

"avoid coafusioD in the future, .. abe court insuuc:ted district 

courts "to avoid terminology suacsdve of multiple depar. 

tures wilhin the conlOUll d I single sentcnc:c. " 

U.s. Y. HQI'olWlilM, No. 90-1393 (1-Or. Dec. S. 1990) 

(SeJya. J.). 

AooRA YA'IlNG CIltCUMSTANCES 

U.s. Y. Co%, No. 90-1610 (8th Or. Dec. 18, 1990) (per 

curiam) (~vc.rsing upward departure liven because consolidation for seoIencing ofbank robbery and escapec:oovictions 

effectively RSUlttd in DO punishment for the escape: "In 

essence, the guidelines merged [defendant's] escape charge 

into his robbely charge. 'Ibis merger effectively barred the 

court from imposing a separaaesenlenCe for the escape charge. 

Because Ihc SenlCncing Commission already has determined 

how to ca1culaJc an offense level when muldpte offenses are 

senaenced in the same proceeding, we conclude that the circumstances in this case are not sufficiently "unusual' to warrant an upward departure from the guidelines. Set U.S.S.G. 

§ 3D 1.4"). Accord U.s. v.Milltr,903F.2d.341 (5I.hCir.1990). 

,,"01 for CIt.Uon. Guide/Use Selllend"g Up&au is provided for information only. It should not be cited. dIher in opinions or OIberwise, 127 
Guideline Sentencing Update 

MlnGA11NG CIRCUMSTANCES 

U.s. v. McHQII.. No. 89-SOS7 (4th Cir. Dec. 6, 1990) 

(Wilkinson.. J.) (reversing downward departure for drug de--

fcndant thal was hued on bis charitable actividec ""Not only 

are the above personal facccn ordinarily indcvaDlill scnlt:DCjog detaminations. but 10 depart downward because a successful drug dealer bas made charitable contn'budoas 10 his 

community is 10 disIort the purpose of the OuideliDesj. 

CRIMINAL HISTOR.Y 

U.s. v. WiUUuns, No. 9O-608S (lOch Or. Doc. 19,1990) 

(Druby,J.) (affizmina U.s.s.G.14AI3, p.s.. upward departure 10 carectoft'eackz level (or bank robbery defendant who 

bad cOaun.iued foUr separate bank robberies in 1981. wIUcb 

'WUecoosotidaredforscnlCOCinguddwsCQJllleduOlllyone 

offense in crimiDalliistocY score: ... seo&cocia& judge may 

JeparaIC prior related convictions Ihat JUJlted ill a IiagJc 

senaeucc. Tbe judge may thea ccunt abe conviclioas IS p:iar 

felony convictioas for purposes 01. Ibe Guidelines career 

offender caku1adon. ••• We find no provisioa in abe Ouide--

lines prevc:n1iDg. court from depanin& upwanl to Ihe cam:r 

offender sectionj~A.ccord U.s. v.Dorscy,888 F.2d 79 (11m 

Cir. 1989). cert. denkd.ll0 S. Ct. 756 (1990). 

Adjustments 

ROLE IN OfFENSE 

F'aftb Circuit reafrll"lDl hold.iag that related c:oaduct 

may be ased III U.s.s.G. f 3Bl.1 role ill oR'ease ddenDinatioD; Fourth Circuit reaches same coadusioD. Botb dte 

receDl "ciarilyiDg ameDdmtat" to pldeliae 85 IUppor1. In 

the Fifth Circuit dcf'endant pled guilty 10 one count of p0sse&-

sion with in1CDl1D disuibulc cocaine. A re1aled conspiracy 

charge was dropped. but based on the defendant', leaderstUp 

role in the c:oaspiracy abe district court imposed • fOW'-1evel 

upwardadjustmentunderU.s.s.G. § 3Bl.1(a). 

The appeUalC court afflnncd. reiterating the holding in 

U.s. v.Manthti.913F.2d 1130 (5th Or. 199O),that"whi1ean 

upward adjuslmcnt fCll' a Icadcnbip role under scaion 3B 1.1 

must be anc:hored in the defendant's sransaclioa. we will lake 

a common-sense view of just what Ihc oua.Unoof ahat uansaclion is. It is DOt theCGltours of the offCIISCcbargcd &hat defines 

the outer limits of the Il'anSaCtioa; nuher it is Ibc COOIOUrl or 

the unckrlying scheme itself. All panicipalioo rll1Dly based 

in that undatying" tnmsactioD is ripe for consideraIioo in 

adjudging a leadetship role under scclion 3B1.1." COlll1'a 

U.s. v. Rodriglln·Nuez, No. 89.2203 (71b Cit. Dec. 3,1990) 

(Fa.irchiId. Sr. J.) (role in offense must be based 011 offense 01. 

conviction. not related conduct; e:rWncement for supervisory 

role under 13B1.I(c) not applicable 10 defendant who sopezvised another in drug diSlribudon scheme atone residence 

but not in offense of conviction, possession of drugs with 

intent 10 diSlributc. that occurred at another residence}. 

The court added: "Any doubt concerning this conclusion 

must vanish in the face of • recent clarifying amendment 

promulgated by the SenlCncing Guidelines Commission. ef· 

fective November I, 1990. This amendment was not intended 

to change (he law, see SS Fed. Reg. 19.202 (1990). but the 

clarity of the new language of section 3Bl.l makes it selfevident that the district court correctly calculated 

[defendant's] offense level." The revised Introductory Com128 

VoilUlle 3· Number 17· JUlU&!)' 3,1991 • Pace 1 

mentary 10 § 3B1.1 staleS that the role in offense adjustment 

"is 10 be made 00 the basis of all conduct within Ihc scope of 

§ IB1.3 (Re1evantConduct) ••• and DOt solely 00 the basis of 

eIcmeots IUd acu cited in Cbc count of coavicdon." 

U.s. Y.Mir.No.89.S69S (SchCit. Dcc.ll,I990)(SmiIh.J.). 

In Cbc FoutI.b CiJcuit dcfcodant was convicled of five 

ccunts of distribaliOli of ctaek. The district court imposed a 

(our-leYel adjustmcDt UDder," 3Bl.1(a) becluse defendant 

was. leader of five iDdividuals in Ibc offeusea of cooviclioa. 

Howevea-. two oC &hose individuals were goYClI'DIDeDt as=cs. 

.DefeDdaal argued lbey ~d DOt be COUDtcd IUd dmt a most 

only Ibree odIer iDdividuals 'MIe iDwlvcd in tbo offeases. 

TheappcUatecourtagrecd lhatthetwo goYClI'DIDeDtageDfS 

could DOt be counted: ""To be iDcladed IS a putidpaut. one 

must be -criminally responsible for Ibe c:ommissioa 0I.1be 

oft'ease.' U.s.s.O. I 3Bl.1, c:om.meat. (a.l). ••• Ncidter 

[govemmeut agent] ••• cau be COUIJIed IS • pMticipant ill 

[dcf'CDdant'I] orpniulion becluse IS JOWIDIIIClIIl asau 

DCithctwas criminally JeIpOCISibIo. .. A.cconl U.s. Y. DeCict:.o. 

899 F.24 1531 (7m Cit. 1990): U.s. Y. CllrroU,893 F.2d 1502 

(6Ih Cit. 1990). 1be court DOted. however, tbal defcnclaDt 

should have been counted as • par1icipanL Accord U.s. Y. 

Bllrboillin. 907 F.2d 1494 (Sib Or. 1990): U.s. Y. hedDs, 

907 F.2d 7 (1st Cit. 1990) (per curiam). 

The court affumed abe enbanc:ement. however, because 

the R:COId showed 17 ocbcr individuals in defeadant·s disttibuliOli DetWOIt. 1be court held that dle role iD offense ad· 

jUS1meat is not IimiIed 10 the offease 01. c:oavic:dou: ""Tbe 

Relevant Conduct guideline. U.s.s.O. § IB 1.3, plaiDly SlateS 

that its described scope of conduct applies 10 Qapcer Three 

adjustments 'unless otherwise spccUicd.,' and DO language in 

the Role [in OffCIISCl guidelines specifleS« iDdicaIes a dif· 

ferent intent. ••• A court should loot beyond abe count of conviction when coasideringthe appIicaIioa of chis eabaDcerncnt 

and make its dcICnnination afaer considering aD conduct 

within the scopcof sectioa 1 B1.3." Like IbcFulb Circuit. dle 

court aoccd &hat the ~larifying November 1,-1990 amend· 

ment" demoastraUlcIlhe Senteacing CommissiOll', iDleDt that 

relevaut conduct. be used for lhe role in offease enbanccment. 

U.s. v. FeUs. No. 89-5649 (4rh Cir. Dec. 10. 1990) 

(waIkiDs. J.). 

OBSTR.UC'DON OF JumCE 

U.s. v. TelD. 918 F.2d 1329 (71b Or. 1990) (affi.rmjng 

rIDding Ibat defendant", inlentionaI failure to appear for 

arraignment was obsIIuctioo 01. justice. wammling eohancemeat IIIJd« U.S.s.G.I3Cl.1). 

Criminal History 

CA.LCVLA110N 

u.s. v. Kirby, No. 90-3058 (l0dl Cir. Nov. 28, 1990) 

(McWilliams, Sr. J.) rme instant offense" in U.s.S.O. 

§ 4A1.2(e) refers 10 the offense on which defendant is being 

sentenced. and defendant sentenced for failure 10 appear 

should have criminal history calculation t:iascd on thal offense. not on Wlderlying drug offense: thert!tbre. 1971 offense 

on which defendant was still imprisoned within 15 years of 

commencement of underlying offense. but not within 1 S years 

of instant offense of failure to appear. should not be COWl ted 

in criminal history for failure to appear offense). 
Guideline Sentencing Update 

V0UMI3 • NUMBIa 18 • JANUAKY 31,1991 

Departures 

MmGA11NG CotcuMsTANaS 

NlDtIa CIradt HIdI dcrtnnranI departllre _, lie 

peraltted lorMabemuat llebaftor" b, fInI-cimeolfeDder, 

bat aotlordef'eueot .... perlcdeaCrap .. at."Defeadlnt. 

who pled guilty to counterfeiting. Jeceived. a dowDwanf dopar&uIe in his JeOteace far IUbs1anIiaIISSisIanc:e. 18 U.s.c. 

1 3S53(e) and U.8.s.0. 1 SKU, p.a. He appealed. arguing 

that die disIrict court tmd by c:oncIuding tbal it c:oaId DOt 

considet' an additiooal depu1ure based on delendanl',daims 

that his acdoos consd1Dteci "abenant behavior" and that be 

had a defense of"imperfec:t enllapllllelU. It 

TheappcUatecourtremandcd.holdingtbattheOuiddiDes 

do DOl pndude a downward depanure far abenant behavior: 

"II is clear 1IIKIcf' the Ouidelines that 'aberrant beIIavicJf and 

'f1lSl0ffense'arenouyaonymou& TbcGuiddinesmabdue 

aIJowance far the possibility of a defendant being a first 

offender •.•• New.nheIess. the Guidelines RCOgDize that a 

fm offense may constitute a single act of uuJy abelrant 

beha~ar justifying a downward departure. Sa Guidelines 

Manual. Ch. I, Part ~ para. 4(d) (with respec:l1O f'1ISl offenders. "the Commission •.. has not ckaIt with the single acts of 

abemmt behavior that still may justify probation at higher 

offeose 1evels through departures')." kCIJrd V.s. V.RIIS#U, 

870 F.2d 18 (1st Cir. 1989) (district court bas discrcdon 10 

make downward departure far aberrant behavior). Sa also 

U.s. v. CoTey. 895 F.2d 318 (7th Cir. 1990) (holding lhat 

cbcdt~ ICbemecanied out over lS-mondt period could 

not quaIi.fy as "a single act eX abemmt behavicx'j. 

The court held. however, that as a ma1lcf of law a defense 

ofimpcrfec:tcn&rapmcotcannOljustifyadownwarddcpanure, 

agreeing with the Eighth Circuit's conclusion in V.s. v. 

Strftur.907 F.2d 181 (8th Cit. 1990). 

U.s. v. Dickey. No. 89-S0340 (9lb Cir. Jan. 23, 1991) 

(Leavy, J.). 

TIaIrd Circa1t IaoIds departure b, aoaJoo .... , be 

coasIdered ror ddeadat who aumot qualit, lor _IdptIDg role ill offeDse adjustmeDt because oDly otber "particIpaDt" iD ofl'ease was uDdercover agent. Defendant pJed 

guilty lOn:ceipl of chi1dpomography through the mail He had 

responded ro an ad placed by an undercovtr postal inspector, 

and after corresponding far several months ordered four magazines. The district court sentenced him ro 12 months, the low 

end of the guideline range, afteI' denying an adjusunent under 

U.5.S.G.§3Bl.2foramitigatingroleintheoCfenseandruling 

it could not depart downward for mitigating circumstances. 

The appellate coun affumed rhe denial of the § 3B1.2 

adjustmenL It agreed wilh olher circuits that have held that 

ro1e in offense adjustments require other .. participants" who 

lIe"crimiDaIly JeSpOiJSibIe." Sa. c.r .• U.s. Y. DcCkt». 899 

P.2d 1531 (7tb Cr. 1990): V.s. Y. Gordoa. 895 P.2d 932(_ 

Or.). em. deItiit4. 111 S.o.131 (1990); V.J. Y. c.rou. 893 

P.2d 1502 (6chCr. 1989).B",ucU.J. y.~895P.2cl 

641 (9Ib Or. 1990) (I 3Bl.l(c) may be IIppIied llocIase 

codefendant WIS II.'icbd inlO coauniaiDl otfeaIc). Here. 

defendant wastheoaly~ .. bccau.te1bepw:rDlDCDl 

apt WIS not criminally JeSpOOsible. 

The court held. boweW:r.1hal a dcparbR could be made 

by analogy 10 1 3B 1.2: "'If the Guidelines IDtborizc dcputurc 

ill 'ID atypical case. one to which a panicalIr pideliDe 

tingWstically applies but wbere conduct lignifiamdy Mas 

from the aonn.' OL I, PI. ~ 4(b). a foniori they auIbarizc 

depan:ure in an atypical case wbc:rc aD adjuslment would 

otherwise be authorized far the same conduct but. far IiDguistic reasons. the adjusanent ODidcline docs DOt apply. Tbal is 

10 saY. tbefonuilOUS fact that 1 $BIoltinguisticaDycouldnot 

apply to [defendant] because [the underaJYer qenr.] WIS not 

a criminally responsible 'participant' does DOt render 

[defendant's] conduct signifacantly dift"eraat &om Ibat of a 

defendant in similar circumst.anc:es wbo might qualify for ID 

offense role adjustmenL ••• [W]e bold tbal wbea aD adjustment for Role in the OfJensci is not available by strict app1ication of the Guideline language. die court bas power 10 usc 

anaIogic aeasoning 10 depart from the Ouidelines wbea the 

basis for departure is conduct similar to that eocompassed in 

the Role in the Offense 0uide1ine." See also V.s. v. CrtW(ord. 

883F.2d963 (11 thOr. 1989)(affumingupwarddeparturcfor 

aggravaling role in offense even tbougb cooduct did not 

technically meet definition in 13BI.l). 

The court "emphasize[d) the limited nature of the departure" it authorized: it applies only wbere there is 

one "participant" because with more '"there CID be DO depanure by analogy because die adjustmentguide1lne isappli.. 

cable of its own force." In remanding. the court DOItd dill 

defendant"is only entitled ro a depanure by analOgy ••• ifdle 

district court fmcls that he would have beeIl coddcd to [a 

1 3BIol] adjustment bad [the unden:ovcr agent] qualified as 

a participanL It Also, any departure "would be limited to the 

2 10 4 level adjustment downward on the bases set farlb in 

§ 3Bl.2." 

U.s. v. Biltrley, No. 9O-S099 (3d Cir. Dec. 28, 1990) 

(Sloviter, J.). 

First Circuit bolds tbat rebabUitatioa efforts after 

arrest aDd indictmeDt may be grou. ror- downward 

departure, but only in unusual case. Defendant., who pled 

guilty to two drug offenses, was given a downward departUre 

based on his efforts bet ween indicunent and sentencing ro end 

his drug addiction. The government appealed. 

Not for Cltallon. Gu.id.t/iM Sfiltltulcifl8 UpdQI, is provided rorinfonnation only. It should flO( be cited. either in opinions Of otherwise. 129 
Guideline Sentencing Update 

The appellate court reversed. holding chat departure for 

rehabilitaUoo may be considered, but chat this defendant's 

efforts wece not --unusual enough 10 merit" departure. "[TJ he 

mere fact of demonsuatcd rebabi1iWion between da&e of 11'-

rest end dale of scntcaciDg cannot form the basis for. dowaWIld depaI1urc •••• [Howe\Ul, in an appropiate case. a defendant's pl'C-SCDICDCe IdIabiliWivedforts and progress can 

be 10 significant.1Dd can 10 farexceed ordinary expcctalioas. 

that they dwaf die ICOpC of ~ rehabilitation cooICrDpIaU:d by the ICIltt:DCmg commissiooen wbeD form_-

inglCClion 3BI.I. We boId.lberefore" ..... defendaDt·.Rhabi1i1llion JIIi&bt. 0Il1we OCCIsioa.aweas. basis fora dowaward dcpllmac. but oaly wbea and if1hc IdIIbiJiCllion is flO 

emaord.iDary alO suaest its paenco II) • dcprJc DOl" 

caaMylaba iDIocoasideralioD by thellCCepllDCCofaaponsi.bility~.-AectwdV.s. Y.MadtWe,.",,893F.2dIIS 

(6ch Or. 1989). Bill xc.U.s. Y. Pharr. 916 F.2d 129 (3d Or. 

1990) (i1osl-arrest drug.rebahiJiWion cfl'orts IDd the p0tential effect t#. iDcarc:aaIioo on Ibese efforts are DOl appropiate 

grounds for~ departurej; U.s. Y. Va DyI:e. 89S 

F.2d 984 (4th Cit. 1990) (rdlabDitative c:onduct aft« arrest 

ac:counIcd for in f 3EI.I. DOl propcrbasis for departure). 

U.s. Y. Sklar. 920 F.2d 101 (lst Cit. 1990). 

AOORA VATING CaC1JMSTANCES 

U.s. Y. Loveday, No. 89-S0388 (9th Or. Jan. B. 1991) 

(H.all.J.) (aflinning upward departure for defendant who had 

manufacturcdseveral homemadcbombsand wasCXllvic:tcdof 

possession of unregis&crcd firearm and seolCOCCd UDder 

U.s.s.O. f 2K2.2 (Oct. IS. 1988)-in drafting f 2K2.2 '"the 

Commission did not have in mind the unique dangers homomade bombs pose to public safety," so depar1ure warranted 

under either f SK2.0, p.s. or f SK2.14, p.s. (Public Welfare». 

U.s. Y. W,&, 919 F.2d 969 (Sth Cit. 1990) (affirming 

upward depInure fordrugconspiracy defendant bascdOll her 

"allowing die use of drugs in froot of c:hiJdft:n in bet borne, 

her being Lbo chief financial supply for &be purdJasc of c0-

caine, hcr'COCIdOa of OChers. and hcr'c:onccaImcat of her role 

as a drug traffictu" Ibrough iotimidalion and bribery). 

SUBSTAN11AL AssISTANCE 

SecoDd Circuit ouUiDes procedure lor daalleDgiDg 

governmeDt refusal let .ave lor substaDtIaI assisIaDce 

departure. Defendant eIJURd inllO • coopcradoa agreement 

. with Ihc government Ibat providccl Lbo govcnuneat would 

130 

move for. substantial assistance departure. II U.s.C. 

f 3SS3(e).U.s.s.O. f SKI.I.p .... ifdefcndaDt .. made.good 

faithdfort to provide substandaJ assiscance." Tbc agreement 

explicitly established Ibat evaluation of defeodaDt's performance w. in 1he sole dis:c:mion of the govemmenL Tbc 

government did nct move for depaI1ure at SCDtencing and defendant appealed, claiming that the prosccutorwas required 10 

respond IOdefendant's"suggestion"lhat me refusal was made 

in bad faith and that he was entitled 10 a hearing on the issue. 

The appellate court fll'Stdetennined thaldle govenunent's 

refusal 10 move for adepanme for substantial assistance must 

be made in good faith: "it is plain that where the explicit tenns 

of a cooperation agreement leave the acceptance of lhe defendant's performance 10 the sole discretion of the proseculOr, 

that discretion is Limited by the requirement that it be exerVolume 3' Number 18 .1~ 31.1991' Paae 2 

cised fairly and in good faith. The govemmentmay reject the 

defendant's ped'onnance of his c:r her obliplioos only if it is 

honestly dissatisfied." 

Tbc court Ihea outlined Ihc procechn for cbal1engjog a 

rd'usaI: "Dcfendantmustftrstallegc lbatbeorsbe belicvesthe 

gOYCllUDeUl is acting ill bad faith. Such an aIJcpdaa is 

necessary to require the p-oscculOI' 10 explain'briefly Ibe goy •. ' 

emment's n:aSODi forrefusiDg to make. doWDWIId modoo. 

Inasmuch as a defeodaDt willgencralJy have 110 bowledgc of 

Ihc prosecutor's reasons. It Ibis first or pltading _ Ibe 

dcfeodant should have DO burden 10 make 8y IbowiDg of 

proIJCICUIOriaI bad faiIb:FolJowing1hc govenuoeat-• ..,... 

tioa,1hclCCOlldacp imposesOlldefaadlat1beNqUiremeatof 

makiDa.lbowingofbidfailb IIdfic:ieIItlOatgerlDlDOform 

of bearing 0Il1bll issue. Sec OuidelinclIML3L p.a.].-

Here. "'Ibc defendant DeYCI' toot die first ..,.- His 

statemc:uts neva'din'Jcdy aDegcd badfai .... 1Dd billIIIOmCy 

eYeD admiUcd at one point that 1be goYCI'IIIDCDt-. refasaI 

might be merifClious. Thus. dcCendant wu DOl entidcd 10 III 

explanation by Ihc goverDmcnt or III evidendlry beIiing. 

The court also denied defeoclant's claim that the discrict 

court should have departed under f SK2.O, P .... eWII if the 

govemmcnt'srefusal wasia good faith. Tbccourtl8l'Cedsuch 

a dcpanure"'would have been Ihecn:IicaIJy possaOle-bccause 

one of defendant's claimed acts of _statiC" living the life 

of. DBA informant-"'is DOC • grouods for departuie 1Iten 

iruoaccountbytheGuideIines., "includingfSK1.1. Howcw:r, 

defendant failed to properly raise Ibis issue below. 

U.s. Y. Kirlin. 920 F.2d 1100 (2d Cit. 1990). 

Determining the Sentence 

SEN1ENCING FACTORS 

u.s. v. Ltuo-Velasquez, 919 F.2d946(Slh Cir. 1990)(district court ened in holding it could DOl c:oosider defeoclant's 

rehabilitative poLential in scuing sentence wilhin guideline 

range: ""Guidelines do DOt pRlClude CODSideDIion of a defeo. 

dant', rehabDilaaive potential as a mitigating facIor wiIbin III 

app6cabJerangcofpuni.shmeut. Indccd.dleSenlencingQuidc.. 

Unes expressly penna 1hedislrictcoun toc:oosiderall relevant 

and pelmissible chanIcter 1l'aits of Ihc defendaDt in assessing 

a sentence within a puticular range.· U.s.s.O. f IB1.4). 

Offense Conduct 

WEAPONS POSSESSION 

u.s. Y. Agron. 921 F.2d 2S (2d Cit. 1990) ("'stuD guo" 

IIlCClS defmition of "dangerous weapon" for pwposes of 

U.S.s.O. f 2Dl.1(bXl) enhancement). 

Sentencing Procedure 

u.s. v. Crecelius. 7S1 F.Supp.l03S (D.R.1.199O)(using 

Fed. R. aim. P. 36 (Clerical Mistakes) or"l1tcmative ground 

... of the COlD't'S inherent power 10 amend its sentence." 10 

change 12-month sentence 10 12 months and one day--court 

had "clearly expressed its intent 10 sentence [defendant] 10 the 

minimum sentence" tmder guideline range"Of 12-18 months. 

but a "sentence of 12 months plus 1 day is acrually a lesser 

sentence because it makes the recipient eligible 10 earn a 

reduction in the time to be served for good behavior," in this 

case 54 days, see 18 U.S.C. § 3624(b». 
Guideline Sentencing Update 

Vor..m.e 3 • NUMIBI. 19 • FsuuAlty T1.1991 

Relevant Conduct 

Fint CIrcuit clisdDlllkhes betweeD related aad IIDI'eIated c:oacIlICt dud "1 be used as relmmt CGDdact III 

IdtiDa oft'CIIIe IeYeL DcCendant was coaviclod of coaspiracy 

topossesscocaiDe wiab intent to disUibure.1D dcIeImining the 

aIlIOIdofdrap iDvolved.the disttictcourt included amounts 

from four uncharged uansactions it concluded were Mpart of 

the samecommoa 1Chemc" as thecoaspiracy. 'Thelastoftbese 

transactions was COIISUIIUllaled soIdy by defendant's wife 

wicbout his knowledge. but was included because his wife 

(who was a co-conspirator) "paid off pan of [his] previous 

debt to the drug suppliu,lhercby benefiting [defendant]." . 

The appcUaIe court held Ihat inclusion of the fowth Iransaction was an impropeily broad ~ of the rele'VIDt 

conduct provision. U.S.s.O. § 1 B l.3(a)(2): ""In aD ofthec:ases 

ciled bythegovemment.adefendantwas held responsible under § I B 1.3(a)(2) for othet conduct ofhis or berown that eilhc:r 

was an uncharged part of the crime of conviction. or a repetition of Ihe aime. ••. (Defendant's] oo1y connection with the 

[foUnb) uansacdoawasasabcnef"aciayofsomeoneelsc'saiminalactivity,alinktbatbad noIbingtodo wilh his conduct. To 

signifacantly increase [his] senaeoce based on a ImDSaCtion in 

wbida be tootDOpaIlSlrikes us as such a substantial stcpaway 

from 'charge offense' scnteDcing that it c:ouJd ~ have been 

COOltmplaledas wilhin Ibe § IBI3(a)(2) exception." 

based 00 amount of)XCCUl'SOI' chemical, even though at lime 

of II'rest lab was oon-opetational and ocher necessary JRCUfIlOl'S waeootpesent ""TbcsizcorcapabilityofanylaborllOly 

involved is relevant to Ih[e drug quantity] caJcu1adon. 

U.s.s.O. 1 201.1. commenL (D,12) (directing epplicaIioaof 

§ 201.4. commenL (n.2». Heidler immediare DOl' oa-JOiDg 

production is required. InsItad, this guideline prnniIs the 

court to examine the ovcndl scheme and to infer circumsaantially eitbcr Ibe toIaI dIug quantity inwlved in the oft'ease 

cooduct or dlecapabilit)' ofilspoducticn U.s. Y.ENIII.891 

F.2d 686. 687 (8Ih Cir. 1989). cot. dl!nkd. 110 S. Ct. 2170 

(1990): U.s. v. PlUMy. 906 F.2d 477, <479 (91h Cir. 1990)j. 

Departures 

EXTENT OF DEPARTlJItE 

u.s. v. Thornloll. 922 F.2d 1490 (10th Or. 1991) (arfuming departure for drug defendant because she gave drugs 

to bet 14-year-old daugbr.cr. but vacating compuWioa of 

departure thai used offense level ina:ease as guide; appel1a&e 

court held rhatgiving drugs ID daugbr.crwas"'prior uncbapd 

criminal conduct" that was not adeciiaately reneeit'd in 

defendant's aiminaI history category, and tbcIefOle deparLUre sbould be made by adjusting criminallUstory category 

under U.s.s.0.I<4AI3, p.s.). See aJso U.s. Y. Fortenb.,. 

917 F.2d 477 (10th Cir. 1990). Even if defendant's accepcance of a benefit from the 

transaction ""in some way couJd be deemed culpable conduct. U.s. Y. Fonner. 920 F.2d 1330 (7th Cir.(991) ('"Justa 

lhatc:onductwaidistiDctlydifferentfromthecrimeofconvic- olher-crimecMdcncecannotleadtoadeparu.u'ecmwtingthe 

tioo. ••• His after-tbc-fact connecIion to the [fourth] ttansac- increase that would have resulted had the defendant beeo 

tioo would reveal DOttiing about his culpability as a drug charged with and convicted of the additioDat offcnsc:s, [U.s. 

conspiraIor,lDd lhezefore would not berd.evantindetermin- y,] Ferm,900 F.2d [lOS7 (7dl Or. 1990)], so a defendant's 

ing his off~ level for the charged crime." 'The court cau- past cannot justify an inaease in criminallUstory caleJOlY 

tioned thai "lIB 13(a)(2) is not open-mded in allowing a exceeding die levellhat would have been appropriate had Ibe 

sentencing court to tikc into account criminal activity other facts been counted expessly"; senf.CDCe n:manded bc:c:ausc 

thanthe"h .. -.. fI1 The aal foL- • • . departuretol20mondlsfrom30-37-monthrangcwasunrea- .... -6"""0 ease.... g 0 UKipRWlSiOn ••• 1S sonabl- L_.ldisarictcourtincludedincriminalh:-scorc for the sentence to n:.Occt accurately the seriousness of die v-a1iN ---I 

crime charged. but DOl to impose a penalty for the charged all uncounted criminal acts that fonned basis of depanure. 

crime based on ~Iared criminal activity," resulting range would have been oo1y 51-63 mondls). 

The court noted. howe'Va', that under § IB1.4 the fOUl1h U.S. v. Delvecchio. 920 F.2d 810 (t'lth Cir. 1991) (coart 

transaction could be III.kea into account in scuing the senlence may not automatically use career offender sentence to calcuwilhin the guideline range or in deciding wbelher to depart. late extent or departure for defendant who missed career 

u.s. v. Wood. No. 9()..1599(1stCir.Feb.l,1991)(Co(fm, offender status only because two prior drug c:onvictions were 

Sr. J.). consolidated for sentencing. see U.S.S.G. §§ 4AI.2(a)(2), 

OHense Conduct commenL (n3). and 4B 1.2(3)(B); a departure in this instance 

J J~ is appropriate if die consolidation of ~ underreprcDRUG QUANlTIY-SETI1NG OFFENSE LEVa. senlS defendant's criminal history, ~e § 4AI.3. p.s., but "the 

U.s. v. Smallwood. 920 F.2d 1231 (5th Cit. 1991) (in councannoL .. holdlhatbecausethedefendanlalmostfalls 

calculating offense level for defendant convicted of posses- within the definition of career offender ... it automatically 

sion with intent to distribute methamphetamine. court prop- wiD treat him as such .... fIlhe court should examine the 

erly estimated "practical yield" 'of defendant's laboratory defendant's actual criminal history. kee in in mind the con· 

Not (or CllatJoa. Guidtdin~ ~IIUllcillg Upd4.te is provided for information only. It should not be ciled, either in opinions or ocherwi.se. 131 
Guideline Sentencing Update 

c:ems underlying me career offender dassUlCItion, aDd determine ••• what sentence is warranted given (1) the seriousness 

of the past Offenses and (2) 1he recidivist ccndcncies of the 

defeodanL j.q. U.s! Y./OMS. 908F.2d36S (8IhCit.l990) 

(using career ot'fcnd« provisian to guide ~ for defendaDt who missed careet offender SWUS only because be 

was DOl yet scatcoced on prior violent felony convic&ion). 

MmGA11NG CIRCUMSTAN~ 

U.s. Y. Wright, ·No. 90-S6S3 (4th Cir. Jan. 31, 1991) 

(Mumagban, J.) (~fact chat inmate defendant. af~ 

CClllvicdoa 011 instantoffeosc of drugposscssion widl infellllO 

disIribute while in pison. would have pamlc dale for earlier, 

amdaI.ed c:riInes defared 26 months was not factor SenIeacina Commission failed to adequately considerand Ihus could 

DO( suppoIt downward depanure). 

AGGRAVATING ClRCUMSTAN~ 

U.s. Y. PIIlIey. 922 F.2d 1283 (6Ch Cit. 1991) (Iffinning 

depar1uro pursuant to U .s.s.0. f SK2. 7, p.s ... ""Disruption of 

00wnmeataI FuDction." based OIl defendant', accioDs ill 

persuading famD.y membus to commit pe1jury and a ~ 

defendant 110 ""walk away from a confession" that be had 

obtained drugs from defendant; such conduct was DOt adequately accounted for in obstruction of justice guideliDc, 

f 3CU, and defendant had aJready n:ceivedan enhancement 

under that section for his own pe1jury). 

U.s. Y. FoMe1', 920 F.2d 1330 (7th CU. 1991) ('"Mental 

health is nota solid basis on which 10 depart upward. U.S.s.G. 

f SRl.3 bans n:sort 10 mental health except as provided 

~.and abe only proviso, f SK2.13, allows downward 

(but not upwanI) departures for non-violent offenses. A c0nclusion that abe defendant is unusually likely 10 commit more 

crimes (pe.tbaps because of mental problems) is a different 

maacr and, in principle, could be a basis of upward departure; 

noIhing in f 4Al.3 or elsewhere fOibids ils use. Still, a judge 

is waUdng on eggs. for this considcnlion overlaps (if it does 

DOldup1.icalc) theRCidivism penalty built into the guidelines. 

Judges may DOt engage in double counting.j. 

Adjustments 

VIC'I1M·Ro..ATED ADJUSTMENTS 

u.s. v. Willslow, No. 90-033-N-HLR (D. Idaho Jan. 17, 

1991) (Ryan, CJ.) (denying vulnerable vicdm enbancanent. 

U.s.s.O. f 3Al.l. becaJse 00 actual victims werespccif"JCal)y 

targetcd-wbile evidence indica1cd that general intent of 

defendants' conspiIacy was "10 kill, wound or maim c:enain 

victims ehosen solely because 0( their race, religion and/or 

lCXual preferences, ••• there was no evidence of any actual 

victims, but insIead the only evidence was thedelendants' talk 

and speculation concerning the intended victimsj. 

MVLTIPLE CoUNTS 

U.S. v. BfJlTon-Rivera. 922 F.2d 549 (9th Cir. 1991) (court 

properly placed count of felon in possession 0( fuearm with 

countofillegal alien in possession of fuearm in one group, and 

count of being alien unlawfully in U.S. after deportation in 

separate group, because latter offense did not involve "substantially the same hann" under V.S.S.G. § 3Dl.2 as the farst 

two; defendant's argument -that because illegal alien counts 

1 32 could conceivably be grouped together, and weapons counts 

Volume 3· NIIIllba' 19· February X7.19'H • Page 2 

were, that all tIwe should be grouped together-His 8 classic 

case of bootstrapping" that would distort the aim of § 3Dl.2 

""by combining dissimilar offenses 10 n:duce punishmentj. 

U.s. Y. Wilson.920F.2d 1290 (6cb Cir. 1991)(1CVeI:Sedenor DO( toO crouP all. COUDII of using an intcnale c:ommcn:e facility in attempt to commit mUlder; poupiDg offive 

counts involving tcIcphonc discussions to arruge kiUingand 

ODe count involving letter mailed by ~endant containing 

money for hit man was required under f 3Dl.2(b) bec:ause 

an"involve the same victim" and 'MI'C "eonDCCfed by a 

common criminal obj«dvc" -the deaIh of Ibe victim). 

OBSTltUCl10N OF JunJCE 

U.s. Y.Sl./II1Uua, 922F.2dS63 (lOthCir.199O)(affirming 

U.s.s.G.I3Cl.l enhancementfor failme IIOtppCII'allCllfalCina hearing, wbkb delayed scrIenCing for tell days). S. GUo 

U.s. Y. T~ta. 918F.2d 1329 (71bCir. 1990)(1 3Cl.1 eabancement for intentional failure to appear for amaignmeat). 

Criminal History 

CALCIJLAnON 

u.s. Y. VanderlGall.921 F.2d 257 (10th CU. 1990) (seotence imposed under provisions ofNan:otic AddictRebabiliIationA.ct.18U.s.C.ff4251-SS(repca1edNov.l,l986),was 

"sentence ofimpisonmeDt" pursuant to u.s.s.G.14Al.2(e) 

that may be counted toward career offender swus). 

Determining the Sentence 

SEN1'ENCJNG FACTORS 

u.s. Y. Halchett, No. 90-8030 (5th Cir. Jan. 30, 1991) 

(Barksdale, J.) (pursuant 10 28 U.s.C. f 9911(d) and U.s.s.O. 

f SRI.I0, p.s., socioeconomic status may not becocWdeled in 

sentencing wuter the Ouidelines, either within tberangeor for 

departure; sentences must be remanded because it was DO( 

clear whether district court improperly considered defendants' social position and educational opportunities). 

CONSECtTl1VE OR CoNCURRENT SENTENCES 

U.s. v.Brown.920F.2d 1212.(SthCir.1991)(pc:rcuriam) 

(district court has discretion to order that guideline SCDtCnCe 

for bank robbery would be consecutive to any IaICr Stale .. 

tence imposed on pending state charges from same robbety). 

Applying the Guidelines 

AMENDMENTS 

u.s. Y.Lam,No. 9O-300S(D.C.Cir.Jan.25,1991)(WIld. 

J.) (holding that version ofU.S.s.O. f IBI.3(8) priarlONov. 

1989 amendment. which contained "sci~ requirement." 

should have been applied 10 drug conspiracydefendant whose 

offense, uiaI, and presentence report oc:currcd befon: dial 

dato--theamendmenteffected a substantive change in the law 

that could adversely affect defendant's sentencing and its 

retroacti ve application would violate the ex post facto clause 

of the Constitution; thus. in setting base offense level cowt 

must determine quantity of drugs defendant 'blew or reas0nably could have foreseen .•. was involved in the cOnspiracyj. 

See also U.S. v. Suarez, 911 F.2d 1016 (5th Cir. 1990) 

(scienter required for possession of weapon during drug 

offense. U.S.S.G. § 2Dl.1(b). prior to Nov. I, 1989}; U.s. v. 

Burke. 888 F.2d 862 (D.C. Cir. 1989) (same). 
Guideline Sentencing Update ~ ,.iJMdtrf Uptl/lll wiD. '-6tdIIuaeII pIIiIIdicIIl,.,. l1li 0IIIIIr. lilt'.-jQlfpllIIICI __ judidaJ s--.t rJI ...... Wenl_ dec:iIIoaI_ IIII-..ciaa 

..... ~rJlllII4l111C1l,..,IIIICIIIII'- .rl ,0aI' 5_ AJdaaIetallllpcbli .1i • ..,. .... IIIISrct~~_,., ___ IIII111U.s.,....... 

C : __ .. l1li ..... ., ......... _ ..... 11 II .......... ...,. ....... C : t. ~ _adiYiIi& ............. l1li 0aI'''fiIMI.,''' ••• ua_,.. • • ...,,_ CllllacrDl.«iala ... "' ... SM ds,c-hdaa,.. .. W---. JIIIIIIioMiaDIII~"'~ Uptl/lllIiplfiel .. IIIICraw ..... II •• -F .1bIe IIIICIwJulblewad:. hlbould .. bc---".,oc II ·'wIIdcD_at5r::iI1,., 

111l1li Crct& 0._ .,poIicydloOaw ..... G\1J...,. ill ..... 

VOI..Ille 3 • NUWII8R 20 • MAaat 25. 1991 

Departures 

MrnoA'ltNG CntCUMSTANCES 

Secoad ClrcaJt hOlds that dowaward departure for 

defeadaDt wIaose cooperadoa "broke Clae 101 Jam Ia • 

aUIId-clefeDClaat ase," aDd thereby helped district court'. 

Nserlously O'ferdogged dOcket," was aeltber adequately 

eoasIdered IlOl' precluded by GuldeliDes II SKl.1 ud 

3ELl;dlsCrktCOUl1lretaia "seasIble f'IeldbWty" to depart 

ID .... asa. Dcfcadant pled guilty IOcoospiracy to possess 

wilb inIeat 10 dislribace cocaine. EYeD before his arrest be eorcn:d iDto an IgftICIIICftt wilbabc govemmeDt 10 provide iDlex'-

matico regarding his dIug-rclalcd activities. and some oflhis 

infOl'll'latioa led to his indidmenL His ooopcralion led 10 a 

guilty plea by a codefcodanL Tbereaft.e.r, defendant disclosed 

addicioaal infonnalion and another codefendant pled guiJty. 

At seoleDCing. defendant received a two-levcl ~uction 

fex' accepcaoce of responsibility aDd was subject 10 a sentence 

ofSI-63 mondls. Tbe-govcmmentdid not move fex'a substantial assistance dcpa.nurc Wldet U.s.S.G. , SKl.l. p.s.. bat the 

dislrictCOUlt~ 10 impose a 36-montb cam.cxplaWng 

that "I don·t think abc guidCfiDes speak to Ihat kind of 

cooperation which rela!es 10 the defendant who breaks the tog 

jam in a multi-defendant case that's pending in &he seriously 

ovClCIoggcd dockets of the District Courts of the United 

Swes. to The court stated that defendant's cooperation was 

"c:onstilUlCd by a relatively early plea of guilty aDd a willingness 10 testify, or at least &he public perception of &he willingness 10 &estifyand what that does with ocher defcndanas or can 

do II'MI. in this case, did in my judgment do. .. The govanment 

appealed on two grounds: chat defendant·s conduct was 

covered in I SKl.l and the cowt could not depart abseat a 

gow:mment motion; and that the conduct was coveted by die 

ac:cepIanCC of responsibility ~ucUon. 

The appellate coon affirmed the departure.. holding that 

.. , SKI.l does DOtpreclude a downward departure in lhiscase. 

As. wriaca.1 SK.l.lfocuses on assistance that a defendant 

provides 10 die govmunent, ralhcr than to abc judicial sysICm. 

••• Garcia DOt only helped the govenunent develop the case, 

his coopcrazioalftcrabc indictment resulfCd in the disposition 

ofthecbargesagainsttheremairUng two defendants. Gan:ia's 

'activities racuiWing the proper administration of justice in 

&he District Coons,' are not encompassed by f SKU." 

The COW1 then rejected the argument that f 3EI.l precludes this departure: "We believe that the acceptanCe of 

responsibility differs from 'activities facilitating &he proper 

administration of justice in the District Courts' and that the 

district court properly determined that cooperation such as 

Garcia's is not covered by § 3EI.I. Garcia's willingness to 

testify against his co-defendants is more than mere acceptance 

of responsibility." Having thus found that defendant's mitipOng circumsIaDces have DOtbcenadequaldyconsidem1 by 

theSealCDCingGuidclines.ihcCOUltconcludedthattbey were 

a pcnnissibIe batis for departure and the disUict court was 

justified in depaning downward. 

The court added: ""In cases such IS Ibis. the district ccart 

bas 'sensiblcflexibility' todcpartincin:umSainceswbercdeparture from the Sentencing Guidelines has I reasonable basis. to 

U.s. Y. Garcia. No. 90-1214 (2d Cit. Feb. 8, 1991) 

(Lumbard. 1.). 

U.s. v. Poff.No. 89-3011 (7rb Cir.Fcb.14.1991)(F1aum. 

1.) (en bane) (holding dIat U.s.S.G.1 SK2.13. p.s.. allowing 

dcpa.nurcforcldendantwith"diminisbedcapacitytoconvic&cd 

of "Don-violent offense," does not aUthorize departure fex' 

career offender convicfCd of "crime of violence" as dIat term 

is derIDed in f 4B 1.2. eYeD tbougb die crime was making I 

threat that defendant bad no ability to carry OW; altcmativcly, 

even if offense could be considered non-violent under 

I SK2.13,defendant'scareeroffendcr swus"indicaces anecd 

for incarceration 10 protect the publict which also precludes 

dcpa.nurc under the lamS of, SK2.13). 

AGG'RA VATING CIRCUMSTANCES 

U.s. \I. Benskilt. No. 9O-S107 (6th-Cir. Feb. 26, 1991) 

(Coolie, St. J.) (affuming upward departure for mail and 

securities fraud defendant because Guidelines did nOl adeqwdcly account for long duration of the ongoing scheme, 

lal'geamount ofmoney solicited from over 600 invesun,aDd 

emotional harm infIictcdoa investors. some of whom lost life 

savings or coDege funds for children; extent of departure, 

from range of 21-33 months to 6(}.montb term. was reas0nable under &he circumstances). 

U.s. v. Astorri. 923 F.2d 10S2 (3d Cir. 1991) (affmning 

fmding that departure under U .S.S.G. f SK23, p.s., "Extreme 

Psychologicallnjary," was warranted for fraud defendant 

whose victims "suffered much more psychological injury than 

Ihat oonnally resulting from the commission of a wire fraud 

offense"; court also noted. '1f there is any place in senlenCing 

guidelines analysis where a fact-finder is 10 be given considerable deference, it is here wberc the district court is called 

upon to assess the psychological impact upon victims"). 

CR.IMJNAL HISTORY 

U.s. \I.Simmons.924F.2d 187(lIthCir.I99I)(afT'trming 

departure from I S-year statutory minimum to 50-year term for 

defendant convicted of possession of fuearm by three-time 

felon, 18 U.s.C. f 924(e}-departure WIlS"propet)y based on 

risk of recidivism, past criminal conduct. and obstruction of 

justice. factors that were not accounted for because the statutory minimum effectively nullified all guidelines computations for this particular offense: "Neither the stalute nor the 

_ Not ror Cltatlon. Guide/Ute &1IIt!N:illg Updau is provided for inlonnlll..ion ooly. h should not be cited. either in opinioos or Olherwise_ 133 
Guideline Sentencing Update 

guidelines provide any means to flCf.Or the enhancement fer 

obstruction of justice into the offense level, or to adjust the 

defendant's aimina.I history category based on conduct not 

used in c:aJculaling the statutory senleDCe": extent of the 

dc:par1I.R was tlcarefully and meticulously set out" and reasonablc under the circumsaanccs). 

Note: A new provision inlbc Guidelines. 14B 1.4 (effective 

Nov. 1. 199O).,scuoffcnseleYelsandaiminalhistorycategodes for defendants convicted under 18 U.S.c.1 924(e). 

U.s. v. A)WItld. No. 9O-ISI0 (lit Or. Feb. IS. 1991) 

(Selya. J.) (pdOrc:omictions Ihat are 100 remote in lime to be 

cou.ntedincrimiDalbistorylCCft,lDdll'Onot.u.w.toCUDelll 

offcnse, see U.S.s.G. 1 4Al.2(e).COI1UDCDL(lLI).ayltillbe 

considered. grounds for tIepanurc .... t 4Al.3. p.s., 

-when and if Ibose c:omictions evince lOme JignificaDtIy 

unmual pcacbanlfor saio,usaiminality,sufrJdeDttoremcwe 

the offendc:r from the minc-mn of other offeoders"; in this 

case,defendant'sMsevenearlierconvictiOM.dIoucbOUldated. 

wae disdnguisbed by Ibcir numerosity and dangerousness." 

anddcpanurc was appIQpdarc).See abo U.s. v. WUlimn.r.910 

F.2d 1S74(7~Or.I990):U.s~ v.Ru.r.reU.90S F.2d 1439 {10th 

Cir.199O):U.s.v.Carey.898F.2d642(8IhCir.I990).But.rt'e 

U.s. v.u •• 908 F.2d SS4 (9th Cir.199O) ("'weconclude that 

the Guidcl.ines reject the possibility that an upward dc:par1I.R 

could be based on remote convictiOM baving no similarity to 

the [insalnt] offcnse: citing 14AI.2(e), c:ommem. (n.8». 

U.s. v. PoIaIIco-RQIIOso. 924 F.2d 23 (1st Or. 1991) 

(affuming depanure. under U.s.s.G. 1 4Al.3, p.s.. from 

aiminaI history category I to caregory D for drug defendant 

who commiued instant offenses while on bail lwaiting senttacin& forunrelated swedmg cluqc that was not counted in 

criminal history score). . 

U.s. v.Rkhardsoll.923F.2d 13 (2dCir. 1991){downward 

dc:par1ure may not be considcm:l forc:areeroffencler based oa 

smaIl amountofcocainein instantoffensc--one.-balf gram01" 1eng1h cl time elapsed since pial' felony convicdoas-l0 

and 12 years; diose factors were adeqUllely coasidered by 

Sentencing Commission). See alsD U.s. v. Hap. 899 F.2d SIS 

(6th Cit.) (smaD amount of drugs and 1act of violence not 

proper pounds fer departure for career offcndct). CUI. Mllied.lll S. CL 385 (l990). 

Adjustments 

ROLE IN OFFENSE 

u.s. v. ANInIs. 92S F.2d 335 (9th Or. 1991) (role in 

offense adjusane.nrs. u.s.s.G.13BI. should be deumUned 

under two-part test 1) "the relalive cuJpability of the defendants vis-a-vis each 0Iber" and 2) Min relalion to the elemcnls 

of the offcnse. "which means"in c:omparison wkh an Iverage 

participant in such a aime"; here. defcndantcould not qualify 

for minor panicipant status under either standard). Accord 

U.s. v. DaughITey. 874 F.2d 213 (4lh Cit. 1989). 

VULNERABLE VIC11MS 

U.s. v. Aslorri. 923 F.2d 1052 (3d Cit. 1991) (affuming 

§ 3A 1.1 enhancement for defendant who defrauded his 

girlfriend's parents because parents were "'particularly susceptible to lhe criminal conduct" -defendant totally supported girlfriend and used pr-omise of marriage to persuade 

1 34 parents ro invest more money in fraudulent scheme). 

Volume 3 • Ncmber 20 • March 25, 1991 • Pige 2 

OBSTRUC110N OF J US11CE 

U.s. v. Williams. 922 F.2d 737 (11th Cit. 1991) (per 

curiam) (defendant who received six-monlh jail tenn fer 

contem.ptforrefusaitotesDfyltCXK:ODSpUator'stria!maynot 

also receive obstruction of justice enhancement for that same 

cooduct. #e U.S.s.G.I3Cl.l. commenL (0.6». 

ACCEPTANCE OF REsPoNSlBIUIY 

u.s. v. Tucker. No. 9O-SIOI (6dl Cit. Feb. 19. 1991) 

(Ryan. J.) (bolding that "enrry of an Al/tJrd pica docs not. per 

sc. preclude I section 3El.1 reduction for acc:epIIDCC of responsibility"; rcductiqJ denicd. however, becausc defendant 

Uiled to meet burden ofproving she accepted responsibility). 

Offense Conduct 

SPECIFIC OWINSES 

u.s. v. Bqyd. 924 F.2d 94S (9th at. 1991) (road flare 

brandished during bank robbery and daimcd 10 be stick of 

dynamite was "dangerous wapon"l1Dder 12B3.1(b)(2XC); 

"considcradon of the IICbIal naIUre of the device used. .. bow-

~. isappopiafcindeU:nniningwbelewilhinguideliDCrange 

tosel SClJteacc). Cf. U.s, v. Smith. 90S F.2d 1296{9d1Cir.199O) 

(moperab1e rewlwr or peUet gun is "daIIgerous weaponj. . U.s. v. Astoni. 923 F.2d 1052 (3d Cit. 1991) (error to 

increaseoffeoselevcl by fourunder' U.s.S.G.I2Fl.l(b)(2) by 

Jiving two-1evel increases for both MIIICR dian minimal planning" and"scbcmctodefnwdmcxelhanonevictim":"'ThccommeDlar)' does not indicate I four level enhancement where 

boch signs ofhann are present. A two rather than I four level 

increase is properunder' section 2Ft.l because where. as bere. 

I defendant defrauds IIICR dian one victim. the scheme will 

often involve more Ihan minimal p1annin&;·and vice-vcrsa. j. 

Sentencing Procedure 

u.s. v. COria. 922 F.2d 123 ('2d Cir. 1990) (""I probation 

off"1CCI' need not Jive MirQJU/a warnings before conducting a 

routine presentence intetvicwj. 

Probation and Supe"ised Release 

REvOCA110N OF PRoBAnoN 

u.s. v. White. 92S F.2d 284 (9th at. 1991) {revetSCd 

lhrec-year sc:ntencc imposed after revocation of pobatiaI 

under 18 U.S.C.13S6.5(b)forpossessionoffRll'lD,aa;reein& 

whh U.s. v. Smith. 907 F.2d 133 (11th Cit. 1990) and U.s. v. 

VOII Washing"'lI. 91S F.2d 390 (9th Cit. J990). thaI sentence 

imposed after revocation is limUed by guideline sentenc:e fer 

cxiginaJ offense. which here was 0-6 moaabs; c:.onduct lhatemstilUfCd Ibc vioJaIion ofprobalioa may DOt be used to selreyocation guideline range. but may be considemJ in de&mnining 

appropriate sentence within the range and. if there were 

factors Ihat wmanred departure at the lime of initial sentencina. whether to reconsider the initial decision nOl to depan). 

Applying the Guidelines 

AMENDMENTS 

u.s. v. Morrow. 92S F.2d 779 (4lhJ:ir. 1~1) (ex post 

facto clause of Constiwtion prohibits application of Guidelines section amended after offense but before sentencing when 

amendment would increase orrense level). Accord U.s. v. 

Lam. 924F.2d298 (D.C.Cir.I991);U.s. v. Swanger. 919 F.2d 

94 (8thCit. 1990): U.s. v.Suara.911 F.2d 1016 (5th Ctr. 1990). 
Guideline Sentencing Update FBDIilIAL JUDlaAL CENTEiR 

GfliJt!IiItit SMUJtCiItt UpdIIIU will be diltribut.ocl periodically by Ihc Ccmcr \.0 WOIm judges and ocher ju.diciol pm<llU101 d ocIocIc<I Cedcnl cowt doc:iIiion.t on the _cing 

...rorm lcgislaion d 1914 and 1987 and tho S-cin& Gui<lo:l.inea. AlIhauah the publ.icatian may refer \.0 Ihc Senlalc:i.na Guidelines and paticy IIIatcmcnt. of the U.S. SenlalCing 

Ccxnmiaion in Ihc _t d .I'qIOI1!n1 QUIll boldmp. it ill nOl inlalClod \.0 rq>ort Senlalcinl Conniuion poIiciea .... aaivitiea. Readen ohoWd ...ra: 10 Ihc Guideline:&, policy 

.... tcmcnta. QClI1ImaII.U'y. and ocha: mata:i.allo iIauecI by Ihc Scat.enc:ins Cammiuicn C .... lUm inf_1ien. ' 

Publication oIGwiMIiMS6""'1IdItf Updauaipifieuhallbc c-.cr,.ank it all rcopondbIcandvahMb1cwO<k. [uhouldnot beoaasidcn:d. _datianorofficia1 policy 

0I1hc c-. On __ 01 policy the Ccal«..-u mly Ih1'ouf;b ita Baud. 

v OLUMB 3 • C>croIImt 29. 1990 

Index for GuideUne Sentencing Update, Volume 3 

The following is 10 incIex of cases reported to dale in volume 3 of GSU. through issue 114. It is intended to supplement, not replace, 

the incIex to volwne 2 distributed earlier this year. A composite iJxIex cove.rins volumes 1-3 will be issued in 1991. 

Some new subheadings have been lidded to this aupplement tIw are not in the volume 2 index. but the general format remams the same. 

When there were no cases reported in volume 3 under a puticular belding. tIw heading has been omined. 

A. Relevant Conduct 

1. USED TO DETERMINE OFJ.IENSB LEVEL 

Note: Relevant conduct relating 10 drug quantity will also 

be covered in "Offense Conduct" below. 

I. Stipulation to More Serious Offense, § 181.2(1) 

U.s. v. Braxton, 903 F.ld 292 (4th Cir. 1990) (stipulation 

under § IBl.2(a) may be oral) [3. #8]. 

U.S. v.Roberts.898F.2d 1465 (IOthCir. 1990) (pleaestablished more serious offense. § IBl.2(a» [3, #5]. 

b. Relevant Conduct in Dismksed Counts 

U.S. v. McDowt!lI. 902 F.2d 451 (6th Cir. 1990) (should be 

used 10 set base offense level) [3. #6]. 

c. Incriminating Statements Durillg Plea Negotiation 

U.s. v.RobillSOn. 898 F.2d 1111 (6thCir.I990)(infonnation 

prohibited by § IBl.8 cannot be used fordeparture)[3. #4]. 

d. Co-Conspirator Drug Amounts 

U.S. v.North, 9OOF.ld 131 (8thCir.I990)(donotinclude 

drug quantities of co-conspiIators not known to defen~ 

dant) [3. #6]. 

U.s. v.RiW!rD.. 898 F.2d442 (5th Cir. 1990) (same) [3. #61. 

U.S. v. GlU!rrero, 894 F.ld 261 (7th Cir. 1990) (drug trans· 

actions of co-conspimtors) [3. #3]. 

t. Drugs Not in Count 01 Conviction 

U.s. v. Resut!po. 903 F.2d 648 (9th Cir. 1990)(quantities of 

drugs DOt included in count of conviction) (vocating 883 

F.ld 781) [3.171. 

U.S. v.Alston, 895 F.2d 1362 (11th Cir. 1990) (quantities of 

drugs not included in count of conviction) [3. #5). 

B. Offense Cond uct 

1. WEAPONS POSSF.SSION 

a. During Drug Offense, § lDl.l(b)(l) Enhancement 

U.S. v. Suarez. 911 F.ld 1016 (5th Cir. 1990) (requires 

scienter for offenses before Nov. 1. 1989) [3. #12]. 

U.S. v. Garcia. 909 F.ld 1346 (9th Cir. 1990) (possession by 

codefendant reasonabJy foreseeable) [3, #11]. 

U.S. v. Aguilera-Zapata. 901 F.2d 1209 (5th Cir. 1990) 

(must know of or reasonably foresee possession by code~ 

fendant, burden of proof on government) [3, #8]. 

U.s. v. North. 900 F.2d 131 (8th Cir. 1990) (not applicable 

10 inoperable replica. weapons clearly belonging to an· 

other) [3. #6]. 

U.S. v.RodriglU!z-Gonza/ez. 899 F.ld In (ldCir.)(despite 

acquittal on weaponscharge),cert.denit!d.ll1 S.CL 127 

(1990) [3, #6]. 

U.S. v. Williams, 894 F.ld 208 (6th Cir. 1990) (ClXOnspimtors not present at crime with weapon) [3, #1]. 

b. Firearms Offenses, 11Kl 

(Note: § 2K2 was amended, effective Nov. I, 1!?89.) 

U.s. v. Smith. 910 F.ld 326 (6th Cir. 1990) (per curiam) 

("cross reference" provision in fonner § 2K22(c). now 

§ 2K2.1(cX2), applies to state as well as federal offenses) [3, #12]. 

U.s. v. Pt!op/u. 904 F.2d 23 (9th Cir.I990) (stolen fueann 

enhancement. f 2K2.2(bXl), does not require knowledge 

of or participation in theft) [3. #8]. 

2. DauG QUANTITY-SE'ITING OFFRNSE LEVEL 

I. Include Amounts ill Relevant Conduct 

U.s. v.SchDpu. 903 F.2d891 (ldCir.I990)(mustusedrug 

amounlS in relevant conduct) [3, #8], 

U.s. v. Moreno. 899 F.ld 465 (6th Cir. 1990) (not limited to 

amount of drugs in jury vC'Zd.ict) [3. #5}. 

U.s. v.Riw:ra, 898 F.2d442 (5th Cir.I990) (same) [3,161. 

U.s. v.Alston.89S F.2d 1362 (11th Cir.I990)(quantitiesof 

drugs DOt included in count of conviction) [3, #5]. 

U.S. v.Moya. 730F. Supp. 35 (N.D. Te:x.I990)(notbound 

by amount of drugs in plea agreement) [3, #2]. 

b. Co-Conspirator Quantities 

U.s. v. North. 900 F.ld 131 (8th Cir. 1990) (do not include 

cO<Onspiralor drugs not known 10 defendant) [3, #6]. 

u.s. v. GlU!rrero, 894 F.ld 261 (7th Cir. 1990) (known or 

reasonably foreseeable aclS of co-conspimtors) [3. #3]. 

c. Calculating Weight of Drugs 

i. LSD-Include Carrier Medium 

U.S. v. Bishop, 894 F.2d 981 (8th Cir:1990f[3. 1#2], aff g 

704 F. SUppa 910 (N.D. Iowa 1989) [2,1#11. 

U.S. v. lIea/t!y. 729 F. SUppa 140 (D.D.C. 1990) (carrier 

medium should not be included) [3. #21. 

Not for Citation. GuitkJiM Sl!lI.leltCil!.g Updme is provided for information ooIy. It should not be cited. either in opinions or otherwise. 
136 

Guideline Sentencing Update 

ii. Marijuana 

U.S. v. Corley, 909 F.2d 359 (9thCir.1990)(nwnberforJive 

planlS, weight for dried planlS) [3, #11). 

U.S. v. Bradley. 905 F.2d 359 (11th Cit. 1990) (per 

curiam) (same) [3, #11]. 

d. Coasplracies aDd Incomplete TransactioDS 

U.s. v. Havens. 910 F.2d 703 (lOth Cit. 1990) (estimate 

quantity in attempt to manufacture offense) [3,110]. 

4. OTHER. SPECDlC OFFENSES 

U.S. v. Graves. 908 F.2d 528 (9th Cit. 1990) (§2A2.2(b)(3) 

"victim" means victim of offense of conviction) [3,112). 

U.s. v. Gaddy. 894 F.2d 1307 (11th Cit. 1990) (increase in 

§ 2A4.1(b)(4)(A) applicable to murder of kidnap victim 

within 24 hours) [3, #4). 

C. Adjustments 

1. ROLB IN THE OFFENSE (I 381) 

a. 8ase Only on Conduct In OIf'ense or Conviction 

U.s. v. Manlhei. 913 F.2d 1130 (5th Cit. 1990) (may use 

relevant conduct directly relaled to offense) [3, #14]. 

U.s. v. Zweber. 913 F.2d 705 (9th Cit. 1990) [3,112). 

U.s. v. Barbontin. 907 F.2d 1494 (5th Cit. 1990) (3, # 11]. 

U.s. v. Pettit. 903 F.2d 1336 (10th Cit. 1990) [3, #8]. 

U.S. v. Tetzloff, 896 F.2d 1011 (7th Cit. 1990) [3, #4). 

Note: Thcinttoductorycommentaryto § 3Bl,effectiveNov. 

1. 1990. now states that this adjustment should be based 

on all relevant conduct, as defmed in § IB1.3. 

b. Requirement tor Other Participants 

U.s. v. Reid. 911 F.2d 1456 (lOth Cit. 1990) (activity involving four conspirators, two drug suppliers, hundreds 

of customers, was "otherwise extensive") [3, #13). 

U.s. v. Barbontin, 907 F.2d 1494 (5th Cit. 1990) (requires 

specific flDding. may count defendant) [3, # 11]. 

U.S. v. Preaios. 907 F.2d 7 (1st Cit. 1990) (per curiam) 

(defendant counted as one of "five or more participanlS" 

under § 3B1.1(a» [3. #9). 

U.s. v. DeCicco, 899 F.2d 1531 (7thCir. 1990)(§ 3Bl.1(c) 

requires Olhcr "criminally responsible" persons) [3, #7]. 

U.s. v. Gordon, 895 F.2d 932 (4th Cir.) (must have group 

conduct fer adjustment to apply). cert. denied. 111 S. CL 

131 (1990) [3, #2]. 

U.s. v. Anderson. 895 F.2d 641 (4th Cir. 1990) (applicable 

when codefendant triclced into offense) [3. #2). 

c. Other 

U.S. v. Mares-MoUna. 913 F.2d 110 (9th Cit. 1990) (reversed-defendant was manager of business used in 

criminal activity. not of criminal activity itself) [3,114]. 

U.S. v. Fuller. 897 F.2d 1217 (1st Cit. 1990) (§ 3Bl.l(c) 

fmding clearly erroneous) (3, #5]. 

d. Positioo 01 Trust (§ 381.3) 

U.S. v. Foreman, 905 F.2d 1335 (9th Cit. 1990) (given for 

showing police badge inauempltoavoid arrest) [3, #10]. 

U.S. v. Drabeck. 905 F.2d 1304 (9th Cir. (990) (to janitor . 

Volume 3 • lndell • October 29. 1990· Page 1 

who worked unsupervised, had keys to bank), rehearing 

granted and m.and£JJe recalled (Oct 11. 1990)[3. #101. 

2. OBSTR.UCTION OF JuSTICE (§ 3Cl) 

a. ActiODS That Constitute Obstruction 

U.S. v. Rodriquez-Macias. 914 F.2d 1204 (9th Cit. 1990) 

(per curiam) (gave false name at time of arrest) [3,#14J. 

U.S. v.Edwards. 911 F.2d 1031 (5th Cit. 1990)(falledtodisclose WhereaboulS of co-conspirator after told to) [3, # 14]. 

U.s. v. SDinlil, 910 F.2d 1231 (1st Cit. 1990) (using false 

name at arrest and until arraignment) [3. # 14]. 

U.s. v.Gaddy,909F.2d 196 (7thCir. 1990)(falsenameafter 

arrest, liedaboulcriminaJ rea>rd and Jingeqxinls) [3, Ill). 

U.s. v. Perry. 908 F.2d 56 (6th Cir. 1990) (fleeingjurisdiclion while on bond before sentencing) [3, #11). 

U.s. v.Matos, 907 F.2d 274 (2dCir.1990)(false testimony 

at suppression bearing) [3, #10). 

U.s. v. Dillon. 905 F.2d 1.034 (7th Cir. 1990) (giving false 

name fordrug source, despite recanting next day) [3. # 1 0). 

U.S; v. Ltflon. 905 F.2d 1315 (9th Cit. 1990) Oying to 

probation ofrJCeCre continuing criminal activity) [3.#10]. 

U.s. v.Blacbnan.904F.2d 1250(8thCit.I990)(auempted 

obstruction by use of alias) [3. #11]. 

U.s. v. White. 903 F.2d 457 (7th Cit. 1990)(clear physical 

endangerment of others while fleeing arrest) [3. #8]. 

U.s. v.Baker.894F.2d 1083 (9thCir. 1990)(misstatemenlS 

to probation ofrJCeC regarding criminal history) [3, #2). 

U.s. v. Penson. 893 F.2d 996 (8th Cit. 1990) (threatening 

witness. providing false information) [3, #2]. 

b. Not Obstruction 

U.s. v. Hagan. 913 F.2d 1278 (7th Cit. 1990) (instinctive 

flight from arrest) [3, #14). 

U.s. v. Garcia. 909 F.2d 389 (9th Cit. 1990) (brief attempt 

to evade arrest) [3, #11]. 

Note: Under new guideline amendmenlS avoiding or fleeing 

from arrest. without reckless endangerment of others. is 

notobstruction.See§3Cl.1,commenl(nA)(Nov~l990). 

Co Procedural Issues 

U.s. v.Luna,909F.2d 119 (5th Cit. 1990) (percwiam)(not 

applicable to conduct occwring before investigation or 

prosecution of offense) [3, #11]. 

U.s. v. Wiison.904F.2d234(5thCit.I990)(same)[3.#1l]. 

U.s. v.Lueddeu. 908 F.2d 230 (1th Cir. 1990)(may be given 

for additional acts of obstruction by perjury and obstruction of justice defendant) [3. # II). 

U.s. v. Altman. 901 F.2d 1161 (2dCit.I990)(allowmedical 

testimony bearing on mental state) [3. #8]. 

U.s. v. Wtrlinger.894F.2d 1015 (8th Cit. 1990)(notapplicable to action that is element of offense) [3. #2). 

3. MULTIPLE COUNTS (I 3Dl) 

U.S. v. Porter. 909 F.2d 789 (4th Cir. 1990) (gambling and 

money laundering counts not "closolf related") [3, #13J. 

U.S. v. Egson. 897 F.2d 353 (8th Cir. 1990) (per curiam) 

(offenses arising from same transaction not grouped 

because not "closely related") [3, #4). 
Guideline Sentencing Update 

4. ACCEPTANCE OF RF,spoNsmn.rrv (§ JEl) 

a. Reasons for Denial 

U.S. v. Watkins. 911 F.2d 983 (5th Cit. 1990) (using drugs 

on release pending sentencing) [3, #12]. 

U.S. v. Cross, 900 F.2d 66 (6th Cit. 1990) (per curiam) 

(refusal to provide financial information) [3, #5]. 

U.S. v. Evidt!1lle, 894 F.2d 1000 (8th Cit.) (propensity for 

flight, past failure to accept responsibility), em. denied, 

110 S. Cl 1956 (1990) [3, #2]. 

U.s. v. Sanchez, 893 F.2d 679 (5th Cit. 1990) (continued 

unlawful conduct on pretrial release) [3, # 1]. 

b. For Offense of Conviction or All Relevant Conduct 

U.S. v. Mourning. 914 F.2d 699 (5th Cit. 1990) (must be for 

all relevant conduct) [3. #14]. 

U.S. v. Oliveras, 90S F.2d 623 (2d Cit. 1990) (per curiam) 

(for count of conviction, not dismissed counts) [3, #9]. 

U.S. v. Gordon, 895 F.2d 932 (4th Cit.) (for all criminal 

conduct), urt. denied. III S. Ct. 131 (1990) [3, #2]. 

c.PTocedural~ues 

U.S. v. Watkins, 911 F.2d 983 (5th Cit. 1990) (wllawful 

conduct forming basis of denial need not be related to 

offense of conviction) [3, #12]. 

U.S. v. Ramirez, 9IOF.2d 1069 (2dCit. 199O)(affmndenial 

despite improper ground if valid ground exists) [3, # 12]. 

U.S. v. Watt, 910 F.2d 587 (9th Cit. 1990) (may not base 

denial on constitutionally protected conduct) [3. #10]. 

U.S. v. Simpson. 904 F.2d 607 (11th Cit. 1990Hdue process 

does not require judge or probation officer to tell 

defendant reduction available) [3, #10]. 

U.s. v.BrCUlOn. 903 F.2d 292 (4th Cit. 1990) (error to deny 

because rehabilitation unlikely) [3, #8]. 

U.s. v. Fleener. 9OOF.2d 914 (6th Cit. 1990)(notprecluded 

by entrapment defense) [3. ##6]. 

S. VICTIM-RELATED ADJUSTMENTS 

U.s. v.Cree.-=F.2d-(8thCit.Sept.25,l990)(reversedno evidence defendant knew extent of or intended to 

exploit victim·s vulnerability) [3, #14]. 

U.s. v.Boi.re,-F.2d-(9thCit. Aug.29.1990Hsix-weekold baby vulnerable; § 3Al.1 does not require victim be 

intentionally selected because of vulnerability) [3. #14]. 

U.s. v. Wiison.913F.2d 136 (4th Cit. 1990)(randomtargets 

of fraudulent solicitation not vulnerable) [3, #14]. 

U.s. v. Creech. 913 F.2d 780 (lOth Cit. 1990) (recently 

married individual not vulnerable) [3, #111. 

U.s. v. White. 903 F.2d 457 (7th Cit. 1990) (sixty-year-old 

man with respiratory problems taken hostage was "vulnerable victimj [3. #9]. 

U.s. v. Schroeder. 902 F.2d 1469 (lOth Cit.) ("offICial victim" must be object of threat, not just receiver), cert. 

denied, 111 S. Ct. 181 (1990) [3, #9]. 

u.s. v. Jones. 899 F.2d 1097 (11 th Cit.) (bank teller "particularly susceptible" to bank larceny). cert. denied, III 

S. Cl 275 (1990) [3. #8). 

U.S. v. Moree. 897 F.2d 1329 (5th Cir. 1990) (victim not 

vulnerable because of prior indicunent) [3. #5J. 

Volwne 3· Indell • Oclober 29. 1990 • Page 3 

D. Criminal History 

1. CALCULATION 

a. Proper to Apply § 4Al.l(d) and (e) to Escapee 

U.s. v.Lewis. 9OOF.2d877 (6th Cit.) (§ 4Al.l(d) applicable 

to failure to report defendant, § 211.6), cert. denied. 111 

S. Cl 117 (1990)[3, #5], 

U.S. v. Jimenez. 897 F.2d 286 (7th Cit. 1990) [3, #5]. 

c. JuvenUe Convictions 

U.S. v. Hanley. 906 F.2d 1116 (6th Cit. 1990) (juvenile 

commitment is "imprisonment" for § 4A1.l (e» [3. #10]. 

U.s. v.B IICaro. 898F.2d 368 (3d Cir. 1990)(include juvenile 

delinquency adjudications) [3. #5]. 

d. Other 

U.s. v. Crosby. 913 F.2d 313 (6th Cit. 1990) (may count 

priorconviction lhatiselement ofCCEoffense) [3,#14]. 

U.s. v.Aic~Je. 912 F.2d 1170 (9th Cit. 1990) (count reckless driving conviction) [3. #13]. 

U.S. v. Ecliford, 910 F.2d 216 (may consider prior 

uncounseled misdemeanor convictions for which no term 

of imprisonment was given) [3, #12]. 

U.s. v. Gross. 897 F.2d 414 (9thCir. 1990)(count unrelated 

convictions consolidated for sentencing separately. limiting § 4Al.2(a)(2), commenL (n.3) [3. #3]. 

U.s. v. Mackbee. 894 F.2d 1057 (9th Cit.) (may count sentences pending appeal). cere. denied. 110 S. Cl 2574 

(1990) [3. #2]. 

U.s. v. McCrudden. 894 F.2d 338 (9th Cit.) (may apply 

§ 4Al.l(d) to offense committed wl)ile on supervised 

probation for traffic offense). cert. denied, 110 S. CL 

1534 (1990) [3, #2]. 

U.s. v. Rivers. 733F. Supp. 1003 (D. Md. 1990) (separately 

sentenced felonies found to be related. thus not counted 

separately) [3. #7]. 

U.s. v. Daddino. No. 88 CR 763 (N.D. ilL Feb. 16, 1990) 

(count full time imposed in prior sentence regardless of 

time served, § 4A1.l, and count conviction reversed on 

technical grounds) [3, #3]. 

2. CAllEEIt OFfENDER. PROVISION (I 4B1.1) 

a. "Crime or Violence" Determination 

U.s. v. Selfa.- F.2d -(9th Cit. June 14. 1990)(elements 

of crime, not actual conduct, control crime of violence 

inquiry; bank robbery is crime of violence) [3. #9]. 

U.s. v. Goodman. 914 F.2d 696 (5th Cit. 1990)(mayexplore 

underlying facts of offenses not in § 4B 1.2) [3. #14]. 

U.s. v. Alvarez, 914 F.2d 915 (7th Cit. 1990) (unlawful 

weapon possession by felon was crime of violence when 

defendant struggled with arresting officer) [3, #14]. 

U.S. v. Gonzalez-Lopez. 911 F.2d542(llth Cir. 1990) (look 

to elements of offense. not actual conduct; fact that 

offenses involved only threat of. not actual. violence not 

valid ground for downward departureTI3. #13]. 

U.S. v. Carter. 91OF.2d 1524 (7thCir.1990)(courtneed not 

explore underlying facts if offense listed in § 4B 1.2 

commentary) [3. NI3}. 

137 
138 

Guideline Sentencing Update 

u.s. v. O'Neal, 910 F.2d 663 (9th Cir. 1990) (feJon in 

possession of fuearm. assault with deadly weapon. and 

vehicular manslaughter are violent offenses) [3, #13]. 

U.S. v. McVicar, 9ffl F.2d 1 (1st Cir. 1990) (considered 

circumstances of offense not listed in § 4B 1.2) [3. # 13]. 

U.s. v. Terry. 900 F.2d 1039 (7th Cir. 1990) (may explore 

underlying facts of offenses not in § 4B 1.2) [3, # 13]. 

U.s. v. McNeal, 900 F.2d 119 (7th Cit. 1990) (firing unlawfully-possessed gun; look to underlying facts when 

not listed in § 4B 1.2) [3, #8]. 

b.Otber 

U.s. v. JOMS, 910 F.ld 700 (11th Cir. 1990) (per curiam) 

(nolo plea may be used as prior conviction) [3, #14]. 

U.S. v. Smilh, 909 F.2d 1164 (8th Cir. 1990) (affmning 

downward departure for career offender) [3, #11]. 

U.s. v.Jonu, 908 F.2d 365 (8th Cit. 1990) (may not count 

two prior violent felonies defendantpled guilty to but was 

not yet sentenced for; may depart, however) [3. #11]. 

U.s. v. Brown. 903 F.2d S40 (8th Cit. 1990) (downward 

depaiture may be considered for career offenders) [3. #8]. 

U.s. v. Wallace, 895 F.ld 487 (8th Cir. 1990) (need not file 

information under 21 U.S.C. § 851(aXl) before using 

.prior offenses; upholding penalty range) [3, #3]. 

U.S. v. Rivers, 733 F. Supp. 1003 (D. Md. 1990) (sentences 

for two prior felonies not counted separately because 

related, although separately sentenced) [3. #7]. 

3. CRIMINAL LIVELIHOOD PROVISION (I 4B 1.3) 

U.S. v.lrvin, 906F.2d 1424 (10th Cit. 1990)(5-7 months is 

"subsrantial period of time. " commenL (n.4» f3, #10]. 

E. Determining the Sentence 

1. CONSECUI'IVE OR CONCURRENT SENTENCES (I SGI) 

u.s. v. Garcia, 903 F.2d 1022 (5th Cit. 1990)(discretion to 

impose consecutive sentences if defendant convicted of 

Guidelines and pre-Guidelines offenses) [3.19]. - •• Disc:retloa Uader EarUer Versioa or 1 SGt.3 

U.s. v. Miller, 903 F.2d 341 (5th Cit. 1990) (consecutive 

sentences required. departure when appropriate) [3, #9]. 

U.s. v. Nottingham, 898 F.2d 390 (3d Cir. 1990) (sentence 

forcrimecommiuedonparolemaybecoocWTelltorconsecutive to unexpired tean for parole violation) [3, IS]. 

U.S. v. Rogers, 897 F.ld 134 (4th Cir. 1990) (consecutive 

sentences may be required, departure allowed) [3, #3]. 

2. SENTENCING FACTORS 

U.S. v. DUllT'k, 901 F.2d 1498 (9th Cir. 1990) (may use 

letters attesting to defendant's character) [3, #7]. 

3. PROBATION 

U.s. v. Delloiacon.o. 900 F.2d 481 (1st Cit. 1990) (community service cannot substitute for inteanittent confinement, § 5C1.l) [3, #61. 

4. REsrmmoN (§ SE1.l) 

U.S. v. Owens. 901 F.2d 1457 (8thCir.I990)(restitutionnot 

mandatory; indigency does not bar restitution) [3, #7]. 

Volume 3· Index' Ocwbcr 29. 1990· Page 4 

F. Departures 

I. CRIMINAL HISTORY 

a. Upward Departure Warranted 

i. Criminal History Category Inadequate . U.s. v. Thomas,914F.2d 139(8thCir.I990Hseriousnessof 

earlier offenses not accounted for) [3, ~14J. 

U.s. v. Dycus, 912 F.2d 466 (6th Cit. 1990) (per curiam) 

(table) (score of 19, histay of serious and repeated 

ftreanns offenses) [3. #13]. 

U.s. v. Williams. 910 F.2d 1574 (7thCir. 1990) (may use old 

convictions that are not similar to current offense as part 

of "overall assessment" of defendant's criminal history) 

[3, #13]. 

U.s. v. JOMS, 908 F.2d 365 (8th Cir. 1990) (for defendant 

not sentenced as career offender only because he had not 

yet been sentenced for two prior violent felony convictions) [3, #11]. 

U.S. v. McKenley,895 F.2d 184 (4th Cit. 1990) (past acquittals by reason of insiuUty) [3. #2]. 

U.s, v. White, 893 F.2d 276 (10th Cit. 1990) (consolidation 

of prior offenses) [3, #1]. 

ii. Criminal Conduct While on Release 

U.s. v. George, 911 F.2d 1028 (5th Cit. 1990) (per curiam) 

(fled jurisdiction whileon bond before sentencing) [3, #14}. 

U.s. v. FranJdin, 902 F.2d SOl (7lb Cir.) (continued drug 

activity while out on bond for drug charge). cert. denied. 

111 S. CL 274 (1990) [3, #8]. 

u.s. v. Fayttue, 895 F.2d 1375 (11th Cir. 1990) (post-plea 

criminal conduct) [3. #4}. 

U.s. v. Sanche:, 893 F.2d 679 (5th Cit. 1990) (continued 

unlawful conduct while on pretrial release) [3, #1]. 

U.s. v. White, 893 F.2d276(1OthCit. 1990)(currentoffense 

committed while out on bail) [3, #1]. 

iii. Similarity to Prior Orrease 

U.s. v. Williams.910F.2d 1574 (7thCit. 1990) (po<X'similar 

adult conduct not resulting in conviction) [3, #13]. 

U.s. v. BarMs. 910 F.2d 1342 (6th Cir. 1990) (committed 

offense two months after release from prison on prior 

conviction for same offense) [3.112]. 

U.s. v. Gaddy, 909 F.2d 196 (7th Cit. 1990) (pending 

charges of similar criminal conduct) [3, # 11]. 

U.s. v. Chtrve:-Botello, 90S F.2d 279 (9th Cit. 1990) (per 

curiam) (similarity to prior offense) [3, #9]. 

U.S. v.Stacy,904 F.2d 38 (7thCit. 1990) (percuriam)(table) 

(similarity and proximity in time to prior offense) [3, #9}. 

U.s. v. Carey. 898 F.2d642 (8th Cir. 1990)(twopriorsimilar 

offenses failed to deter; departed above statutory mandatory minimum) [3, #5]. 

Iv. Discipline Problems ia Prison 

U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990) 

(discipline problems during earlier prison term) [3,1# 11]. 

vacating prior opinion at 900 F.ld m6 [1, #7). 

U.S. v. Keys. 899 F.2d 983 (lOth Cit.) (prior prison disciplinary record). urI. denied. III S. CL 160 (1990) [3,1#5]. 
Guideline Sentencing Update 

b. Upward Departure Not Warranted 

U.S. v.Leake, 908 F.2d 550 (9th Cit. 1990)(convictions 100 

old for criminal history score must be similar to current 

offense to be used for departure) [3, # 10J. 

U.s. \I. Robison. 904 F.2d 365 (6th Cir. 1990) (to career 

offender status based on offenses not counted under that 

guideline) [3, #8]. 

U.s. \I. Hawkins. 901 F.2d863(IOthCir.l990)C'nearmiss" 

on career offender status) [3, #7]. 

u.s. v. Cantu.-Dominguez, 898 F.2d 968 (5th Cir. 1990) 

(history of arrests without convictions) [3, #6], 

u.s. v. Schweihs. No. 88 CR 763 (N.D. Ill. Feb. 16. 1990) 

(general ties to organized crime) [3. #4]. 

c. Downward Departure Warranted 

U.s. v. Smilh. 909 F.2d 1164 (8th Cir. 1990) (for career 

offender for minor natme of crimes, brief criminal career, 

youth, barely qualifying as career offender) [3, #11]. 

U.s. v.Brown. 903 F.2d S40(8thCir.I990)(maybeconsid· 

ered for career offenders) [3. #8]. 

d. Downward Departure Not Warranted 

U.s. v. Gonzalez-Lopez. 911 F.2d 542 (11th Cir. 1990) (for 

career offender fact that prior offenses involved only 

threat of, not actual, violence, or that sentence deemed 

"too harsh," not valid grounds for departUre) [3, '13]. 

e. Computation-Use Category That Best Represents Defendant's Prior Criminal History 

U.s. v. Richison. 901 F.2d 778 (9th Cir. 1990) (per curiam) 

[3. #8]. 

U.s. v. Allen. 898 F.2d 203 (D.C. Cir. 1990) [3,'5]. 

U.s. \I. Harvey. 897 F.2d 1300 (5th Cir. 1990) (affinning 

despite failure to consider next bighercategory) [3,'5]. 

U.s. v. Kennedy. 893 F.2d 825 (6th Cir, 1990) [3, #1]. 

U.s. v. White. 893 F.2d 276 (101h Cir. 1990) [3.'1]. 

f. Computation-Departure Above Category VI 

U.s. v. Dycus, 912 F.2d 466 (6th Cir. 1990) (per curiam) 

(rable) (affmned use of hypothetical category vm foe 

criminal histocy score of19) [3,' 13], 

U.s. v. Russell. 905 F.2d 1450 (10th Cir.) (declined to imposefonnula),cert.denied.ll1 S. a. 267 (1990)[3.#9]. 

U.s. v.Bernhiudl. 905 F .2d343(1OthOr.199O)(same) [3.#9]. 

U.s. v. Gardner. 905 F.2d 1432 (1Oth Cir.) (proper to use 

career offender guideline as reference), cen denied. 111 

S. CL 202 (1990) [3, #9]. 

U.S. \I. Schmude. 901 F.2d 555 (7th Cir. 1990) (procedure 

when category VI inadequate; recommended consecutive sentences instead of departure) [3, #6]. 

2. AGGRAVATING CIRCUMSTANCES 

a. Upward Departure Warranted 

i. Guideline Sentence Does Not Adequately 

Renect Seriousness or Offense Conduct 

U.S. v. Carpenter, 914 F.2d 1I31 (9th Cir. 1990) (giving 

weapon to juveniles, risk to others) [3. # 13]. 

Volume 3. Index. Oc:lober 29,1990. Page 5 

U.s. \I. Barnes. 910 F.2d 1342 (6th Cit. 1990) (guideline 

sentence would be less than that received for prior conviction for same offense) [3. #12J. 

U.s. v. Murillo. 902 F.2d 1169 (5th Cit. 1990)(disruption of 

governmental function. § 5K2.7. p.s.) [3. #8]. 

U.s. \I. Gomez. 901 F.2d 728 (9th Cir. 1990) (dangerous and 

inhumane treatment of illegal aliens) (3 •. #7]. 

U.s. v. Fe"a. 9OOF.2d 1057 (7th Cir. 1990)(seriousness of 

offense) [3. #7]. 

U.s. v.Reeves.892F.2d 1223 (5thCir. 1990)(intendedbribe 

to be much larger than amount paid) [3, '2]. 

U.s. v. Schweihs, No. 88 CR 763 (N.D. lli. Feb. 16.1990) 

(tiestoorganizedcrirne used to facilitate offense) [3,114]. 

ii. Factors Not Adequately Covered in Guideline 

U.s. v. Thomas. 914 F.2d 139 (8th Cir. 1990) (dangerous 

nature of fully loaded fll'eal1Ds in illegal possession of 

weapons offense) [3, #14]. 

U.s. v. Baker. 914 F.2d 208 (10th Cir.I990) (use of explosives for intimidation in bank robbery; abduction at 

gunpoint during explosives offense) [3. #14]. 

U.s. v. Fousek., 912 F.2d 979 (8th Cir. 1990) (per curiam) 

(bankruptcy trustee embezzling estate funds) [3, #13]. 

U.s. v. Pridgen. 898 F.2d 1003 (5th Cir. 1990) (inadequate 

enhark;ement for kidnapping during robbery) [3. #7]. 

U.s. v. Drew. 894 F.2d 965 (8th Cir.) (attempt to murder 

government witness). cen denied. 110 S. CL 1830 

(1990) [3.'2). 

U.s. v. Chase. 894 F.2d 488 (1 st Cir. 1990) (multiple count 

adjustment inadequate foe 15 counts of robbery) [3, #1]. 

U.s. v.Fuentes. 729F. Supp.487 (E.D. Va. 1989) (guideline 

range foe extensive CCE offense inadequate) [3. #2]. 

ill. Drug-Related Factors 

U.s. v. Shuman. 902 F.2d 873 (11 th Cir. 1990) (involving 

son in drug offense) [3.'8], 

U.s. v.Bennett. 900 F.2d 204 (9th Cir.I990) (largequantily 

of cocaine in telephone offense) [3,'7]. 

U.s. v. WillUuns. 895 F.2d 435 (8th Cir. 1990)(involvement 

in underlying drug offense) [3. #1]. 

iv. Dangerous Escape Attempt 

U.s. v. ChUueUi. 898 F.2d 373 (3d Cir. 1990) (high-speed 

chase threat to public safety. § SK.14. p.s.) [3. #5]. 

U.s. v. Bates. 896 F.2d 912 (5th Cir.) (dangerous conduct 

during escape attempt), cert. denied. 110 S. CL 3227 

(1990) [3.'5]. 

v. § SIll Factors 

U.s. v. Richison, 901 F.2d 778 (9th Cir. 1990) (per curiam) 

(alcohol and drug abuse u"exuaordinaryj [3.'8]. 

U.s. v. Guarin. 898 F.2d 1120(6thCir.I990)(extentofand 

dependence for livelihood on cocaine dealing. § 5H1.9) 

[3,'5]. 

b. Upward Departure Not Warranted 

U.S. v. Castro-Cervantes. 911 P.2d 222{9th Cit. 1990) (on 

basis that bank robber part of organized group-implicitlyaccounted for in § 381) [3. #13]. 

139 
140 

Guideline Sentencing Update 

u.s. v. Doering. 909 F.2d 392 (9th Cir. 1990) (to secure 

psychiatric lreabnent for defendant) [3, # 11]. 

U.S. v. Enriquez-Munoz. 906 F.2d 1356 (9th Cir. 1990) (to 

equalize sentence with codefendant's, for type and number of weapons, greed) [3, #9]. 

U.s. v. Colon. 905 F.2d580(2dCit.I990)(drugsinrelevant 

conduct-use in base offense level) [3. #8]. 

U.s. v. Miller. 903 F.2d 341 (5th Cit. 1990) (prior consolida1ed sentences, alcohol dependency) [3. #8]. 

U.s. v.McDoweli. 902 F.2d451 (6th Cit. I 99O)(conduct in 

dismissed count, dangers of crack h~) [3, #6]. 

U.s. v.HawldflS. 901 F.2d863 (10th Cit. 1990)(falseclaim 

of weapon, threat, drug addiction, "near miss" on career 

offender'status) [3, #7). 

U.s. v. Chiarelli. 898F.2d 373 (3d Cit. 1990) ("magnitude 

of the thievery") [3, #5]. 

U.s. v. Robinson. 898 F.2d 1111 (6th Cit. 1990) (for incriminating information prohibited by § IB1.8) [3, #4]. 

U.s. v. Ceja-Hernant:kz. 895 F.2d 544 (9th Cit. 1990) (per 

curiam) (immigration defendant!s anticipated de portation)[3, #1]. 

c. Computing Extent or Departure 

U.S. v. Carpenter, 914 F.2d 1131 (9th Cit. 1990) (linked 

extent to analogous guidelines) [3. #13]. 

U.s. v.Pearson. 911 F.2d 186 (9th Cit. 1990) (by analogy to 

relevant guidelines; do not compare to pre..QuideJines 

sentences), amending 900 F.2d 1357 [3, #6]. 

U.s. v. Landry. 903 F.2d 334 (5th Cit. 1990) (link extent of 

departure to analogous guideline) [3, #8] 

U.s. v. Shuman. 902 F.2d 873 (11th Cit. 1990) (reasonable 

compared to enhancements for similar factocs) [3, #8]. 

U.s. v. Ferra. 900 F.2d 1057 (7th Cit. 1990) (link departure 

calculations to structure of Guidelines) [3, #7]. 

U.s. v. Kim. 896 F.2d 678 (2d Cit. 1990) (multiple counts 

procedure. § 3Dl.l-.5, to guide departure based on 

misconduct not resulting in conviction) [3, #3]. 

U.S. v. Schweihs. No. 88 CR 763 (N.D.lll. Feb. 16,1990) 

(using analogous specific offense characteristic as reference point) [3, #4]. 

3. MrrIGATING CIRCUMSTANCES 

•• Downward Departure Warranted 

i. Personal Circumstances 

U.S. v.Jagmoha!l. 909 F.2d 61 (2d Cit. 1990) (employment 

record, naivete displayed in committing offense) [3,#10]. 

U.S. v. Morales. 905 F.2d 599 (2d Cit. 1990) (extreme 

vulnerability to in-prison victimization) [3. #9]. 

U.s. v. Big Crow, 898 F.2d 1326 (8th Cit. 1990) (unusual 

personal circumstances, §§ SH1.5, 5H1.6, p.s.) [3, #4). 

U.S. v. Harrington. 741 F. Supp. 968 (D.D.C. 1990) (fusttime offender with history of drug addiction whose progress in treatment indicated likelihood of successful 

rehabilitation) [3, #13]. 

U.S. v. Mills. No. 88 CR 956 (S.D.N.Y. Jan. 17, 1990) 

(combination of extraordinary personal circumstances. 

U.S.S.G. § 5H1.6. p.s.) [3.#2]. 

Volumc 3 -Index· <>aobc:r 29.1990 - Pallc 6 

it Other 

U.S. v. Whitehorse. 909 F.2d 316 (8th Cir. 1990)(forescape 

defendant with alcohol problem because authorities 

should not have granted unsupervised furlough) [3, # 12]. 

b. Downward Departure Not Warranted 

I. Personal Circumstances 

U.s. v. Deane. 914 F.2d II (1st Cit. 1990) (exemplary 

employee and father) [3, #14]. 

U.s. v. Goff. 907 F.2d 1441 (4th Cit. 1990) (cumulation of 

personal factors) [3, #10]. 

U.s. v. Brand. 907 F.2d 31 (4th Cit. 1990) (personal circumstancesandimpactofimprisonmentonchUdren) [3,#10]. 

U.S. v. Pouy. 902 F.2d 133 (1st Cit. 1990) (pregnancy, 

huSband's incarceration. lack of nearby halfway house; 

may not use "tocality of circumstancesj [3, #8]. 

U.s. v. Brewer. 899 F.2d 503 (6th Cit.) (personal circumstances), un. denied, IllS. CL 127 (1990) [3, #5]. 

U.s. v. Van D.,u, 895 F.2d 984 (4th Cit.) (''rehabilitative 

conduct" after arres~ before senaencing). cen.denied. 

IllS. CL 112 (1990) [3, #2]. 

ii. Other 

U.s. v. Deane. 914 F.2d 11 (1st Cit. 1990) (degree of seriousness of child pornography offense, lack of counseling 

program in prison) [3, #14]. 

U.s. v. Parker. 912 F.2d 156 (6th Cit. 199O)(to hannonize 

sentence with cOOefendant's when conduct and records 

dissimilar) [ 3, #12]. 

U.s. v. Alvarez-Cardenas. 902 F.2d 734 (91.h Cit. 1990) 

(possible deportation) [3, #7]. 

U.s. v.Hays. 899F.2d515 (6th Cit. 1990)(forsmallamount 

of drugs and non-violent criminal history of career offender) [3, #5]. 

U.s. v. Rosen, 896 F.2d 789 (3d Cit. 1990) (combination of 

typical factors. compulsive gambling) [3, #3]. 

4. NOTICE REQUIRED BEFORE DEPARTURE 

U.s. v. Jagmoha!l. 909 F.2d61 (2d-Cit. 1990) '(to government before downward departure) [3, #10). 

U.s. v. Anders. 899F.2d 570 (6th Cit. I 99O)(satisfied when 

PSI or court identifies factors and allows oppextunity for 

comment) [3, #6] . 

U.s. v. HerntJlllkz. 896 F.2d 642 (1st Cit. 1990) (satisfied 

when facts in PSI received before sentencing and argument allowed) [3, #3). 

U.s. v. Acosta. 895 F.2d 597 (9th Cit. 1990) (requirement 

mel when factors listed in PSI and commented on by 

defendant before sentencing) [3, #2]. 

U.S. v. Michoel. 894 F.2d 1457 (5th Cit. 1990) (not required 

before sentencing hearing even when court ignores PSI 

recommendation and departs) [3, #2]. 

U.S. v.BurflS. 893F.2d 1343 (D.C. Cir.I990)(notrequired 

before sentencing hearing if facts in PSI) [3, #1]. 

S. STATEMENT OF REASONS FOR DEaARTURE 

U.S. v. Murillo. 902 F.2d 1169 (5th Cir. 1990) (may rely 

solely on infonnation from PSI) [3. ##8]. 
Guideline Sentencing Update 

u.s. V. GDYOU. 901 F.2d 746 (9th Cit. 1990) (must give 

specific reasons for extent of departure) [3, #1]. 

U.S. v.Michae/.894F.2d 1457 (5lhCit. I 99O)(reasons must 

be supported by evidence in record) [3, #2]. 

U.S. v. Newsome. 894 F.2d 852 (6th Cit. 1990) (make specific finding in open court) [3, #2]. 

U.S. v. Kennedy. 893 F.2d 825 (6th Cit. 1990) ("long history 

of violation of the law" notsufficiently specific) [3.#1]. 

6. SUBSTANTIAL ASSISTANCE (§ 5K1.1, 18 U.s.C. 

§ 3553(e» 

a. Departures 

u.s. v. Wilson. 896 F.2d 856 (4th Cit. 1990) (no lower limit 

on § 3553(e) departure-may impose probation) [3, #3]. 

b.PI'ocedure 

U.s. v. Damer. 910 F.2d 1239 (5lh Cit. 1990) (per curiam) 

(afrer motion court retains discretion to depart) [3, # 13]. 

U.S. v. BrtlWn. 912 F.2d 453 (lOth Cit. 1990) (confidential 

memo not "functional equivalent" of motion) [3, #12]. 

U.s. v.Howard.902F.2d894 (11th Cit. 1990)(must rule on 

§ 5K 1.1 motion at sentencing. may not postpone) [3, #9]. 

u.s. v.BrlUW, 897F.2d 691 (3d Cit. 1990)(§5Kl.l requires 

government motion; court must consider cooperation in 

sentencing within range) [3, #4]. 

U.s. v. Rexach. 896 F.2d 710 (2d Cit. 1990) (§ 5Kl.1 

requires government motion; plea agreement regarding 

discretion to move may be reviewed for bad faith) [3, #3]. 

U.s. v. Lewis, 896 F.2d 246 (7th Cit. 1990) (upholding 

§ 5K1.l requirement for government motion) [3, #3]. 

u.s. v. Alamin. 895 F.2d 1335 (11th Cit.) (government 

motion required; may consider assistance in senlencing 

within range). cert. denied. III S.CL 196 (1990) [3,#4]. 

U.s. v. Cokman. 895 F.2d SOl (8th Cit. 1990) (letters not 

functional equivalent of motion; plea agreement binding 

government to me motion enforceable) [3. #2]. 

U.s. v. Peralta. 741 F. Supp. 1197 (D. Md. 1990) (court may 

only consider- factors reJating to substantial assistance, 

not unreJated grounds for departure) [3, #13]. 

G. Sentencing Procedure 

See also Specific Headings 

1. PLEA BARGAINING 

U.S. v. Kemper, 908 F.2d 33 (6th Cit. 1990) (error to reject 

plea agreement that stipuJated to amount of drugs, and 

thus guideline range, wilhout granting defendant opporllmity to withdraw plea. § 6B 1.3, p.s.) [3, #12]. 

U.s. v. Roberts. 898 F.2d 1465 (lOth Cit. 1990) (use more 

serious offeme established by plea, § 1 B 1.2(a» [3, #5]. 

U.S. v.Salva. 894 F.2d 225 (7thCit.199O) (need not inform 

defendant of guideline minimum before plea; recommends plea be accepted after PSI released) [3, #l]. 

U.s. v. Foreman. 894 F.2d 1337 (6lhCit. 1990) (per curiam) 

(table, unpub.) (not required to inform defendant of 

offense level and criminal history before plea) [3, til]. 

U.S. v. Burns. 893 F.2d 1343 (D.C. Cit. 1990) (plea agreements should address possibility of departure) [3, tI 1 J. 

Volume 3 • Index • oaooer 29. 1990 • Page 1 

U.S. v. Moya. 730 F. Supp. 35 (N.D. Tex. 1990) (not bound 

by amount of drugs in plea agreement) [3. #2]. 

2. BURDEN OF PROOF 

. U.s. v. Unger, - F.2d - (lst Cjr. Sept. 28, 1990) (on 

defendant to show prior conviction invalid) [3, #14]. 

U.s. v. Newman, 912 F.2d 1119 (9th Cit. 1990) (on defendant to show prior conviction invalid) t3: #14]. 

U.S. v. Restrepo, 903 F.2d 648 (9lh Cit. 1990) (heightened 

preponderancestandardforenhancementfactors) [3,#7]. 

U.s. v. Frederick, 897 F.2d 490 (lOth Cit.) (preponderance 

of evidence for senlencing factors). CUI. denied. 111 S. 

CL 171 (1990) [3, #3]. 

U.s. v. Rodriguez. 896 F.2d 1031 (6th Cit. 1990) (on party 

seeking adjustment, preponderance of evidence) [3, #3], 

u.s. v.Alstoll. 895 F.2d 1362 (11th Cit. 1990) (preponderance of evidence for drug quantity) [3, #5], 

U.s. v. Kirk, 894 F.2d 1162 (10th Cit. 1990) (on party seeking adjusbnent, by preponderance of evidence) [3, #1]. 

U.s. v. Howard. 894 F.2d 1085 (9th Cit. 1990) (on party 

seeking adjustment, by preponderance of evidence; on 

government for facts establishing offense level) [3, # I]. 

3. MAY USE CONDUCT FROM PRIOR ACQUlTfAL 

U.s. v. Rodriguez-Gonzalez. 899 F.2d 177 (2d Cit.) (for 

weapon enhancement under § 201.1 (b)(l». cerl. denied. 

111 S. CL 127 (1990) [3, #6]. 

4. EVIDENCE FROM ANOTHER TRIAL 

U.s. v.NotrDngelo. 909 F.2d363 (9th Cit. 199O)(allowedto 

adjust offense level, requires notice) [3, #101. 

u.s. v. Castellanos. 904 F.2d 1490 (llt1fCit. 1990) (follow 

procedural safeguards in § 6A 1.3 of Guidelines; vacating 

and clarifying earlier opinion, 882 F.2d 474) [3, #9J. 

U.s. v. Chandler, 894 F.2d463 (D.C. Cit. I 990) (percuriam) 

(table, unpub.) (may not use for drug quantity) [3, #1]. 

U.s. v. Luna. 734 F. Supp. 552 (D. Me. 1990) (may be used 

to detmnine drug quantity) [3, #6]. . 

5. F AC11JAL DISPUTES 

U.s. v.Fortier,911 F.2d 100 (8th Cit. I 99O)(may not mate 

fOlding based on multiple hearsay without independent 

flfKling that hearsay is reliable) [3, #12]. 

U.s. v. Willard. 909 F.2d 780 (4th Cit. 1990)(may not avoid 

resolving factual dispute by sentencing wilhin overlapping guideline range without express dete.nn ination sentence would be same in absence of dispute) [3, #11]. 

U.S. v. Moreno, 899 F.2d 465 (6lh Cit. 1990) (offense level 

not limited by amount of drugs in jury verdict) [3, #5]. 

6. CONDUCT OF SENTENCING HEARING 

U.s. v. Howard. 902F.2d 894 (11th Cit. 1990)(muSl rule on 

§ 5Kl.1 motion at sentencing, may not postpone) [3, #91. 

u.s. v. Jones. 899 F.2d 1097 (I Ilh Cir.) (directing district 

courts to elicit full objections to sentencing findings), 

cert. denied, IllS. Cl 275 (1990) [l,Jt8]. 

U.S. v. Wivell. 893 F.2d 156 (8th Cit. 1990) (18 U.S.C. 

§ 3553(c) requirement for statement of reasons met when 

reasons on record of proceedings in open court) [3, til]. • 

141 
142 

Guideline Sentencing Update 

V.S. v. ATMperosa. 728 F. Supp. 1479 (D. Hawaii 1990) 

(extending Jencks Act. 18 U.S.C. § 3500, to government 

witnesses' statements at sentencing hearings) [3. #1]. 

7. RULE 35 

v.s. Y. Emanuel. 734 F. Supp. 877 (S.D. Iowa 1990) (extent 

of reduction under Fed. R. Crim. P. 35(b) cannot be 

limited by government) [3, #8]. 

H. Appellate Review 

1. PROCBDlJIlE FOR REvIEW OF DEPARnJRES 

U.S. Y. Gayou. 901 F.ld 746 (9th Cir. 1990) (standards of 

review for departures) [3. #1]. 

U.S. v. Lang, 898 F.ld 1378 (8th Cir. 1990) (three-step 

procedure of Diaz-Villaj'ane) [3. #61. 

US. v. Lira-Barraza. 897F.2d981 (9thCir.I990)(five-step 

procedure) [3. #4]. 

2. DISCR.E110NARY REFUSAL TO DEPART DOWNWARD 

a. Not Appealable 

U.s. v. Bayerle, 898 F.2d 28 (4th Cir.), cert. dt:nied. 111 

S. Ct 65 (1990) [3, #4]. 

v.s. v. Morales, 898 F.ld 99 (9th Cir. 1990) [3. #4]. 

V.s. v. EvidenJe, 894 F.ld 1000 (8th Cir.). cert. dt:njed. 110 

S. CL 1956 (1990) [3. #2]. 

b. Extent 01 Departure Not Appealable 

US. v. Dean, 908 F.ld 215 (7th Cir. 1990) (rule applies 

equally to substantial assistance departures) [3,1'11]. 

U.s. v. Vizcarra-Angulo, 904 F.ld 22 (9th Cir. 1990)[3,#10]. 

US. v. Parker, 902 F.ld 221 (3d Cir. 1990) [3, #10). 

U.s. v. PigMtti. 898 F.ld 3 (1st Cir. 1990) [3. #4]. 

U.s. v. Wright. 895 F.ld 718 (111h Cir. 1990) (per curiam) 

[3, #4]. 

3. PROPER AND IMPROPER GROUNDS FOR DEPARTURE 

U.s. v. Jagmohan, 909 F.2d 61 (ld Cir. 1990) (two proper 

grounds sufficient despite improper ground) {3. #10]. 

U.s. \I. Zamarripa. 90S F;.2d· 337 (10th Cir. 1990) (must be 

remanded) [3. #10]. 

U.s. v. FrankU,., 902 F.2d SOl (7th Cir.) (may uphold when 

proper and impoper grounds given). cert. dt:njed, 111 

S. CL 274 (1990) [3. #8]. 

4. OVERLAPPING GUIDELINE RANGES DISPUI'E 

V.S. v. Wi/lard, 909 F.ld 780 (4thCir.199O)(may notavoid 

resolving factual dispute by sentencing within the overlap without making an express determination sentence 

would be the same in absence of dispute) [3, #11]. 

U.S. v. Dillon, 90S F.ld 1034 (7th Cir. 1990) (may be 

unresolved if same sentence would be imposed) [3, #19). 

U.S. v. Luster, 896 F.ld 1122 (8th Cir. 1990) (remanding 

sentence at bottom of erroneous guideline range) [3. #3J. 

6.OnmR 

u.s. v. Jones, 899 F.2d 1097 (11th Cir.) (directing district 

courts to elicit full objections to sentencing findings). 

cert. dt:nkd. 111 S. CL 275 (1990) [3. #8]. 

Volume 3 • Index • October 29, 1990. Page 8 

I. Challenges to Guidelines and 

Sentencing Reform Act 

3. REJECTING CHALLENGES TO SPECIFIC PROVISIONS 

U.s. v. Foote, 898 F.ld 659 (8th Cir.)(discretion of prosecuta to charge use of frrearm in drug offense as substantive 

crime or enhancement under § 201.1). cert. denjed, 111 

S. Ct 112 (1990) [3, #S]. 

U.s. v.Roberts, 898 F.2d 1465 (10th Cir. 1990)( § IB1.2(a) 

not WlCOnstitutionaUy vague) [3. #5]. 

U.s. v. Belgard. 894 F.2d 1092 (9th Cu.) (role of probation 

offICerS). cert. dt:njed, 111 S. CL 164 (1990) [3, "2]. 

U.s. V. Evidt:nte, 894 F.ld 1000 (8th Cir.) (escape guideline. 

§ 2Pl.l, complies with statute), cert. dt:nied. 110 S. CL 

1956 (1990) [3. #2]. 

U.s. V. Bu.ckMr, 894 F.2d 975 (8th Cir. 1990) ("100 to 1 

ratio" of cocaine to cocaine base, § 2Dl.l(c» [3, #2]. 

4. UPHOLDING CHALLENGES TO SPECIFIC PROVISIONS 

U.s. V. Suarez. 911 F.2d 1016 (5th Cir. 1990) (applying 

amended § 1 B 1.3(a)(3), effective before sentencing but 

after anest., that could increase sentence, violates ex post 

facto clause) [3. #12]. 

J. Decision to Apply Guidelines 

u.s. v.RL.C.,-F.ld-(8thCir.SepL 12. 1990) Guvenile 

sentenced under 18 U.S.C. § S037(c) may not receive 

term greater than adult under Guidelines) [3. # 14]. 

U.s. v. Norquay, 90S F.2d 1157 (8th Cir. 1990) (apply to 

Indian Major Crimes Act. limited by state law maximum 

and minimum sentences) [3. #10]. 

U.s. v.Leake,90S F.2d5SO(9thCir.I990)(applytoassimilative crimes. limited by state law maximum and minimum sentences) [3. #10]. 

K. Probation and Supervised Release 

1. REvOCATION OF PROBATION 

u.s. V. Von Washington,-F.ld-(8thCir.SepL28.1990) 

(per curiam) (agreeing with 5mbh. infra) [3, #14]. 

U.s. v. Smith, 9(f1 F.2d 133 (11th Cir. 1990) (new sentence. 

including a deparb.lre. limited by sentence authorized for 

original offense) [3,#11]. 

2. REvOCATION OF SUPERVISED RELEASE 

U.S. V. Scroggins, 910F.2d768(11thCir.I990)(percuriam) 

(may imposcfull aerm of release after revocation) [3,#13]. 

U.S. v. Dillard, 910 F.ld 461 (7th Cu. 1990) (not limited by 

guideline term for original offense; may sentence to full 

release term less time served in prison) [3, #12]. 

U.S. v.Lockard,910F.2d542(9thCir.1990)(maysenteDCe 

to full term of supervised release) [3, #11]. 

U.S. v. Be/w!z/tQd. 907 F.ld 896 (9th Cir. 1990) (may not 

impose additional tenD of supervised release) [3. "11]. 

Note: The Sentencing Commission h83"1ssued new policy 

statements, effective Nov. I, 1990, covering violations of 

probation and supervised release. See U.S.S.O. § 7B 1. 
Guideline Sentencing Update 

VOl.llMI 4 • NUMB8IIt 1 • APu. 25. 1991 

Sentencing Procedure 

D.C. aDd Third Clreults bold that ualawfuDy seized 

e¥ideDce dlat would be exduded at trial IDay be coosiderect Ia seateDdDI UDder GuldelDes. In tho Third Circuit 

case, DBA agentS acdng on a dp conducted a warrantless 

search of an apanment and seized 198 grams of cocaine. 

Defendant arrived at the scene and was arrested; his car was 

searched and a kilogram of cocaine was seized. The d.isbict 

courtruled the kilogram from the car wouJd besuppR!SSCd. but 

not the 198 grams from the apartmenL Defendant and the 

go\'Cl1UDel1llheo erIIeIed into a plea agR:ement. pan of which 

stipular.cd dial tho amount of cocaine for sentencing purposes 

was 100-200 grams. The agreement also stared the court was 

DOl bound by the stipulaboa. 1becourt included the kilogram 

of cocaine in the sentcDCing calculations. despite objections 

by bodI defcadaot and prosecutor, and refused defendant's 

request to wilhdraw his guilty plea. 

The appeUar.e court arranned: "Consideration of the suppressed evidence is consistent wilh tho caselaw on the exclusionary rule and follows the weU-established practice of 

receiving evidence relevant to SCI1tencing from a broad spec. 

ttum of sources. We hold.l.berd'ore.l.hat evidence suppressed 

as in violation of the Founti Amendment may be considered 

indelmniningapprqxialc guidclineranges." Thecourtnotcd 

it Mneed not address tho situation ••• where ••• evidence was 

illegally seized for the purpose of enhancing the sentence." 

As to the wilhdrawal of the guilty pl~. the court held that 

Min the unusuat cin:umstances present here. defendant is 

entitled to relief." At the plea colloquy the d.isbict court had 

indicaIcd lhalonly the 198 grams would be used insenlencing; 

it was after pqwaIioa d. the PSI1hat the issue of including 

the kilogram arose. Tbus. Ma legal issue unforeseen by the 

pI.'OSeCUtion. defenseandapparendy the court ilself, frustraIcd 

an agr=neot clearly cootempJared by all conc:emed. The 

sentence ewlwd not from a routine compulation per se or 

newly discoven:d infonnation. but reflected an unexpected 

chan&c in a c:riIk:al factor l.hat for all intents and purposes had 

been settled during Ibe plea colloquy.!' It was left to the district 

court 10 delcnninc on remand "whether 10 grant specific 

paformance or allow withdrawal of the plea." 

U.S. v. Torres. 926 F.2d 321 (3d Cir. 1991). 

In the D.C. Circuit case. undercover police made a controlled buy of $50 worth of crack cocaine at an apartment. 

Wilhin minutes an awaiting arrest team rorcibly entered the 

apartment without a warrant. arrested defendant, searched the 

apartmentand seized evidence. Defendant moved to suppress 

evidence obtained from the search. The parties agreed thal the 

contested evidence would not be used at trial. but the government reserved the right to introduce it at sentencing. 

The acntencina court aDowed the contested evidenceweapons and mcxcdrugs-to be used in computing the guide--

linesenleDCe. with theat:sultthatdefendanl's SCI1tencingrange 

increasccl from 27-33' mootbs to 235-293 months. Defendant 

8IJUCd dial use ~ evidence seized in l.he ~ search 

violart.d his Fourth Amendment rights and that the exclusion--

ary rule sbould be applied at sentencing as well as at uia1. 

'Ibe appeUare court. citing To"es. held that Mevidence inadmissible at Irial may be. admissible at SCI1tencing," and 

"under the circumstances ~ this case the delaTent effect [of 

cbc exclusionary rule] would not outweigh the detrimental 

effect of excluding l.he evidence. • • • Where there is no 

showingofa vioIationoftheFourtb AmendmcntpurposefuUy 

designed 10 obtain evidence to increase ~ defendant·s base 

offense leYd at sentencing. this police misconduct is not 

suffICient 10 justify inted'cring wilh individualized sentencing." 'Ibe court left open ""1he question whether suppression 

would be necessary and proper at the sentencing phase where 

it is shown lhatthe policeacteclegregiously .e.g.. by undertaking a warrandess search for the very purpose of obtaining 

evidence 10 inmIase a defendant's sentence." 

U.s. v.McCrol')'.No.89·3211 (D.C.Cir.AprU 12. 1991) 

(SenleUe.l.). 

Departures 

NiDth C1rcvit holds upward departure may not be 

based OD conduct DDderlyial crimiual charge OD which 

dereadaDt was acquitted; also reverses impositiOD or consecutive seDteac:es and rejects departure grounds. De· 

fendant was triedoncharpsoffarstdegrcc murdez and assault 

wi ... intent to commit murder. but coovicted on the lcssct 

included offenses ofvolurdaly manslaugbtcrand assault with 

a dangerous weapon. The pn:=sen1ClX:c report included a re. 

duction for acccpcance of responsibility and noted l.hat two 

prior biba! court coavictions DOl included in the criminal 

hislOry score might wanant departure under U.S.S.O. 

n 4Al.2(i) and4AI3(a). p.s. Wilh a depanure. the report 

calculated a maximum sentencing range of 63-78 months. 

Thedistrlctcourtsentenced defendant 10 180 months. The 

court denied tbe reduction for acceptance of responsibility. 

enhanced the sentence for abe discharge of a fueann. and 

departed for inadequatcaiminal history score. Thecowt also 

determined lhatdeparture was warranted under § SK2.1. p.s. 

because it found the facts showed lhat defendant intended to 

kill or seriously injure his victims. The court imposed consecutive sentences for the two orren~ lhus effectively 

aggregating the statutory maximum sentences of ten years for 

voluntary manslaughter and five years for the assault. 

The appellate court reversed and remanded, with the 

majority holding that the grounds for departure and imposiNot for Citation. Gllitkline Selllencing UpdaJe is provided (or informatioo only. It should not be cited. either in opinions Of otherwise. 143 
Guideline Sentencing Update 

lion of consecutive sentences were improper. 1be court held 

unanimously that the defendant "should have been notified 

before sentencing that the court intended (I) to deny him the 

aa:eptanCe of n:sponsibility reducdon. (2) to depart from the 

Guidelines based on [his] state of mind. (3) to eobance the 

sentence based on the fireann d.iscbarge, and (4) 10 NO the 

sentences consecutively rather than CODCUI'IaIdy." The court 

also stated that sentencing courts should "explain the roleeteh 

factor played in the departure decision ••. [and] ••• indicate 

the extent eteh factor played in increasing the sentence. " 

Volwne 4· Number 1· April 25, 1991 • Page 2 

sentences of$5O 01' 25 days for the fU'St conviction, $150 or 15 

days for the second. Noting that "criminal history departmes 

are warranted only when the criminal hisulry categOl)' 'signiflC8l1t1yunder-represenlStheseriousnessorthedefendant's 

crimiDaI hisfIJry ~ the IikeUhood Ibat the defendant will commit further crimes. , .. the court held that the tribal convicdons . 

""are simply not serious enough to warrant an upgmdc in 

Brady's criminal history category," In addition. the convic· 

tions were uncounseJed. and the court held Ihat an uncounseledconvicdon where defendant did not waivccounsel c::ould 

not be used coIlarelally to impose an increased ICI1n of 

i.mprisonment on a subsequent conviction. Tbc court did DOt 

rule on wheaber the conduct underlying the prior convictions 

cwld provide a basis fordcparture. Cf. U.s, Y. Edford,910 

F.2d 216, 220 (5th Cit. 1990) (may count prior unc:ounse1ed 

misdemeanor convictions in criminal history score). 

U.s. v. Brody, No. 89·300074 (9th Cr. Mar. 18, 1991) 

(Pregerson., J .). 

On the accepcance ofresponsibiUty issue, the court found 

that "[b]ecause die ••• reducdon was included in the 1"- sentence~ Brady was led to believe Ibat Ibis issue would 

not be raised It die sen~ing hearing •••• The semeacing 

court should have II1icuJatcd. its reasons and justificadoas for 

denying the I 3El.1 reducdon. should have nodflCd the 

defendant before the sentencing hearing of rhcse tenlative 

fmdings, and should have held a hearing on die ••• issue" in 

order to give defendant "an adequate opportunity to present 

informadon 10 the court on his acceptanCe of responsibility." SUBSTAN11A.L AssISTANCE 

'Ibemajorityofthecowtalsoconcludedthatthedcparture Senath Circuit bolds probalioD UDder 11 U.s.C. 

itseJfwas impropet.ltbcld&hatt.hcsentcncingcourtc::ouldnot 1 3553(e) is DOt permitted wbea specU"aqlly probibited by 

base the sentence on facts underlying an acquiUal. reasoning statute of COOvictiOD; deUaates method to determlDe ft· 

that "[w]e would pervert our sysum of justice if we allowed teDt of substaatial usistaace departures. Defendant was 

a defendanllO suffer punishment for a criminal charge for aaestcd for possessing almost four kilograms of heroin. She 

which he or she was acquitted. Tbc Guidelines JeCOgRizc that c:oopcrated with the government. which later moved under 

voluntary manslaughter is to be punished less severely than 1 3553{e) f~ departure from the ten-year mand.aIay minimurder by setting a lower base offense level for voluntary mwnandrecommcndedasbt-yeartcrm. Tbecourtsentenced 

manslaughter &han for murder. A sentencing court should DOt defendant 10 probation and the government appealed. 

be allowed to circumvent this statutory ditccdve by making a Theappella1ecoun vacated and remanded. Defendant was 

flDding of fact-wKler any standanI of proof-tbat the jury sentenced under 18 U.S.C. 1 841{b), which provides that 

has necessarily rejected by itsjudgmentofacquiuaL ••• We "[n]otwithstandingany otberprovision otlaw, the court shall 

remand this portion of the sentence noting that the jury's DOt place on probadon ••• any person sentenced UJ'ICb'this subdetermination of Brady's state of mind is dispositive in the paragraph." This provision. the ccurt held. serves 10 "uump 

sentencing hearing, and that the sentencing court may not § 3553(e),"and distinguishes this casc from U.s. v.Diagi,892 

circumvent the jury's verdict by departing from the Guide- F.ld 31 (4th Cir. 1990) (general prohibidon against probation 

lines on this basis." Nine other circuits have considered this fOl' Class A and B felonies in 18 U.S.C. § 3561 does not 

issue and concluded that courts may consider a defendant's pm::ludc departure to probation under § 3553(e». 

conduct despite an acquittal on charges arising out of that To determine die extent of a departure for subs1antia.l 

cooduct.SuU.s. v. Avui. 922F.2d 765 (11th Cit. 1991)(pcr assistance, "only factors reladng 10 a defendant's coopera. 

curiam); U.s. v. Fonner, 920 F.ld 1330 (7th Cit. 1990): U.s. lion" may be considered. Here. the district court improperly 

v.DIUICQII. 918 F.2d 647 {6th Or. 1990); U.s. y.Rodrlgua- considered defendant's "extremely burdensome family reGonzalez. 899 F.2d In (2dCir. 1990); u.s. v. Moccioia. 891 sponstbilities." The cowt held that 15H1.6, p.s., aDows 

F.2d 13 (lstCir.1989); U.s. v.Dawn,897F.2d 1444 {&hCir. considetation of family responsibilities only in determining 

1990); U.s. v.lsom, 886 F.2d 736 (4th eir. 1989); U.s. v. whether to impose restitution and fines or, if it is an option. 

]uartz-Ortega. 866 F.2d 747 (5th Cir. 1989) (per curiam); probation; they may not provide a basis for departure. 

U.s. v. Ryan, 866 F.ld 604 (3d Cir. 1989). ThecourtfurtherinsbUCtedthat,aswithaildeparbues.the 

The majority also held that"[t]he decision 10 impose con- sentence "must be linked to the structure of the guidelines," 

secutive sentences viol.a1es the Guidelines requirements" in and cowts "must employ the rationalcandmcthodology of the 

1 SO 1.2, which "determines whether the sentence should nm guidelines when considering cases not adcquarely addressed 

concurrently or consecutively •••• The concurrent-consecu- by existing guidelines. The sentencing judge is thus required 

tive determination boils down to this: consecutive sentences 10 articulate the specifIC factors justifying the extent of his 

are imposed only if 'no count carries an adeqU3le statutory depanure." The "government's recommendation should be 

maximum' 10 contain the sentence prescribed by the adjusted the starting point for the district court's analysis," and the 

combined offense level." Because the prescribed guideline coon should "examine the government's recommendation in 

range feU within the statutory maximum for voluntary man- light of factors like, but not limited to, those listed in 

slaughter, imposing consecutive sentences "is a drastic de- § 5KI.1{a)." The COUrt suggested reference io analogous 

parture from the Guidelines and an unreasonable sentence." guidelines provisions. such as § 3El. t, in detenning the 

It was also improper to use the prior tribal convictions to weight to be accorded the § 5K 1.1 (a) factors. 

depart. Defendant had been convicted of two misdemeanor I U.s. v. Thomas, No. 90·21R3 (7th Cir. Apr. 11, 1991) 

144 assault and battery offenses in 1979 and 1983, and received (Flaum, J.). 
Guideline Sentencing Update @Y 

FI!I>I!IW. I UDICIAI.. CI!N'rEIt 

VOlJJJo8 4 • NUMISIt 2 • MAy 7. 1991 

Departure 

Secoad Circuit Ilolds seateDcinl court .ay Dot 

depart donward because of disparity resultlq froID 

prosecutor'. plea-barplDiDl pradlces. Defendant was 

origiDally charged with possraioD with intent to disIribute 

more than five grams of aack. butpled guilty to possession of 

an unspecified quantity of aack. an offense wirh no mandatory minimum. Defendant was allowed to wilhdraw chis pl~ 

however, partly because the court dctaminc:d defendant did 

not ac:walIy benefit from the agreement to plead to the lesser 

charge. He was then reindicted on the original charge plus a 

count of using a fi.reann during a drug offense, 18 U.s.C. 

I 924(c), which carries a mandatory consecutive five-year 

term. Convicted aflel' a jwy Irial on borh comUs, his combined 

sentencing range was 147-168 monrhs. 

The district court found that it was "not unusual" for the 

U.S. Auomey to use § 924(c) "as a chip in plea bargaining"; 

that is. charging defendants who refuse to plead guilty wirh 

§ 924(c) if that section is applicable. but allowing similarly 

situated defendants who plead guilty to avoid § 924{c) 

charges. Because of the difference between the statutory 

penalty mandated by § 924(c) and the otherwise applicableand lower-two-Ievel enhancement under U.S.S.G. 

I 2D 1.1 (b){1) for possessing a weapon during a drug offense, 

the district court concluded that chis plea;bargaining practice 

creates a disparity between those defendants who plead guilty 

and those who go to trial Holding that this disparity was 

"Wlwananted .. and unforeseen by the SenlenCing Commission, the court departed on the narcotics COlDU and imposed a 

total 120-month sentence, which was wirhin the range that 

would have applied it there bad been no § 924(c) conviction 

but an enhancement WIdec § 2Dl.l(b){I) instead. 

The appeUate court vac:aICd the departure: "'TheCommission certainly considen:d that both the two-1evel enhancernent 

pursuant to U.S.S .G. § 2D 1.1 (b){ 1) and the five-year mandatory consecutive sentence under § 924{c) could apply to the 

same defendant, and included in the Guidelines an explicit 

instruction that in such cases only the statutory penalty should 

be imposed. U.s.S.G. § 2K2.4{a), application note 2. The0-

retically. this creates no 'disparity'; the defendant on whom 

the two-level enhancement is imposed may have engaged in 

criminal conduct similar to the conduct Wlderlying a § 924(c) 

conviction, but he has not been 'foWld guilty of similar 

criminal conduct.' 28 U.S.C. § 991(b)(1)(B)." 

Uniled States Auomcy's decision to assert or forgo § 924(c) 

charges; it exisas wbenC'W'Z the prosecutor exercises bis broad 

• disac:tion to forso a cbarac on which a defendant could 

legitimalel, be prosecuted. eonviclC(i and senlenced. 

Whecbcr the prosecutor declines to bring a charge at all. or, as 

is not uncommon, selects among a variety of applicable 

criminal statutes wirh different penalties. he is creating a 

'disparity' between theseoleDCCS imposed on different defendants. And be undoubtedly bas the authority to do so." 

Noting rhat an upward ~ affmned in U.s. v. 

Co"ea-Vargas, 860F.2d 35 (2d Cir. 1988) had been imposed, 

in part, to "ameUorate to some exlent the skewing occasioned 

by plea bargaining." the appeUatc court left open "the possibility that a prosecutor's charging decision or a plea agreement could also result in omitting a mitigating circumstance 

from the caJculation of a guia1ine range, in which case a 

downward departure might be appropriarc. Here, however. 

the only "mitigating circumstance' identified is the fact lhat 

defendants who engaged in similar conduct but agreed to 

plead guilty to lesser charges received less punishment than 

[this defendant] would receive. No ground for departure 

pertaining speclfacally to this individual defendant, his conduct or his offense was identified. There is no viable claim 

before us of misconduct by the prosecutor or coercion of the 

defendant. •.. We an: left, rhen, wirh no remaining basis for 

departure except the judge's disapproval of the manner in 

which the United States AUomey for the Eastern District of 

New York generally exercises his d.iscIetion in negotiating 

plea agreements in narcotics cases involving use of a fareann. 

We do not believe that substituting the judge's view of the 

proper general proseculOrial poUcy for that of the prosecuttt 

constilUtes a valid ground for departw'e. .. 

U.s. v. Stanley, 928 F.2d 575 (2d Cir. 1991). 

AGGRAVATING CIRCUMSTANCES 

U.s. v.HOYlUlgowa,No.89-1048S{9thCir.Apr. 16. 1991) 

(Tang, J.) {district court may not depart pursuant to U.S.S.G. 

§ SK2.3, p.s., for extreme psychological injury to family of 

murder victim: "chis Guideline applies by its plain terms 

only to rhe direct victim of the crime and not to others affect· 

ed by the crime. such as (the victim's] family .... We hold 

that Guideline § 5K2.3 applies only to direct victims of the 

charged offense"). 

The court rejected the idea that rhe plea bargaining prac- STATEMENT OF REASONS FOR DEPARTURE 

tices of Ihe U.S. Attorney created "'unwarranted disparity' in U.S. v. Pergola, No. 90-1564 (2d Cir. April 10, 1991) 

sentencing among similarly situated defendants. The 'dis- (Kearse. J.) (although district court did not specifically e:l;· 

parity' identified by the district court ... is not limited to the plain why lesser departure would not suffice, statement that 

Nol ror Citation. Cuidelilte Se,.u,.cil'lg Updau is provided for infonllation only. It should not be cited, either in opinions or OIherwise. 

145 
Guideline Sentencing Update Volume 4· Number 2 • May 7,1991' Page 2 

"upwarddepartul'e to the maximum term of the law is required Adjustments 

by this case" implied that "anything less would be insuffi- ROLE IN mE OFFENSE 

dent" and adequately supJ)(Xted departure WIder I SK2.3 10 u.s. v. Canuh. No. 90-2079 (10th Cit. Apr. 16. 1991) 

Stabltory maximum of five years fordefcndantconYicflld of (.AIlcb"son. J.) (agreeing with U.s. Y. AJu:Inu, 92S F.2d 335 

lq)C8tCdIy threatening ex-girI.fricnd even afterbis parole WU <9th Cit. 1991) that"dle Guidelines permit courts not only to 

revoked for that conduct and he was ordered to SlOp; c:ourt compare a defendant's conduct with that of ~ in dle same 

distinguished U.s. Y. Kim. 896 F.2d 678 (2d Cir. 1990) and enlCIprise. but also with theconduc:tof an average participant 

U.s. Y. Sclui.kv.907 F.2d 294 (2d Cit. 1990). whicb had inlhaltypeofc:rime. ... InOlherwords.resonmaybehadto 

direct.cdCOUltSconsideringdeparturcsundcrf SKtooonsiclcr bodl internal and external measurements for culpability." 

next highetoffense levels in sequence. by DOling thatlhose accord U.s. v.Daughtrey. 874F.2d213 (4thCir. 1989);comt 

cases "focused soJc1y on the defendant', c:onducI" and DOl affumed Rlduction fq; min« participant slBlUS. f 3B 1.2(b). 

on "dle effect of the crimes on the victims. Though in coo- IDIl denial of minimal participant stalUS. f 3B l.2(c). because 

sicbing either type of circumstance the scn&encing c:ourt although defendant may have been least culpable member of 

should make clear on the record that it Iud considered lesser exrensive drug ring his actions were not necessarily minimal 

departures Ihan the one eventually arrived at. the requim- comparedtoaveragepardcipantsinahistypeofdrugoffense). 

mentof a specifIC stcp:.by-slep calculation and comparison U.s. v. Mardnez-Duran, 927 F.2d 453 (9th Or. 1991) 

is not particularly apt where. as beret <a) harm to the victim is (even if swute of conviction. incorporates managaial role in 

at issue,1DIl (b) the type of harm at issue is psychological offense of conviction. defendant may receive f 3B1.1 enrather than physical. making observation and quantifICation hancement for managerial role in relaaed criminal conduct; 

nearly impossiblej. here, defendant was convicted of renting or managing a 

MmGA11NG CIRCUMSTANCES building for the pw:pose of storing. dislribUting andJor using 

U.s. v.Perez. 7S6F. Supp.698 (E.D.N.Y. 1991) (granting heroin, 21 U.S.C. 856(a)(2), but enhancement was proper 

downward cIepartum IDlder § 51(2.0. p.s., from 41-51 months because there was "ample evidence ••• that he managed other 

to the 15 months served in pretrial detention. for a"des- drug-relarcd activities and peoplej. 

pondent and impecunious twenty-five year old woman. who VICIlM-RELA'IED ADJUSTMENTS 

hasjUSlexperiencedthesuddenandunexpecteddcathofhec U.s. v. SmUh. No. 90-2017 (lOth Cu. Apr. 16. 1991) 

only child, a son born while she was in custody after her (Bnxby,J.)(vulnerablevictimenhanccmentunderf3Al.lis 

arrest for dealing in crack •••• The Commission did not take notlimircd 10 offense of conviction and c::ouId be given 10 bank 

into account the emotional blow dealt a mocher who gives robbery defendant for related conduct'of stealing ddedy 

birth to a child while she is in cusrody. gives up her infant woman.s car that he then used in robbery-it was thus 

son to relatives because she cannot adequately care for it improper for sentencing cowt to use car theft as basis for 

during her inc:areezation. and then is infooned, while SliD in deparlureratherthan § 3A1.1 adjusll1lent; however, "'elderly' 

jail, of his sudden and inexplicable death. Even the most status"doesnotpersedemonsttatevu1neobiIity.andf3A1.1 

inhuman would consider this cruel punishment dealt by the "requires analysis of the victim·s personal or individual vulfaleS sufficient retribution for her transgreSSi.oo. TheIe are nerability" to defendant's criminal conduct). occasions where the law's implacability must bend and give 

homage Ihrough compassion 10 humanity's frailties and Criminal History nacwe's cruelties. This is such a case. ••• The government CA.LClJLAllON 

docs not object. j. U.s. v. Query, 928 F.2d 386 (lith Cir. 1991) (drug 

amounts from related Stale offense were properly added to Offense Conduct offense level rather than using the state conviction 10 increase 

DRUG QUAN111Y criminal history score even though state sentence was imu.s. v. MirtJllda-Oniz. 926 F.2d In (2d Cir. 1991)(d.e- poscdpriorlOfcderalsentenco-underf4Al.2(a)(1)a"prior 

fendant. convicrcd of conspiracy to distribute cocaine after he senacnce" must be Mforconductnotpartofthe instantoffense," 

joined conspiracy for only a single transaction involving one and here the Slate and federal offenses were part of the same 

idiogram of cocaine sbonly before conspiracy ended. should course of conduct). 

have offense level determined on basis of that one kilogram 

without also including 4-S kilograms of cocaine distriburcd Sentencing Procedure 

by conspiracy before he joined: '''The laae-eDttring cocon- HURSA Y 

spirator should be sentenced on the basis of the full quantity U.s. \I. Query. 928 F.2d 386 (11th Cir. 1991) (not error 

of narcotics distributed by olber members of Ibe conspiracy for district court to rely solely on hearsay testimony from preonly if. when he joined Ibe conspiracy, he could reasonably senlence reports of non-testifying co-conspiraror 10 support 

foresee the distributions of future amounts. or knew or rea- fmdings as to amount of drugs. role of defendant. acceptance 

sonably should have known what the past quantities were"; ofresponsibility,andobslrUCtionofjustice-defendantfailed 

fact that defendant was convicted of conspiracy 10 distribute to show statements were unreliable, and "both the Sentencing 

more than five kilograms of cocaine is not binding at sen- Guidelines and case law from this circuit pennit a district 

ttee~nc~in~g~a~s~to~dru~g~am~o~un~t!=).===========================~~C~ourt~l~O=CO=n::si:::der=rc=li=a:::ble=hear=sa:::y::e::v:::id;:::c::::ncc=a=l 5e=nl=Cfl=c=in::: g':::::'). 146= 
Guideline Sentencing Update 

GttiMIi ... SMu.a.., U,.", will ... diMhuI.od paiodi.caIl1 by Ibc C-to ial'oan.iudc-.ad ocbcr judidN pascIGMl C1IIClecred w...l_ ~ OG Ibc--=a 

ref-JcPIaiaIl C1I 1914 .... 1917.ad .. Scucncirt&0u;.w;_ A.lIbauP"pllblicalicm_,nlllrtolb.sCIII"'~"'paIicJ~C1I"U.s.Sc:aICDciaa 

0Jmmi .... ira .. --.t C1Il'IpCldiaJ CIa bakIiap. II. DCllIaMndod to npaot Scucncirt& C-iuim poIiciM _1C&i¥iIieL ...... 1bouW ref«to .. GuWc.linar, po&:J ... --, __ rl_N7 ..... ocbcr_1Criala _IIOCI by" Scucncirt& CctmmIaioD r_1Ud!. irlf--'--

l'IlbticadaQola.w.IiM~U""'IlplfieIIIId"c-""'iILu.~""nIDabIowoct..lubauIdDCllbo--"""'._. i ..... __ aftldalpolicJ 

of .. c-.. OIl a.aca C1I poIicJ die Caver ipCIb.asI.J 1IuDIitp" Boad. 

V<lUIWB4· NIlWBllR 3 • MAy 22, 1991 

Departures 

SUBSTA.NTIA.L AssISTANCE 

NIDIII Circuit lIolds goverDmeDt m., DOt limit 

SUbstaDtIaI.ssktaace motloD to f SKI.I departure5eDteaciDg court ma, also depart trom statutor)' mlDlmum pursuaat to 18 U.s.C. f 3553(e). Defendant was 

subject 10 a tcn·year mandatoy minimum after pleading 

guUty 10 conspiracy 10 possess and disuibUIC 437 kilograms 

of cocaine. The government moved for a substantial assiscance departure, and at the sentencing hearing aucmpted 10 

clarify that it wu moving pursuant 10 f SKU but not 

§ 3SS3(e). The court. however, departed below both the 

guideline range of 188-235 months and the ten-year minimum 10 impose a three-year rcnn. The government appealed.. 

conlCnding the coon lacked disaetion 10 depart below the 

SWUlOry minimum absenta motion specifying that the defendant had provided substantial assistance under § 3SS3(e) as 

wen as § SKU. 

The court roncludcd that § SKU merely implements the 

statulOry directive of § 3SS3(e) and 28 U.s.C. § 994(n) and 

does not aea&e a separate method of departure: M(A]lthough 

SKU speaks initially in aerms of 'depanures' from the 

guidelines. sectioo 994(n) and the Application Noles 10 SKI. 1 

refer more gencrically 10 'scnlencc reductions' and specifically refer 10 reductions below the statutory minimum as 

provided by 3SS3(e). In light of the substantial cross references between SKU, 3SS3(e) and 994(n), we conclude that 

994(n) and SKU do not creale a separate ground for a motioD 

for reduction bClow the guidelines exclusi~ of 35S3(e)'s 

provision for reduction below the statutory minimum. Rather, 

SKI.l imp1cmentsthedirectiveof994(n) and 3SS3(e),and all 

three provisions must be read together in order 10 determine 

the appropriaIeness of a sentence reduction and the exlent of 

any departure. " 

·'Il we were to accept the government's position ••• we 

would have 10 fmd that Congress intended 10 'YCst widl the 

proseculOr nOl only the audlority to make the motion, but also 

the authority to set the parameters of the court's discretion. 

There is nothing in the legislati~ history, nor in the language 

of section 3553 or section 994 that suggests such a result 

Thus. we reject the government's argument that Ibis stalUlOry 

scheme ultimately gives the proseculOr the power not only to 

notify the court of a defendant's substantial assistance, but 10 

limit the judge's discretion to set the sentence by choosing 10 

file its motion under SKU rather than § 3S53(e)." 

The court noted lhat this issue "appears 10 be one of first 

impression." 

U.S. v. Keene. No. 89-50617 (9th Cir. Apr. 29, 1991) 

(Marsh, D.1.). 

MmGA11NG CiR.cvMsTANCES 

Ninth Circuit aft"vms downward departure, partly on 

basis of "aberrant behavior" aad ODe defendant"s "out· 

undine good deeds"; also lIaIds that "unique combiDadoD oftadon" may CODStltute a mldptiDg dn:umstaDce. 

Defendants pled guilty 10 conspiring 10 bribe aDd bribing an 

offICial of the Immigration and NalUnIlizatiCll Service. The 

guideline range for both defendants was 8-14 months, which 

required imposition of at least four months' imprisonment 

See U.s.s.G.1 SCI.l(d)(2). The distticlcourtdeparted downwamonc offense Icvel.giving defendants 6-12-monlbranges 

and allowing the court 10 impose four months in homedelallion, see § SCl.l(c)(2). five years' probIUion. and $IS.ooo 

fanes (the amount of the bribe). The court held that several 

facrors warranled departuR:: defendants did not seek or R'>-

cei~ pecuniary gain. and there was no evidence of any ocher 

ldnd of benefit; the INS official influenced defendants to 

continue the scbeme; one defendant attempted 10 back out 

aft.er learning theschemc was illegal. and in the past had "gone 

10 great personal expense 10 assist victims of crime or earthquake"; and defendants' conduct constituled "single acts of 

abemuu behavior," U.S.s.G. Oa. 1. PI. Kat 1.7. 

The appel1alc court aff1l1llCd. fmdinc that dlese circumstances were unusual and had not been adequalcly considered 

by the Sentencing Conlmission.1n analyzing whether defendants' acts could be characterized as "single acts of aberrant 

behavior," the court reasoned that Mit is fair 10 read 'single act' 

10 refer 10 the particular action that is criminal. even though a 

whole series of acts lead up to the commission of the crime.. In 

this case there are two crimC5-lhc forming of the conspiracy 

and the offer of the money. The conspiracy and the offa- are 

so closely related that for purposes of deciding whether they 

were aberrant they constitute a single acL" The court 

Magree[d] with the government that absence of prior convictions is noc enough 10 show lhat the act in question was single 

and aberrant." but held that the fmding was warranled under 

the facts of this case. 

As 10 the role of the government official in the offense. 

the court distinguished this case from one of "imperfect 

entrapment." which Mis nota mitigating factor. U.S. Y. Dickey, 

924 F.2d836 (9thCir. 1991)."Heae, Mthepersonwho soJicited 

the acts wu a government official whom the defendants bad 

every reason 10 believe was aware of the law; he was not an 

undercover agent or other informant whose government 

status was not visible 10 the defendants. And the defendants 

themselves were 'innocents.' The conduct oLthe govemment official must be assessed not abstractedly in the air but 

in conjunction with the persons on whom the conduct has 

an impacl." 

Not for <.:ib.tiun. Guidtlillt SCIIIIIIIICillg Updau is provided for information only. It should not be cited. either in opinions or otherwise. 

147 
148 

Guideline Sentencing Update 

The court aIsoconcluded that "thecaseof a defendant who 

had perfonned outstanding acts of benevolence" was not 

considered by the Commission and departure on that ground 

was not prohibited. The court reasoned that such acts "are not 

a necessaryconsequenceof socio-economicstalUSorcommunity 1ics. Tbe government conceded Bl oral argument that if 

Mother Teresa were accused of illegally aaempcing 10 buy a 

green card foronc of her sisters, it would be proper for a court 

10 consider her saintly deeds in mitigation of bet sealCDCC. 

With the principle established. it is only a matter of degree. 

and it seems entirely appropriate for outstanding good deeds 

••• 10 beconsideted as a relevant faclOr in detcnnlningwhcther 

thete are mitigating cin::wnstances. .. 

Altematively,lbe court held thal"wc may atrann on the 

basis of the recon:I on the distinct and alternative ground that 

it is the c:oavcrgence of all the factors that the court enumerared daatconstiCUleS thecircumstances lhalled 10 itsdccision. .. 

'1be stalUte speaks in the singular of "mitigating circumstance: 18 U.S.C. § 3553(b). There is no reason 10 be so 

Ut.eraJ-minded as 10 bold that a combination of factors cannot 

aogelberconstibJf.e a "mitigal.ingc:ircumstance.' Given the Sen-. 

IenCingCommission'sacknowledgementoC'thevastrangeof 

human conduct' notcncompassed by the Guidelines. a unique 

combination of factors may constitute the "circumstance' that 

mitigates. This cm:Jusion is, indeed. required by the Guide>-

lines themselves. The Commission says ••• that the departure 

is 10 occur when "a court finds an atypical case: one "where 

conduct differs significantly from the nonn: U.s.s.G. Ch.1. 

Pt.A, §4(b). What the Commission has focused on is 'thecase' 

conduct. Neither case nor conduct can be reduced 10 a single 

factor. Case and conduct are a IOtal pauem ofbebavior." 

This appears 10 be the fust appellate decision 10 endorse a 

combination or factors approach. Two circuits spcclfacally 

rejecled a ""locality of the circumstances" method for downward departures when the individual factors were not propec 

grounds for departure. See U.s. v. Goff. 907 F.2d 1441 (4th 

Cir. 1990); U.s. II.POlry. 902 F.2d 133 (1st Cir.). cert. tknied. 

111 S.Q.353(l99O).Seea/so U.s. v.Rosen. 896F.2d 789(3d 

Cir. 1990) ("combination oC typical factors does not present an 

unusual case" warranting departure); U.s. v. CQTey, 895 F.2d 

318 (7th Cir. 1990) (vacating downward depaIture panly 

based on "cumulative effect" of factors Ihal alone did not 

justify departure). 

U.s. v. TaJ:oi. No. 90-10157 (9th Cir. Apr. 19, 1991) 

(Noonan. J.). 

AOORAVATING CIRCUMSTANCES 

U.s. II. Valle. 929 F.2d 629 (11th Cir. 1991) (p«curiam) 

(alfuming 716 F. Supp. 1452 (S.D.F1a. 1989) [2 GSU '11]. 

whereincourtdepar'tedfromrangesof30-37montltsand37-

46 months 10 impose IS-year tenns on defendants who robbed 

Wells Fargo bUck 0($17 million, hid all but SSO.OOO (which 

was recovered al the time of arrest). and refused 10 return 

remainder of money: umhe Guidelines do not contemplate a 

scenario such as this where the appellants expect 10 exploit the 

criminal justice system and enjoy the fruits of their crime 

following a relatively short period of incarceration .... To 

pcnnit the appellants to keep the monetarily lucrative proceeds of their crimc and yet serve no morc prison time than if 

the money had been surrcndered or otherwise recovered. 

Volume 4· Number 3· May 22. liWl • P&&e 2 

would make a mockery of our system ofjusticc. ••. Although 

180 months is a severe departure from the applicable range . 

••• we believe the sentences are appropriate and even neeessary 10 i.nsute respect for the law and. more spccifically. to 

seetbatoursystcmofpunishmentretainsitsdctcrrentcffectj. 

Appellate Review 

PRoPER AND IMPROPER GROUNDS FOR DEPAIt"nlRI!: 

u.s. v. Diaz-Bastardo. 929 F.2d 798 (1st Cir. 1991) 

(holding that "a departure whicb rests on a combination of 

valid and invalid grovnds may be affirmed so long as (1) the 

direction and degree of the departure arereasonab1e in relation 

10 the remaining (valid) ground, (2) excision d. the impropec 

ground does not obscure or defeat the expressed reasoning of 

the dislrict court. and (3) the reviewing court is ~ on the 

recotd as a whole. with the defmite and fll1D conviction that 

removal of the inappropriale ground would not be likely 10 

alter the district court' s vieW of the sentence rightfully to be 

imposedj. Accord U.s. -v. JagmohtJn. 909 F.2d 61 (2d C'1f. 

1990); U.s. II. Franklin. 902 F.2d SOl (7th Cir.). em. deNed, 

111 S.CL 274(1990); U.s. v.Rodriguez. 882 F.2d 1059(6ch 

Cir. 1989). un denied, 110 S. Ct. 1144 (1990). COlllra U.s. 

v. Zmnarippa. 90S F.2d 337 (10th Cir. 1990); U.s. II. 

Hef'lltllltkz-Vasqun. 884 F.2d 1314 (9th Cir. 1989) (per 

curiam). 

Probation and Supervised Release 

(Note: No cases cited in this section were subject 10 the 

Nov. I, 1990 amendments 10 Chapter Seven of the Guidelines. which set forth procedures for detCtmining sentences 

after revocation of probation and supervised release.) 

REvOCATION OF SUPERVISED REl..EAsE 

U.s. II. SmealMrs. 930 F.2d 18 (8th Or. 1991) (per 

curiam) (in imposing two-year sentence for violation of supervised release on defendant originally seruenced 10 14 months 

. and three-year tcnn of release, district court did not abuse its 

discretion by considering the conduct that caused the revocation. the t'acfOrS listed in 18 U.S.C. § 3553(a). and the 

guideliDe range for the new aiminal conduct; sentence was 

within maximum povided under 18 U.S.C. § 3S83(e)(3) and 

was not limited by Guideline sentence for original offense. 

accord U.s. II. DillllTd. 910 F.2d 461 (71b Cir. 1990); U.s. II. 

Lockard. 910F.2d S42(9thCir.199O); U.s. v. Scroggins. 910 

F.2d 768 (11th Cir. 1990) (per curiam». 

REvOCATION OF PRoBAnoN 

U.s. II. Alii, 929 F.2d 995 (4th Cir. 1991) ("upon 

resentencing. following revocation of probation, the court is 

limiled lOa senlence within the guidelines available at the time 

of the initial sentence"; the conduct that caused revocation 

may be considered in detennining whether 10 revokc or 

modify probation. what sentence 10 select within the guideline 

range. and whether 10 depart if the grounds for departure were 

available at the initial sentencing). AccontU.s. "\1. White. 925 

F.2d 284 (9th Cir. 1991); V.s. v. Von Washington. 915 F.2d 

390 (8th Cir. 1990)(pcr curiam); V.S. v. Smith. 907 F.2d 133 

(11 t.h Cir. 1990) (per curiam). 
Guideline Sentencing Update 

VClUlMB 4 • Nm.tBI!Jl 4 • JUNB 18.1991 

The U.S. Supreme Cowl recently decided three cases 

involving the Sentencing Guidelines. All are summarized in 

this issue of GSU. 

Relevant Conduct 

STIPlJLA110N TO MORE SERIOUS OFFENSE 

Supreme Court dediDes to dedde whether 11Bl.2(a) 

"stiPUlatioD" may be onl, nDds that facts did Dot "specifi· 

cally establish" a more serious offeuse. When U.S. 

matshals went to arrest defendant they had to kick thc door 

opeD twice in an aucmpt to cuter his aparUnenL Both times 

defendant fared a gun in the din:ction of the door. and boIh 

bullets lodged in the door. The marshals withdrew. 

and eventually defendant surrendered. He was charged 

willi auempting to kill a deputy U.s. marshal. assault on a 

deputy marshal, and use of a fuearm during a crime of 

violence. At the plea hearing pursuant to Fed. R. Crim. P. 

11(1). defendant pled guilty to the laUer two counts. but not 

guilty to attempted murder. There was no plea agreement. but 

during the hearing defendant generally agreed willi the facts 

desal'bed by the governmenL 

At sentencing on thc assault and fu:earm charges, the district court held that defendant's oral agreement to the government's rendition of the f&C1S amounted to a .. stipulation dlat 

specifically establishe[dj a more serious offense than the 

offense of conviction," U.S.S.G. § IB1.2(a), and applied the 

guideline for an attempt to kill a U.S. marshal. The appellate 

cowtaffumed, holding dlata formal written stipulation as pan 

of a plea agreement is not required and it is "only necessary 

that thc facts presented to the coun establish a more serious 

crime and that the defendant agree to the stalement of facts. .. 

U.s. Y.Brartoll.903 F.2d292.,298(4dtCir~ 1990) [3 GSUf8]. 

Bill if. U.s. Y. McCIJll, 915 F.ld 811. 816 n.4 (2d Cir. 1990) 

\'WUhout expressing any opinion as to whether a Section 

IB1.2(a) stipulation must be in writing. we note lIIat our 

decision in [U.s. v.J GIU!"ero[. 863 F.ld 245 (2d Cir. 1988)] 

requires dlat any stipulation be a part of the plea agreement, 

whether oral or wriuen."); U.s. v. Warters, 885 F.2d 1266, 

1273 noS (5th Cir. 1989) (indicating a "fonnal stipulation of 

[defendant's] guilt" is required under § IBI.2(a». 

The Supreme Cowt did not resolve the 'question of how 

to interpret "stipulation" in § IB1.2(a). Instead. the Court 

determined that the facts simply did not suppon a fmding that 

defendant had the requisite intent for attempted murder: 

"[E]ven if one could properly conclude that the stipulation 

'spccifically established' that Braxton had shot 'at the mar· 

shals,' it would also have to have established that he did so 

with the intent of killing them. Not only is there nothing in the 

stipulation from wbith that could even be inferred. but the 

swementsofBra:x.toD'sauorneyatthebearingfladydcnyiL" 

The Comtalso determined lhatclarification of fiB l.2(a) 

could be left to the Sentencing Commission. The enabling 

legislation iud.icates that Congress intended the Commission 

to "'periodically review thc wort of the courts. and ••• make 

whatever clarifying revisions to the Guidelines conflicting 

. udicial decisions might suggest. .. The statute also grants the 

~ommission ""the unusual explicit powa' to decide whethec 

and to what extent its amendments reducing sentences will 

be given retroactive effect. 28 U.s.C. f 994(u)." Aftcrcertiorari was granted in this case thc Commission requested public 

commentonwhelhcrllBl.2(a)shouldbeamendedtoresolve 

this issue. These factors. plus the ability to decide the specific 

controversy here on other grounds. Jed the Court to "choose 

not to resolve" Ihe issue of what is required by the phrase 

"conraining a stipulation." 

Braxton v. U.s .• 111 S. CL 1854 (1990). 

Offense Conduct 

CALCULA nNG WEiCIIT OF DRUGS 

Supreme Court holds that weight of' "mixture or substance" coutaining LSD includes weight or carrier medium. Petitioners were convicted of selling I,OCIJ doses 

of LSD on ten sheets of blotter paper. The drug alone weighed 

SO milligrams. but the paper and drug togeaher weighed 5.7 

grams. The districtc:oortused the total weight to derermine the 

sentences oodecthe Guidelines and under the relevant statute. 

21 U.s.c. 1 841(bXl)(BXv). which mandates a minimum 

sentence of five years for distribution Qf"l gram or more of 

a mixlUre or substance containing a delcclable amOWlt or 

LSD. The Seventh Circuit affl.l1lled. holding that "mixt1D'e or 

substance" includes thecarrier medium. u.s. v. Marsho.ll, 908 

F.2d 1312.1317-18 (7111 Cir. 1990) (en bane). 

The Supreme Court also affumed: ""We hold that the 

statute requires the weight of the carrier medium to be included when determining the appropliatc sentence for traf· 

flCking in LSD, and this construction is neither a violation of 

due process. nor unconstitutionally vague." The Court noted 

that every appellate court that had ruled on this issue held that 

the carrier medium should be included. 

Chapman v. U.s., 111 S. CL 1919 (1991). 

U.s. v. Shabazz, No. 90-3244 (D.C. Cir. May 28. 1991) 

(Thomas, 1.) (offense level for distribution of dilaudid pills. 

whose active ingredient is the schedule II substance 

1..-__ Not _for Cllalioo. G"i</di,,~ St1lIUICiflg Updalt! is provided for information only_ It should not be cited, either in opinions or othetwise. 

149 
150 

Guideline Sentencing Update 

hydromor:phone. is based on gross weight of piUs, not net 

weight of hydromorphone). Accord U.S. \I. LazarchicJ:, 924 

F.2d 211 (lIth Cir. 1991); U.s. v. Meitingu.901 F.2d 21 

(4th Cir.), cut. dettUtl, 111 S. Ct. S19 (1990). See alst> U.s. 

v. Calli1um. 915 F.24 1462 (10th Cir. 1990) (amphetamine 

mixture); U.s. v. McKeever. 906 F.2d 129 (Sth Cir. 1990) 

(same), cut. denied, 111 S. Ct. 790 (1991); U.s. v. MlITphy. 

899 F.2d 714 (8th Cir. 1990) (methamphetamine); U.s. v. 

GlITgido, 894 F.2d 56 (3d Cir. 1990) (schedule D. m. and IV 

substances). 

Departures 

NOTICE REQlJIRED BEFORE DEPAImlRE 

Supreme Court boIds that FeeL R. Crim. P. 31 ftquires "reasoaable aotice" or spedIic IJ'OIIIIds before 

district court departs trom Guidelines. Defendant pled 

guilty to 1bree charges relating to Lheft of govcmmeot funds. 

The pica &gnlCtIlCOt stated the expeclation that deleodant 

would be sentenced widUn a CCI1ain guidclineamge. C0nsistent with this expectation. the JRSeIltence report found 

the applicable range' 10 be 30-37 months and specifteally 

stated that there were no factors warranting departure. At the 

conclusioa of the sentencing hearing. however. the disttict 

court departed upward to impose a 6O-month senleDCe. The 

appellale court affumed, reasoning that neither the Guide--

lines nor Fed. R. Crim. P. 32 required advance notice of the 

decision to depart. the facts providing the basis for departure 

were contained in the presentence repM (although not identifted as such), and the defendant had both the opporwnity 

to challenge the departure dwing aJlocutioo and the right 

to appeal his sentence. U.s. v. BIITItS, 893 F.2d 1343, 1348 

(D.C. Cir. 1990). 

The Supreme Court reversed. holding that under Rule 32 

some form of prior notice is required. The Court noted that in 

"the ordinary case, the presentence report or the 

Government's own recommendation will notify the delendant that an upward departure wilJ be at issue and of the facts 

that a1legedly support such a departure." and reasoned that 

allowing district courts ""to depart liom the Guidelines sua 

sponre without fIrSt affording notice to the parties" would be 

"concrary to the text of Rule 32(aX1) because it renders 

meaningless the partics' express right '10 comment upon ••• 

matters relating 10 the appropriate sentence ... • 

The Court held that "before a district court can depart 

upward on a ground not identifaed as a ground for' upward 

departure either in the presentence repM or in a prebearing 

submission by the Government., Rule 32 requires that the disbict court give the partics reasonable notice that it is contemplating such a ruling. This notice must specificaUy identify the 

ground on which thedisuictcourt is contemplatiogan upward 

departure." In a footnote the Court indicated lItat the same 

rule should apply for lite prosecution in downward departures because "it is clear that the defendant and the Government enjoy equal procedural entitlements" under Rule 32. 

The Court did not. however, answer .. the question of lite 

timing of the reasonable notice required by Rule 32 .... 

Rather, we leave it to the lower courts, which. of course, 

Volume 4 • Number 4· June 18. 1991 • Plge 2 

remain free to adopt appropriate procedures by local rule." 

Most appellate courts have held that the requirements of 

Rule 32 are met in one of two ways: the factors warranting 

departure are identified as such in the presentence repon, or 

the sentencing court advises defendant before or at &be sentencing hearing that it is considering depanure and gives 

defendant opportunity to comment before'imposition of 

sentence. Sa,e., .• u.s. v. Contractor, 926F.2d 128 (2d Cir. 

1991); U.s. v. Williams. 901 F.2d 1394 (7th Cir. 1990); U.s. 

v.Anders.899 F.2dS70(6thCir.),cut.derUed,111 S.Q.S32 

(1990); U.s. v. Het'NlIIdez, 896 F.2d 642 (1st Cir. 1990); 

U.s. v.Nww-Para, 81f7 F.24 1409 (9th Cir. (989). 

BurltS \I. U.S .• No. 89-7260 (U.S. June 13, 1991) 

(Marshall. 1.). 

AOORA VATING CIRCUMSTANCES 

U.s. v. Rotla. No. 90-4028 (lOth Cir. May. 24, 1991) 

(Logan. J.) (Upward depaI1I,tre was warranted for Air Fcrcc 

security policeman convicted of theftofgovemment propetty 

from military base. including four F-16 jet engines: the 

amount of loss involved. $10 million. was sufficic:ndy "'1Jn.. 

usual" compared to maximum of $S milb considen!d by 

guidelines; the delet.erious effect of thefts on the "'morale and 

pride of the milicary" resulted in a "significant disruption of a 

govemmenr.al f1mction. .. U.s.S.G. § SK2. 7, p.s.; and the sale 

of the jet engines "could have endangered national secllity." 

§ SK214, p.s. The extent of the departure. however, to 120 

months from the guideline maximum of 37 mooths, was not 

sufficiently explained to allow the appellate court to ~view 

for reasonableness: "(11he sentencing. court should draw 

analogies to offense characteristic 1eYe1S. criminal history 

caIegOries. and other pinciples in the guidelines to detamine 

the appropriate degree of departure. j. 

SUBSTANTIAL ASSISTANCE 

U.s. \I. Doe. No. 90-3027 (D.C. Cir. May 24. 1991) 

(Mikva. CJ.) (rejecting constiwtionaI and -staQlIory challenges 10 requirement for government modon in U.s.s.G. 

§ SKl.1. p.s.. but noting dW "review by the district court 

remains available in cases where the government's refusal. to 

move for a departure violates the terms of a cooperaDon 

ag:reement. is inrendcd to punish the defendant for exen:i.sing 

bet COIlStilUtional rights. or is based on some Wljustiflable 

standard or classifICation such as race"; also noting that 

a "court may always consider a defendant's assistance in 

selecting a sentence from within the guideline rangej. 

Adjustments 

ROLE IN OFFENSE 

u.s, \I. Andrus. 925 F.2d 335 (9l1t Cir. (991) (original 

opinion (3 GSU #20]. which established two-part feSt for 

determining role in offense using relative culpability of defendantcomparedtocodefendants and also 10 average panicipant 

in that type of crime, was amended M.arg) 2S )!Iior 10 publication in bound volume---court deleted that part of opinion 

and held that it need not decide whether two-part test was 

proper because district court's refusal 10 grant minor participant SlaWS was proper under any lest). 
Guideline Sentencing Update 

Gt.IiMIiMs-...... U,..,. wDllMI~~"' .. C--tolar_jadp ... CICbar;adidd.,--elfll ..... w..a coaat----.. ---=iDa 

c-a; 

............ 

....... fIl -*'" 

1""'" 

fIlt'llpClfliaa_ 

1917 ...... 

........ 

$ , '1~ 

ll .......... AIDMp to ............ 

.. puIIIic:IIial_, C , ........ tolbeS.t.-i 

......... « 

.. 

1ICdrideL 

0ui1111i1 ..... 

.................... 

poIic7_fIl 1O .. .. 

1Jn'1 

US. 

' .... 

~ 

paticJ 

........... c ...... ,._adaar ............ ." ... rrrn .. c-wn. forlDdliaf ____ 

~fIIGtIItItIIiM,. ..... U,...IIIpifII8 .... CIaIoi .... k ... ~ ... vaII1abIo1l'lllk.ItJboaW .. be ____ ._. ' .... datiaa«amewpaticJ 

fIllbec.-. 011 _ fIl poIic7 .. c.w.,... ...,\llraatllill 8oaI. 

VClUlM! 4 • Nmaat 5 ·.N.y 10. 1991 

Departures 

MmoATlNG CIRCVMSTANCF3 

D.C. Circuit laolds tbat "soelo-tcoaomlc status," 

U.s.s.G.,5Hl.lOt p.s., does DOt IDdude deleadaDtt

• persoaaI blstorJ. Defendant pled guilty to COI.ing to distribure cocaino and "Quested downward depar1ures OIl three 

grounds: his aiminal histay was signific:antlyoverstated; his 

yowh-be was 18 when arrested; and his personal history, 

which included domestic violence and other traumatic experiences. The disbict court redtx:ed the criminal history caIcgory pursuant to f 4A1.3, p.s., but denied the other two requesu.concIuding that defendant's youth was notsuffJCientJy 

unusual 10 wammt departure under I SHl.l, p.s., and that it 

had no c.:Iiscretion under § SHl.lO, p.s. to depart OIl the basis 

of deCendant's "socioeconomic standing or backgrouDd. " 

The appclIare COIDt held that the district court properly 

exercised its discretion not todepanon the basis of youth. The 

court further held that the Guidelines do not violalc due pr0-

cess by restricting consideration of age and Ihal defendant 

could not challenge. under 28 U.s.c. § 994(x), the adequacy 

of the Sentencing Commission's reasons for t1tis restriction. 

However, the coun set aside the refusal tocoosidcr departure ror personal history, finding that the district COIDt "lnilcharacterized CCI1ain elements of that history as 'socio-economic. '"The courtreasone:d that"'lhe phrase 'socio-cconomic 

status' rerers lOan individual's status in society as determined 

by objective criteria such as education, income, and employment; it does notteret 10 the particuJars or an individuallirc. .. 

The disIric:t court had expressed conc:em about "'Ihe b'IBic 

circumslanc:es that mate up what we calJ the sociocconom.ic 

class, that is, the death of his mother by his stqlfalbel' murdering bet, [the st.epr8lhet's] threals.1hat be had to law fOW1l 

10 awid problems, his growing up in the slum areas of New 

yart: and of Puerto Rico and not fitting in because of his .•• 

dual background. "but concluded that "socioeconomic SIanding or background ••• can make no diffc:rcnce to the Court. .. 

The appellate court held that consideration ofthesc factors 

is not precluded by § SHl.10: "It is undoubtedly InIC that 

individuals in CCI1ain social sttaIa are apt to be exposed to rar 

more violence and human ugliness than those whoenjoy more 

privileged li'JeS, but the court erred in concluding that all the 

experiences he described as 'tragic' reu within the rume or 

'socio-economic status.' .•• The characteristics listed in section 5Hl.I0 ... are an objective: they reflect the kind of data 

that might be found in a census taker's checklist. They do not 

take oognizance of the traumatic experiences to which offenders of whatever characteristics might have been exposed. 

Violence among famity members and its attendant dislocationsdonot follow class lines, nor should class lines detennine 

whether a sentencing judge may consider them." 

The court left 10 the disIrict court to docido OIl remand 

whether coasidetation of such facun might be limited by 

other sections of abe puide1ines., including f SUl.3 (Mcneal 

and Emotional Cooditioos), or, COIlversely, wbcIber the "not 

ordinarily relevant" language in f SUl.3 might, ""in extraordinary circumstaDces. to provide sentencing COUI1S with "a general authority 10 depart." Cf. U.s. Y. Deigen. 916 F.2d 916, 

91~ 19 (4th Cir. 1990) (district court bas discrcUon to de&crmine wbcthet defendant's ~tragic personal background and 

family history" is "extracx'dinary .. and thus ground for d0wnward dc:partwe). 

U.s. Y. Lopn. No. 90-3020 (D.c. Cir. June 28, 1991) 

(Buckley, J .). 

Second Circuit uplaolds dowBward departure for "less 

than mialmal" role ID offense aDd extraordi....., famUy 

circumstaaces. Defendant pled guilty to drug cons;>iracy 

charges. He received a reduction ror minimal role in the 

offense, and his guideline range was 41-51 months. The 

district court departed and imposed a sentence of six months 

in a halfway house because (1) defendant did not realize be 

was involved in a drug transaction until it was almost COIRpletedandhispanicipalionwasverylimiled;(2)hisincarccration could resuJt in thedeslruction ofhis family; (3) be was not 

aware of the specifIC amount or drugs involved; and (4) a 

disc:repancy between his guideline sentence and that or another defendant appeared unwarranted. 

Theappella1eCOlD1 upheld thefusttwo gIOfJIlds. "The sentencing coundid not abuse its discretion wbm itdownwardly 

depaned based in part OIl the extmne1y limir.ed nature of 

[defendant's] involvement m the uansaction. ••• [A] depanure 

based OIl a factor eavisioned by the Commission is permissible if the degree 10 which it was conumplalcd was inadequare •••• mhis record presents an instance in which ••• Ihe 

defendant's role m lbeoffensewas less Ihan minimal and (Ihe 

court could) depart further downward from the guidelines." 

The counalso held that defendant's ramily circumstances 

wereexlracXdinary and that § 5H1.6, p.1. did not preclude their 

consideration fordepanure. Derendant's wife. twodaaJ&hters. 

disabled father, and grandmother depended upon him for 

support. and he worked twojobs to provide ror them. "Oearly 

his is a cJose...knit family whose scability depends upon 

[defendant's] continued presence," and the district coun's 

conclusion Ihal depanure was wammted because his incarceration "might wen result in the destruction or an otherwise 

strong family unit" was "not an abuse of discretion." 

The court held that the other two bases-for departure were 

not proper. Defendant's lack of knowledge or the amount of 

drugs was part of his minimal involvement and thus not a 

separate ground. As to the sentencing disparity, the court 

noted it had "recently held that disparity of sen tences between 

Not (or Citation. Guideline Selltellcillg Update is rovided for information only. h should IIOl be cited, either in inioos or odterwise. 151 
152 

Guideline Sentencing Update VoIwnc 4· Number S .July 10.1991' Pqc2 

co-defendants rnay not properly serve as a reason for depar- The court noted that defendants could "negotiate a pica 

lure." See U.s. Y.Joyne,,924F.2d4S4,4S9-61 (2dCir.1991). agreemenl with the government under which the defendant 

On the issue of whether remand is automaticalJy required agrees 10 provide valuable cooperation for the government's 

wilen dcpaIlUioisbascdonboChpt'q)Cl'lndinaproperarouncts. conuniIment to file a motion for a downward depar:tme. (By 

thec:oandettnnined Ibat "the Idoptioa of a pet Ie rule seems doiDg 10], abo defendant obtains riahts to requiIe abo panimprudeDLlnstead.weboldthereviewinacourtsboulddecido ment 10 fulfiI1 its promise. To Ihosecircum .. ocea we apply 

onacase-by-casebasiswhelhermnandisrequired."Here,the thegenendlawofcontrac:lSlOdet.erminowllethc;rabogovemcourt held that mnand was l\CCCSSIIy bec:auae it eould DOt meat bas breacbed the agreemenL Sa U.s. Y. Ctnuwr,93O 

conclude that Iho same senlence would haw beea impaled F.2d 1073. 1076 (4ch Cit. 1991). If subsbmlial assistance is 

absent the impop« facrors. 'I'ben: is a split iD die circuits as provided Ind die barpiD reached in the plea .,..cemeat is 

to whedIer n:mand is always requ.irccl or a casc-by-case deci- f'IusIraIcd. the d.iStrict court may then order spocific pcrforlion should be made. See cases died in" GSU 13 summary mance orod1erequitab~ relief. or a may pennit die pica 10 be 

of U.s. Y. DiIu..JJtUlI.JTdo. 929 F.2d 798 (I. Cir. 1991). withdrawn." SuGI.rDCoMor,slIpI"Q(defendanlbasburdeaof 

U.s. Y. Alba. No. 9O-1S23 (2d Or. May 23, 1991) proving, by prepondcraoce of evi.dencc. Ibat govanmcnt 

(Cardamone. J.). breacbed agreement). 

The court also noted its agreement with U.s. Y. Kane, 933 

U.s. Y. Prutemoft, 929 F.2d 127S (8th Gr. 1991) {Dislrict F.2d 711 (91b Cir. 1991) (4 GSU '3], Slating: ""Sccticm SKU 

court erred in depIRng. from 33-4I-mon1h nnsc 10 24 govemsaU~fromguidelinesenlellCingforsubstan­ months, on basis of 21-year-old fllll-timc offendet'a back- tialassiaance.and its scope irIcludesdeparlures from mandapowtd--hc was bi-racial child adopted at age thaee months ray minimum senlalCCspcnniued by 18 U.s.c. §3SS3(e)." 

by wruftl couple who did not know he was bi-nciaJ. The U.s. y. Wade, No. 9O-SS05 (4th Cir. June 12. 1991) appellalc courtecknowlcdged theIe is some evidence that biracial adopred chiIdreo "ofleD experience severe identity (Naemeyer,J.). 

crises" and have mare 1rOUble with the law, but bekllhat"race FlRll Circuit bolds that lovel'lUlleat commihDeat la 

or mclal bactgrouad cannot be a basis for depanuro: plea agreemeat cover letter to move for departure if 

U.s.s.G.§ SHI.I0. p.1. Cowl also held that "'adoption, even defeadaat provided sabstaatialusistaace Is eaforceable. 

cross-racial or cross-aaltura1 adoption, ••• is (not] so Wlusual The assisIant. U.s. Auomey sent defendant's aaomey a proor atypical that the Sentencing Commission did not adc- posed plea agreement with a cover leu.er Ihat stared: "In 

quate1y take such circumstances into consideration," and addition,1 will rec::ommend departure 10 the court based upon 

thus it is not a basis f<X' departure for unusual family cir- y04ll client's full and complelc debriefing and substantial 

cumsranccs.§ 5H1.6, p.s.). assistance 10 the governmenL" 1be pica agreement i&self, 

which was aocepttd. was silent on the issue oJ departure. At 

SVUI'AN"I1AL ASSISTANCE sentencing the AUSA lOkI the court defeftdant had complied 

Fourth Circuit holds that, absent commltlneat to move with the tams of the plea agreement. but did not move fordofor departure la plea agreement,dd'eDdant lias ao"'lat to parUIIO and none was granttd by the c:oun. Defendant apexplanatioa of permaeat'. refusal to move for substaa· peaJed. arguing Ihat the govmunent breached the &gJeemenL 

tialassistancedeparture.DeCendant.begancooperatingwith 1be appel1aJc court remanded: ""'Ibis ma1tcr IumS on the 

the government shortly after arrest. without benefit of a plea legal signifance we give 10 the AUSA's transmittal Iet-

"-M,1nd ~ valuable assistance in 0Ibcr 1V'I'ItIU01"I'- • ..... 6"'"". I"'V"- r-- tet •••• Although the letter is not part of the plea agRlCmCDt 

tions.1beJOVCl'DlDClll..boweva'.d.klnotmovcfordownward proper it does contain an offer by the govmunent which 

departure under U.S.s.G. § SKI.1. p.s.. and dofcndant was (defendant] osaensibly accepfCd. ••• 'The two documc:nts. 

sentenced to the mandatory statutory minimum senrences for wilen read *>geth«, demonsIrare die agreement that if Aphis two offenses. He IIJUCd on appeal dUll the disttict court pellant gave a fun delxiefmg Ind his full cooperation then the 

had authority to depart 011 the basis of his substantial assis- govmunent would R:COIlUDeDd a downward departure. "'The 

lance notwilhstanding the govemment'srefusa11O move for court could DOt determine from the record whether dofenclant 

departure. and thal he should be aDowcd to inquire into the did fully cooperate, but held that if dofendant. "in reliance on 

gow:mment's Rl8SOIlS for its refusal in order to determine theleuec,acceptcdthegovmunent'sofferanddidhispart.<X' 

whether the government acted arbitrarily or in bad faith. stood ready to pedonn but was unable 10 do so because the 

1beappellaftlcourtrejeded both argumenIS: ""Our reading government had no further need or opted not to use him, the 

of 18 U.s.C.§3553(e) and 28 U.s.C.§994<n) ••• leads us 10 government is obliged to move for a downward departure. " 

the conclusion thalthe government alone has the right to U.s. Y. MellOn, 930 F.2d 1096 (5th Cir. 1991). 

decide, in its discrotion, whether to file a motion for a clownward departure based on the substantial assistance ofa defen- Sentencing Procedure 

danL .•. [Thus1 § 3SS3(e) oflogicaJ necessity excJudes any u.s. Y.Melton. 930F.2d 1096 (SthCir. 1991) (Remanded 

claim of right by a defendant 10 demand that a motion for a for specific reasons for refusal 10 grant § 381.2 reduction for 

departure be filed upon his unilaftlrally initialed cooperation minor participant status. When defendant sought fac:tua1 basis 

efforts .... [It also] follows that the defendant may not inquire and reasoning forcoun's refusal. cowt ...mereIJ.reiterated the 

into the govemment's reasons and mouves if the government finding that Melton was an average participant." Appellate 

does not make the motion. To conclude otherwise would court held: 'The sent.encingcowt mustsulle for lhe record the 

result in undue intrusion by the courts into lhe prosecutorial factual basis upon which it concludes that a requcsled rediscretion granted by the statute to the government." , duction for minor participation is. or is not. appropriate."). 
Guideline Sentencing Update 

VQI..UMS4 • N ..... 6 • JULY 31, 1991 

General Application Principles 

Sixth Clmdt holds that senteacinaItePI prescribed in cable as mandatory rules eo be followed by the Distria Court 

U.8.8.G. f lBLI are iDCODSistent wItIa I. U.s.c. f 3SS3; widloul regard to its bwn judgment. InsIcad, the guidelines 

direascourtstofollowstatute,llotGuidelines,ildaereare become IIKR leocral principles oC sentencing &0 be used in 

aggravatiDg or Dlitlpting circumstaDcelllOt lakeD into light of the principles of sentencing outlined in § 3553(a)." 

aCCOUllt ., SeDteDciDa CommlssJon. An undercover ageal Usinl this appoach, the issue in the instant case is 

agreed to sell defendant SOO pams of cocaine. but instead "whether the auideUnes specify an applicable offense guidegave defendant as grams in a plastic bag that was inside line section or range dial lakes into account either of the two 

another bag con&aining 985 pams of pIastt.r of paris. Defen- aggravating circumstances which the govmunent asserts 

dantwaschargedwithandpiedguiltyonlyto~wiIh shouIdnise the offensc Ievcl," namely the weightohhe plasintent to distribute an WlSpCCified quantity of cocaine. On teror the neaoWWon for SOO grams. As to the first. .. [t]m is 

appeal defendant argued that he should have been sentenced no cvideDce dial the Commission considered a case in which 

only on the basisoCthe 85 JI'3IDS heactua1ly possessed,. not the the cocaine is separately wrapped in a PlastF bag insidea mixSOO grams he attempted to buy or the tota1 weight of the ture ofptas=' and not adulterated or alloyed with theplastet." 

cocaine and plaster package (note: the guideUnc range is the It was moe to conclude "chat the sentencing sequence under 

same for SOO or 1,000 grams oC cocaine). the SlalUte and the sentencing guidelines mechanically IeThe majority of the court ftrSt held that the "sequence of quires an offense level of 26 for this reason. " 

nine sentencing steps prescribed" in § 1B 1.1 is "inconsistent With respect to the SOO grams, the issue was "whether the 

with the enabling statute governing guideline senlenCing." Commission haS stated with clarity how it proposes to deal 

18 U.S.C. § 3553. Thecourtdetennined thal"'lhestablteitself with a defendant who is charged with and convicted only of 

establishes the sentencing sequence and the way a district possession ofa small quantity of drugs but who also may have 

court shall go about applying the Sentencing Guidelines. committed other conspiracy or auempr:'aimes." The court 

The Commission 00es not follow thec:ongn:ssional scheme." concluded that "(i]t is not clear to us that the Commission 

The court held that .. instead of waiting until the very end oC intended ••• to raise the punishment by including as a manthe nine-su:p sentencing process to delemine if a 'departure' datory aggravating circumstance WlCIw'ged conduct that 

is pennissible, as the Sentencing Commission directs in amounts to a conceptually different offense from the offense 

§ 1 B I. I •••• the [district] COlDt should dele.nnine at the outset of conviction. Auempts or CORSpiJacies are inchoate crimes 

of the scotencing process whether the case pteSents circum- not of the same character as the substanliveoffense of possesstanc::ca 'notadCquate1y taken into consideration • by theCom- sion. and they are not covered by the same guideline section. 

mission in proposing its offense level for the crime •••• H the ••• It is uue, as our dissenting colleague maintains, tha1 the 

DisUict Court determines at the outset that the facts and ldevantconductpovisionsinApplicationNoteI2eo§2D1.J 

cin::umstmces of the case should render the Guidelines in- say that the 'quanlitics of drugs not specified in the count of 

appUcab1e, the Court 'shall impose .. appcpriate sentence convictionmaybeconsidetedindetenniningthebaseotTense 

having ••• due regard for the relationship of the sentence level,' but it does not say that they 'may' be considered if the 

imposed to sentences presaibcd by guidelines applicable to additional amounts involve a concepb.I811y distinct drug ofsimilar offenses.' [18 U.S.C. § 3553(b).] The Court should fense,letalone thalthey 'must' be considered. II 

compare the Commission's proposed offense level for the On remand, the district coon should .... ollow the sentenccrime to the rust principles outlined by Congress [in ing process established by Congress in § 3553(a) and (b), as 

§ 3553(a)] and detennine at the outset whether the outlined above. This process provides fora mandatory guideCommission's proposed level for the crime adequately lakes lines smtence at a particular level if. but only if, in specifying 

into account the cin:umstances of the case in light of the need the offense level to be applied the Commission took ineo 

for a 'just punishment not greater than necessary. ,.. account ali of the aggravating and mitigating cin:umstances 

"'The legal effect of the more flexible approach eo the in the case. If there is sucb a circumstance not taken into 

guidelines outlined here is 10 transform mandatory rules into account. ... abe DiSlrict Court 'shall impose an appropriate 

the more 'modest name "guidelines"' in those cases in which sentence having due regard' for the Guidelines .... The 

the Commission's proposed guideline sentence is 'greater District Court should resentence the defendant under the more 

than necessary' or in which the parties present a legitimate flexible procedure and the qualitative standards set out in abe 

'aggravating or mitigating circumstance of a kind, or to a last two sentences of 18 U.S.C. § 3553(b)." 

degree, not adequately taken into consideration.' When such I U.s. v. Davern. No. 90-3681 (6th Cit. June 20,1991) 

a circumstance is presented, the guidelines become inappli- I (Merritt, CJ.). 

r-\ot for CitatiOfl.GuideliM Se/tte/tci/tg Update is rovided for infonnation only, h should nOl be cited. cithcr in inions or otherwise, 153 
154 

Guideline Sentencing Update 

Departures 

EXTENT OF DEPARnIRE 

Niotb Circuit eo baDe holds that exteot or departure 

ror atypical drcumstao.ces must be determiDed by rerer. 

eace to "die llructure, standards and policies" of the 

SeoteDdog Reform Act aod Guidelines. Defendant pled 

guilty to iUegallraDSpOl'tation of aliens. His guideline range 

was 0-6 months, but Ibcdistrict courtdepan.cd". 36-m0n1h 

senrence because defendant arumpted 10 evade .-rest in • 

dangm>us hip-specdcbase. 'IbeappeUate courtatlinned the 

departure and set forth • fivc-step ~ for nMcw eX 

depar1urts. S« U.s. v. Ura..lJarraza. 897 F.2d 981 (9th Cit. 

1990). The N*mth Circuit granfCd Rlheariog en bane. 

The eo bane court first determined that the five-step 

review process could be combined into three steps. essentially 

foUowingthe procedurcset fanh in U.s. v. V'dlqfaM. 874 F.2d 

43(lstCir.),cert.denied.110S.Ct.I77(1989),andfollowed 

by seveml cin:uits.1n this case the fllSt two sreps were salisfJed: 1he district court had "legal audlority 10 depan" because 

it identified an aggravadng cireumstance notadcqualdy considc:red by the Sentetacing Commission. and its factual finding 

that the circumstanc:c existed was not clearly aroneous. 

The Ihird step is"'whedlec the extent of departure from the 

applicable Guideline range was 'unreasonable' within the 

meaning of IS U.S.C. §3742(e)(3) and (t)(2)." Thccourtheld 

that it could not review the departure for reasonableness 

because the district court bad not explained the extent of the 

departure. The court delennined that the provisions of the 

Sentencing Reform AI:;;t and the Guidelines "suppoct the 

conclusion that depanure sentences are limited by the sentencing structure established by the Act." In particular. the 

directive in IS U .s.C. f 3553(a)(6).1hat couns shall consider 

"the aced to avoid unwarranled senlel1Ce disparities among 

defendants with simiJarrecordswhohave been found guilty eX 

similar conduct." applies to departures "and requires. at a 

minimum, that departure sentences be consistent with other 

sentences fixec:lby the Guidelines or suggested by Commission standards and policies. .. 

""The esseatial factor' is that the extent of departure be 

based upon objective aireria drawn from the Sentencing 

Reform Act and the Guidelines. Possible aireria include 

comparison of the scriousncss of the atypica1 circumslanccs to 

offenses or enhancements in the Guidelines. ••• treatment of. 

the circumstance as a separate offense covered by the Guidolines, .•• and oonsidetation of the structure of !he sentencing 

table, in particular. the increments between guideline ranges." 

The court seated. that"a ~bJencss standard assumes 

a range of pennissible sentences. We give weight 10 the 

dislrict court's choice within a permissible range. Reversal 

is required only if the choice is "unreasonable' in light of the 

standards and policies incorporated in the Act and the Guidelines." To facilitate appellate review. senlenCing cowu 

"should include a reasoned explanation of the extent of the 

departure fOWKled on the structure, standards and policies of 

the Act and Guidelines." Cf. U.s. Y. Roth. 934 F.2d 248 

(10th Cir. 1991) (indicating that departure by analogy 10 

guidelines may be necessary to enable review for reason· 

ableness). The case was remanded for an explanation of the 

district court's reasons for choosing 36 months. 

Volwne 4· N\DIlber6· July 31, 1991 • Page 2 

Among the other citcuits, only the Seventh Citcuit appears 10 require departure by analogy for atypical circum· 

stances. See U.s. v. Ferra, 900 Fold 1057, 1062-63 (7th eir. 

1990). The Second. 1'hird. and Tcoth Citcuits have strongly 

recommended usc of analogies when appopriatc. but do DOt 

require ic. See U.s. Y. Jackson. 921 F.2d 985.990-91 (10th 

Cir. 1990) (en bane); U.s. v.Kibunura. 91SF.2d 1084.1113, 

(3d Cit. 1990): U.s. Y. Kim. 896 F.2d 67S. 683-85 (2d Cir. 

1990). Ocher ciIcuits have indicated approval of departure by 

anaklgy.See U.s. 'II.HIIIItIrIN. 916F.2d 186,194 n.7 (4th Cit. 

1990): U.s. 'II. Landry. 903 F.2d334. 340-41 (5lhCit.I990): 

U.s. 'II. SItuman. 902F,2d 873. sn (111h Cit. 1990). 

U.s. 'II. Ura-Barraza.No. 88-5161 (9th Cir.July 22. 1991) 

(Browning. J.) (co bane). 

MmGA11NG CDlCllMSTANCES 

U.s. 'II. Wogall. No. 91-1214 (1st Cir. July IS. 1991) 

(ScIya.J.) (impopertodepartdownward to equalize sentence 

wirh that of codefendant. who had received shorter sentence 

because govcmrnent (ai_ed to produce sufficient evidence 

of lOCal amount of heroin involved in offense, which evidence was produced at defendant's 1arer sentencing and resulred in looger lCml-"a perceived need to equalize senletlCins OUICOmeS for similarly situaled codefendants, without 

more. will DOt pennit a departure from a properly calculated 

guideline sentencing range"). Accord U.s. Y. Joyner. 924 

F.ld 454.459-61 (2d Cir. 1991). 

Criminal History 

CAREER OFFENDER PROVISION 

U.s. v. Rivers, 929 F.2d 136 (4th Cir. 1991) (Reversing 

733 F. Supp. 1003 (D. Md. 1990) (3 GSU "]. which held that 

detcodantwasnotacarectoffcoderbecausetwopriorfelooies 

that occuned within twelve days and in adjacentjwisdict.ions 

weresenrcncedseparaldyonlybccauseof"accidentofgeograpby" or. alrcmatively.that they were "commiued pursuant 

to a single plan" (i.e., robbing gas stations to get money for 

drugs). and forcither reason should not be coooted as separate 

offenses. Appellate court held there was ""no factual or legal 

support for the district c::ourt's findingsandconclusioos."The 

prior offenses were ""unrelated" within the meaning of 

f 4Al.2. and 10 consider them ""part of a single common 

scheme or plan" pursuant to § 4Al.2. comment. (n.3). ""would 

have the effect of making related offensesofalmost all aimes 

commiucd by one individual The fact that both offenseswcrc 

commiucd to support one drug habit does not make the 

orrenses related under § 4Al.2. .. And the fact that the second 

judge made the secood sentence concurrent to fust does DOt 

matter.). Bill if. U.S. v. HOl«r, 929 F.2d 1369. 1374 (9th 

Cir. 1990) (revmiog finding Ihat two prior drug convictions 

were DOt related ooder § 4Al.2 and defendant was thus career 

orrender-convictions resulted from single investigation, 

both drug sales were to same Wldercoveragent.and defendant 

was charged with separate offenses only because sales oc· 

cUlTed in different counties: "[Defendant] was charged and 

convicted of two offenses merely because of geography and 

not because of the nature of the offenses. . : . There was 

significant evidence ... that these two drug sales were pan of 

a 'single common scheme or plan.' There was no evidence 

before the court to contradict this finding. j. 
Guideline Sentencing Update 

General Application Principles equivalent to the guidelines themselves but also cannot be 

ED bane pagel 01 NiDth Cireult detenDlDes weight to treated merely as legisladve history •••. [l]t must be treated 

give to CommeDtary; holds that U.8.S.G. f 3Bl.l(c) ad. assornethinginbetween."Thecourtsetforthlhreeprinciples 

justmeat may Dot be givea if deleDdaDt was the only to"guidecowts in steering the middle course": "(1) consider 

c:riminaU, respoastble participant. Anderson robbed a theguidelineandcommentarytogether,and(2)consbUethcm 

bank,escaping in agelaway car driven by a codefendant Both so as to be consistent, if possible, with each other and with the 

werechalJed with bank robbery. but the driver pled guilty to Panas a whole. but (3) if it is not possible to construe Ihem 

misprisionofafelony(forfailurelOnoIifyaulhoridesafterthe consisaently, apply the text of the guideline." Thccourtnoted 

bank robbery). and he and AndersoD bodl claimed tbal he did that its holding "comportS with the approach taken by other 

not know Andenon was robbing the bank. Anderson pled circuits." Su, ~.g .• U.s. Y. Bkrley, 922 F.2d 1061.1066 (3d 

guilty to the robbery, and the district court enhanced his CiI'.I990); U.s. Y. Smith. 900 F.2d 1442, 1446-47 (lathCiI'. 

offense level by two under § 381.1(c) for his leadcrshiprole, 1990); U.s. Y. IHClcco, 899 F.2d 1531. 1535-37 (7th Or. 

fmding the adjustment appropriale regardless of whether 1990); U.s. v. SmealMrs. 884 F.2d 363. 364 (8th Cit. 1989). 

AndetSOll was the only criminally responsible participant in U.s. Y. Anderson. No. 89-10059 (91h €it. Aug. 6, 1991) 

the robbery. A divided panel of the Ninlh Circuit affumed. (Rymer, 1.) (en bane). 

U.s. v. AnderSOll. 895 F.2d 641 (91h Or. 1990) [3 GSU 1121. AdJ*ustments 

The en bane court reversed. Section 3Bl.l(c) "says 

nothing about any required number of airninally responsible OBSTR.UC110N OF JUSTICE 

pe:csons. The InIrOdUClnry Commentary, however, says that U.s. Y. BtuT'J. No. 9()..3251 (D.C. Cit. July 12, 1991) 

'[wJhenanoffenseiscommiu.edbymorelhanoneparticipant, (Wald. J.) (alleged false t.esdmony to grand jury in January 

I 3D 1.1 or 13Bl.2 (or neither) may apply: and Applic:adon 1989 reganling defendant's drug use cannot provide basis for 

Note 1 explains that "[a1 ""participant" is a person who is § Jet.1 obstruction of justice enhancement for lalel" drug 

criminally responsible for the commission of the offense. ,.. possession conviction, unless court rmds tHat false testimony 

The court "consider{cd] the guideline and the commentary WlSpanofwillfulattempltoimpedeorobsttuctinvest.igation 

together, construing them so as 10 be consistent wilh each or prosecution of'1he instant offense"-obsuuctiveconduct 

other and wilh [Part B of Chapter 3] as a whole," and coo- need not actually occ:ur during in\'eStigationor prosecudon of 

eluded that "13B 1.1 (including subsection (c» appears 10 ap- instant offense; agreeing with other circuits that "the instant 

ply only when the offense involves more than one person who offense" in § 3CI.l means the offense of conviction, see U.S. 

isaimina1Jy responsible for the commissioo of Ihe offense. " Y.P~rdomo. 927F.2d 11I,1l8(2dCir.I991); U.s. v.Dortch, 

Accord U.s. Y. Fells. 920 F.2d 1179. 1182 (4th Or. 1990); 923F.2d629.632 (8IhCir. 1991); U.s. v.Roberson,872F.2d 

U.s. v. Mark.ovic. 911 F.2d 613. 616-17 (11th Cit. 1990); 597,609 (51h Cit.), cert. tknied. 110 S. Ct 175 (1989». 

U.s. v. DeCicco. 899 F.2d 1531. 1535-36 (7t11 Or. 1990); U.s. y.Lalo, 934F.2d 1080(9th Cir.I991) (obstruction of 

U.s. v. Carroll. 893 F.2d 1502. 1507-09 (6th Cit. 1990). Slate investigation into insurance fraud scheme was properly 

To reach this result, the court rust hid to decide "the used for § Jel.t enhancement in senlCnCing 0l11a1er fedetal 

appropriale weight to give to &he commentary when inrcrpret- mail fraud convicdon based on same scheme-"there is no 

ingtheguidelincs."Thiscaseinvolvedcomrnentarylhat"may star.e-federal distinction for obstruction of jusdce" and enintelpret the guideline or explain how it is to be applied. hancement is not limited to acts aimed at federal authorities; 

Failure to follow such canmentary could constitute an incor- court stated Ibis was an issue of fll'St impression, but noted 

reet applicadon of the guidelines. subjecting Ihe sentence to odler cases, cited at 1082, that "have at least implied that 

possible reversal 00 appeal. .. U.s.S.G. § 181.7. (Ibe court section 3CU contains no such federallimitationj. 

I10Ied that other types of canmentary not 81 issue Ile.m-those 

suggesting circUl1lSlal1Ces &hat may warrant depanure and Criminal History 

those providing background infonnation-"are to be IreaI.ed CAREER OFFENDER PROVISION 

like policyswements. whichcOU11S mustconsidcrin impos- U.S. v. John. 936 E2d 764 (3d Cit. (991) (pursuant to 

ing a sentence, 18 U.s.C. § 3553(aXS).") § 481.2, comment (0.2), when prior offense is neither speAfter examining the statements of the Sentencing Com- cifically listed as crime of violence nor "has as an element the 

mission, which suggested that courts look to commentary "for use, aucmplCd use, or threatened use of p1Iysica1 force." the 

guidance" and treat it "much like legislative history," and sentencing court is required to examine whether defendant's 

analogizing the commentary to "the advisory commil1ce notcs actual conduct during that offense "pos[ed] ascrious potential 

that accompany the federal rules of practice and procedure," risk of physical injury to another" and was thus a "crime of 

the court concluded that "com men cannot be treated as violence" for career offender ses: federal, not state,law 

Not tor Citation. Guideline Sentencing Update is provided (or information only. It should not be ciled, either in opinions or Olherwise. 155 
156 

Guideline Sentencing Update 

go...ems this analysis, accord U.S. \/. Bnuason. 907 F.ld 117. 

120-21(lOthCir.1990).seea/so U.s. v.Nimrod,No.90-1389 

(81h Cir. Aug. 8. 1991) (whether second degree burglary was 

"Yiolcotfelony" W'KIcrMissouri law does not matter for career 

offender purposes: "burglary" is dermed "independent of the 

label employed by the various slate criminal codesj). Other' 

circuics have also held that underlying conduct in a prior 

offense maybe considendin such ciraunstanc:es.See U.s. v. 

Goodman. 914 F.2d696.699 (51h Cir. 1990); U.s. v.McVl&ar, 

907F.2d 1. 1-2 (1stCir. 1990); U.s. v. T~rry.900F.2d 1039. 

1041-43 (7th Cir. 1990); U.s. v. Baskin. 886 F.2d 383, 389 

(D.C. Cir. 1989). cm. deliit'd. 110 S. CL 1831 (1990). 

Departures 

CRIMINAL HISTORY 

u.s. v.Bowsu. No. 90-3234 (IOtbCir.July 19,1991)(pcr 

curiam) (joining EighCh and Ninth Circuits in holding that 

departure for career offenders is not prohibiled by Guidelines. 

upholding downward departure for career offender based 011 

defendant's youCh (age 20) at time of two prior felonies. 

proximity in time of those offeoses (within two months), and 

fact that c:oncurrenl sentences WCIe imposed; reasonaNe to 

sentence defendant within guideline range thalapplied absent 

careeroffendetenhancement,accordU.s. v.SeniDr, 934F.2d 

149, 151 (8th Cir. 1991); although no factor standing alone 

may have warranled departure. "this unique combination cl 

factors in defendant's criminal history was not considered 

surrlCienlly by the Sentencing Commission to justify rigid 

applicationofthecareeroffendercriminal historycalCgOrizalion. • • • [W]e emphasize that it is all three factors in conjunclion which satisfy the trial court's judgmenL We cannot 

parse the factors, holding each one separardy for eonsideration, withoutunfairlyabusingtheUiaicourt'sjudgment, "see 

also U.s. v. TaJ:ai. 930 F.2d 1427. 1433-34 (9th Cir. 1991) 

\wlique combination of factors may constilUte" mitigating 

circumstance)[4GSU"3]; contra U.s. v. Gojf.9C17F.2d 1441, 

Volwne 4· Number 7· September 3. 1991 • Page 2 

substantial assistance departure under § SKl.l, p.s. Defendant cooperated, but government believed he also made false 

statements. The districtcowt dcparted because defendant was 

acquiUed of perjury charge based on the alleged false swo. 

ments, concluding that the Seoteoclng CommissiOl1 bad DOt 

considered this sibJation. The appeUa1ecourt disagIeed. holding that "cooperation wilh the government, regardless of 

wbelhec the government in ics discretion moves for a d0wnward departure. is a circumstance that has been adequately 

takt:n into account by the Sentencing CommissiOl1: and that 

"so long as the government does not exceed abe bounds of ics 

disaetion, depanu.re,W'KIcr SK2.0 fOl' cooperadOl1 wilh the 

government is inappropriate.,. 

EXTENT OF DEPAIl'l"lJRE 

u.s. v. UUle. No. 9().6244 (10th Cir.July 22, 1991)(Ebel., 

J.) (lO mating upward departute under f 4Al.3(d). p.s., 

because defendant bad commiucd the instant offense while 

awailingtrial for an ear1ietcrimc. counreasonably added two 

points to'criminal history sccxc by analogizing to 14Al.1(d), 

which adds two points fOl' offc:nsecommiaed while under any 

criminal justice sentence). 

Offense Conduct 

DRUG QUANTITY 

u.s. v. MokcM.()NJfre. 936 F.2d 623 (1st Cit. 1991) 

(district court propedy found weight of cocaine "nUxcure « 

substance" 10 be entire weight of suil.case made of 25 kilograms of cocaine chemically bonded to 9.5 kilograms of 

aaylic material, less weight of metal fillings; appeilalC court 

acknowledged that "the suiu:ase matcriaI obviously cannot be 

consumed; and the cocaine must be ~ from the suitcase mareriaI befo.e use •••• Regardless, the suitc:astlcocaine 

"mixture' or 'substance' fits the stalUfOIy and Guideline 

dermitions as the SU(X'Cl1le Court has n:cendy interpreted 

them in Cltopman [v. U.s .• 111 S. CL 1919 (1991)].'. 

1445-47 (4th Cir. 1990); U.s. v. Pozzy. 902 F.2d 133,138-40 POSSESSION OF WEAPON DuJuNG DauG OFFENSE 

(1st Cir.), cut.Jknied. 111 S. CL 353 (1990». U.s. v. Ga,.,.~r. No. 90-3361 (6th Cir. July 23, 1991) 

U.s. v.Adkins. 937F.2d947 (4IhCir.I991)\Wejoin Ihe (Martin.J.) (reversing § 2Dl.l(bXl) rmdingbccause"itwas 

Eighth and N"mth Circuits and hold that a district court may, clearly improbable that the gun wu connected with 

in an atypical case,downwardly depart where care« offender [defendant's] drug offense": gun was an antiqucsty1e, single.. 

status overstates the seriousness of the defendant's past con- shot Derringer, unloaded and withao ammunition in 

duct. We emphasize that such departures, like all departures, defendant' s house, it was locked in a safe twelve feet away 

arc reserved for the truly unusual case. j. from the safe where drugs were found.lD4 is "not the type 

MmGA TING COtCUMSTANCF.S nonnaIly associated wilh drug activity": court noted Chat Many 

one of lhesc factors, standing alone, would not be suflicienllO 

U.s. v.LAuzo1l. No. 90-1661 (1st Cit. July 16,1991) compel this conclusion," butabe··cumulativeeffectof these 

(Bownes. Sr. J.) (~g with U.s. v. RuJcJjcJ:. 919 F.2d 95. factors" does). 

99 (8th Cir. 1990). that under § 5K2.13, p.s., a defendant's 

"significanlly reduced mental capacity" need not be abe '"but- Supreme Court-Review Granted 

for" or "sole" cause of the offense before departure may be U.s. v. RL.C .• 915 F.2d 320 (8th Cir.199O) [3 GSU"14]. 

warranted; however. court also concluded that in general Ha cen. granted. III S. Cl 2850 (1991). Government appeals 

person with borderline inleUigenceormildrewdationwhois ruling that for juvenile sentenced pursuant 10 18 U.S.C. 

easily persuaded to follow others" does nOl present a "mitigat- § 5037(c X I), which provides that senlence imposed on juve. 

ingcircumstanceofakind.ortoadegree.notadeqwuelytaken nile may not extend beyond"maximum tcnn of imprisonment 

into considemtion by the Sentencing Commission. " § 510.0). that would be authorized if the juvenik:..bad b:en tried and 

SUBSTANTIAL ASSISTANCE convicted as an adult." the sentence is limiled by the "maxiU.S. v. Goroza. No. 90-10 142 (9th Cir. Aug. 8. 1991) (per mum tenn of imprisonment" authorized under the Guidelines 

curiam) (Reversed because district court improperly departed for a similarly situated adult. See 49 Crim. Law Rep. 3077 

under § 5K2.0, p.s .• aftcr government refused to move for I (Junc 26,1991). 
Guideline Sentencing Update 

V0l.UI0Il4. NUIaIIa 8 • SI!P'I1IM8I!Il20, 1991 

Relevant Conduct In sum, then, die court held that 11Bl.3(8)(2) is '"unen. 

Eiahtll Circuit holds sentendD, statute does DOt forteable insofar as it permits offenders ID be systematically 

authorize use of CCXldud Felatlna to dlstlDCt, uncharpd pcnalimf for facbJ,Uy and tempomlly disdnct property 

property crimes .. settlq onase level; IUIITOWS scope of crimes dial bave nealher been charged by indictment IQ' 

U.s.s.G •• 181.3(a)(2). Defendant. iDdic&ed OIllwO councs. pIO\'eII at triaI."' 

pled guilty roooccouniofthcft from an intersaar.eshipmeat U.s. v. Galloway, No. 90-3034 (8th Cir. Sept. 9,1991) 

(tires valued It $37,(00) and the second count of IIanSpOItiDg (Bright, Sr. J .). 

8 stolen vehicle was dropped. The peseAlenCe reportallegcd 

that defendant was part of an organization that stoic over Criminal History 

$1 million from inrersaaae commerce, and"lisred sevea scpa- CAREER OFFENDER 

rare inlmlale property offenses fc:r which the Government Seventll CIrcuit bolds "slmplepossessloaotaweapon, 

hadneithetchalgednorindictedGaUowayandincludedthese without more," is DOt • "crime ot 'fIoIeace" tor career 

offenses in the senlencm, calculation."' Inclusion of the un- offender purposes. Defendant was sen~ced as a career 

charged thefts would bave nearly tripled die guideline range, offender under f 4B 1.1. One of the pric:r convictions used to 

from 21-27 months ID 63-78 months. The disIrict court held reach careecoffenderstatus was a srat.eoffense for possession 

that use of the wteharged c:onduct would violate die Fifth and of 8 fueann. Possession of 8 firearm is DOl specifically listed 

Sixth Amendments by allowing defendant ID be punished for as 8 crime of violence in 14B 1.2,comment (n.2), nor is force 

conduct that he was neither indicted nor tried on. an element of the offense, so die question, pursuant to note 

The appeUaIe court. following "die familiar rubric that 2(B). was whether' die actual offense conduct "'by its nature, 

courts do not unnecessarily decide constitutional issues," presented 8 serious potential risk of physical injury to anaffumed on swurory grounds and overturned "subsection other." &e U.s. v. Terry, 900 F.2d 1039,1042-43 (7m Cir. 

(a)(2) of the relevant conduct guideline only insofar as it 1990). Accord U.s. v. John, 936 F.2d 764, 769-70 (3d Cir. 

applies 10 scparalC propeny crimes duu. like Galloway's, 1991); U.s. v. WalUr, 930F.2d 789, 793-94 (IOChCir. 1991): 

occuned on separate days, at separate places. targeted sepa- U.s. v. Goodman, 914 F.2d 696, 698-99 (5th Cir. 1990); U.5. 

rate victims and involved a variety of merchandisc. We draw v. McVicar. 907 F.2d I, 1-2 (1st Cir.I990). 

no conclusions about the validity of section IB1.3(a)(2) with The appellate court reversed: "While we agree that the 

respect ID other typeS of offenses presenting other factual potential for a dangerous, violent act is enhanced by the 

circumSWlCCS. ••• We also make clear that our holding in no possession of any weapon ••• unless the usC of die weapon 

way infringes on the ttaditional authority of sentencing courts is overtly implied it is not 8 aime of violence under the 

10 consider WlCOnvicted criminal conduct for an applicable Sentencing Guidelines." Defendant was arrested while 

senlenCe within the guideline range." "riding in a Olicago taxi in daylight hours with 8 handgun 

The court based its holding on two groWKls. First. citing tucked in the waistband of his pants. The gun was not dis28 U.S.C. § 9940)(1), which "a~ inaemenlal pun- played or brandished. There is no evidence that even any 

ishmenl'in each case where a defendant is convictedof' mul- touching, gesturing orreference ID die gun occwred. •.• [T]he 

tiple aiminal offenses," the court concluded: ""The clear im- threat posed by a simple possession of a weapon, without 

plicationisthatCongressdidDOlintendthcguide6ncs IDpunish ~,does not rise 10 the level of an act that 'by its nature, 

separate instances of UDCOnvicted conduct inaemenIalIy.. • . presented 8 serious potential risk: of physical injury to anAny other inrerprctation would render the words chosen by other: [U.S.S.G. § 4Bl.2, comment (n. 2).] It is 8 very fine 

Congress meaningless. "The legislative history supported this line, however •••• The facts here present 8 most passive case. 

view. die court found. and implied "that Congress intended 10 A prior conviction involving any overt action by 8 defendant 

afford defendants the full panoply of constitutional, staturory pointing 8 weapon, drawing 8 weapon. openly displaying a 

and procedural protections before subjecting them ID weapon, brandishing 8 weapon, holding 8 weapon, gesturing 

incremental punishment for multiple offenses. Of towards a weapon, or any act other than mere passive possesSecond, the court determined that § 991(b)(I)(B). which sion, would ..• present a suffICient potential for physical 

cites § 994(1). "requires the Commission to establish policies injury to constitute a crime of violence." 

and practices that avoid 'unwarranted sentence disparities One circuit has held that the "offel1SC..Df being a felon in 

among defendants with similar records who have been found possession of a fJreann by its nature" is a crime of violence. 

guilty of simi Iar criminal conduct' ... The plain language of U.S. v. O'Neal. 910 F.2d 663, 665-67 (9th Cir. 1990). Other 

this subsection indicates that Congress sought. in large part. to courts have held that possession is a crime of violence when 

equalize sentences based on convicted criminal conduct. .. other threatening or violent behavior occurs. See Walker. 

Th.--e_le-,g,,:-is:-Ia_t_iv_e_h_is_to...:ry~c:-on_firm_s_th_i_s_in_te:-rp.:..re_ta_tio_n_::-' ~--:-__ su-,:-p_ra....:.,--:-9_30:-F_._2d--:-.~!}9~-:::?5 fired U.S. v. Alvarez. 

Nol for ClllIllon. GMid/dine Sel1/lUl.ciflg Upda/e is provided for infonnation only. It should no, l~: 

.-.-.~-~------~ 

157 
158 

Guideline Sentencing Update 

914 F.2d 91S. 918-19 (7th Cir. 1990) (also struggled with 

arrestingofficcc); u.s. v. McNeal. 9OOF.2d 119. 123 (7thCir. 

1990)(also ftred gun); U.S. v. Williams. 892F.2d 296. 304 (3d 

Cir.1989)(same); U.s. v. Thompsolt,891 F.2dS07. S09(4th 

Cir. 1989) (also pointed firearm at person). 

U.s. v. Chapple. No. 9O-1S44 (7rb Cit. Aug. 20, 1991) 

(Kanne. J.) (Posner. J'f dissenting). 

JUVENILE SENTENCES 

U.s. v. SanlMels. 938 F.2d 210 (D.C. Cit. 1991) (widt two 

excepdons.juYCDile scnt.enccs notcounted in criminal bi.sfory 

score undc:I' § 4Al.2(d) may not be used as basis fordepal1w:e 

under § 4Al.3, p.s.-"'Given the inconsistencies in m:cxd 

keeping noted by Ihc Commission [in Apptication Nola 7 10 

§ 4Al.2], permitting courts to base departures on &he exisIenCe of 'reliable' juvenile records would plainly exaaenrc 

the scnrcncing disparities that section 4Al.2(d) is meant to 

curb"; the only exceptions 10 this rule arc found in Appl.icatico 

Note 8. for sentences thatprovideevidenceofsimiJarm.iscooduct or aiminal livelihood; aJso. cowtmay not consider under 

§ 4A13. p.s .. whether leniency of juvenile senfenCeS abat arc 

not included in criminal bistc.ry merit upward cIe.partsn. but 

may consid« IenicDcy of prior adult sentences). 

Offense Conduct 

DRUG QuANlTlY 

Eleveoth Circuit distinguishes ClurptlllUl, holds that 

"mixture" io U.s.s.G. f :m 1.1 does DOt iodude "uousable 

mixtures." Defendant pled guilty to impcrWion of cocaine. 

She carried sixteen bags filled with cocaine and a liquid. The 

bags weighed 241.6 grams, of which 7.2 grams was cocaine 

base and 65 grams a CUUing agent. with "'liquid waste" the 

remainder. The d.islrict cowt sentenced defendant on Ihc basis 

of the fDCal ..... ixbR" purSuant to § 201.1. comment. (0.1). 

The appcIlaIccowt re\'el'SeCl: "The inclusion ofthc weight 

of unusable mixtures in Ihc determination of sen&ences under 

section 2D 1.1 leads to widely divergent sentences forconduct 

of relatively equal severity •••• [TJheappcllant was sentenced 

based on a fDtal weight of 241.6 grams. despite the fact that 

only 72 grams of abc mixture constituted a usable orc:ooswnable drug mixture. This hYJlCl1A'Cbnical and mechankal application of the saatutory language defeats tbc v«y purpose 

behind the Sentencing Ouidelincs and creates an absurdity in 

their application: the disparate and irrational sentencing arising out of a 'rational and Wliform' scheme of senlCRCing." 

The cowtdistinguished Chapman v. U.s .• 111 s. Ct. 1919 

(1991): ""In Chapman, the LSO and other drugs in carrier 

mediums considered by the Court were usable. consumable, 

and ready for wholesale or relail disbibution when placed on 

standard carrier mediums. such as blOdel' paper, gel, and sugar 

cubes. ••• mile cocaine mixture in this case was obviously 

unusable while mixed with the liquid waste material." 

The court further held that "the rule of lenity should be 

applied 10 the statute 10 avoid absurdity and inationality in the 

application or the Semencing Guidelines. We thererore hold 

lhat the tenn 'mixture' in U.S.S.O. § 201.1 does not include 

unusable mixtures." BUlcf U.S. v.Mahecha-Onofre.936F.2d 

623, 62S-26 (1st Cir. 19(1) (suircase made or cocaine and 

acrylic material chemically bonded together was "mixture or 

substance" and IOtal weight of suitcase used) [4 GSU #7]. 

U.S. \I. Rolande-Gabriel. 938 F.2d 1231 (lILh Cir. 1991). 

.. 

Volwne 4· Number 8· September 20. 1991 • Page 2 

Departures 

SUBSTANTIAL AssiSTANCE 

u.s. v.Drown, No. 91-1 118 (lstCir. Aug. 14. 1991) (govemmcnt could not derer filing of § SKU motion unlit after 

scnttocing beawse derendant's cooperation was not yet 

ccmplele-6UCb strategy would "'impermissibly merge" the 

boundaries or I SKU, p.s., designed to ~ cooperation 

prior to sentencing, and Fed. R. Crim. P. 3S(b), which covers 

cooperation after sentencing; also reit.erated that court may 

not depart under § SKU in absence or govemmcnt motion 

"despite meanspirilCdness, or even arbib'8rincss. on the 

goWll'l1l'Delll'. part" (qualing U.s. v. Romoio. 937 F.2d 20. 24 

(1st Or. 1991», but if refusal to rllo motion "is based on 

unacceptable standards. such as the infringement of proleered statutory or constitutional rights, a fedenll court. is 

empowered to int.elvcncj. Cf. U.s. v. HOWQTd, 902 F .2d894. 

896-97 (11th Cir. 1990) (court must rule on § SKU motion 

at sentencing hearing, may not postpone). 

AooRA. VATING CIRClJMSTANCES 

U.s. v. FaulIater, 934 F.2d 190 (9th Or. 1991) (may not 

depart upward. for defendant who pled guilty 10 five bank rob--

bmes. on basis oflbree robbery c:ounts dismissed in plea bargain and five ochers govemmcntagreed not tocbargC; following U.s. v. C4slro-Cerwuues. 927 F.2d 1079, 1082 (9lh Cir. 

1990), which held "sentencing court should rejecta plea bargain lhatdoes notreflect the seriousness of thedeCendant' s be· 

havior and should not accept a plea bargain and Ihen IaItr count 

dismissed charges in calculating the defendant's sentencej. 

EXTENT OF DEPAR1l1RE 

u.s. v.Faulkn.er. 934F.2d 190 (9thCir. 199I)(courtsmay 

not analogize to career offender guideline when departure 

is warranled because defendant fails to qualiry as career 

offender only by virtue of technicality). COlllro. U.s. v. WUlio.ms. 922F.2dS78,S83 (IOthCir. 1990): U.s. v.Jones. 908 

F.2d 36S,367 (8thCir. 199O).Cf. U.s. v.Delvecchio. 920F.2d 

810.814-lS(11thCit.1991)(shouidnotsutomaticallydepart 

to career offender levels without analysis of actual aiminal 

history and purpose of the guideline). 

Adjustments 

OBS'l"litUCDON OF JUSTICE 

u.s. v.Maduo.-Gailegos. No.90-S0108(9thCir. SepL 18, 

1991) (PIegenon. J.) (reversing enhancement given 10 defendants who fled 10 Mexico 10 avoid arrest when they su.spected 

something went wrong with drug deal and were arrested after 

they retumed. nine months 1arcr-factlhatdefendantsavoided 

arrest for nine months does not counteract general rule that 

flight from arrest. without more. does not warrant obsttuction 

ofjusticecnhancement,,see § 3C1. 1. comment. (n.4(d»; U.s. 

v. Garda. 909 F.2d 389, 392 (9th Cir. 1990); court distinguished U.s. v. MondeUo. 927 F.2d 1463. 1465-67 (9th Cir. 

1991). because there defendant had been arrested, knew he 

was expected 10 tum himself in Iatec, but hid OUl ror two weeks 

and auempted to avoid capture when authorities found him). 

Note to readers: Beginning with this issue, GSl/ will list at 

the end of case citations or parenLhetical summaries the names 

of judges who dissented. or dissented in part, from the holding 

or holdings summarized. 
Guideline Sentencing Update .a-~~19U 

c;",;a,1iM ~ UpcItM 

.. 19l7 

win 

... 

boclil1libuled 

.slr 1,.0pWeIi_ ~ b,'" AIIIIaaF_pa'alir 

c-.101af_Judle-" tiGa_' ...... odIIIl' 

IO ... 

jDdidIIl 

SIllTlllci 

pcrICIIIMI. 

.. OuideIiaeI_poIicJ_~ 

~ 8CIoected fedcnl_ ............ .. u..s.~ ~ 

C ......... _ ~ ....... _1IoI.diqI.1r. illICIt"'" 10""" Secmdna c-.MIDon poIM:MI .. .amti& ..... 1boaW ...... 10 .. Quid ti_. poI:ic:J 

.. -,. .-,.._ ...... ---. ..... ..,. .. S .. II ... C • I ........ Wam8llaa. 

l'!IIlIiadaD~a.u.-S .. 1IMc:Ute U,.... ...... _ ... c.urnpNl .... ....,...,.. .. ~wad:.hdlaaldllCltbot_rid .. d... ". • ...... aGic:idpol:ic:J 

~ ... c--.o. ..... ~poIicJ ... c.wIpOlb_ ....... ..... 

Constitutional Challenges 

Tentb Circuit holds dud the Doa_Jeopardy Clause 

may be violated wIleaa coavldioa Is"'" oD coaducttbat 

was used to lacrase a Gu.ldeliaes RDteace ill a prior cue. 

Defendant was c:onvict.ed in Soudt DakDIa for distributing 

methamphetamine. The court included as Idevant c:onduct 

963 grams found in a search of defendant'. Utah residence, 

whichraiscdhisoffeoscleve1bytwo,andimposedatwo-J.evel 

enhancement for possessing weapons during • drug offense 

for weapons found during the same search. Defendant was 

senreoc:ed to thestalUtorymaximum of240 monlhs. wilbinthe 

guideUnc range but five months higher Ihan the guideIinc 

maximum if the 963 grams had been excluded. 

The govenunent Ihen proseculed defendant in Utah federal court forpossession willl intent to distribute the same 963 

grams of mechamphetamine and for being a felon in possession of fRanDS (the same weapons used 10 enhance the South 

Dakota senlence). Defendant appealed after the district court 

refused his motion 10 dismiss the indictment. but the Tenth 

Circuitatrumed, bolding that because defendant had DOt been 

charged in South Dakota for these offenses the Double 

Jeopardy Clause'. ban on muldple proseC'llliolu was DOt 

implicaltd. Also, because defendant bad not yet been canvicted and punished. his claim based on the Clause's ban 

against. multiple pllJlisluru!nu was not ripe for review. U.s. 

v. Koonce. 88S F.2d 720, 722 (10th Cit. 1989). Defendant 

was foundgu.ilty on boIhcharges., andsentcnced 1097 months 

on the drug charge and 12 months on the weapoos charge, to 

be served COIICUI'I'elldy widllhe Soudl Dakota senlenCe. He 

also received a 6-year tmn of supervised ~ 10 be 

concurrent with the 5-year South Dakota term. 

The appellale court held that the Utah sentence for p0ssession violalcd the "'punishment component" of double 

jeopardy, basing itsconclusion on tIRe factors. FII'St.: Min both 

the Utah proceeding and the South Dakota proceeding, de.-

fendant was punished for the exact same conduct. the possession of Utah methamphetamine with intent 10 distribute. 

Absent evidence that Congress intended such double pun. 

isIunenl. this runs afoul of the Double Jeopardy Clause. .. 

Second. the court del«mined that '"there is no evidence 

that Congress intended that an individual who distributes a 

controlled substance should receive punishment both from an 

increase in the offense level under the Guidelines in one 

proceeding and from a conviction and sentence based on the 

same conduct in a separate proceeding." The court found 

"strong support" for this conclusion in the Guidelines the~' 

selves. Under the "grouping" procedure of the multiplecoun 

guideline, "had the government charged Koonce in the Sou 

Damta district coon with two separare counts-one based 

upon lbeme~inemailed to (SouthDakDla] and one 

based uPon themetbampbelamine found in (Utah)-bewouJd 

bavcftlCCiWlda scntcnceideDlicaI to lbeonctbat .. imposed 

in the South Dakoca prosecuIion •••• It is difficult to believe 

that Congress 'W'OUld have intt.oded the punishment to be 

larger if the govcmment chQse to proceed with two different 

proceedings ••• chan if it chose to consolidate aU ofthec:ounts 

in one proceeding." 

Lastly, the sentence for the Utah offense vioIarcs the 

punishment component of the DoubIcJC!OpInly Clause "even 

though the sentence runs concurrc:ndy willl the South DakoI.a 

sentence." FoUowing BaJl v. U.s .• 410 U.S. 856, 864--6S 

(1985). the coon reasoned that punishment includes "all of 

the consequences that flow from • c:onviclion wiIbout Hmiting the concqJt of punishment to incan:cnrion time. fanes. 

and other penalties and resuaidts explicitly ordt.mI by the 

cou.n." and thus ""the absence of an additional prison sentence 

does not render the second conviction coostilUtionaI." 

On the fareanns charge. however, the Double Jeopardy 

Clause was not triggered because, dnder die test in 

BloclcbllTguv.U.s •• 284U.s.299,304(1932).defendantwas 

not punished in the different courts for the same offense. 

AJdlough the weapons enhancement and the feloo in p0ssession offense '"both require proof or possession of a fuearm, 

U.s.S.G. 2Dl.l(b)(I) requires proof that the fuearm was 

possessed •.• during the commission of tbC drug offense, 

while U.s.C. 922(g) requires proof that the accused was a 

felon at the time he possessed the fu-eann." 

U.s. v. Koonce. No. 90-4081 (lOth Or. Sept. 23, 1991) 

(Ebel.J.). 

Sentencing Procedure 

EVIDENnARY issUES 

8ixtb Circuit boIds that courts should coadud an 

evidentiary bearing in accordance witb the CoatroDtation 

Clause wben disputed evideace could lDcnase the GuideliM senteace.1n each of three cases that WCleconsoUdatcd for 

appeal, "dledefeodantpleadcd guilty 10 a drug offenscand the 

District Comt was required 10 increase his sentence significandy under ~ Guidelines because the Court found on the 

basis of disputed facts that he had commiued other drug 

offenses for which he had nOl been convicted. In each case the 

other offenses were proved by the hearsa)UeStimony-often 

double or triple hearsay-of out-of-court declarants who 

remain unidentified. In each case the sentences were increased under the 'relevant conduct' or other similar pro~·i· 

sions of the Guidelines. and in each case the defendant has 

Not for Citation. Guideline Sentencing Update is rovided Cor information only. b should not be cited. eilher in inions or OIherwise. 159 
160 

Guideline Sentencing Update 

objected that the testimony causing his scotence to be increased is wu:eliable." For two defendants, the disputed evidence was used to signUJCaIltly increase the amount of drugs 

and to imposclOle in the offense enbancements; the other had 

his criminal hi.sImy score increased from category I to VL 

The appellate court DOled • conflict between the two 

circuits lbat ba~ specifically add.n:lssod whether factfinding 

undtl' 1he Guidelines is subject. to 1he Cooftontalioo Clause. 

TheEigbthCireuit he1dthat"1beConfrootation CJausc. which 

opcrafCS indc:pcndcnIIy of the rules of evi<Ieoce. does apply." 

U.s. Y. FOI'tkr. 911 F.2d 100. 103 (8&h Cit. 1990). Tbc Third 

CircWldecliDccl to apply IbcClausetosentcncing. but did bold 

that. bcigbreaed scandard of scrudny is RquRd for factual 

(IDdings and hearsay when a court .. departs upwards dramatically" from 1he guideline range. U.s. Y. Kilalmura. 918 

F.2d 1084. 110000(3dCir. 1990). TheSixlhCircuitagrced 

with the Eighlb. finding that because of "'the vast difference 

between the fonnaJ.faa:.basedsystem of senccncing underthe 

new code and 1heold infonnal system. ••• the reliability of the 

dislrict courts' findings of fact must be kISt.ed under the 

principles established by the Confrontation Clause. .. 

"1bis sbould not praent • serious problem for d.is1rict 

courts in mostcases.lncases that go to Irial, disputed facts can 

usually beresolved on the basis of the fac&s presented at 1riaI. 

facts subject to the test of the Confrontation Clause. In guilty 

plea situalions. the facts are usually Wldisputed and can oflen 

be stipulated before the sentencing hearing under § 6Bl.4 of 

the Guidelines. In the cases in which there is a disputed 

material fact. the government can decide whether it will 

auempt to prove the fact under the ConfronWion Clause. In 

each such case the SOvenunent candccide whether it will seek 

to enhance the sentenccotherwise prescribed by the new code 

by proffering and auempting to prove such disputed facts. 

Upon receiving the government's proffer, district courts may 

decide whether the government's proffer of facts-if 

proved-would consticute grounds requiring an incn!ased 

sentcnce.1t the district coon rejects the proffer as immarerial. 

itshouldsentence the defendant oa the basis of the undisputed 

facts of the cbarged offease. the defendant-. criminal history. 

and any other aggravaling Ot mitigating fac;tor provided for in 

the code. It the d.i.sb:ict court decides that the proffeml evidence in dispute would conmlUle grounds for an incn:ascd 

sentence. it should 1hen conduct an evidentiary hearing in 

accordance with the Confrontalioa Clause." 

U.s. v.Silverman, No. 9O-320S (6th Cir. SepL 17.1991) 

(Merrill. CJ.) (Wellford. Sr. J •• dissenting). 

BURDEN OF PROOF 

U.s. 11. Restrepo. No. 88-3207 (9th Cir. Oct. 4.1991) (en 

banc) (Wiggins. I.) (By 7-4 vote. court held that. "for faclOrS 

enhancing a sentence under Sentencing Guideline 

§ 181.3(a)(2)," including uncharged conduct, "due process 

does nol require a higher standard of proof &han preponderance of the evidence to proleCt a con vicled defendant's liberty 

interest in me 8CCW'llte application of the Guidelines. We 

emphasize that the preponderance of the evidence standard is 

a meaningful one that requires the judge to be convinced' by 

a preponderance of the evidence that the fact in question 

Volume 4 • Number 9 • Oct. 10. 1991 • Page 2 

exists.' ..• 11 is a "'misinterpretation [of the pn::ponderance 

test] that it calls on me uier of faa merely to perfonn an 

abstract weighing of dle evidence in order to determine which 

side bas lXOduced the greattz quantum, without regard to its 

effect in convincing his mind of the uuth of the propositiao 

assrzted. "'j (disating opinions by Judges Pregerson and 

Norris, concurring opinion by Judge Tang). 

Offense Conduct 

DRUG QuA.N11TY 

SIxda CIreu1t boIU lbat 1lOIl-dlscributable, po&oaous 

b,-pl'Gdudllbould DOt be Included ill weight oIaaelbampbetamiDe "mixture." Defendanrs were convicted on several charges related to illegal manufacture of mcthamJDctamine. The district court based their sentences on the entire 

weight of ~.unfmishcd '*mixture" containing". detectable 

amount" of methamphetamine. see U.s.S.G. § 2Dl.l(c) (note 

at end of Drug Quantity -Table). that was found in a 

"Crockpot." Defendants irped that using the entire amount 

of 1he mixture was irraIiooal bec:ause only a much smaller 

amount of methamphetamine could bave been produced and 

the milume as found contained only a small amount of 

methamphetamine along with unreactcd chemicals and byproducts that are poisonous if ingested. 

The appellate court agreed: "As Chopman [v. U.s •• III S. 

Ct. 1919 (1991)] makes clear, "Congress clearly inrended the 

dilutant. cutting agent. orcaniermedium to be included io the 

weightofthosedrugsfOtscoleDCiogpurposcs .•• .' Id.at 1924. 

By diluting the drug with some othersubslance, the distributor 

is increasing the amount of the drug he hanvailabJe to seD to 

consumers and thcn:forc is appropialdy subject 10 punishment for the entire weight of the mixture. Such is clearly DOl 

the case here. If the Crockpot conlained only a small amount 

of methamphetamine mixed together with poisonous 

unreacted chemicals and by-products.1herc would have been 

no possibility that the mixtuJe could be distiibuted 10 COIlsumers. AI. this s&age of the manufacturing process. the dofendants were not aa.emptiDg to increase Ihe amount of 

methampheIanUnc they bad available to sell by adding a 

dilutant. cuuing agent. or carrier mediwn. but rather were 

attanpting to distill methamphecamine from 1he otherwise 

uningestable by-products of its manufacture." 

The court remanded "for the disuict court to conduct an 

evidentiary hearing on this issue. If. as we suspect. the 

defendants are correct in their assertions as to 1he chemical 

properties of the contents of the Crockpot. it would be inappropriate for the district court to include 1he entire weight of 

the mixwre for SeDteocing purposes. Instead. thedistrictcourt 

would be limited to the amount of medJamphetamine the 

defendants were capable of producing. See Guidelines 

Manual, § 2Dl.l. commenL (n.12)." The Eleventh Circuit 

recently reached a similar result when it held that the "unusable" portion of a mix lUre containing cO£!ine sJIould nOl be 

included in the offense level computation. U.s. \I. RolantkGabriel, 938 F.2d 1231 (11th Cir. 1991) (4 GSU 1#8). 

U.S. v. JeMings, No. 90-3503 (6th Cir. Sept J6, 1991) 

(Martin, I.}. 
Guideline Sentencing Update FIIDBRAL J IIDIClAL CmmIIt 

Departures 

MmGA11NG CmCUMSTAN<D 

NIDtb Cin:uit amrms downward departure based OD 

"youdarullack of guldaDce. H Defendant was convicted of 

conspiracy to distribute cocaine and rock: cocaine. His 

guideline noge of 360 months to life partly resulted from inclusion in the criminal history score of a 1979 manslaughlet 

conviction when he was 17 years old. but for which he was 

sentenced as an adulL The district court. however. found 

mitigating circumstances and departed to impose a 17-year 

senlCnCC. As the appellale court described ic wrhe mitigating 

circumstance in this case may famy be characterized as 

'yOUlhfullack: of guidance.' Lack of guidance and education. 

abandonment by parents and imprisonment at age 17 constitute the elements of this mitigating circumstance •••• mile 

district court departed downward because it believed that 

Aoyd's you!hfullack of guidance had a significant effect boIh 

on his past criminality and on his commission of the present 

offense. Thus. the district court thought (i) that Aoyd's 

criminal history category significantly overrepresents !he 

actuai seriousness of his past criminality; and (ii) Aoyd'sbase 

offense level overrepresents the actual seriousness of his 

criminality in the commission of the present offense. " 

The appeUate court held that "use of youlhful lack of 

guidance as a mitigating circumstance is not precluded by any 

provision of the [Sentencing Reform] Act or !he Guidelines." 

The govemment.argued that two sections in Chapter 5 of the 

Guidelines preclude the mitigating circumstances used here. 

Sed.ion 5Hl.6, p.s.. for example. staleS that"[f]amily ties and 

responsibilities and COIllmunity ties are not ordinarily relevant 

in delennining whether" to depan. The court concluded. 

however. that this section "recommend(s] against relying on 

the JftSCDl existence of family obligations as a basis for 

departure because they reOeclthe Congressional concern that 

convicted criminals with family ties not n:ceive ligbter sentences than convicted criminals wilhout such ties. . • • To 

construe a provision clearly intended to prohibit heavier 

sentences for people lacking family ties as prohibiting lighlet 

sentences for such people is imputing to Congress an intent it 

bas not manifested." 

"In any case, the district court did not depart downward 

because Floyd presently lacks family ties, but departed, in 

part. because he was abandoned by his parents as a you!h. The 

provision recommending against departure based on !he 

present existence of family obligations does not even speak to 

a departure based on the absence of family guidance at an 

earlier age .... [TJhe mitigating circumstance of youthful lack 

of guidance refers to a past condition !hat may have led a 

convicted defendant to criminality. That both mitigating circumstances involve the presence or absence of familial relationships should not obscure this basic difference between 

them-a difference \'I(hich is suffICient to place youthful lark 

of guidance outside dle purview ofU.S.s.G. f SHl.6 and to 

make it a mitigating factor that is not prohibited underChapter 

Five. Part H of the Guidelines." 

The court also held that the district coun's reference to 

defendant's Lack of education did not conflict with f 5Hl.2. 

p.s., which StaleS that "[e)ducational and vocational stills arc 

notordinarilyrelevant"todeparturedecisions:"lT1hcdiscrict 

oourl merely referred to lack: oi education in support of its 

fanding that Floyd lacked guidance as a youth. A provision 

ltCOfIUDending against depanme based on educationallevcl 

does not speak to a depanure based oft youthful lacIc of 

guidance. In any case. however. in passing 28 U.s.c. f994(e), 

Congress was preoccupied wi!h ensuring that people who lack 

educational skills do not receive heavier sentences than 

people who do have such skill.:> •••• To use this provision to 

prohibit a downwan:l departure based on youthful Lack of 

guidance would be. once again. to impute to Congress an 

intent it never manifested." 

The court concluded that because thtfGuidelines do not 

prohibit departure based on youthfullaclco( guidance. it would 

use the "general background rule," as summarized in § IB1.4, 

that "'the court may consider, without limitation. any infonnation concerning the background, character, and conduct of the 

defendant, unless otherwise prohibited by law •••. We Ihus 

decline Ihe invitation to place additional limitations on mitigating circumstances based on personal charac::tc:rist of the 

defendant and hold that a district cowt may consider youthful 

lack of guidance in determining the approprialc sentence." 

U.s. Y. FkTyd. No. 89-S0295 (9th Cit. Sept. 25, 1991) 

(Noms. J.). 

U.s. Y. Go1llGkz. No. 9()..1704 (2d Cit. SepL 23, 1991) 

(Oakes. CJ.) (relying on U.s. Y. Lara. 905 F.ld S99 (2d Cit. 

1990). affuming downwanl departure to 33 months from 

minimum guideline tenD of 96 months on basis of extreme 

vulnerability to assault in prison for 19-y~-o1d defendant 

who was "exll'el1lely smaU and feminine looking, and ••• had 

the appearance of a fourteen or f&fteen YeMold boy"; rejecting 

government arguments. court held that evidence of bisexuality (as was the case in Lara) was not necessary. thatdefen. 

dant need not have been previously victimized or Ihreatened, 

and that prison conditions may present ~issible basis for 

departure) (Winter, J., dissenting). 

CRIMINAL HISTORY 

U.S. v. Morrison. No. 89-2284 (7th Cir. Oct 10. 1991) 

(Flaum, J.) (reversing upward departure to category VI based 

on district court's belief that, because one of defendant's prior 

convictions wa<; ror a"brutal,cxeculion-style murder," place161 
162 

Guideline Sentencing Update 

ment in category II "seriously underestimated" the severity of 

that crime; appellate court held that Sentencing Commission 

"consciously chose 10 award def«Klants three criminal history 

points for every [felony conviction1, regan:llcss of the nature 

of the underlying offense condUCL See § 4A 1.1. To sanction 

the district comt's upward departure would 6y in the face of 

that choice. and invite sentencing courts 10 create their own 

weighing schemes for prior criminal conviclions.j. 

AGGRAVATING CIltCUMSTANCES 

U.s. v. Uccio.940F.2d753 (2dCU. 1991) (kldnapping and 

assault of co-conspilator undertaken in fwtherance of offense 

was proper ground for upward departure pwsuant 10 § SK2.4, 

p.s.-d1at seclion is not limited 10 actions against innocent 

bystandets or largets of the crime). 

Adjustments 

OBSTRUCI10N OF JUSTICE 

Fourth Circuit holds obstruction fJI justice enhancement may not be applied to testifying delendant's denial 

of pilt tbat Is not believed by jury. Defendant-charged with 

conspiracy 10 distribute cocaine. ''lOok the stand and denied 

everything." After the government' s "devastating rebuual," 

the jury convicted the defendanL Her offense level was increased for obstruction of justice because the trial court found 

she testified untruthfully at the trial. As the appellate court 

noted, "[c]ommitting or suborning perjury has always been 

idenlifled as 'obslruction of justice' in the Guidelines Commentary. U.s.S.G. § 3eU, commenL (n.l(c» (Nov. 1989); 

Id., commenL (n.3(b» (Nov. 1990)." Every other circuit 10 

consider the issue has upheld &he constitutionality of applying 

§ 3Cl.l1O untruthful testimony. See U.s. v. Con,reras. 937 

F.2d 1191, 1194 (1th Cir. 1991); U.s. v.Batista-Polanco. 927 

F.2d 14.22 (1st Cir. 1991); U.s. v. Malos. 907 F.2d 274, 276 

(2d Cir. 1990); U.S. v. Barbarosa. 906 F.2d 1366, 1369-70 

(9th Cir .), CUI. Iknied,lll S. CL 394 (199O); U.s. v . Wallace, 

904F.2d603,604-05 {11th Cu. 1990); U.S. v.Keys.899F.2d 

983. 9~ (lOth Cu.), CUI. tknled. 111 S. Ct. 160 (l990); 

U.s. v. Wagner, 884 F.2d 1090, 1098 (8th Cit. 1989), cUI. 

denied. 110 S. Ct. 1829 (1990); U.s. v. Acosta-CQZQI'u. 878 

F.2d 945, 953 (6th Cir.), cen. tknied. 110 S. CL 2S5 (1989). 

The Founh Circuit, however, held that applying the enhancement in this situation unronstibJlionally impinged on 

defendant's right to restify: "[W]e fear that this enhancement 

will become the commonplace punishment for a convicted 

defendant who has the audacity 10 deny the charges against 

him. The government maintained at oral argument that every 

defendant who lakes the stand and is convicted should be 

given theobsuuction of juslice enhancemenL ..• It disturbs us 

that testimony by an accused in his own defense, so basic 10 

justice, is deemed to 'obstruct' justice unless the accused 

convinces the jury." 

"We are not satisfied that there are enough safeguards in 

place to prevent this enhancement from unfairly coercing 

defendants, guilty or innocent, imo remaining silem at trial. 

Other circuits have reviewed the district court's finding of 

untruthfulness under a 'clearly erroneous' standard .... Of 

course, in light of the jury's verdict of guilt. thed istricl court's 

Volume 4· Number 10· October 18. 1991' Page 2 

fmding will never be 'clearly erroneous' where the verdict is 

sustainable; if the verdict cannot be supported, the sentencing 

fuuling will of course be mooL" 

"TherigidityoftheguideUnesmakesthe§ 3Cl.l enhancementforadisbelieveddenialofguiltunderoalhanintoJerable 

burden upon the defendant' sright to testify in his own bebaIf." 

U.S. v. Dunnigan, No. 90-5668 (4th Cir:Ang. 30. 1991) 

(Hall, J.) (as amended SepL 12, 1991). 

U.s. v. Thompson, No. 90-1305 (7th Cu. Sept. 18,1991) 

(Flaum,J.) (improper to giveenhancement to defendants who, 

during presentence hwestigalions. falsely denied Ihey had 

used drugs while on bail during the course of triaI-revised 

ApplicalionNote 1 10 § 3C1.l. cffedive Nov. 1,1990,stafeS 

that "defendant's denial of guilt (ochel' thaD a denial of guilt 

under oath that conslibJtes perjury), refusal 10 admit gullt or 

provide information to a probalion offICer, or refusal 10 enter 

a plea of guUty is not a basis for applicalion oflhis provision," 

and thus "makes clear" that Previous holding 10 the conuary 

in U.s. v.Jordan,890F.2d968, 973 (7thCir. 1989),shouIdnot 

be followed; however, enhancement for lying 10 probation 

offu:er about violation of condition of re1eue while awaiting 

sentencing was proper-information in respect to 

presentence or other investigation for court "comprises a 

broader range of inquiries than those pertaining to the 

defendant's guilt or innocence," and the court "unquestionably had a legilimate interest in monilOring [defendant's] 

compliance with the release conditions it had imposedj. 

Criminal History 

CAREER OFFENDER PROVISION 

u.s. v. Stinson, No. 90-3711 (11th Cir. Oct. 4, 1991) 

(Edmondson, J.) (illegal weapons possession by a convicted 

feloo"byilSnature.pesentedaseriouspolentiaJriskofphysical injury to another," U.S.S.G. f 4B 1.2, commenL (n.2(B». 

and is therefore "crime of violence" for C8I'C4't offender purposes). Accord U.S. v. O·Neal. 910 F.2d 663 (9th Cir. 1990). 

Probation and Supervised Release 

REvOCATION OF PROBATION 

U.S. v. Williams. No. 91-1219(8thCir.SepL6.1991)(per 

curiam) (because sentence following probalion revocation 

must be one that was available at lime of original sentencing. 

coutt may not usenewguidelinecbapterseven,effectiveNov. 

I, 1990. for defendanlS originally sentenced before that dace). 

REvOCATION OF SUPERVISED RELEASE 

U.s. v. Fallin, No. 91-1017 (8th Cit. Sept. 23.1991) (per 

cwiam) (for defendant who violated supervised release after 

Nov. I, 1990. court "should have consideted the policy statemenlS in chapter seven of the guidelines when sentencing FaIlinaftertherevocationofhissupervisedrelease";coun'serror 

was hannless. however, because this was defendant's second. 

identical violation, and "[g]iven Fallin's blatant defiance of 

the court -ordered teons of his supervised'releaSe. we believe 

the district court properly sentenced Fallin to an appropriate 

lerm of imprisonment wilhin the stalutory maximum .... 

Thus, no useful purpose would be served by remanding 

Fallin's case lO the dislrict court for resentencing."). 
Guideline Sentencing Update 

G".,i,.. ~ U,... will be diIIIriIMad periodicII1,. b.r the C-Io iaC_ jQdpI and ocb« judid&l,..aa.ael rllICIocrod rc.donI_ dedoiona ... 1bco1CllloCDCiai 

0-; 

n:I'_~ 

.... ill ... 

rll9M_1917 

_ rI ...... _ ... _baIdlap.lt. 

S ...... ~ 

_ ....... 

AlIboutb 

10 ...... 

... pubticaIi 

1 .. __ 

... 

.0 

_,. n:l'arlo'" 

,., Ie· ... ~_ 

s--a .. 

ac:cma... 

OuideIineIUId a-.s-shDuId paIic)' ~rllbco 

_«10'" <laid 

u.s. 

III .... 

~ 

paIiq 

.. ~ ill .. 1I1,-adtIr---__ b.rIboS .. dllJC '."iwi .... fa ... udaiaf_.doL 

Pul!liClGaarlGolioldiMS .. ,.,.., U,... ..... dIal ... c.w .... It •• l'CIpIIIIIItieandvaJgabl.e....-k.ltlhould_bc-adereol.RiOCWwamcI.mca .. OIII!daI paIiq 

rl1hc Cnrtar. 0IIl_ rlpatiq Ibo c-. ..... aaJ.y ......... Bouil. 

V<lUJMB 4 • NUMBI!R 11 • 0c:m8Ia 31. 1991 

Adjustments 

ACCEPTANCE OF RaPoNSIBILITY 

lblrd Circuit Jaolds Fittb Ameaclaaeat protectiOD 

agaiast sel'-iacrimlaadoa applies to reduc:tloa ror acceptaace GI respoasibility witJa respect to related COIIduct. 

Defendant pled guilty 10 robbing a bank by intimidalion. As 

part of the plea agreement. a second count of bank robbery 

whh a dangerous weapon was dismissed. He denied using a 

gun during the robbery and the count of conviction did not 

require use of a weapon. but the coun incR:ased his offense 

level for possessing a weapon during a robbery and denied a 

13El.1 deaease because defendant did DOt accept responsibDity for possession of the gun. Defendant was sentenced accordingly and appealed. arguing that § 3E 1.1 requires accep.-

lanCCofresponsibilityonlyforconductinthecountofconviclion and requiring a defendant 10 admit conduct beyond the . 

offense of conviction in order 10 receive the reduction would 

violalc the self-incrimination clause of the F'lfth AmendmenL 

The appellat.e court rejected the fnt argument: "'We agree 

with the COW1S that int.erpret 1 3El.1' s reference 10 'criminal 

conduct' and the application note' s reference 10 'offense and 

relaled conduct' as indicating that the sentencing court may 

consider whether the defendant has admitted or denied c0nduct beyond the specifIC coOduct of the offense of conviction 

in the course of determining whether 10 grant a two-level 

reduction for accepcancc of responsibDity •••• Accordingly, 

we here hold that the terms 'criminal conduct' and 'offense 

and relared conduct' in Chapter 3 refer 10 the same bundle of 

conduct: aD conduct that is "relevant' under § IB13 of the 

Guidelines.-Act:ordU.s. v.Mollnling, 914 F.2d 699. 70~ 

(Sth Or. 1990); U.s. v. MIIIIio, 909 F.2d 436. 439-40 (lIth 

Cir. 1990) (per curiam); U.s. v. Gordolt. 895 F.2d 932. 936-

37(4d1Cir.),cttt.tIeitU!d,l11 8.0.131 (1990).SeeaLroU.s. 

v. Het1'Wa. 928 F.2d 769. 714-75 (6ch Cit. 1991) (affmniog 

denial of reduction because defendant did not accept resp0nsibility for related conduct). Comra U.s. v. Piper, 918 F.2d 

839,840-41 (9th Cir. 1990) (per curiam); U.S. v. Oliveras, 

90S F.2d 623, 626-27 (2d Cir. 1990) (per curiam); U.s. v. 

Perez-FrQItCo, 873 F.2d 45S, 463-64 (1st Cir. 1989>. 

On the Fifth Amendment issue, defendant had the right to 

refuse 10 answer questions in the presentence interview about 

whether he posst&seda weapon during the robbery because he 

could have faced stale weapons charges. Whether a denial of 

the § 3E 1.1 reduction forexercising this right violates the Fifth 

Amendment turns on whether that denial is a "penalty" or a 

"denied benefiL" The appellate court held it was a penalty: 

"The characterization of a denied reduction in sentence as a 

'denied benefit' as opposed to a 'penalty' cannot be squared 

with the reality of the sentencing calculation and conflicts 

with decisions of the Supreme Court and pre-Guidelines deci· 

sions of this court .... [Dlenial of leniency is a penalty which 

cannot be imposed for the defendant's assertion of his or her 

F'lfth Amendment privilege. .. Accord U.s. v. Oliveras, supra, 

at6'1:1-'2B;Perez-FrQIICo,supra,81463.Seealso U.s. v. Watt, 

910F.2d~,S~(9lhCir.I990)rsentcncingcourtcannot 

consider against a defendant any constitutionally prorecaed 

conductj. Several circuits have held rhal denial of the reduction is not a penalty and thus 13El.l does not implicate the Fifth 

AmendmenLSee MOlITtUn,.supra,817(X;...(J7; U.S. v. Trujillo, 

906F.2d 1456,1461 (lOlhCir.I990): Gordolt,supra,at936-

37; U.s. v. Henry, 883 F.2d 1010,1011-12(11th Or. 1989). 

The Third Circuit noccd, howew.r, that "the Fifth Amend· 

mentprivilegeagainstself-inaiminationisnotself-executing 

and thus must be claimed when self-incrimination is threatened." There are toa few limited exceptions 10 the rule," such 

asMwhen the govemmentthreat.ens 10 penalize theu.sertion of 

the privilege, and thc:r'eby 'compels' incriminating testimony," but the coon concluded that "requiring a defendant to 

accept responsibility in order to obtain a sentence reduction 

is not a threat to impose punishment for an assertion of the 

privilege ••.• [TJhe person being questioned may fear that he 

or she will be more likely 10 suffer a penalty if the questions 

go unanswered, but the penalty wiD DOt be imposed for the 

claiming of the privilege. ••• [I]f a defendant does not claim 

the privilege when asked during the sentCncing process about 

acts beyond the acts of the offense of cmviction, any subsequentstat.ements are consiibed voluntary and maybeconsidered by the senlenCing judge in determining whelher to grant 

a reduction for acceptance of respons.ibility." Here. the court 

ruled, defendant did notclaim theprivilege~hisstalements 

10 the probation offIcer were not compelled. Thus, his denial 

that he possessed a gun during the robbery could be considered by the district court in detennining he had not accepted 

responsibility. (Nor.e: One judge dissented on this point) 

Thecoun"emphasize[d] the limited scope ofour dccision. 

This case involves a defendant who voluntarily responded 10 

questions and denied a portion of the criminal conduct thal the 

coon found 10 have Iaken place. This case does not involve a 

defendant who remained silent when questioned about reIaIed 

conduct beyond the offense of conviction without claiming 

the Fifth Amendment privilege. Nor does it involve a defendant who consistently relied upon his privilege when questioned about reIat.ed conduct beyond the offense of conviction. We express no opinion concerning such cases." The 

court did. however, "venture several words of advice" concerning such cases: "[w1here the defendant has consistently 

asserted the privilege as 10 acts beyond those of the offense of 

conviction. a sentencing judge ... obviously must not draw 

any inference from the fact that the pri v i lege has been claimed. 

... (T]hejudgecannot rely on the defendant's failure 10 admit 

to such acts as a basis for denying the two-level reduction. But 

that in no way implies an automatic two-level reduction for 

such a defendant. The sentencing judge must address the 

acceptance of responsibility issue on the basis of all of the 163 
164 

Guideline Sentencing Update 

record evidence relevant to that issue." Su U.s. v. Stillman, 

922 F.2d 1370. 1378-79 (9th Cu. 1990) (assertion of Fifth 

Amendment rights does not elllille defendant to reductionIhere must be some affumative acceptance of rcsponsibilily). 

The court further observed: "It is at least quesdonable 

whedael a scntencingjudge in a case where &he defendant has 

acIcnowledged responsibilily for the offense of convictioo but 

has claimed &he privilege whit respect to aggravadng re1artJd 

conduct can deny the two point reduction based solely on &he 

defendant', failure tocany his burden ofproofwiduapect to 

&he acceptance of ~ility for his criminal conduct. .. 

U.s. v. Frierson. No. 90-3382 (3d Cr. Oct. I, 1991) 

(Scaplecaa. J.) (Garth, J .. dissenting in pan). 

ABUSE OF POSmoN OF TRUST 

U.s. v. KOM. 943 F.2d 798 (7th Cir. 1991) (reversing 

§ 3B 1.3 enhancement for abuse of position of trust given to 

businessman who used his merchant account with bank to 

commit aedit card fraud: "There was no special element of 

private trust involved. .•• As with all cn:dit uaasaetions,lhere 

was an element of reliance presenL However,lberelationship 

described by &he facts in this case was. SIandard commercial 

relationship. The fraud described here docs not differ from 

any oIhet commen:iaI credit transaction fraud. The defendant 

was not an "insider' • • • [but 1'81bet) an 0Idinary merchant 

customer or &he bank who commiUcd fraud by abusing his 

cootractual and commercial relationship with iL "). 

MtJL11PLE COUNTS 

U.s. v. Bruder. No. 90-1931 (7th Cu. SepL 27,1991) (en 

bane) (Ripplc. I.) (five judges dissenting on this issue). Court 

reversed failure to group offenses of convicted feJon in p0ssession offue.m and possession of unregistered fueann that 

invol~ the same weapon. Becallse these offenses wae not 

speclfacally lisIcdin § 3Dl.2(d), the main inquiry was whedael 

they "involved substantially Ibe same Iwm." Court heJd they 

did, reasoning that "society" was &he victim of both aimes. 

both SIalUtcs that were violated have the same goal. and a 

convicted felon-who cannotlegaUy register. fueann-wUl 

"necessarUy viOlaaeo the registration staIUtC as well as the 

fdon in possession statute. .. The court also de&ennined IIlat 

this case fit "'the pideliDes· d.irective that some c::ounlS "are so 

closely intertwined with oIhet offenses that conviction fex' 

them ordinarily would not warrant incRasing &he guideline 

range.' U.s.S.O. 01. 3, Part 0, Inlroducrory Commentary." 

Set also U.S. v. Rivi4re, 924 F.2d 1289, 1306 (3d Cu. 1991) 

(unlawful delivery of fue.ms should be grouped with unlawful possession of weapon by felon). The court distin· 

guished U.s. v. Pope, 871 F.2d 506, 509-10 (Sth Cir. 1989) 

(unlawful possession of weapon need not be grouped wilh 

unlawful possession of silencer for different weapon), and 

U.s. v. BaIr.hliori, 913 F.2d 1053. 1062 (2d Cit. 1990) (unlawful possession of weapon need not be grouped with possession of silencer for same weapon). 

Relevant Conduct 

Sl1PlTLATION TO A MORE SERIOUS OFFENSE 

u.s. v. Day, 943 F.2d 1306 (lIth Cir. 1991) (defendant's 

wriuen stipulation in formal plea agreement to facts that 

described burning of boat 10 fraudulentJy collect insurance 

proceeds as "the arson job" was "a slipulation that specifically 

eSlablishe[d the) more serious offense" of arson, and the 

Volume 4 • Number 11 • Oc:cober 31. 1991 • Pate 2 

district court properly used § 18 1.2(a) to sentence defendant 

under arson rather than fraud guideline; appeUarc court reasoned that. in light of Supreme Court's analysis of § 181.2(a) 

in BraxtOIl v. U.s .• 111 S. CL 1854 (1991), a defendant need 

notexpesslyagree that the stipulated facts establish the more 

serious offense. and the relevant inquiry is "whedlet, as a 

matter of law , the faclS p'Ovided &he essential elements of the 

more serious offense"). 

Departures 

MmGA11NG CIRCUMSTANCD 

u.s. v. Glick. No.91-5SOS (4th Cir.OcL 8, 1991)(WiDdns, 

J.) (conduct over fen-week period involving number of actions and exlCllSive planning cannot be construed as "single 

act or aberrant behavior" that wammts downward departure, 

U.s.s.O. Ch. I, Pt. A, 4(d), p.s., disagreeing widt U.s. v. 

Taiai. 930 F.ld 1427, 1433-34 (9th Cir. 1991)(conductduring bribery offense Ihat occurred over eight-day period was 

"single act of aberrant behavior"); also held that signiflC8l'ldy 

reduced mental capacilyrf SK2.13, p.s., '"need not be the sole 

cause or the offense to justify departure. but should 'compriseD a conbibuting factor in the commission of &he offense. ' 

U.s. v.Rllcklick. 919 F.2d9S, 97-98 (8th Cr. 1990)." accord 

U.S. v. LauzOll. 938 F.2d 326, 331 (1st Cir. 1991». 

U.s. v.Bruder. No. 90-1931 (7th Cir. Sq:Jt. 27, 1991)(en 

bane) (Ripple. J.) (defendant's "post-offense ldaabiUcation" 

WIW "'equivalent' toacceptanCeof responsibilily" and sentencing court "properly reCused to depart" downward). Accord 

U.s. v. VanDyke. 895 F.2d 984. 987 (4th Cit.), cert. dellkd. 

III S.CL 112(l990).Suaiso U.s. v. WiUiams.891 F.2d 962. 

966 (1st Cit. 1989) (desire to reform not basis for departl.Ue). 

EXTENT OF DEPAImJRE 

U.s. v. Ban. 944 F.ld 88 ('2d Cit. 1991)(aff'uming use of 

analogy to multiple counts guideline, pursuant to U.s. v. Kim. 

896F.2d678. 684-8S (2dCit.I990).toimposeupwarddepartare on counterfeiting defendant who kidnapped and threatened potmlial wicness-scntencing cowtconc:1uded obstruction of justice enhancement was inadeqUlfe. analogized conducttooffenseofwiLnesStampering,andaenlenCeddefendant 

under pidelinerange that would have applied under § 3D 1.2; 

appellate court also explained that .. the multi-c:ount analysis 

is to provide only guidance as to &he extent of a dcpanure, not 

a rigid formula. ••• The point of Kim is to use &he multi-count 

analysis and the senla1cil1g table as useful guidance •••• not 

to precipiwe a time-consuming analysis of every possible 

calculation of arguably relevant circwnslanceS. j. 

Appellate Review 

DEPARnJRES 

u.s. v.GUck.No.91-5S05(4thCir.Oct.8,1991)(Wilkins, 

J.) (depanure based on proper and improper factors may be 

upheld if proper factor justifies magnitude of departure, 

adopting approach sctfonh in U.S. v. Diaz-Baslardo.929 F.ld 

798,800 (Is1Cir. 199 I)(see 4 GSUt#3».AccordU.S. v.Alba. 

933F.2d 1117 (2d Cir. 1991); U.S. v. FranJclill. 902 F.2d SOl 

(7th Cir.), cerl. denied. 111 S. Ct 774 (t990); U.S. v. 

Rodriguez. 882 F.2d 1059 (6th Cir. 1989).cerl. denied. llO S. 

CL 1144 (1990). Contra U.S. v. Zamarippa. 905 F.ld 337 

(lOth Cir. 1990); U.S. v. Uern(lndel-Va.~quel. 884 F.ld 1314 

(9th Cir. 1989) (per curiam). 
Guideline Sentencing Update 

GflidlIiIW ~ v,.,. will be diau:ibutod pcdodicaIl, bJ 1bc C-. w_ jucIaoIud oc.b« judicial pOIICIIIIMl olllllocled Wcnl_ cIoci&icaI CD Ibo ........ __ ~olI9l4-S1917 -Slbo s __ ., 0aid0Ii_ Alchouah IbopublicadCDIIII, rderlDlbo~~"~ __ ollbo u.s. Sct.cacIq 

('ammIejce III Ibo -*IS oll'llpCll'tiq _ haldillfl.l& II DOl iaraIded 10 NpCId SaII..:in. Cmnleejon poIicIeI cr IIdivitI-. .... 1bauW __ 10 Ibo auw.JiaeI. pIIIicJ 

III"'T_'" .." ... __ -.iU ..... ." Ibo SaIl ",C-.iaa fcrllllClh W-a-. 

~olGflidlIilW"'rP'lllill V,.,.lIipifiTItllMlboc.u.rNl_ 11. ... ~udvalulbloewcr.k. IlibouId DOlbe~.iC "'. 

ollboc-.. 011 _ oIpoticr Ibo c..rcr .... CIIIl, IIuouP ill Boud. 

VoctIMB 4 • NllJoIBIlIl 12 • DBcmaa S, 1991 

Offense Conduct 

DRUG QUAN111Y 

Seveotb Cireult emphasizes tbat quantity or drup 

aUributed to co-c:oaspirators must be calculated lor each 

lDdlvIcIuaI baed OB what was "reasoaably foreseeable" 

witbla tile ICOpe fI tbat .feDdaDt' ..... eemeot. Defendants werepartofaJarge-scale heroin distribution scheme Ihal 

operated over a threc-)'eaI' period.. Some were in the conspiracyfrom thestm whUeodlersjoined at various s&ages. All 

appealed dleir SCDICnCeS, claiming that die district court 

improperly used the entiJe amount of heroin distributed during theoourse of &he conspiracy to calculate &heir base offense 

levels under U.s.S.O. § IB1.3(a). The appellate court affamed some sentences, but remanded 0IherI for individualizedc:onsidemaionoflhosedefendanu'scopeofinvolvement 

in the conspiracy and the amount of heroin for which they 

could be held responsible. 

Under the relevant conduct guideline, a co-conspirator is 

held accountable for "conduct of 0IherI in furtherance of the 

[conspiracy] that was reasonably foreseeable by the defendanL" § IB1.3(a), commenL (n.l). The commenrary funher 

stales that '"the scope of die joindy-undenaken aiminalactivity ,and benc:e relevantconduct. is not necessarily the same f(l' 

every participanL Where it is established that die conduct was 

neitherwithin dlescopc of the defendant'l agreement, norwas 

reasonably fcnseeable in connection with the criminal activity &he defendant agreed to joindy undertake. such conduct 

is not included in establishing the defendant's offense level 

under this guideline." 

Based on the Guidelines and parallel case law on conspiracy. the appellate court concluded that "there are two 

limiting factors on the use of caaduct in ca1cuJaUng the 

seDlenCeofac:onspiracydefenclanL The caaduct must be 1) in 

furthetanc:e of the conspiracy and 2) reasonably foresecable to 

the defendanL" In a drug conspiracy. a defendant "'will not be 

held accountable f(l' prior or subsequent conduct that was not 

a reasonably foreseeable element of the aiminal activity 

agreed to by &he defendant. even if the conduct involved the 

disttibution of the same controlled subscance by odler defendants. • • . [T]he most relevant factCl' in delennining the 

reasonable foreseeability of conduct engaged in by co-conspUaun in an intricale and longstanding conspiracy is the 

scope of the defendant's agreement with the other conspirators." 

Accordingly. the coun held that a defendant who was a 

member of the conspiracy for less than two months but 

aUegedly "'knew of" the scope of the conspiracy prior to 

joining (he had been a heroin user and lived across the street 

from the leader of the conspiracy) should not have had his 

offense level based on all of the drugs distributed: "Reasonable foreseeability refers to the scope of the agreement that the 

defendant entered into when he joined the conspiracy, not to 

the drugs defendantmay havek'nown about as a functionofhis 

individual consumption •••• To sentence a defendant based on 

the entire amount of drugs distributed requires that this 

amount be ~ly foreseeable with respect to the agreement that the defendant enfa'cd. into. He may DOt be held 

responsible for the fOt81 quantity of drugs simply because he 

might have been awaoe that [the leader of die c:onspiracy) 

opcratcd a large-scale drug orpnization." 

Remanding, the court instructed the sentencing court "'to 

scrutinize the agreement that [aIICh) individual defendant 

entered inlD 10 determine whether he actually agreed ID 

become involved in a conspiracy to distr:ibuIc a given quantity 

of drugs-hete more than 10 Idlograms of beroin •••• In order 

to sentence a defendant based OIl the entire quantity of drugs 

disttibuted in a c:onspiracy. when die defendant bas joined the 

conspiracy in its IaIe SIageS, it mustbe shown that thoscearlier 

transactions were reasonably foreseeable to him. TheGovemment must show that die defendant apecd to a conspiracy 

whose scope included so large a dislribution of heroin. The 

judge may sentence a IaIe enttant on the basis of aU the drugs 

distributed only if &he earlier distributions occurred as part of 

the conspiracy to which the defendant·apecd. ••• Furthermore. he may not be sentenced according to aU of the heroin 

distributed after he agreed to join thec:onspiracy if in agreeing 

to conspire. he reasonably foresaw a Iesscr amounL" 

Thecourtaddcd that die sentencingcoun must "set[] forth 

thereasons why [aJ particularamountof drugs was reasonably 

foreseeable" to each defendant for sentencing purposes. 

U.s. Y. Edwards. 945 F.2d 1387 (7th Cir. 1991). 

U.S. y.Rt!stTt!po-ContrerGS.942F.2d96.99 (lstCir. 1991) 

(following Chapman Y. U.s .. 111 S. 0.1919 (1991)(welgbt 

of LSD "mixture" includes canier). and U.S. Y. MwclwOlfOjrt!. 936 F.2d 623. 626 ( lSI Or. 1991)(suitcase made from 

cocainechemicallybondcdwiib8C1')'1icwas'"mi.x&urej.hold. 

ing that total weight of staIUeS made of twenty...ane kilograms 

of beeswax and five kilograms of cocaine should be counted 

under § 2D 1.1 as "mixture (I' substance" containing cocaine). 

BlUStt!U.S. v.Jt!Mings.94SF.2d 129. 136-37 (6thCir. 1991) 

(unusable, poisonous by-products should not be included in 

weight of methamphetamine mixture); U.S. Y. RoltwkGabriel. 938 F.2d 1231. 1238 (11th Cir. 1991) (weight of 

"Wlusable" put of cocaine mixture should not be included). 

Relevant Conduct 

INCRIMINAllNG STA'lEMENTS DuaING COOPERAll0N 

Fourth Circuit bolds that sentenclnltC0uf1.may not use 

information protected under U.s.S.G. f IB1.8(a) as basis 

for denying substantial assIstance departure. Defendant 

pled guilty to possession of cocaine with intent to distribute. 

The plea agreement stated that defendant would assist the 

government in the investigation of others, and, pursuant to 165 
166 

Guideline Sentencing Update 

USS.G. f IB1.8(a). any self.incriminadng evidence revealed as part of his cooperation would not be used against 

him in any fur1h«criminal proceedinp.ln.return the g0vernment would recommend. a departure for substantial assistance. a sentence althe low end of the guideline nmge. and a 

reduction for acceptance of responsibility. The defendant and 

goyemment fulfilled their respective partS of the bargain. 

However, during defendant's cooperation he admiUed 10 

selling sizable quantities of marijuana over several years. and 

thedislrictc:ourtrookthisintoacx:ountindenyingthesubsfan.. 

lia1 assistance motion and sentencing defendant at the lOp of 

the guideline range. Defendant appealed. arguing that 

11BI.8(8) pecluded the use of this infmnadon. 

TheappeDatecourtagreedandreversed. AppJicationNote 

110 f IB 1.8(8) states ill pan _"the policy of Ibe ComJnis.. 

sian is tbal where a defendant as a result of [such] 8 cooperadoa asreement ••• reveals infonnalion tbal impliauea him 

in IIIIawful conduct not alIeady known 10 abe govmment. 

such defendant should not be subject 10 an inaeased SCIIlcIlce 

by virtue of daat cooperation where the govamneot agreed 

that the infonnation revealed would not be used for such 

purpose. .. The court found tb8l "there is no questian tb8l. 

COIlrrary to the guidelines' expressed policy, Malviro bas been 

'subjected lOan increased sentence by virtue of[his] c:oopeI8-

lion where Ibe govanmcnt agreed tb8l the ~~ revealed would notbe used for such purpose.' Wf!/le we 10 allow 

Malviro's senteDCe 10 stand. not only would this policy be 

frustraIed. but .. important and common investigative rool 

would lose some potency." 

The court concluded: '"'The district court is not bound by 

the government's recommendation that it make 8 substantial 

assistanco dcpanure. On the other band. U.S.s.O. 11BI.8 

requUes it 10 honor the govmunent's promise that self· 

incriminadng information volunteered by the defendant 

under a cooperation apeemeIlt will not subject the defendant 

10 8 harsher sentence. In short. the district court oouId have 

denied MaJviIO the downward departure for almau any reason, bulnot forthe reason ilgave. "1be court noted the general 

rule that refusals to depart "are ordinarUy not appealable," but 

held that this sentence"wu imposed as aresult of an incorrect 

awUcation" of the guidelines, and as such was appealable 

under 18 U.s.c. § 3742(a)(2). Because resentencinc was 

required on this ground. the court did not decide the issue of 

sentencing al the top of the guideline range. 

U.s. Y. Malvito,946 F.2d 1066 (4th Cit. 1991) (WiDcins,J .. 

dissenting). 

Departures 

MmaA11NG CIRCUMSTANCES 

U.S. v. Harrington. No. 90-3176 (D.C. Cir. Oct 25. 1991) 

(Oinsburg. J.) (Silbennan. J' t dissenting; Edwards, J., concurring) (reversing 741 F. Supp. 968 (D.D.C.I990)-"postoffense [c:b:ug1 rehabilitation is the type of conduct properly 

considered in determining whether [defendant] is eligible 

fora reduction in sentence under U.S.S.G. § 3El.1" for 

acceptance of responsibility and rherefore nota JI'Oper ground 

for downward departure, accord U.S. v. Van Dyke. 895 F.2d 

984,986-87 (4th Cu.). cert. denied, III S. CL 112 (1990); 

Volume 4· Number 12· Dec:anber S. 1991· Paac2 

but agreeing with U.s. v. Sklar, 920 F.2d 107, 1lS-17 (1st 

Cu. 1990). that an "exIraCl"dinary" case of rehabilitation 

could warrant departure). See also U.S. v. Martin. 938 F.ld 

162, 16~ (9th Cu. 1991) (departule for drug rdIabiIitat.ioo precluded by f SHl.4,p.s.); U.s. v.Pharr. 916F.2d 129, 

133 (3d Cir. 1990) (same), cert. denkd. 111 S. a. 2274 

(1991). Contra U.S. v. Maddalena. 893 F.2d 815, 818 (6th 

Cir.1989). 

U.S. v. White, 945F.2d lOO,I02(SthCir.I991)(reversing 

downward departure based on defendant's youth: "'The guidelines bave adequately taken intoconsideradon &be defendant's 

• in f SH1.1, specifying exttemely limited circumstances 

under which a sentencing court may lise. in depanincfrom 

the applicable range. The circumstance ofbeing young is DOt 

8 pemtissible consideration under the guidelines.,. Accord 

U.s. v.Dlagi. 892F.2d 31, 34 (4thCir. 1990). 

AooRA VAnNG CIRCUMSTANCES 

U.s. v.Klotz. 943F.2d 707, 710 (7thCir. 1991) (U.s.s.G. 

1 5Kl.2, p.s.-" A defendant's refusal to assist authorilics in 

the investigation of other persons may notbeconsidcrcdasM 

aggravating sentencing factor" -precludes upwardc:lc::panuJe 

for failure 10 assist authorities but"does not forbid ajudF 10 

considel' the extent of assistance when selecting a seatence 

within &be guideline range"). 

Adjustments 

OBSTRucnON OF JUSTICE 

u.s. v.AJudn.No.91·1245 (lstCU.OcL8, 1991) (HiII.J.) 

(reversed--district court imJl'Operly refused 10 impose eo.. 

hancanent despite rIDding that defendaDl committed peajury 

during bearing on his moc.ioo to withdraw guilty plea: "[W]e 

bold that. upon rIDding Appellant had perjmed himself during 

the Fed. R. Crim. Pro. 32(d) hearing, &be disUict comt was. 

wilhoutdiscrelion, mandated to enhance the AppeUam's base 

offense level by two levels as prescribed by .•• § 3Cl.1. The 

offense level enhancement applies to unsucCessful and foolish 

attemptS as well as the more savvy attempts at pezjury. The 

en.hanc:ement applies regardless of whelher &be perjury was 

attempled before a judge CI" jury.,,). Accord U.s. v. Alii"", 90S 

F.ld 295,297 (9th Cu. 1990) (enhancement mandalory once 

court finds facts sufficient to constitute obstruction); U.s. v. 

Roberson. 872F.2d 597, 602 (5th CU.),cert. tknkd.l10S.a. 

175 (1989). 

Appellate Review 

u.s. v. Jones. No. 90-3266 (D.C. Cir. OcL 25, 1991) 

(Wald, J.) (adopting three-part test set forth in U.s. V. DiIJZBastardb. 929 F.2d 798. 800 (1st Cir. 1991) (see 4 GSU '3), 

for reviewing departure based on both proper and improp« 

grounds). Accord U.S. V. Glick. 946 F.ld 335 (4th Cit. 1991). 

For other circuits' positions see 4 GSU '11. 

Note: U.S. v. Galloway. 943 F.2d 897 (8th Cu. 1991), which 

narrowed the scope of the relevanrconduct provision, 

§ IB1.3(a). was vacated Nov. 20,1991,andrehearingenbanc 

granted with argument set for Jan. 6. 1992. 
Guideline Sentencing Update 

GMWtIiM s.u-ur, U".., wmb.diilallulMperioo'ntU,., .. c...kJ __ Pdp lad OIlIer judidal paHIIIIIIl ......... foMnl _____ .. ~ 

......... 1 .... 1917 ..... ' ,0", 'I _ AldIcIaF .. puWiaIri_IDI'ftlCwkJ .. Sm'llciat0 ........... paIieJ ___ ... U.s ........... 

0.-; ......... -. .ftIPCIltiaI-IIoIdiqI,.iI ........... 10 IlIIpGIt s.-in. C-jMjm poticie. .. ~ .......... ffIlfIIlkJ" ru '--' paIieJ 

..-... -.,," adlwllllllaiall .... by .. ......., c-w;c.. , .. 1Udl iDfGmdiaa. 

~.GNIrIi •• S-"'" U".., ........ c... .... iusa....,...aMtadvaluablawadt.habauld ... b.--w..s.1IIIIl • II. detka .. «6cia1paIieJ ... ea-. Oa ___ .paIieJ .. ca.r..,...a., ....... ill BouL 

V0UlMI4· NUWBl!It 13· DBcm.mmt 27,1991 

Departures 

MrnGA11NG CIRCVMSTANCD 

Eleveadl Circuit boIdI dowDward departure for cIJ. 

mbalsbecl capacity properly precluded for 'fIoIeat "eue. 

Defendant pled pilty to bank robbery and a reIaIed weapon 

charge. Hcaqucd foradownwarddepu1ure.daiming rbat be 

ccmmiUCd tbc offcoiewbi1c suffering from le...eredepRssion 

and diminished capacity u a n:suIt of seriouS financial pr0blems. The disUict court iDdicated that "diminished capacity 

••• wouldapply to dUscase." but ruled rbatitbadood.iscraioo 

to grant a departure because 1 5K2.13. p.s.. prohibits departure for diminished capacity in violent offenses. 1beappellate 

court affinned. 

Defendantclaime4 on appeal that bis meoeal sta.Cecould be 

considered under 18 U.S.C.I3661, which states that "[n]o 

limitalion shaI1 be pla:ed on the information conccming the 

background. character, and conduct" of a defendant when 

imposing sentence. Under 28 U.S.C.1 994(d), however, the 

Sentencing Coolmission was required to place limits on the 

consideration at senlencing of cenain infonnatioo. including 

"meneal and emotional condition." Any conflict or inconsistency between the two sections is resolved. the appellate court 

be1d. by 18 U.s.C.135S3(b), which directs COW1S to impose 

seolenCe wilbin the guidelincrange baniDg circumSUU'lCeS DOl 

adequately considered by the Commission: '"By reading 

13661 togelhcr wirb 1 35S3(b) it becomes clear that 13661 is 

designed to make sure that no limi&alioo is placed on information available to the district coon. as long as the informatioo 

was DOl already considered by the SenlenCing Camnission in 

formulating the guidelines •••. Hence, 13661 is a safety net. 

••• [TJbe Sentencing Commission determined that mental and 

emotional conditions could DOl be considered as a mitigating 

faelOt' if the defendant commiUCd a violent crime. Since 

Fairman commiaed armed bank robbery. a crime of violence. 

his meneal and emotional condition could DOl be considered" 

for departure. 

U.s. v. Fairman. 947 F.2d 1479 (11th Cir. 1991). 

EXTENT OF DEPARnJRE 

u.s. v. Rosado-Ubiera, 947 F.2d 644 (2d Cir. 1991) (per 

curiam) (vacating sentence and remanding: even though sentencing court intended to depart downward. it failed to determine whether defendant should receive downward adjust· 

ment under § 3Bl.2(a) for minimal role in offense-applicable guideline range is starting point for departure. and here 

the downward departure resulted in longer senlenCe than 

lower end of guideline range that would have applied if role in 

offense dispute was .resolved in defendant's favor). See U.S. 

v. McCall, 915 F.2d 811, 813 (2d Cir. (990) (guideline range 

is point of reference for any departure and should be correctly 

calculated); U.s. v. Talboll, 902 F.2d 1129, 1134 (4th Cir. 

1990) (same); U.s. v. Roberson. 872 F.2d 597.608 (5th Cir.) 

(same), cert. denied. 110 S. Ct. 175 (1989). 

SVBSTAN11AL AssISTANCE DEPAIl'I'IJRE 

U.s. v.Robinson,No. 89-3262(11 rb Cir. Dec. 9,1991) (per 

curiam) (vac:aledand remanded because district court granted 

downward departure witboat rutin, on 8Ovemmcnt's 

1 SKU. p.s., mOCioo or otherwise m1icuJating R8SOOS for 

depanureasrequired by 18U.S.C.135S3(b):1.T]besealCocina judge. when faced with a sectioo SKI.I modoa. mustru1e 

on it bcfCR imposing scotence. ••• On mnand. tbe.rcfate, the 

court sbaU, afttz finding the releYlllllClltenciog facts and the 

appropdare guideline DDgC, rule on the Govamneat's m0-

tion. If the court denica the DlOI:i<Jn. it sbaU tbal give the 

defendant an opportunity to articulate grounds. if any he has. 

for a downward departure •••• j. 

Offense Conduct 

DRUG QUAJII"nTY 

u.s. v. Tabares. No. 91-1273 (lst Cir. Nov. 14. (991) 

(Breyer. CJ.) (coun properly included in base offense level 

quantities of drugs evidenced by enuies in notebook found in 

conspiracy defendant's apartmenlat time of arrest. where 

evidence indicated those amounts we.rcpartof conductn:1atcd 

to offenscof conviction, see 1201.4, commenL (0.2) ('"judge 

may coosidet ••• fll18llCial or otbe.r rec:oidsj).Accord U.s. v. 

C4gie. 922 F.2d 404, 407 (7rb Or. 1991); U.s. v. Rou. 920 

F.2d 1530. IS38 (10d1 Cir. 1990). See also U.s. v.Straaghler. 

No. 91-3002 (6lh Cir. Nov. 14, 1991) (Browil. Sr.J.)(m:ords 

of drug payments found in co-conspinuor's purse provided 

support (or finding of larger amount of cocaine tban rhat 

seized during arrests). " 

U.s. v. Hicks. No. 90-5627 (4thCir. 0cl.23.1991.amended 

Nov. 21, (991) (Houck. DiSl. J.) (scotencing court properly 

converted cash seized from defendant. which bad come from 

drug sales relaled to offense of convicDoa. into estimaIed 

cocaine quantity to calculale base offense level under 

11201.1(a)(3), 2D1.4. comment. (0.2». Accord U.s. v. 

Geranle, 891 F.2d 364.368-69 (1st Or. 1989). See also U.s. 

v. DlI411e. No. 91-1203 (7th Cir. Dec. 10. (991) (Flaum.J.) 

(dividing cash amountbypricepe.rkilogram ioestimalequantityof cocaine "is perfectly acceptable under rheGuidelinesj. 

Relevant Conduct 

u.s. v. Duarte, No. 91·1203 (7th Cir. Dec. 10. 1991) 

(Flaum. J.) (vacating sentence and remanding: district court 

f<>Wld defendant accountable for 5 kilograms of cocaine. not 

just 1.177 kilograms actually seized. but did notexplicitly flOd 

additional cocaine was"part of the same course of conduct or 

common scheme or plan" as conspiracy and-possession of~ 

fenses of conviction. § IB 1.3(a)(2)-"court should explicitly 

state and support. either at the senlencing hearing or (preferably) in a wriuen statement of reasons, its finding that the 

unconvicted activities bore the necessary relation to the 

convicted offense"). 167 
Guideline Sentencing Update 

Adjustments 

ACCEPTANCE OF REsPoNSmlLlTY 

u.s. v.Rud.No. 90-6S02(6thCir.Dec.4,1991)(Mllbum, 

I.) (I 3EI.I reduction prop«ly denied defendant wbo c0ntinued credit canl fraud while in jail awaidDg seatmcing: 

"continued aimiDal c:onduct is incompuible willa Ibe idea of 

acceptance of responsibility": williqness to acknowledge 

offense and accept punishment insufficient absent contrition. 

which "bas been rec:ognizod by this court u a compaacnt of 

a defendant's acceptance of responsibility • Contrition may be 

the bestpredicrorofasuccessfulrebabiliauJoo.andlbose who 

• • • continue daeir crimes in jail and do DOt wIuDIarily withdraw from daeircriminal eonductdemonsttafe theopposilej. 

ROLE IN OFFENSE 

u.s. v.Rotolo.No. 91·1436(ISlCit. Dcc.3.1991)(Breyer. 

CJ.) (AffirmiDg enbaacement fot agmvaIiDg role UDder 

1 3B 1.I(e) and boldiDg Ihat sentencing court may. but is DOt 

required to. c:ompare delendant's role to ... veragc"participmt 

in that type of offense. Couttdistinguisbcd u.s. v. DaugltJrey. 

874 F.2d 213,216 (4th Cir. 1989). wbk:b concerned adjustment under 1 3B 1.2 fot mitigating role and stated Ihat .. each 

participant's individual acts and reIalive culpabilily (should 

be measured) against the elements of abe offense of conviction. "The court here noted Ihat language in the c:ommcotary 

to 1 3Bl.2. which iDdic:aresadefendant's midgaling role is to 

be compared to "'the avaage participant." is absent from the 

guidelino and conunencary fot aggravating roles in A3Bl.1. 

Thecoun.ccncluded: "We do nouead the faggnrvadng role' 

guidelino IS absolutely forbidding a court from mating comparisons to the 'average' particlpanL ••• But. the Gu.idcline 

does not legally require i1 todoso. j.SuGlso U.s. v.PfIllNrM, 

938 F.2d4S6.460 (4th Cir. 1991) (applying DaugAtrey. adding: "1becrilica1 inquiry is thus not just whelherthedefendanl 

has doae fewer 'bad acts'dIan his codefcadants, but whether 

thedefendant'sc:onductismaterialotessentialtocommitting 

the offense.j: U.s. v. CanIl/a, 930 F.2d 811.815 (10th Cir. 

1991) (in "minimal participant" case. bolding "Guidelines 

pmnit courts ••• to compare a defendant's conduct ••• with 

the conduct of an average par1ieipant in Ihat type of aimej. 

OBSTR1JCnON OF JIJS"I1CE 

U.s. v. De Ft!lJppls. No. 9()..3603 (7th Cit. Dec. 6, 1991) 

(Moran, Chief DilL J., by desig.) (reversed: false swements 

to . probation officer about employment history were not 

"mataiaJ" because "the faclUal inacancies in his representations eould not have influenced his sentence. even if believed." set! § 3CI.I, commenL (nn.3(h) It 4(e); nole, however, that even if not "material," "false information does ••• 

have a bearing on the trial court's ftljectioo of a ••• reduction 

for acc::eptance of responsibilltyj. St!t olIO U.s. v. Tabart!s, 

No. 91-l273(lSlCir.Nov.l4,l99l)(Breyer,CJ.) (revased: 

obsuucdon under § 3Cl.l must be bolh wiUfuland materiaIhere defendanl had provided fa1sc social security number to 

probation officer, but there was no evidence he did so "willfuUy" or mar.erially impeded presenlence in'YCStigation). 

U.s. v.Hicks,No.9()..5627(4lhCir.0cL23,I99I.amended 

Nov. 21. 1991) (Houck, DisL I.) (proper to apply f 3C1.l 

enhancement to defendant who threw cocaine out of car during high-speed chase, even though he later helped recover the 

168 drugs, and it was not inconsistent to apply f 3Cl.1 and then 

Volume ... Number 13 • December 27. 1991 • Pace 2 

grant 1 3El.1 reduction for eooperadon, set! § 3El.1, commenL (n.4); enhancement under § 3el.1 also warranted for 

false fmancial infonnation, which would baveaffecfCd imposition of fine, even though information was later c:omctcd). 

Sentencing Procedure 

PltEsEN'n:NCE bm:avmw 

u.s. v.Hidu,No. 9()..S627 (4thCir.0cL23, 1991,amended 

Nov. 21, 1991) (Houck:. Dist. I.) \Mircwla warnings are DOl 

required prior to routine presentence interviews. " Accord u.s. 

v. Cortes. 922 F.2d 123, 126-27 (2d Cir. 1990); u.s. v. 

Rogt!rs.921 F.2d 975, 979-80 (lOda Cir.), em. deIIlcd. 111 S • 

CL 113 (1990); U.s. v. Davis. 919 F.2d 1181,1186-87 (6th 

Cir.I990): U.s. v.Jack.so,., 886 F .2d838, 841-42 D.4 (7th Cir. 

1989) (per curiam). Similarly, ""1bere is DO [Sixth Amendmeat] right III a routine presencence intaview becaJ8e ru] is 

notacrilical stage of Ibe criminal plCCUJdi."..-Accord U.s. 

v. Woodr. WI F.2d 1S40, 1543 (5th Cir. 1990), em. deIIlcd. 

III S. CL 792 (1991): JfId:.soft. 886 P.2d at 845~ Ci.HtmJ U.s. 

v. Ht!"tra-Figll4rtKl, 918 F.2d 1430, 1433 (9fh Cir. 1990) 

(must aDow auomey if requesred by dcfendant).1n any event. 

defendant bad no right to makc false stattment to pobatioo 

oftieer: "At best. Hicks could ha'Ve rofuIed to answer the 

question or requested the presence of his auomey. UncIcr DO 

circwnstaDces was he free to Jive a faIsc answer.j. 

Criminal History 

CAllBER OJi'F&'G)ER PROVISION 

u.s. v. Wi/SOli, No. 9()..5203 (4th Cir. Dec. 3, 1991) 

(Wilkinson, J.) (Guidelines mandate "ca&egorical approach" 

to whether predicaIe offense constilUles:crime ~ violence" 

under § 4Bl.l ""rather than a pani~ inquiry into die 

facts undetIying the convicdon." and disIrict court properly 

refused to look into actua1 clrcumSfal1CeS of defendant'S 1976 

robbery convicdoo because robbery is Usaed as vioIaalc:rime 

in § 4Bl,2.cxmunCllL (n.2) (1991): "Undertheplainlanguage 

oftheOuidelines,weeoncludeIhatWiIson'srobberyotTense 

constilUtes a 'crime of violence' and that we need notindeed. must not-loot to the specific facts aDd circumstances underlyingiL j.Accord U.S.v. McAUiIM" 927F.2d 

136,138-39 (3d Cir. 1991): U.s. v. St!I/II, 918 F.2d 749,751 

(9th Cir.). ct!r'. tkllkd. 111 S. CL 521(1990); U.s. v. 

Gonzalez-Lopez. 911 F.2d 542, 547 (lUb Cir. 1990), em. 

tknit!d, 1l1 S.CL 2056(1991); U.s.v. CiI1Vr, 910F.2d 1524, 

1532-33(7thCir.I990),ct!r'.tkllied,l1lS.CL 1628(1991). 

Remanded for Rehearing En Bane, Vacated: 

u.s. v.DaW'I'II, 937F.2d 1041 (6chCir.I99I){senlCOCing 

steps prescribed in § IBl.l are inconsistent with 18 U.S.C. 

1 3553, courts directed to foUow statule rather dian guidelino 

fordeparlurcs) (vacated SepL 26,1991). St!t! 4 GSU 16. 

, U.s. v. Silvermllll. 945 F.2d 1337 (6ch Cir. 1991) (cowts 

should conduct evidentiary hearing in accordance with Confroncalion Clause when disputed evidence could increase 

sen&ence) (vacated Dec. 4, 1991). See 4 GSU 1#9. 

Certiorari Granted: 

u.s. v. Wade, 936F.2d 169(4thCir.199I)(absentcommitment in plea agreement to move for substantial assistance 

departure, government need not explain refusal to malce 

motion) (cen. granted Dec. 9, 1991). St!e 4 GSU 115. 
Guideline Sentencing Update 

c;,ws.1iM S-1ItCiItc Upt/4Iit will be clialribut.od pcriooticaD.y by Iho c-Io iaf-.iudP _ odIar jDdicial ~ d...a.:.ted fedcnl_ dec:iaion.t GIl tIM-x:ma 

1Cf'_1epI.1lian d 1914 ud 19" -IheSaIIoaCinc ~ AlIbaup _puhliatiGIIIIIIY nICl"lo_ ScaleaCiaa 0uidcIiaeI1IDd paUc:y _ "'Ihe u.s. s.....:m, 

0-;";' ill __ '" 1'CIf'GI'daI- haWiap.1l illlIOl iataIoW to IIIpCIIt ~ c-i"jon JIGIici- 01: KUviI:i& .... abouId ICf'fIIt 10 _ 0uicleIla., potiq .. --, __ uy.1IDd acbfIItllllloriala ....... by" hII4adna c', . _ far ... iaf ......... 

PIIbliCllf.iGllolc;,,;aIiMs.-ICiqU""~IhIl_c.c.""'il".""--lIDdnlDablewoct.kabould_becaaaidered'_NII~'M4.tionOl:OI!ridalpotiq 01_ c-. On maa- oIpaUc:y .. c.t...,..... anI, IIu'IIup ill Boad.. 

VCII..UMl4 • NUM8I!Il14 • JANUAlY 11. 1992 

Sentencing Procedure 

PitEsENTENCE INTERvmw 

Sixtb Circuit boIds there Is ao Sixtb Ameadmeat rigbt 

to counsel at preseatence iDterview, but advises probatioa 

ofl1c.:en to IaoDor such requests. Defendant met with the 

probadon officer on three occasions, twice without COUDSel. 

Although nodUng in the I'CCORi indicated Ihat be requested 

counselor that his counsel advised the probation officer that 

no interviews should be conducted in the absence of counsel. 

defendant claimed on appeal that he was deprived of his Sixth 

Amendment right to counsel. 

The appellate court atfmned. joining the Fourth. Fifth. 

and Seventh Circuits in holding that in a non-capiLal case the 

presenrence inaerview is not a "critical stage of the prosecution .. where the right to counsel anaches. See U.s. v. Rieb, 

948 F.ld 877, 885-86 (4th Cit. 1991); U.s. v. Woodt,9C11 

F.ld 1540, 1.543 (5th Cit. 1990). cert. denil!d. 111 S. Ct. 792 

(1991); U.s. v. /QC/cson. 886 F.2d 838, 845 (7th Cit. 1989) 

(pet curiam). 

However. the coon agreed with the reasoning of u.s. y. 

Re"ua-Figueroa, 918 F.ld 1430, 1437 (9th Cit. 1990) 

(as amended Feb. 5. 1991). in which the Ninth Circuit exer· 

cised ics supervisory powers to require probation offICerS 

to honor requests for 8UaTlCys at preseI1lCnCO interviews. 

Because defendant had not made sucb a request here, the 

court did not specifically establish a sirnUar rule, although 

it staled that it Mwouid be prepan:d, in the exercise of our 

supervisory powers," 10 do so. The court did ecommend 

that, M[i1f a defendant requests the presence of counsel-« if 

an attorney indicaIes that his client is not to be inlCrViewed 

without the attorney beina there-the probation officer 

should honor the req~" 

U.s. 11. Tisdale. No. 90-3302 (6th Cit. Jan. 2, 1992) 

(Nelson, J.). 

PROCEDt1RA.L REQU1R.EMENTS 

Eighth Circuit urges district courts to give "laBored 

explanations" lor seDtence wilen guideliDe raage exceeds 

14 moaths la order to avoid unnecessary appeals aDd 

remaads. Defendant was sentenced at the tap of the applicable guideline range of 168-210 months. He appealed. 

arguing that the district court had not adequately Slated the 

"reason Cor i mposing a sentence at a panicuJarpoint within the 

range" as is required under 18 U.S.C. § 3553(c)(l) for ranges 

exceeding 24 months. 

The appellate court afrmned. holding that the districtcourt 

adequalely explained the sentence in this case, but expressed 

concern "about the rising numberof appeals involving section 

3553(c)(1). In the interest of judiciaJ ecOnomy. we urge 

sentencing couns 10 refer 10 the facts of each case and explain 

why they choose a particular point in the sentencing range. 

U.S. v. Veteto. 920 F.2d 823. 826 & n.4 (11th Cir. 1991): see 

also U.s. v. Clrortit!r, 933 F.2d 111.117 (ldCir. 1991) (sentencing judge should demonsuate thoughtful discharge of 

obligadon imposed by section 3S53(c)(l) with depee of care 

appropriate to se'Yerity of punishment selected). In addition to 

informing the defendant and public why Ibe sentencing court 

seIecud a pani<:ular aentcnc:c. the coun's expIanatioD 'JWOvidea informadon to criminal justice rescsrcbers' and '1SSiscs 

the Sentencing Commission in its continuous reexamination 

of its guidelines and policy statements.' ••. We believe 

IaiIoredCltplanations by sentencingc:ouns wiUJRClude many 

appeals and pointless remands. See U.s. v. Georgiadis. 933 

F.ld 1219. 1223 (3d Cit. 1991)." 

U.s. v. Dumorney, No. 91-1719 (8th Cit. Nov. 21, 1991) 

(Faa, J.). 

Seventh Circuit advises courts to relraiD from Imposiag seateace OD Dy Guidelines COUDts uatil JudpaeDt Is 

reached OIl aU eouats. A jury found defendant not guilty on 

two counts. guilty on one count, and was unable to reacb a 

verdict on two other counts. The dislrict coun granccd a 

mistriaJon thehungjul'ycountsandsenlCnCOddefeodantto46 

months on Ibe count of conviction. but stayed execulion of 

senlCnCC pending appeal. The defendant-did appeaJ his CODvictionandsoughtdismissaloftheoucstandingindic:tmeocsCll 

the bung jury COURts. The appe1latc court held it did not have 

jurisdiclioa bealllsc &here is no fmal, appealable judgment 

unlit the two outstanding counts me resolved. In adc1idoa. the 

scnlCnCC on the count of conviclion "cannot be executed ••• 

unlit there is a final judgment on all counts of tile indicamcnt." 

The court went on to emphasize that the Guidelines ""have 

inttoduced a new poblem into a situation like the one before 

us. When a defcndan& has been convicted on more than ODe 

count,certamgroupingrulesapplyindctaminingtheoffense 

level •••• Where conviclion on one count of an i.ndic:tmcnl has 

oc:curred at an earlier time than conviclion on ocher COWlts. we 

think that tope requires that f 3D1.1 be applied 10 all counts. 

•.. We suggest that in future cases lite the present one the 

district court should not pronounce any sentence until it bas 

disposed of aU counts." 

U.S. y. KtJll/mtmII. No. 91·2294 (7th Cit. Jan. 7, 1992) 

(Fairchild. Sr. J.). 

Supervised Release 

Elgbth Circuit bolds that It was DOt "plaia error' to 

impose to-year term 01 supervised release agreed to ia 

plea bargain; affirms reJectloa 01 plea agreement as too 

lenieatcompared to co-conspirators' seatences. Defendant 

pled guilty to drug and laX evasion charges as part of a nonbinding plea bargain. The government agreed to move for a 

downward departure under U.S.S.G. § SKU. p.s., from the 

agreed-upon guideline range of97-121 months to a sentence 

of27-33monlhsand 10 years of supervised release. The court 169 
170 

Guideline Sentencing Update 

rejected the agreement. explaining that the maximum sentence of 33 months was unfairly low compared to sentences 

given to less culpable co-conspirators. A second plea agreement was reached wilh the same terms, except that the 

sentencing range was capped at 42 mondls. The district court 

accepted this agreement and sentenced defendant to concurrent tenns of 39 mondls on the drug charge with 10 years of 

supecvised release. 36 months 00 the tax evasion with one year 

of supervised release. 

Defendantappcated. claiming that the d.isuictcourtabused 

its discretion by refusing the fU'St plea agreement and that the 

100year term of supecvised release exceeded the guideline 

maximum of 5 years,. The appellate court affumed, holding 

fnt that under § 6B 1.2(b). p.s., the court poperiy used its 

d.iscreIicm 10 reject the fU'St agreement "Prior 10 1he Guidelines, a district court had broad discretion under Rule 11 (e) 10 

rejectanegodated pleaagreemenL ..• Here. the district court's 

reason for rejecting LeMay's fU'St plea agreement was clearly 

an accepcable basis for exercising that discretioo . , , , The 

Guidelines were not intended Ito make major changes in plea 

agreement practices.' U.S.S.G. § lA.4(c), Although Chapter 

6B imposes new substantive standards on the district court's 

task of accepting or rejecting plea agreements. it remains a 

discretionary r.ast. reviewable on an abuse of discretioo 

standard. Moreover, 1he district court's reason for rejecting 

LeMay's fU'St plea qreement-that it provided an excessive 

downward dc:panure from the Guidelines range-is a 000-

reviewable Guidelines decision." 

As to the term of supervised release on the drug cooviclion, defendant"did not raise this issue in the district court, so 

it has been waived unless the district court committed plain 

error, resulting in a miscarriage of justice, by imposing a 

sentence in violation of law," Defendant was sentenced 

under21 U.s.C. § 841(b)(1)(A), which for this defendant 

required a supavised release term of ... least" five years. 

Under the Guidelines, however, § 501.2(a) provides for a 

tenD of". least duee years but not mcxe than five years." The 

coon held tbatJ 841(b)(1)(A) and § 501.2(a) "are easily 

reconcUed if the term of supervised release authorized in 

§ 501.2(a) is con.strucd as a guideline rango.--du'ec 10 five 

years--that is subjecllO the same departures that 8ft') applicable 10 the O&apeet SC imprisonment range." Also, the fiveyear limitation 00 supervised release in 18 U.s.C. f 3583(b) 

does not preclude a longer term because tbat sectioo's 

"[e]xcept as ocherwise provided" language allows for longer 

terms under § 841(b)(I)(A). The courtconcluded that the tenyear tenD Mwuconsistent with the plea agreement, was within 

the court's stalUUlry authority under f 841 (b)(1 )(A), and was 

pan of a sentence that was accepted underf 6B 1.2(b)(2)ofthe 

Guidelines because it 'depans from the applicable guideline 

range for justifiable reasons.' 10 these circumstances, even if 

LeMay did DOl waive this issue .••• we conclude that the 

resulting sentence was not illegal." BUl cf. U.s. v. Esparse", 

930F.2d 1461,1476-77 (lOth Cit. 1991) (accepting government concession that six-year tenn oC supervised release 

was improper for defendant sentenced under 21 U.S.C. 

§ 841(b)(I)(B), which requires "at least" Cour-year lenn, 

because oC 5-year limitation in 18 U.S.C. § 3583(b)(t». 

U.S. v. LeMay, No. 91-1604 (8th Cir. Dec. 24, 1991) (per 

cwiarn). 

Volwne 4· Number 14 .January 17.1992· hac: 2 

Departures 

MmGATING CIRCUMSTANCES 

u.s. v. Harpst, No. 91-3078 (6th Cir. Nov. 21, 1991) 

(Jones,J.) (Reversed-improperto depandownwardbecause 

defendant's mental and emotional coodition raised concems 

that incan:::eration "might well end in his suicide. If The court 

coocluded that "the Bureau of'Prisons is legaUycharged with 

providing adequate facilities and programs for suicidal inmates," and therefore "suicidal tendencies" are DOl a legally 

proper groond for departure. See U.s. v. Studley, 907 F.2d 

254,259 (1st Cit. 1990) (departure for mental and emotional 

reasons propel' only where "defendant has an exceptional 

need for, or ability to respond to treatment [and.] the Bureau 

of Prisons does not have adequate treatment servicesj, 10 

addition, the fact that incarceration would make restitutiCll 

and future employment less likely is not a valid pound for 

deparUIre. See U.s. v. RUlQIIQ. 932 F.2d I1S5. 1159 (6ch Cir. 

1991)C"cconomicconsiderations ••. donotprovicieabasisfor 

downward departure. " reversing downward. departure made 

because defendant's incarceratioo might result in Joss oflUs 

employees' jobs).). 

EXTENT OF DEPARTIJRE 

u.s. v. MoUna, No. 90-3261 (D.C. Cit. Ian. 7, 1992) 

(Edwards, J.) (remanded-joining FlI'St. Futh, and Tenth 

Circuits in "declin[ing] to adopt any specific pocedure for use 

by sentencing courts in determining the appropriate CXICat of 

departure abow criminal history category VI," holding only 

that "1ria1 courts must supply some reasoned basis for the 

extent of post-category VI departures. ••• [and] follow some 

reasonable methodology. consistent with the purposes and 

sttucturc of the Guidelinesj. Set! U.S. v:OCMio, 914 F.2d 

330,336-37 (1st Cir. 1990); U.s. v. RlLUell, 905 F.2d 14SO, 

1455-S6(IOthCir.),ct!rt. lknied, 111 S. CL 267 (1990); U.s. 

v. Roberso". 872 F.ld 597, 007 (5th Cit.), cm. lkllitd.493 

U.s. 861 (1989). Cf. U.S. v. Schmudt. 901 F.ld 555, S60 (7th 

Cir. 1990) (msttucting COW1s to use~" approach 10 

guide depanureabove categcxy VI); U.s. v.Jackson. 921 F.2d 

985, 993 (lOth Or. 1990) (en bane) (approving SchmMde 

approach). 

Relevant Conduct 

u.s. v.BartoIl,No.90-2670(8thCir.November21.1991) 

(Beam,J.) (reversed-quantity of marijuana that was basisof' 

1983 swcdrug conviction (forwhichpOOatian wasimposcd) 

could not be used as relevant conduct under U.S.S.G. 

fIB l.3(a)(2) to determine base offense levelfor 1989 marijuana conviction, even though district court found that defendanthadcootinuedmarijuanadistributionactiviticsduring 

entire period: "[W]e are coofident that the words lall such acts 

and omissions' [in § IB1.3(a)(2)] were not inlmdcd., •• to 

include Barton's previous cooviction. , , • The commentary to 

section IB 1.3 alludes to the limited scopeofsubsectioo (a)(2): 

"'Such acts and omissions" .•. refers to acts and omissions 

committed (l( aided and abetted by the defeDdant, or for which 

the defendant would otherwise be accountable.' ••. Under no 

circumstances could BarIon now be crim1Da.uy liable or lac_ 

countable' in 1989 Cor the conduct that resulted in his cooviction in 1983"; district coon should have factored 1983 

cOilviction into criminal history score instead). 
Guideline Sentencing Update ~s..I""" u,..,. wmNditotdIIuIM~",,,c-toiaf_.iMl.ud Gdxwjul.licid,..--.1IIIectaI focIcnl_~GD Ibo.--. 

.......... elfI9l4_ 1917 ......... n"~ ~ "publicalioa"''''to''s.u.:i.aaOuiolelia.IlldJlCllk1_of .. u.s. SF' ;ir, 

o ..... ill ....... elfl'llJlCldilll_1aalitillp.1t ............ IO ........ -an, C-i,1ion pCIIicieI.1IOIiviIi& ..... 1IhoIIW .lI'to Ibo G ........ paIicJ .... 81 •• < =,._Gdxw _____ .,. ..... ;i ,0 1· .... r.llUdliDf-am. 

l'IIIIticndIaelfa.wr-..s-......,u,..,. .......... c-.... ltu • ...,.....mwmdnluablowodt. hmauld.NCCNi.dcNd._'!I! • ..tltioa.otfidalpaIicJ 

elf .. c...:. A. ..... elf paIIcJ .. c-..... arIJ tIIIarP i1111oad. 

VCUJJoiB4. NUMIIIIIl15. FDaUAllY 14, 1992 

Probation and Supervised Release 

REvOCATION OF PaOBADON 

N'aatll Circuit boIdI that wIleD probation aaust be 

revoked ,or .... pallaSioa aDd deleDdaat seateaced to 

"aGt ........... tbIrd 01 tile 0IiaIaaI .ateace," tile 

"orJaiaaI1eIdeace" ... die term 01 pI'Obatba, aot 

pIdeUae ....... Defendant pled piIty to COUDfCIfeitina in 

1989. His guiMline nmge was 1-7 IIIODIbs aDd he was ___ 

The court also held that "the validity of the 12-month 

sentence imposed here" was supported by die district court's 

usc of the Guidelines' policy starements on revocatioD of 

probation, II 181.1. 181.3. and 7Bl.4 (Revocation Table). 

UDder'those sections, a sentencing range of 12-18 months 

applied. 

U.s. Y. CorpllZ, No. 91-10132 (9th Cit. Jan. 8, 1992) 

(AldiserI. Sr. J.). 

ICDCCdrodne yean' pobItion. Tbcocxtyear hewasan:estcd Departures 

on a drug c:baqe aDd a urinalysis showed traces of JDCtham.. 

phetamine. The court determined defendant bad violated MmGAnNG CmctJMSTANCES 

probation by possessing drugs and revoked probation. The Efahtll CIreu.lt boIds tbat extraordioary nstitudoa 

Anti-Drug Abuse Act of 1988 bad amended 18 U.S.C. ..y warraat dowaward departure, aDd dlat criIDiDaI 

I 3565(a) by adding Ihe following: "Notwithstanding any CDldud spaDDia. ODe year aad several traDsadif.wIs was 

0Ihcr provision of this section, if a defendant is found by the BOt "slape act 01 abernmt bebavior." Defendant. a car 

court to be in possession of-a controlled substance. thereby dealer, pledged the same vehicles as coIlaIeral f(l'sepanUe 

violating the amdWon bnposed by section 3563(a)(3), the loans from lwo banks over a one-yearpe.riod. Charged with 44 

court sbaJl revoke the scnteoce of pobaIion and sen&ence the counlSofbank fraud. he pled guilty toone c::ountand was leDdefendant to not less than ono-third of Ihe original sentence. " tenced to twelve months and one day. He asserted. on appeal 

The district court read this section to require a term of thalsevmdfactorswarrantcddownwarddeparture,includiDg 

bnprisonment not less than ono-lhird of the original sentence the fact Ihat he had liquidated aU his assets to erwUI'C full 

of probation. and sentmced defendant to one year in prison. restilUtioo to the banks ~ thana year before indicanent(be 

Defendst appealed, but die appellate court affimled. entered into seu1ementapemenlS with bOth banks and IUI'Ded 

The circuit court analyzed die stalUtory language and over his assets of $1.4 million) and. because he had a aood 

lcgisJalivebisloryanddc&erminedthatasenaenceofpobalion reputationinthecommunity,wasconsisacntlyemployecl.aI 

is a "sentence" far purposes of the Id'crence in I 3S6S(a) to continued to lead a respectable life. his criminal conduct was 

"one-third of the original sentence": "Penologically and Mabemnt behavior: U.s.S.G. eta. 1. Pt. A. 4(d), p.s. 

semantically. probation is a sentence under the Sentencing The appellate court remanded for ~tion of die 

Reform Act [of 1984]. It is no Ionga- an alternative 10 rust ground. holding that "the guidelines provide die disIrict 

sentencing; it is a sentence in and of itself." The court noted judge with authority to depart downward based on extraordithat "this schema is also used in language Congress added to nary restitution. .. The court acknowledged Ihat voluntary 

18 U.s.C. f 358300 as part of the same Anti-Dmg Abuse Act payment of restilUtion before adjudication of guilt is a factm 

ofl988," wbichstatestbatifsupervisedreleascisrevotedf(l' considered for acceptanee of responsibility. 13EU. comdrug possession "the court shall ••• require the defendant to menL(n.l(b»,butheldthatthedisbi.ctcourt"shouldconsider 

serve in prison not less than one-third of the reno of su:pc2'- whether the extent and tbning of Garlich's restitution are 

vised release." sufficiently unusual to warrant a downward departure •.•• If 

The court distinguished cases interpreting the general ... the two-leve1 reduction for acceptanee of responsibility 

revocalion provision in f 3S6S(a)(2). Four circuits, including inadequately addresses Garlich' s restilUtion, the di.sIrict court 

the Ninth, have held thalthe language "any odtersentence that may bnpose a reasonable sentence outside the guidelines 

was available ••. at the tbne of the initial sentencing" means range." See also U.s. v.Brewer. 899 F.2d S03, S09 (6th Cir.) 

the guideline sentence that applied to the original offense ("unusual" restitution could warrant deparllR), cen. denied, 

of conviction, and a sentence imposed upon revocation of 111 S. Ct 127 (1990); U.s. v. Carey. 895 F.2d 318, 322-23 

probation is limited thereby. See U.s. v. Alii, 929 F.2d 995, (7th Cit. 1990) (same). 

998 (4th Cir. 1991 ): U.s. v. While. 92S F.2d 284,286-87 (9Ih The court affmned lhe denial of departure for "single act 

Cit. 1991); U.s. v. Von Washington. 915 F.2d 390. 391-92 ofabemmtbehavior."concludingthatderendant's"actionsin 

(8th Cir. 1990) (per curiam); U.s. v. Smith. 9<r1 F.2d 133, 135 planning and executing lhe financing scheme over a one-year 

(IlthCir.I990). The 1988 amendment begins with "Notwith- period were not 'spontaneous and seemingl)'-thoughtless.,"· 

standing any other provision of this section .•• ," which the quoting U.S. v. GlicJc. 946 F.2d 335, 338 (4th Cir. 1991) 

court concluded "indicates that the added provision was (conduct over ten-week period involving numerous actions 

intended to take precedence over the general language or and extensive planning is not single act of aberrant behavior). 

subsection (aX2) in cases where the probationer violates I See also Carey. supra, 895 F.2d 8132S (check-kiting scheme 

probation by possessing a controlled substance." over I5-month period not single act of aberrant behavior). 171 
172 

Guideline Sentencing Update 

BUI if. U.s. v. TobJi. 930F.2d 1427,1433-34 (9tbCit.I99I) 

(conduct over eight"y period in bribety offense properly 

construed as "singl~ act of aberrant bchaviot"). 

U.s. Y. GarUch. 951 F.2d 161 (Sth Cit. 1991). 

SllBSTAN'IUL ASSISTANCE 

Eastera Distrlet of New York bolds tbat ISKI.l, p& 

does DOt .pply to dowaward departure based _ CODgress' request tor elemeDCY tor deleadaDt wbo IISSIsted 

CODgressionaIlavesdpdoa. Defendant pled pilty to YiolaIing munitions expM laws and was subject to a guideline 

range,of 8-14 months. The Chief Counsel of Ibo Commiur.c 

on Foreign Affairs of the House of R.epreseIdative _ a 

IeUer 10 the sentencing court requcstiDg it 10 consider 

defendant's cooperation widt abe Commia.ee in au oaaoiDa 

investigation. The Jeuer noted that defaMlant'. cooperation 

bad been helpful, even though it might not Jcadtoanyaiminal 

prosecutions. 

Thecourtbcklthata 15K1.1, p.s. departure wanatpropel' 

because there was no government modon and abe defendant 

did not aid the prosecution of another. The court ~. 

however. tbatin theSccond Circuit f SKU doesnotprohibit 

dc:panure undcz- I 510.0, p.s. when a defendant povides 

substantial assistance outside theconfmesoff SKI. 1. It noted 

that the Second Circuit allowed a downward deparb.ue for a 

defendant whose coopendion helped the disttict courts· 

seriously overcrowded dockeL See U.s. Y. Gorda, 926 P.2d 

125. 128 (2d Cit. 1991) (I 5K1.l covers cooperation widt 

prosecution and does not prohibit departure for assistance to 

courts). See also U.s. Y. A,u, 949 P.2d 63. 67 (2d Cit. 1991) 

(summarizing Second Circuit law: .. cooperation with the 

Govemmcntinrcspects oIhecthan the prosecution of otbcrsor 

cooperadon with the judicial system can. in appIopriMe circUmstances. warrant a departure notwithstanding abe absence 

of a Government modonj; u.s. Y. Khan. 920 P.2d 1100. 

1106-07 (2d Cir. 1991) (in dicta. assislance 10 govenuncnt 

ocher than infOl"llWion relevant to prosecution of orhen may 

provide basis for I 510.0 dcpaI1ure). The disCrict court c0ncluded that "courts bave sentencing autloity 10 reward c0-

operation of a defendant with an agency ocbcr than abe 

prosecution wheD the United Srates Aumacy bas nat Iequested a downward departure. .. 

U.s. Y. Stojfber,. No.CR 91-524 (E.D.N.Y.Jan. 21. 1992) 

(Weinstein, J.). 

Adjustments 

OBSTRucnON OF JUSTICE 

u.s. Y. Willillm.r. No. 90-6600 (6th Cit. Dec. 17. 1991) 

(Milburn, J.) (reversed: district court's factual finding that 

defendant's false starements. made while not under oath to 

law enforcement otTlCCI'S during investigation of offense. 

signifICantly impeded the invesligation was clearly erroneous.andpursuantlOl 3Cl.1,commenL (no. 3(g)and4(b».an 

obstruction of justice enhancement was improper-"The focus oflhe guideline is on whether defendant, by actively mak· 

ing material false Slarements (and not by a passive refusal to 

cooperare). succeeded in significandy impeding the investigation. Failed attempts to shift the investigative searchlight 

elsewhere are not covered by lhe guidelines •... It is true that 

defendant Williams tied 10 investigating agents .•• ,but AppliVolume 4. Number IS • Febnwy 14, 1992' Paae 2 

cation Note 4(b) specifically pmnits lies to investigating 

agents provided they do not signiflC3lldy obstruct or impede 

abeinvestigationj(Joiner. Sr. DisLJ.,dissenled from boldiog 

that district court's factual fmding was clearly erroneous). 

Accord U.s. v. MorellO. 947 P.2d 7, 9-10 (1st Cit. 1991) 

(obstruction enhancement improper for defendant wbo. wbile 

DOt undcz- oath. gave alias to Jaw enforcement officers during 

investigation. because thetc was no showing that it actually 

impeded investigation, f 3C1.1,commenL (no. 300 and4(b». 

U.s. v.Bell.No. 91-1479 (1stCir. Jan. 2, 1992)(Campbell. 

J.) (reversed: failure 10 appear'defendant should DOt receive 

obstruction enhancement for using false name 10 obtain post 

office box during time he was avoiding capture (citing 

Monmo. supra. and n.3(g): also, fact that defendant cmied 

gun IDd ammunition at time of recaptUre. and briefly paused 

before obeying police oftlcers' command 10 "sec down. 

fn:lcze." did not. without more, warrant eobancemcnt under 

f 3Cl.2 for"'recklcssly creatC'mg] a substantial rist ofdealbor 

serious bodily injm:y •... in the course or resisting arrest). 

Determining the Sentence 

FINEs 

FIRJa Cireuit bolds that cost-ot-imprisoDment fIDe 

UDder 1 5EI.l(J) is eODStitutioDai aDd does DOt violate 

SeateDdD, Reform Ad. Defendant was convicted on se'Vel81 

drug charges and given a lengthy prison tenn. He was also 

fined $280,823.80, of which $180.823.80 was imposed pursuant to therequiremenlin U.S.s.O. f SEl.2(i)thatasentencins court "impose an additional fme amount that is at least 

sufficient 10 pay the costs to the government of any impris0nment, ptlbation. or supetVised release, .. SUbject 10 I SEI.2(f) 

(ability to .. y/burden on dependents). 

The appellale ccurt rejected defendant's claim that abc 

imposition of"an addilional fme amOWlt" under I SEl.2O). 

beyond the amounts set forth in the fmc tab&e at I SEI.2(c), 

violates ISU.s.C. I 3S53(aX2) oftheSenrencingRelonn Act 

by imposing punishment "greater than neccisary."1be court 

reasoned that "the Commission developed a two-level system: abe court must fUSllook 10 the fmc table to determine the 

inilial mnge and tben complete its calculation by looting to 

abe cost of imprisonmenL ... Together. these calcnlations 

comprise the Commission's effort 10 realize section 

3553(a)(2)'s goals." 

The counalso rejected defendant's argument dlat&he costor-imprisonment fine is irrational-bealuse the fmcs collected are actually used for a aime victim fund rather than to 

delray costs of imprisonment-and lherefore amounts 10 a 

deprivation of property without due process in violation orthe 

Fifth Amendment: "[wle fmd ... that the unifonn practice of 

filling criminals on the basis of their individua1istic terms of 

imprisonment-an indicator of the aclUal bann each bas 

inflicted on society-is a rational means to assist the victims 

ofaimecoUectively." Cf. U.s. v. DoytJII, 909 F.2d412,414-

16 (lOth Cir. 1990) ("Sections 5E1.2(e) and SEI.2(i) ••• 

mandate a punitive fme that is at least sufficient 10 cover the 

costs of the defendant's incan;eration and supervision." and 

I SE1.2ei) does not vioJare the equal protection component 

of the Due Process Clause of the Fifth Amendment}. 

·U.s. v. Hagmann. 950 F.2d 175 (5th Cir, 1991). 
Guideline Sentencing Update 

VOWMB4· NUMIII!II.16· Fl!aRUAaY 28.1992 

Departures 

MmGA11NG CIRCUMSTANCES 

Niath Circuit bolds "iacomplete duress" .. a1 be coaskIered for dowaward departure UDder 15K2.12, p.L; 

also,Jul')"s rejedioD of duress defease OD couat of coaYle· 

doD dOiiDot preclude that defe ... for relevaat CODCIuct. 

The cases here arose from the prosecution of a 1argedrug ring, 

some of whose members were coerted to woat for the ring by 

means of brutal violence and intimidatioa. At uia1 several 

defendanlSc1aimed the defense of dwess, but the jw'yretumcd 

guilty verdicts. The district court held dial. because the jury 

rejected the duress defense, it could not consider duress for 

senfeDCingpurposes. The appella1ecourtaffumed theconviclions, but remanded for resentencing and explained how 

duress should be considered. 

Uke the Eighth Circuit in WhileiQil below. the court followed the reasoning eX U.s. v. CMDpt. 889 F.2d 477,480 (3d 

Cir. 1989) [2 OSU '16], where the Third Circuit held that a 

jlD")"s rejection of a defense of coereion and duress did not 

preclude departure under • SK2.12, p.s. The Ninth Circuit 

determined that the defense of dwess811ria1 requiresanobjective analysis, whereas for sentencing pmposea subjective 

elements should be considered: "Evidendy the Commissioo 

had in mind the showing of duress less than what constitutes 

a defense to a crime; for if the defense were 'complete,' there 

would have been no crime requiring a sentence .•• , Moreover, 

the Commission emphasizes not only 'the reasonableness of 

the defendant's actions: but 'the circumstances as the defendan, believed IhCm to bc.' U.S.s.O •• SK2.12." 

The court also bcld that duress should be considered for 

relevant conduct and could JRClude use eX that c:aadUCI for 

seaucncing; or,depanure may bcwanantcd if"'incomplcfc dIr 

ress".is proved. A defendant convicted of a sinsIedislributioa 

count was senrenced 00 the basis eX aU drugs she dislributcd 

over a lWo-and-a-half-month period. She admittccl the disIributions, but claimed they were made under duress. The 

appella1e court held that Ibis defense should be considered: 

'''ThejlD'')' verdict as to heractonSeprember 14,1989 does not 

speak to her state prior to this dale. If her contention is correct. 

she commiued no crime prior to this dale. The sentcncingcourt 

cannot hold her responsible without fust deciding whether 

she was in fact under duress. If the court should conclude &bat 

[she1 has notcarried her burden of proving duress becauseher' 

evidence of duress is not credible, it is still open to the court 

to consider whether there was duress that did not amount 'to 

acomp1e&edefense.' U.s.S.O., 5K2.12. "The court added that 

expert testimony regarding battered-woman syndrome was 

relevant to this derense. AJso. evidence of incomplete duress 

may be presented at sentencing even if a defendant failed to 

make out a prima racie case of duress during trial. 

U.S. v. Johnson. No. 90-30344 (9th Cir. Feb. 11. 1992) 

(Noonan. J.). 

Elgbth Circa it bolds that evideDce of "battered· 

woman syadrOlDe" --1 be coDSidereti for dowaward 

departure uader • SK2.10, P"Of eveD if Jury rejec:ts selfdefease claim. Defendant was found guilty of secatd degree 

murder of her loog-lime, live-in boyfriend. She admiucd 

killing him, but contended 1bat at the·1ime of the kill~ 

suffC2'Cdfrom baaered-woman syndrome. that he was betIing 

herorwasabout to begin beating her,and that she aabbcd him 

in self-defense. The jury, however, fOUDd her guilty and she 

was sentenced to lOS monlhs. Defendant claimed OIl appeal 

that the sent.eDcing comt improperly concluded that it could 

not consider battered-woman syndrome in senlencing once 

the jury had rejected her claim of self-defense. 

The appella1e court agreed and remanded for resentencing. The court foUowed CIr4ape. supra. which reasooed 

that proof of COCICioo as a complete defense at IriaI involves 

substantially different elements &ban P'OOf of coereion as a 

mitigating circumstance in sentencing-otherwise the issue 

would never arise in sentencing because a defendant who 

proved the defense would be acquitted. 

The Eighth Cireuit held Ihat"[t]he same reasooing applies 

here. WhiteWl submiucd evidence of baUered·woman syndrome, not as a defense in itself, bulas thej)rimarycomponeot 

ofherclaimofself-defense. ••• Ifherdaimofself-defensehad 

been accepted by the jury, &his defense wocdd have n:sultcd in 

her acquiltal. Thus. to the extent that the guidelines permit 

considezalion of the battered-woman syndrome as a mitigating factor at senlencing. we must read rhem.as .providing a 

broader standard' for P'OOf of the syndrome &ban that which 

is 'required to prove a complete defense at trial.' .. 

The court stated 1bat I SK2.10, p.s. "permits the disCrict 

court to 'reduce die [defendant's] senlelK:e below die guideline mngc' if it fmds thal'the victim's wroogfuI 00Dduct cootributed significantly to provoking die offense behavior.' ••• 

Thus, to the extent 1bat U.S.s.O •• SK2.10, p.s., permits 

consideration of battered-woman syndrome as a basis for 

departure from the guidelines. itdoes not require proof of the 

same elements necessary to establish a daim of self-defense 

at trial." The jury's rejection of that defense does not preclude 

consideration of battered-woman syndrome for departure 

under f ru.l0, p.s. See also Johnson, supra. 

U.s. v. Whiteltlil. No. 91-1400 (Sib Cir. Feb, 12, 1992) 

(Bowman, J .). 

SUBSTAN11AL ASSISTANCE 

ED banc Eightb Circuit rejects clai .. that because 

§ SKl.1 is a policy statemeat it is Dot b!.adia(. The Eighth 

Circuit atrmned a district court's holding &bat it did not have 

power to depart downward for the defendants' substantial 

assistance to the government in the absence of ei ther a government motion or a claim that the government' s refusal to make 

such a motion was arbitrary. in bad faith. orin breach ora plea 

agreement. Defendants' sole argument was &bat § 5K 1.1. as a 173 
174 

Guideline Sentencing Update 

policy statement rather than a guideline, is not binding on districtcourts and can therefae be repudiated on policy grounds. 

The circuit court held Iha1 § SKl.l, p.s. is binding. The 

court found that Congress intended that "policy swements be 

ccnsidered and that the courts' actions be consistent with 

policy statements." Further. although amendments 10 policy 

statements need not be submitted fl:r ccngressional approval. 

§ SKU. p.s. was submitted to Congress before its enactmenL 

The court also concluded that "[n1Dthing could be more 

ccntnuy to Congress' intent in providing for the Sentencing 

Guidelines than to pennit the courts to second-guess the 

Commission" and reject f SKU, p.s.becausc its approach is 

"simply not the best way to handle the problem at hand. .. 

The court also noted Iha1 holding policy stalements 10 be 

nonbinding could have a "spill ove(' effect inro Ibe weight of 

COOlmcntary. thus "'introduc(ing] the most f .. -ranging clement of uncertainty into the application of the Guidelines." 

U.s. 'II. Kelley, No. 90-1081 (Sth Cit. Feb. 5, 1992) (en 

bane) (Gibson. 1.) (Beam,I. concurring in put. dissenting in 

pan.joined by McMillian,I. in dissent) (Lay, CJ., dissenting, 

joined by McMilIian,I.) (Heaney, Sr .1., dissenting, joined by 

Lay, CJ., McMillian,I., Arnold,I.) 

Probation and Supervised Release 

Tentb Circuit bolds tbat poUey statements in Chapter 

Seven regarding probation and supervised release are not 

mandatory, but still must be considered by courts. Defendant violated the terms of his two-year period of supervised 

release and arlee revocation was sentenced ro two years in 

prison. On appeal he claimed that he was subject to a 3-9 

month Ietm under the Revocation Table in § 7B1.4, p.s., and 

that the dislrict court erred in sentencing above that range. 

The government countered that the court was not bound by 

the policy statements and that the sentence was reasonable. 

The appellate court affumed. and held that Nunda' 18 

U.S.C.3S83andU.S.S.G.Cb. 7Pt.Al &AS,thepolicystatements regarding revocation of supervised release contained in 

Chapt« 7 ••• iI.Ie adviso'y rather than mandarory in nature. 

This holding is specifically limited to U.S.S.G. Ch. 7. 0Ihet 

policy statements in the ••• Guidelines must beelUUl1ined separarely in the ccnlell:t of their statutl:ry basis and Ihejr accompanying commentary. We see noconflictbetwcenourholding 

today and ourc:ases applying and inlelpreting U.S.S.G. SK1.1, 

which is also a policy statemenL .•• The cases noting the 

mandatcIy nature of . • . SK 1.1 recognize that the motion 

requirement is suggested, if not compelled. by the underlying 

statute; they do nOl hold that policy statements are binding as 

a general rule. A provision set out in a policy statement may 

be binding because required by the underlying statutes. " 

"Although we conclude that policy swements generally 

are not mandalory, they must be considered by the trial court 

in its deliberations concerning punishment for violation of 

conditions of supervised release." 

In this case. al though the sentencing court did not specifically reference § 781.4 in its order, its "explanation of the 

senlence it imposed was sufficiently reasoned to satisfy the 

rtXIuirements of 18 U.S.C. 3553," and "even failure to consider Chapter 7 policy statements ... is hannless error when 

the sentence is clearly reasonable and justified." Accord U.S. 

v. Fallin. 946 F.2d 57, 58 (8th Cir. 1991) (4. #10]. 

US. v. Lee. No. 91-6079(10thCir. Feb. 19, 1992) (Logan,J.). 

Volume 4· Number 16· February 2.8.1992. Pale 2 

REVOCA nON OF PROBA nON 

US. v.Dixon. 952 E2d 260(9thCir.I991) (Any sentence 

imposed after revocation of probation is limited to the sentence available at the time defendant was first sentenced to 

probation. See 18 U.S.C. § 356S(a)(2). The revised policy 

statements at U.S.S.G. Chapter 7 direct courts to coosidet the 

probation-violating condocl to calcuJate a .~tencing range 

after revocation. That conduct may only be considered in 

selecting the appropriate sentence within the range available 

pursuant to § 3565(a)(2), and "[t]o the extent Iha1 the Guidelines confUct with the statute, we find them invalid." Hea-e, 

defendant's IS-month sentence, calculated under Chapter 7 

and partly based on the bank robbery that led to revocation, 

must be vacated and remanded for resentencing within the 4-

10 month range that was available at his initial senteoc:ing.). 

Adjustments 

ACCEPTANCE OF REsPONsmn.1TY 

u.s. 'II. Johnson. No. 90-30344 (9th Cit. Feb. II, 1992) 

(Noonan,I.) (The acceptance of responsibilityreducdon may 

not be denied on the basis of lack of timeliness for defendants 

who went to trial and used duress as a defense. which in effect 

denied their responsibility fl:r the offenses. "The Guidelines 

make dear that the redoction for acceptance of responsibility 

is available 'without regard to whether [a] conviction is based 

upon aguiltyplea or a finding of guilt by the court or jury ••• : 

U.s.s.G. f 3EU." To the extent that the commenaary's 

statements that the reductions should be given after trial only 

in"rare situations" or that after trial acceptance is not "timely" 

may conflict with the guideline, "thelell:toftheguidelinemust 

prevail." The comt also pointed out Iha1 defendants here bad 

liUle choice but to go to trial: "The government re(u,ed to 

considerpleaoft'm from any single defendant un1ess all of the 

defendants pleaded guilty .... [Under 11hese circums1ances it 

is inapplopriate to deny [the redoction] based solely on the 

timing of the acceptance." 

After conviction "the defendants continued ro maintain 

that at least they had been subjected to incomplete duress. But 

unlike a claim of complete duress, a claim of incomple&e 

duress does not deny aiminal guilt-it merely asks for 

leniency because of the coercion to which the defendant bad 

been subjected. 'There is consequenUy· no barrier 10 geuing 

one reduction for incomplete duress- [by departure1 and 

another' reduction for acceptance of responsibility. j. Cf. U.s. 

'II. FleeMr. 900 F.2d 914,918 (6th Cit. 1990) (13EU reduction not automatically precluded for defendant claiming 

entrapment defeme). 

Offense Conduct 

CO-CONSPIRATOR DRUG QUAN1TI1ES 

US. 'II. Johnson. No. 90-30344 (9th Cit. Feb. 11,1992) 

(Noonan,I.) ("As a general rule, the fact that a conspiratcr is 

taken into custody does not automatically indicate disavowal 

of the conspiracy. [Defendant]. however, has been found by 

the court to be a 'minor' participant in the conspiracy •... Once 

in custody. she was in no position to continue her role asa drug 

distributor. It strelChes a legal fiction to the breaking point to 

hold her accountable for the drugs (other conspirators] distributed afler [she was jailed). Consequently. she can be 

sentenced only on the basis of drugs distributed by the conspiracy before this date.""). 
Guideline Sentencing Update 

GtliMIM .s.tMciItf U,.,. wiD be ~ paicMticaI., ",!be c...10 iafema PIP -S CIIIbar judidaI ~ fIl ......... l'eIknI_ ---.-14IIIaIc:iaa __ ~fIl19l4"lm .. _SonS rt,()ricWiDOt AIIboI.Ip dlepublic=lli._,I'IIIf'w:IO!beScateacizla~"pcIic:J __ fIl!be u.s ............ 

C heir ID die _ fIl NpCfIiq _1IOIdiDp. is .. DOt ...... IiO l'IIIpM s.c.c:iaa CmmIuina po!ic:i. or .......... 1Iha!.IId I'IIIf'w:to die 01i Iii .. , pcIic:J 

-_, c_ •• " ............... ." ... s--;qCCllniMim f.lRIdliafarmaIiCII. 

~fIla..w.liu~U~_ ... c... .... llu.~_valuabIe-a..h.-w_beeauidend.RM •• " 'M tlaIiCII.aGic:ia1pcIic:J 

fIl!be c.... 0. __ fIlpo&,!be c... ... CIIl, duaup" Botid. 

VW1Ml4· NUIaIBI!Il17. Mw::H 17.1992 

Appellate Review 

Supreme Court boIds that remlUld Is DOt required for 

departal'ebased OD both valid ud iDYIIIicl facton wIleD 

sallie aeDtaace would bave beea Imposed ableat iDY8Iid 

facton. In so bolding the Court re&Olvcd. _ split among the 

circuits. SevenJciJcuits badbeld._depllbllebasedinpan 

00 invalid facb'I may be ~ 00_ case-by-casc basis if 

lhcIeare valid factors Ibal wammtdepar1uJc and it appears the 

same SCDtenc:e would bave bcco imposed absent the invalid 

~SuUS. v.lollU.948F.2d732. 741 (D.C. Cit. 1991); 

US. v. Glick. 946 F.2d 33S, 339-40 (4th Cit. 1991); U.s. v. 

Alba. 933 F.2d 1117, 1122 (2d Cir. 1991); U.S. v. DimBQSUI1'do~ 929 F.2d 798, 800 (1st eir. 1991); U.s. v. 

/agmohtm.909 F.2d 61. 6S (2d Cir. 1990); U.s. v. Fro.nkJin. 

902 F.2d SOl. 50S (7m Cit.), cert. dt!nied, 111 S. Ct. 274 

(1990); US. v. Rodriguez. 882 F.2d 10S9, 1068 (6Ih Cit. 

1989). Two circuits had held that remand was auromatically 

required in such a situation. See U.s. v. ZI:Imt:zrripa, 90S F.2d 

337,342 (lOch Cir. 1990); U.S. v. HenuJIfda-VtJSq&fez, 884 

F.2d 1314, 1315-16 (9th Cit. 1989) (per cwiam). 

In the case before the Court. defendant received aD upward 

depar1uJc in his aiminaI hislOly carcgory based upon several 

prior mests • ~ not Jef1ected in his aiminaI hislory 

SCOIe aDd two prior convictions that were too old to be 

oounted. Although the ftrSl ground was aD improper basis for 

departure. see U.s.S.G. t 4A13. p.s .. the appellate court 

affmned the senrencebecausc it held the Iauer factor was vaJid 

and justified the increase. U.S. v. Williams, 910 F.2d 1574, 

1580 (7th Cit. 1990). 

The Supeme Court remanded because it was unable to 

determine whether the appellale court had concluded that the 

same seatencc would have been imposed absent the invalid 

factor. However, the. Court held Ihat remand is not tJlI/(Jmotically req,uired in such circumstances. In reaching its 

conclusion, the Comt determined that "the reviewing court is 

obliged to conduct two separate inquiries. First. was the 

sentence imposed either in violation of law or as a result of aD 

incorrect application of the Guidelines? If so, a remand is 

required Wlder § 3742(1)(1) .... [AJ reviewing court may not 

affll11l a senrence based solely on its independent assessment 

that the departure is reasonable under' t 3742(1)(2)." However, a remaDd under (f)(I) is not required "every time a 

sentencing court might misapply a provision of the Guidelines 

. . .• When a district court has intended to depart from the 

guideline range, a sentence is imposed 'as a result or a 

misapplication of the Guidelines if the sentence would have 

been different but for the district coun's error, Accmfingly, 

in determining whether a remand is required under 

§ 3742(0(1), a court of appeals must decide whether the 

district court would have imposed the same sentence had itnot 

relied upon the invalid factor or factors." 

"U the court concludes that the departure is not the result 

of an error in interpreting the Guidelines. it sbou1d proceed to 

thesccood saep: is the rcsulliDg sentence aD UIR8SOD8bly bip 

or low departure from die relewnt guideline nmge? U so. a 

remand is req,uired UDder f 3742(f)(2) ... WbcIber a departure 

scatcnce is reasoaabIc is dett.nniDcd by "'&be amaunt aad 

extent of the deparIIn in 1ipl of die grOunds for deputing •••• ASCDIeDcO ... canbe 'masonable'eveaihomoofdle 

mISOIIS givca by thedisariclc:ourt ••• are invalid. provided Ibat 

the remaiDing reasons are sufficient to~' the mapiludc 

of the depanure." 

Note that "the party challenging the sentence 00 appeal. 

akbough it bears the inilial burden of showing that the district 

courtrelied upon aD invalidfactoratsenfCncing. does nothave 

the additional burden of proving that the in~d factor was 

deterrninalive in the sentencing decision. Rather ••• a rmaand 

is applOpriate UD1ess the reviewing court ~ludcs. 00 the 

record as a whole, thai: the euor was harmless. i.e., that the 

error did notaffect thedislrictcourt's sc1ection tX the sentence 

imposed. Su Fed.. Rule. Crim. Proc. 52(a)." 

1bc Court added instruction on "1bedeJreeof aD appellate 

court's auth<xity to affirm a sentence when the disuict court. 

once made awan tX the errors ill its inuIrpRcaIion of the 

Guidelines, may have chosen a different senteDCe. AlIhOugb 

the [Sentencing Reform] Act cstablisbed a limited appellate 

review of sentencing decisions, it did not aiter a court of 

appeals' traditional deference to a dislrict court's exercise of 

irs sentencing discretion. The sdection of~ the apprqJriate 

scatcnce from within the guideline range. as wdl as the 

decision todepanfrom the range incer1ain circumstanccs.are 

decisions that are left solely to the senreocing court. U.s.s.G. 

§ SK2.0, p.s. 1bc development of die guideline sentencing 

regime has not changed our view that. cxccplto the exlCDt 

specifically directed by staIute, 'it is not the role of an 

appellate comt to substitute its judgment for that of the 

sentencing cowt as to the appropriateness of a particular 

senlence,'" 

Because the issue was not poperly presented for 8I8Umenl, the Court declined to review whetJ'aQ outdated convictions that are not similar to the inswn offense may be 

consideredflX'departure. ComporeUS. v.Aymtlek, 926F.2d 

64,73 (lstCit. 1991 )(may be appropriate in somecases); U.s. 

v. Williams, 910 F.2d 1574, 1578-79 (7th Cir. 1990) (same); 

U.s. v. RusseU, 90S F.2d 1439, 1443-44 (10th Cir. 1990) 

(same); U.s. v. Carey, 898 F.2d 642. 646 (8th Cir. 1990) 

(same) willa U.S. v. uaJce, 908 F.2d SSO. SS4 (9th Cit. 1990) 

(only if similar). Su oJso U.S.S.G. t 4Ar.2, cOmment (n.8) 

("evidence of similar misconduct" in outdated convictions 

may be considered for departure). 

Williams v. U.S .• No. 90-6297 (U.S. Mar. 9, 1991) 

(O'Connor, J.) (While, Kennedy, JJ., dissenting). 

175 
Guideline Sentencing Update Volume 4· Number 17· March 17, 1992· Pap 2 

Relevant Conduct 1369, 1375 (9th Cir. 1990) (amending and. supcneding 910 

NiIltb Circuit boIds relevaat coDduct is DOt limited to F.2d 663 [3, #13])). Other circuits have held that possession ~......... • Defi~"-- plus other threatening or violent behaviorcooslituICS a crime CC81ud that would ,, ___ te .eden) off...... ""alaut., ofviolenc:e. Seecasesli.sledin4GSU.Ssummary ofCl&apple. 

an employee of a ~t contractor, pled guilty to sub- Note: EffecliveNov. I. 1991. U.S.s.G.14B l.2,commenL miaing two false petty c::ash vouchcn, totaling lesS than $200. 

which were Ia&er charged to the United States. He also ad- (n.2)sl8leS. '"Tho tam 'aimeofviolence' does DOlincludo the 

.Ir offense of unlawful possession of a fileanrfby a fcJon. " 

mitted to submiaing faIsc vouchers worth $214.70,.,.39 over U.s. Y. Johnson, 953 F.2d liD, 113-15 (4th Cir. 1991). the yC8l'l to his employer. There was no proof that she United 

StaleS was charged fot these expenses and thus no indication TIaInl Circult holds that in detenainiDl wbetber lUI 

that these submissions violated federal Jaw. 'I'bo discriCl court offease iDvolved "serious poteatial risk of p",...lDJury 

included aD die vouchers in Calculating defendant's base to another," iDquiry iIlto uaderl1lal coadud II DOt reooffense IcwI ~ U.8.s.G. 11BI.3(a)(2). Defcadant ap- qalred H'tIIe ltatute II CCIIlYictloD laclleaces .11 a rllk. 

pealed. claiminB that because the federal ~ bad no Defendant was scnteoced as a career offeader. pardy on the 

j~ over abe ~~4.000 worth of false vouchers they basisofapriorSIaICfcloayconvictionforfirstclegreereckJess 

should not Iaa", becD used to compare his aeoteacc. endangering that resulted from pushing II1d sIappiDa a store 

'I'boappcDarec:ourtaftirmcd. boIdingthataction.tamount- cleltdmingashopliftingaaempt. Defendantoffcndtotatify 

ins to SIaliC offcases but not federal offenses may be c:onsid- atabeseatencing bearing that be did not commit thoIelClSUId 

CIed IiIIcB abe !eIevant ClClDduct pmvisions: "Wc find no that tbcrc was Iitdc likelihood of serious injuiy to Ihc dat. 

intcntion by thc Scntcncing Commission to narrow 'The district court refused to hearthet.cstlmony and ruled that 

IIIB1.3(a)(2) and (a)(3) to federal conduct only. Those theconviclionwua"crimcofviolence"underI4B1.1.Dessubscctionsspecifically direct the consideration of all acts that pite "gravc doubts about the ••• extremely broad definition of 

were pan of Ihc same course of conduct or common schemc 'crime ofviolence'''_ may cover "a crime whose mens rca 

or plan, as wdl as all harm that resulted from those acts. . . • is no worse than rectJcssness, .. the appellale court affinncd. 

(A]JI of Newbert's actions took place in the samc general In the prior stare conviction dcfeodant pled guilty to 

course of conduct. 1beIe was no difference in the way he "recklessly cngag[ing] in conduct which creates a substantial 

committedlhcstareoft'cnsescomparedtothefederaloffcnses. risk of death to anotberperson." 'I'bo court hel41bal consti-

.•• There is no indicadon the Sentencing Commission in· tutedacrimeofviolcnce undcrthe language of 1 4BI.2(I)(ii) 

tended to clistinguisb among the jurisdictional components of thatcncomJllSSCSanoffcnse that .. otherwiscinvolvaconduct 

a clcarly COIIlIDOII pattern of criminal conduct. Rather, the that presents a serious poa.cnlial risk of pbysical injury to 

Sentencing Guidelines evidalcc a clear intent that persons anocbcr."Further,thedislrictcoundidDOtarwhenitrefuscd 

who commit a schemcof fraud be punished in accmIance to "'bold a mini-lrial on what actually happened. "'The appclwith the toIal harm caused by the fmud." Su 11BI3(a)(2). latecourtbcld, ..... beletheJanguageofthecriminalSllUllteso 

conunent. (backg'd). closely ttacks the languagc of the Guidelinc that. the 

U.s. Y,Newben. 952 F.2d 281. 284 (9thCir.I991). dcfcndant'sconvictionnecessarilymeetllhcGuidelinestandard. thed.istrictcourtneed loot no further than the SlalUteand 

Criminal History need not inquire into the underlying condUct charpd. •.. 

CAREER OFn:Nnu PROVISION [A]lthough a per se approach based on the statute alone is not 

FourtII Clfcalt IIoIds dlat, III detenalaiDg wlaether required in every case. see U.s. v. J OM, 936 F.1.d 764 (3d Or. 

otrease Is a"aiDle ofvioleace," courts should look only 1991),suchanapproacbisgcnerallypreferablctoinquiryinto 

to caadiid daarJed III tile lDdidmeat, 801 uaderlyiag Ihc facts of each case. " 

coadud. Defeadant pled guilt)' to being a convicted felon in Note: 'Ibis case invol~ the pre-1991 ameodmenl version 

possessionoffilearmsaftt:r'policecUscove:rcdfireannsburied of 14Bl.2(l)(ii), commenL (n.2). used in Joluuo,.~ Sllpf'4. 

in hisbactyardHebadtwopriorconvictions for violent of- U.s. Y. Parson, No. 91·3059 (3d Or. Jan. 31. 1992) 

fenses and wu sentenced as a careeroffender Under U.S.s.G. (Becker, J.). 

14B 1.1. He ~ that designation. claiming the instant 

offense was not"a crimc of violencc" as defined by 14B 1.2. Offense Conduct 

The appcUate court agreed and remanded. It first held that. in CALCULATING WEiGIrr OF DRUas--MAJUJUANA 

dctcnniniag whether an offense is "violcnt.," .. the sentencing U.s. v. Hasll. No. 91-5340(4th Cir. Feb. 3,1992) (Phillips. 

court is limited to an evaluation of the conduct explicitly J.) (vacating sentence imposed on defendant., convicted of 

charged in the indictment" and may not look to other facts manufacturing and cultivating six marijuana plants. that was 

surrounding the offense, cven for offenses not specifically based on assigning tach plant a weigbt of 100 grams pursuant 

listed in 14B 1.2. See U.s.8.G. § 4B1.2. commenL (n.2) (Nov. to § 2Dl.1(c) n.· (at p.82): "For offenders possessing fcwer 

1991) (court may loot to "'conduct set forth <.i.&... expressly than SO plants, we believe Congress intended to remain true to 

charged) in thcCOUDlofwbich thc defendant wasconvictedj. the general rule of [21 U.s.C.] § 841. which makes ac1Ual 

The coun also held that ··the offense, fclon in possession of weight delcrminative Cor purposes of scm,encin...B. Under tIlis 

a fueann. in the absence oC any aggravating circwnstanccs int.c:rprctation. U.8.S.G. § 2D1.l(c) n.· is invalid insofar as it 

charged in the indictment., does DOl constiblte a per se ·crime equates one plant with 100 grams of marijuana in offenses 

ofviolence ... ·AccordU.s.v.Chapple.942F.2d439.441-42 involving fewer than SO plants ...• [Alctual weight; not 

(7th Cu. 1991) [4, #8). Contra U.s. v. Stinson. 943 F.2d 1268, presumed weight, [must] be thc sentencing measure"). Ac1271-72 (11th Cu. ]9(1) [4. #10]; U.S. v. O'Neal. 937 F.2d cord U.s. v. Streeter, 907 F.2d 781. 790 (8th Cu. 1990). 

176 ==================================================== 
Guideline Sentencing Update 

VOLUJoE 4 • NUMIIIR 18 • MA1a127. 1992 

Departures 

MmGA11NO CIRCUMSTANCES 

MIl .. Circuit uplaolds dowawanldepartures tor dral- _ .... "males" tor WbolD 1381.2 Ulidiptlul role 

adJubDeat was uaaY8iJable.1n two sc:parate cases COIIIOJi. 

daIed far appeal. a Mexican citizea witb DO prior criIninal 

recardrec:eived money ($ 1,000ancl $2.000) 10 drive a carload 

of marijuana (190 pounds and 50-100 Jd1ograms) into the 

U.s. froIIl Mexico. Both pled guilty to possession witb iDrcot 

IOdistrihute. Ncitberwudigible far a lDiliptiDl role adjustment,13Bl.2. because each was the only participant in the 

offense. See U.s. v. Zweber. 913 F.2d 70s, 708-09 (9th Cir. 

1990) (may not receive 13Bl.2 redlI::tion for role in 00-

cbarged ar unconvicted conspiracy). They were separately 

sentcDccd by the same judge, who departed from lheir41-51-

month ranees to impose 15- ancl8-month terms. 1bc judge 

departed because the guideline nnp overstated. the seriousness of the defeodants' conduct as meze ~ules" in the 

drug eradc along die Arizona·Mexico bordet, particularly in 

Uaht of guideline senrcnces, including probation, the court 

wu imposing in more serious drug smuggling cases. 

The appeUa&e court affllllled. relying on U.S. v. Bierley, 

922F.2d 1061,1065-66 (3d Cir. 1990), whicb held that deparbRmay boconsidered far a defendant who could not qualify 

far an adjuslmeot UDder 1 3Bl.2 because be was the only 

MaiminaDy responsible 'parricipant'" in the offeue of convictiOD. .. Applyinc Bierley ••• we find that die marginal roles 

played by [defendants] in thedmg trade.coUPIed with the unavailability of the section 3B 1.2 downward adjustment. could 

weD repmsent a permjssiblc basis fara downward departure. .. 

The court atso beld that the district court could consider 

"the socioeconomics and the intanal politics of the drug trade 

aloog dleMcU:an borderand the sentencing patternS in otha' 

drug cases arisin8 from traffICking across tba1 borda'. • •• 

'(M]uJes' aloog the Mexican border are uniquely siluated in 

terms of their role in the drug trade. being even less involved 

in the 0'Vel'lll drug business and with less 10 gain from the 

success of the drug enterprise than ordinary underlings in 

conspiracy cases. This is a peculiar condition that the SenIeDciDg Commission did not address. .. Cf. U.s. v. Alba. 933 

F.2d 1117. 1121-22 (2dCir. 1991)(evenwith § 3B12reducCion, depanurc far "less than minimal" role may be warranted 

far "exuemely limited nature of [defendant' 51 involvement" 

in offense). 

Note: Bierley be1d Ihalsucb a depanure "would be limited 

10 the 2 to 4lcvel adjuslment" allowed under § 3B 1.2. Here, 

the coundid not rule on the issue because the government did 

not appeal the extent of the departures. 

U.S. v. Valde,..{ionzale" No. 89-1027 (9th Cir. Feb. 19, 

(992) (Tang. J.) (Fernandez. J., dissenting). 

U.S. v. BosMII, 952 F.2d 1101,1106-09 (9th Cir. 1991) 

(Affuming downward departure for defendant who faced 

much longer sentence under Guidelines than comparable and 

I1\Ole culpable oo-conspiralors who, amJike defendant, were 

a110wecI to plead to p:e-Guidelines offeascs: "mbe.need to 

avoid unwarranted sentc:ncing disparilies among co-dcfendanlS involved in the same criminal 8Clivity bas long been 

considered a legitimate senteacing coocem. ••• [W]bere oousua! circumstances arc present. departure (ar equalialion eX 

co-defendancs' sentencesmaybo wammred." CJ. U.s. 'V. Ray. 

930 F2d 1368. 13'n-13 (9Ib Or. 1990) (depanuro WIII'8UId 

whcRco-dcfendantsrec:eivedmucb IowerIellleDCel in period 

N'mtb CiR:uit beld Ouidelines unconstillllional). 

1bc SCIltalCing court also departed baed OIl defendant-. 

personal cbaracterisIics background. and job bisrory. The 

appellate court remanded (ar anicuJalioa o( the specific reasons (ar departure and the underlying facIual basis: "Only in 

extraordinary circumstances may a court rely on onc of the six 

factors listed in [U.S.S.O. II 5Hl.l-1.6. p.s.] to depan from 

the guidelines range. j. 

Sentencing Procedure 

EVIDEN'I1AIlY IssuEs 

SecoDcI Circuit bolds courts DUal coasider lIIepIIy 

seized evideace at seDteaciDg. ""We conclude tbat the benefits of providing sentencing judges widl reliable infonnatioD 

about the defendant outweigh the Iikelibood that allowing 

consideratiOD of iUcgalIy seized evidcmce will encourage 

W'lIawful police CODduct. AbseDt a showing tbat officers 

obIained evidence expressly 10 enhance a semence, a d.islrict 

judgcmayDOtrefusctoconsiderrelcvantcvideoceatsenteocing, even if that evidence has been seized in vioI.aIi.on of the 

Fourth Amendment." Stt also U.s. v. Lynch. 934 F.2d 1226. 

1234-37 (11th Cir. 1991) (l1lcgally seized evidepce may be 

coosidered). cm. denied. 112 S. Ct. 88S (1992): U.s. v. Torru, 

926F2d.321.32S(3dCir.I991)(same);U.s.v.McCror)'.930 

F2d 63, 68 (D.C. Cir. 1991) (same, adding tba1 evidcDcc 

unJawfuUy seized for the purpose of incn:asins senleDC:e may 

require suppR'3Sion), cm. denied. 112 S. Ct. 88S (1992). 

U.s. v. Ttjada, No. 91·1071 (2d Cit. Feb. 21. 1992) 

(Meskill. J.). 

PLEA AGREEMEN'IS 

Fourth Circuit laolds that Cbapter , or the SeDteadDI 

GuideUDesdid Dot ebaDge tile staDdard tor withdrawal 

of piIty plas. Defendant pled guilty to one count pursuant 

to a pica agreement wbele the government ~ to dismiss 

a second count and recommend SCIllenCing at the low end of 

the guideline nnge. At the plea hearing the court acccpled 

defendant's guilty plea but deferred acaptancc of the pica 

agreement pending the PSR. Before the court accepted the 

agreement. defendant moved to withdraw his guilty plea. The 

dislrict coun denied the motion. holding that defendant bad 

not established a "fair and just reason" fii witJfdraWaJ under 

Fed. R. Crim. P. 32(d), and later imposed sentence in ICUI'-

dance with the agreement. On appeal defendant claimed that 

sections of Chapter 6 "require a new ,less rigorous standard to 

govern motions for withdrawal made before the district court 

accepts a plea agreement. .. 177 
Guideline Sentencing Update 

The appellalc court rejected that contention: "Ewing 

essentially argues that since sections 6B 1.1-.3[.p.s.] prevent 

the sentencing courtfmm accepting a plea agreement until the 

court bas reviewed the p-esentence repmt, the mle sbould be 

the same (or a guilty plea. Until then, be argues. die court bas 

not accqled abe plea. and IbIlS be should be able 10 withdraw 

his plea upon some showing of cause 1essdemanding chan the 

current fair and just reason saandard. ••• The Oaw in Ewine's 

position is its Cailwe 10 acknowledge the disdDClioa between 

a plea of guilty and a plea agreement." The plea agreement 

here was made undea" Rule 11 (e)(I)(A) and (8), and ~ mle 

in DO way suggests that abe plea of pilty may be wilhdrawn 

as a matter of right ••• at any time after Us acc:eptanCe except 

when a type (e)(I)(A) or (C) pica agreement is rejected by the 

court. nus. ooce a pica of guilty is accepted by the court, the 

defendant is bound by his choice and may widldraw his plea 

in only two ways JeIevant beIe, eilber by sbowing a fair aod 

just reason under Rule 32(d), or by witbdrawing UDder Rule 

II{e)(4) after a tejccred pica agreemenL .. 

The Sentcocing Ouidelincs did DOt change Ibis. Section 

6Bl.l{c). p.s. ""requires the sentencing court 10 defer Us 

decision whelher 10 accept a pica agreement until t.hcre bas 

been an opportunity 10 examine the presentence report; Rule 

11 standing aloac gives the court the discretion as 10 wbcther 

10 defer .•• , We have no occasion here to mJOlve the patent 

conflic:t between the Rule and the Guideline. for the district 

court did not abuse its discretion in accepting the guilty plea 

and later approving the plea agreement as it was pennittcd.1O 

do under the Rule and required 10 do under the Guidelines. " U.s. v. Ewing. No. 91-5250 (4th Cir. Feb. 20. 1992) 

(Widener, J.). 

Relevant Conduct 

EigbtJa Circuit aaaIyzes IDterpla, or relevaat CODCIuct 

aDd plea barpiDs ID fraud loss case. Defendant pled guilty 

10 three counts of mail fraud for selling three cars with altered 

odometers. In exchange, the government dismissed oc.heI' 

CQUIlts, including a conspiracy count involving over 300 cars 

with altered odometers sold at aUction for Olher car dealers. 

Defendant was scnrcnced on the basis of the loss in the three 

CQUIlts o( convictiClO~ but the government argued on appeal 

that the amount o(loss should have inclOOed the amount from 

the dismissed coospiracy COWllas relevant conduct. 

The appellate court I'CIIWlded: "'To detetmine the amount 

of loss in this case. the district court considers aU harm 

resuiling from 'aJI .•. acts and omissions that were pan of the 

same course of conduct or common scheme or plan as the 

'offense o( conviction: U.S.S.G. § IB 1.3(a){2) .... The mail 

fraud counts 10 which Morton pleaded guilty included a 

preamble incorporating by reference assertions.contained in 

the conspiracy counL" The court held ibis-was not suffICient 

proof for relevant conduct "['I1he 'offense of conviction' is 

die subsWttive offense to which the defendant pleads guilty. 

••• There is no wriuen plea agreement in this case. Instead. 

Morton plC*lcd guilty to three counts of mail fraud in open 

court and specifJCally denied knowledge that the cars involved 

in the conspiracy count had rolled-bact odometers. The 

tmnsaipt of the plea hearing does not show anyone informed 

Morton he was conceding facts undedying the conspiracy. 

Under the circumstances. '[t]o pennit a greater offense 10 be 

incorporated by reference into each count of the indicunent 

destroysthepleabargainprocess.· U.S. v.Sharp.941 F.2d811. 

815 (9th Cir. 1991). By incorporating the entire scheme into 

1 78 each count. the Government concedes liuJe when it agrees to 

Volume .. ' Number 18· Mardi 27,1992' Pqe 2 

dismiss many counts in exchange for a plea including the 

entire scheme. /d." 

The Court concluded: "[W]e agree with the district court 

that Morton's guilty plea is not a basis for including die conspiracy's cars in the loss caJculation. [Howevcr]. the loss ~ 

sulting from the conspiracy's cars may sIiU be included UDder 

US.S.G.IIBI.3 if the conspiracy is 'part p(the same ~ 

of conduct or common scheme or plan' as the mail fraud.. 

'[T]his is a fact intensive inquiry in which the district court is 

given broad discretion 10 assess the relevant faclS.~ ... The 

relevancy of conduct and the amount of loss under the fraud 

guidelines are factual fandingsrevezsible ooIy forclearerror." 

U.s. v. Morton.. No. 91-2618 (81b Cir. Feb. 24, 1992) 

(Fags. CJ.). 

Adjustments 

VICTIM .. Rl!:LATED ADJunMErns 

u.s. v. SUlh4rltwl. No. 91-1961 (7th Cir. Jan. 28,1992) (Escbbach.Sr.J.)(Rc~wasiDsufficientcvidencc 

10 find that World War I aDd U vctaansaod families were. IS 

a group. "unusually Yulncnble" undea" 13Al.l to fraud 

scheme based on coUecdng and converting their personal war 

memorabilia. or that defendant specifically targeted abe el(i.. 

edy. "In a fraud case where the defendant issues an appeal to 

a Ixoad group, the court should focus on whom thedefendant 

targets, noton whom his solicitation happens to defraud. ••• 

f 3Al.1 is designed to punish criminals who choose vulnerable victims, not criminals who target a broad group which 

may include some vulnerable petSOOS. "1bcIe must be specific evidence showing vulnerability of the victim--thc enhancement may not be based on a "broad and uusupported 

gene.mlization. j See also U.S. v. Cree. 915 F.2d 352. 353-54 

(Sth Cir. 1990) (enhancement improper where defendanl did 

not know exreoto( or intend to exploit victim·s vulnerability); 

U.S. v. wason.. 913 F.2d 136. 138 (4Ih Cit. 1990) {raodom 

targctsofsolicitationnotvulnerable);U.s.v.Creec/t.913F.2d 

?SO. 781 (lOCh Cir.199O) {DO evidence lbatrecently-marricd 

husbands arc unusually vulnerable 10 threats 10 (arnily).BUl cf. 

U.s. v. Boise. 916F .2d497, S06(9th Cir.I990)( defendantnecd 

not intentionally select victim because of vulnerability). 

OBSTRucnoN OF JtJS'I1CE 

U.s. v. Capps. 952 F.2d 1026. 1028-29 (8th Cir. 1991) 

(Affirming I3CU enhancement for obsUucIion of justice 

based on defendant's SlafelDent 10 third party ina barthatacoconspirator-who had become a confidential 8Ovc::mment 

infonnant-"wu snitching on bee and Ihat she was bringing 

in some bikers to kick. his ass and deal with the sniIcll." 

Defendant argued that because the threat was nevcrcommunicated 10 the informant the enhancement was improper. The 

appellale COUIt disagreed and held thal .. since the adjustment 

applies lOattemptslOobsttuctjust.icc. itisnotesscntial that the 

threat was communicated 10 [the infonnant] if it n:fIcctcd an 

auernpt by Capps 10 threaten or intimidate her conspirators 

into obstrucling the government's investigation." The threat 

was "mae than idle bar talk. .. and there was also evidence 

defendant had threatened others in the conspiracy.). 

U.S. v. Amos. 952 F.U 992 (8th Cir.1991) (Reverseddefendant who wilhdrew guilty plea am then-denied guilt at 

trial should not have received a two-level adjustment for 

acceplanCe of responsibility under U.S.S.G. f 3EU: "The 

fact that Amos adrniued to the crime and acc:epted responsibility when he entered his guilty plea became irrelevant once 

he proceeded to trial and denied the offense."). 
Guideline Sentencing Update 

0tMMIN s., .... U,... wID lMalliRdbutM pericwticeU, "' .. c....10 laf_jIIdpIlDd --jDdicial J*IGIIIIIII "' ...... ""*-' ______ .... ........ .............. "'19I4_19I7_ .. S M .... 0aIdeJI_ AIIIlouF .. puI6wd .. _, ..... IO .. $aatmciIll~_paliq ___ "' .. U.s.S., ... , 

" "m ill .. _ '" repadIaa _ ~ ilil _ ....... 10 npGIl"''''''' I'mnjqIm paIicieI .. 1CIMI:i& ...... &bauId ._10" Qui .... paIicJ 

eM. n, I ,. _ .... 1IIIIkEiaIII ..... "' .. "..cilll Cm-ieske '..-1Ud! iaCCIIJDII&icD. 

~"'~,."'*"" U,....-...... ".... .... k ...... ibIo_"eluabJewoa.l1lbou1d_beCCllllidlnd.NC .. UIIII .. tiGn .. aI6I:ia1paIicJ 

"' .. "..... 0. .... '" poIIq" C-1IpOIb CI1l1111mu&b ira Boud. 

VOUl104B 4 • Nm.aua 19 • ARut. 9. 1992 

Departures 

SVISTAN'TIAL AaISTANCE 

Elghtb Circuit laolds that t SKLl, p.s. lDotioa does 

lICIt penalt departure below statutor.J lDiDilDulD UDder 

11 U.s.c. f 3553(e). Dcfeodant was subjec:l1O a teD-year 

mandaIory minimum lCDIeaccaftcrp1eadiPg guilty 10 p0ssession wiIb iataltlOdiSlril:M.de SO or men p:amsof cocaine base. 

Tbe ~fiJeda mooon under f SKI. It p.s. for departure below Ibc guidcliDc range of 23S-295 months. and 

spedficaUyDOtedtbatilS mooon was pursuant 10 f SKI. I only 

and was not mtant to affcct the mandatory minimum. The 

dislrictcoundeparttA:I below both the range and the minimum 

to impose a senlCOCe of 36 months. 

On the government's appeal. the issue was "whelber a 

sentencing judge can depart below the statutory mandatory 

minimum seotence when the govcmment lias 'moved for" a 

downwarddeparture for substantial assistance pursuant to ••• 

sccdon SKl.l.and not pursuant to 18 U.S.C. f 3553(e). Tbe 

underlying question is whether sections SKU and 3553(e) 

provide fortwo different types of departure ••. orwhetbertbey 

are intcndc:d to perfonn the same function." 

The appellalc courtrev~ CCJOCluding that the two sections are disUDCt. Tbe seDtcDCing statures "plainly empower 

the Seu&encing Commission 10 provide for departures below 

the sratuIory minimum. However. section 5KI.I does DOt 

scarelhalaSKI.I motion applies to mandatory minimum sentences. or is dlecquivalent of a section 3553(e) moooo. Thus. 

the only authority for the disttict court 10 depart below the 

SIaIUtOriIy manaatcd minimum senrcncc exisls in the plainly 

srared limitalioo in section 3553(e). The govcmmeot made it 

clear that it was DOt fding a motion pursuant to that swute. 

Because .,cedoD 3,SS3(e) motion is the key 10 unlocking the 

door toconsldcnuioa of Ibis issue by the sentcncingjudge, we 

C3l only CCJOCludc Ihat die disUict court erred in departing 

bcIow the mandatory minimum absent such a motion .••• 

[T)bc sentencing Judge may not depart below the Slatufa)' 

minimum pursuant to a motion under section SKl.1 alone." 

The Second and Ninth Circuits bcId the opposi&e-courts 

may depart below both the guidelincrangeand swutory minimwnonc:eat SK1.1 motion is made. U.s. v.Ah-Kai. 951 F.2d 

490.493-94 (2d Cir. 1991); U.s. v. KeeM. 933 F.2d7I1. 715 

(9IhCir.I99I).SualsoU.s. v. Wade. 936F.2d 169.171 (4th 

Cir.) (~ng with KeeM in dicta). ceft. greuued. 112 S. Ct. 

635 (1991) (arguments beard March 23. 1992). 

U.s. v.Rodriqllt'z-MOI'alu. No. 91-2355 (8thCir. Mar. 11. 

1992) (Gibson, J.) (Heaney. Sr. J., dissenting). 

CRIMINAL HISTORY 

U.s. v. Gammon, No. 9]-1832 (7th Cir. Mar. 9, 1992) 

(Raum. J.) (Affmning upward departure partly based on 

inadequale reflection in the criminal hislOry score of "the 

seriousness of [defendant's] record as evidenced by the sheer 

num'berofjuvenileotTenses. .. Thecourtbcld tbatalthougb the 

juvenile convictions were too "old" 10 be COUDII.'ld under 

§ 4Al.2(d)(2) and were not similar to the offense of conviction. § 4AI.2. comment. (n.8),lbey were a proper ground for 

departure under § 4Al.3, p.s. because Ibcy showed .,., 

aeriousbistory ofcriminality and theJiblibood Ibat bcwould 

commit crimes in the fuJure. j. CoIItrtI U.s. v. s."".u. 938 

F.2d 210, 215-16 (D.C. Cir. 1991) (UDCOUDtcdj1mmilc __ 

tcnces may be used for deparUD:e only if cvideace of similar 

misconductorcriminallivclihood) [4,18]. Cf. U.s. v.Nkltols. 

912 F.2d 598.604 (2d Cir. 1990) (departure under f 4Al.3. 

p.s. proper for violent juvenile offense for which defendant 

received lenient treaunent). 

Adjustments 

ABuSE OF PosmON OF TRUST 

NiDtb Circuit distinguishes "breacb" froID "abuse" 01 

trust. Although the § 381.3 eobancemcnt for abuse of position of trust may not be applied when elemenlS of the offense 

include abuse of trust. there is ". qualitative differax:e between a breach of trust and abuse of trust." and thus § 381.3 

may be "applied 10 embezzlers when Ihq"breach of trust was 

particularly egregious." Accord U.s. v. GeorgiodU.933F.2d 

1219, 122S (3d Or. 1991). "In determining whether particular 

conduct constitutes a breach or an abuse of trust. courts must 

look to the role the position of trust played in facilitating the 

offense. The Commentary Slates tbatthecnhancemcnlmay be 

applied only when the position of trust contributed in some 

'substantial' way to facilitating the crime. 'SubstaDtiaI' in this 

context has been inrcrpreted 10 mean that. in addition to the 

elements of the aime. Ihe defendant exploited the trust 

relationship 10 facilitate die offense." Because defendant's 

posiIioa "notonlyallowedbetacccsslOlargCamounlSofcash. 

but also made it possible for her 10 c:oaceaI the theft for an 

extended period of time ••• bet position of trust facilitated bet 

embe:zzlement ina manner notacoounted forinthe underlying 

offense" and the enhancement was properly given. 

The court also held that an enhancement for ""more than 

minimal planning." § 2Bl.1(b)(S). could be imposed in addition 10 f 381.3 because the extensive plamUng required for 

repealed. thefts over a two and a half year period involved 

conccms other than abuse of bUSt Accord U.s. v. Marsh. 955 

F.2d 170 (2d Cir. 1992); Georgiadis, supra. at 1225-27. 

U.s. v.Christ~n,No. 91-30155 (9thCir.Mar.3.1992) 

(Wright. S.). 

USE OF SPECIAL SKILL 

U.s. v. COIIMIl. No. 91-1700 (1st Cit. Feb. 26. 1992) 

(Selya. J.) (affmned:"the specialized knowledge required of 

a stock.broker. when combined with the ability 10 access 

fmancial markets directly ,can qualify asa special skiU" under 

§ 381.3 where, as here, it was not an element of the offense). 

179 
Guideline Sentencing Update 

VICOM-Rli:LATED ADJUSTMENTS 

US. v. Caterilw. No. 90-50049 (9th Cir. Feb. 21, 1992) 

(Hall. J.) (remanded: error to apply two ~ victim" 

enbancements undet f3At.l. (or lOIII increase o( (our of· 

(ease levels. (or vuJncmble victims in two separate fraud 

counts arising from same fnwd scbemo-under the multiple 

counts guidelines in 0Iaptcr 'Iluee "'tbc offease characreris· 

tics (or a fraud cooviction are applied to 1bc ovaaI1 scheme 

rather dum by rete:reace to individual counts or victims. .. and 

thus 1bc 13A 1.1 adjUSlment is"counIed once (or coovictions 

arising out of a single fntudulentschcmej. Sa also U.s.s.O. 

13Dl.3. comment. (n. 3) ("Wbcncountsare grouped pursuant to f 3D 1.2(d). Ihe offenso guideUoe applicable to 1bc 

agtegate bebaviorilused. ••• DctcrnUoe wbclherthe specific 

offcuo cbarIcIeriIIicI or adjuscmeals from 0IapIer 'I1ne. 

Pans A. B, aad C lPPly bucd upoa Ihe combiDcd ci'feosc 

bebavior I8bD as a wboIo.. j. 

OlSTRlJC'I1ON OF Juma 

U.s. Y. B,ooI:&. No. 9O-S240 (4Ih Cir. Feb. 28. 1992) 

(Luuis. J.) (Remanding imposition o( f 3Cl.1 enhancement 

(or th.reatening comment made to third party but not iK'ard by 

thel8tgcto(1bctbreat. "At a minimum. secrion 3C 1.1 R:quires 

that the defendant either rbreaten the codefendant, witness, or 

juror in his or her Pft*nce or issue the dueat in circumstances 

in which there is some Iikelibood that the codefendant, witness. or juror will learn of the threat. Not only is there DO 

evidence in this record that Pauerson ever Ieamcd o( Brooks' 

threat. there is DO basis forconcluding from the circumstances 

in which the threat was made that Patterson might learn of the 

threat. It is not e'VeD clear that Brooks acaually inrendcd that 

PaUersoa learn o(tbe threat. j.B'" cf. U.s. Y. Capp,r. 952 F.2d 

1026. 1028-29 (8th Or. 1991)(affumingenhanccmentbased 

on threat made to dWd party:"since the adjustment applies 10 

aaempcs to obsUuctjusrice. it is not essendal that the threat 

was communicated to [the largct] if it reOected an auanpt by 

Capps to threaIen or intimidarc her conspiratorsj [4. 'I 8). 

Criminaillistory 

CAREEIl OWENDER 

Eleveatll CIrc:uit reaIIlnDs that IIDlawlul possessioa 01 

firearm b, CODridedleloa Is '\Time OtviOIeDce" aDd boIcII 

tbatcbaDai" coallDeDlar)' canDot overrule drcultprec:edeDt. Defendant'. stnrcoc:eas a c:areeroffcnder wasaffumed 

in U.s. Y. Slbuoll.943 F.2d 1268 (l1thCir. 1991). whichhcld 

that poacssion of a fuann by a convicted (elon categorically 

cc:institutesa"crimeofviolence"(orcareeroffcnderpurposes. 

LaIcr.1bc Commentary to § 4Bl.2 was changed to stale that 

such offense was not a critDe o( violence. Defendant petitioned for rcbearing, arguing that the amendment should be 

given mroacdve effecL 

The appclJate court denied the petition. reatTumed its 

carUer holding. and examined .. the appropriate weight to be 

afforded to the conunenrary. . . . This new commenrary 

coming afler we had construed the guidelines, raises the 

,question of wb8t effect should be given a post hoc change in 

the commentary-or newly created 'legislative history'-by 

the Sentencing Commission." Noting that. unlike guidelines, 

the commentary "is never offlciaUy passed upon by Congress," the court delennined ihal "we must be mindful of ihe 

180 limited authority of the commentary. We doubt the 

Volume 4 • Number 19· April 9. 1992· Pate 2 

Commission's amendment 10 section 4BI.2's commentary 

can nulUfy the precedent of the circuit courts. As far as we 

can tell. at DO point bas this change been called to Congress's 

aaention, much less been authorized by Congress. AI1hough 

commenrary should generally be regarded as penuasive. it is 

not binding ••.. We decline 10 be bouDd by the chaDge in 

section 4BI.2's commentary until CongresS amends section 

4B1.2's language to exclude specifically the possossion o( a 

fueann by a (eJon as "a crime o( violence. '" 

U.s. v. Sdnson, No. 90-3711 (11th Cir. Mar. 20. 1992) 

(per curiam). 

General Application Principles 

AMENDMENTS 

u.s. Y. COIIMU, No. 91-1700 (1st Cir. Feb. 26, 1992) 

($ely&. J.) (RcmaDdecI because offeasc guideline level was 

lowered after scnreaciq: "'Tbe guidelines provide that 

'[w]ba'e a dcfeodaDl iI terving a tenD of imprisoameot. and 

the guideline range appUc8b1e to that defendant bas IUbsequendy been lowered as a result of an amendment [1isaed in 

f IBl.lO(d)} ••• I a reduction in the defendant's tam o( 

imprisonment may be consida'ed.' U.S.S.O. f IB 1.10(a), p.s. 

(1991) •••• HeDce. while ConoeD is not necessarilyenritled to 

a reduction in the offense leve1-secrion 1 B 1.10(a) does not 

mandarc the useo(1bc lesserenbancement, butma'Cly affords 

the sauencing court. discretion 10 utilize it-be is enritled 10 

have his sentence reviewed in Ught o( the amendment. j. 

Cf, U.s. v. ParA:. 9S1 F.2d634,63S-36(5thCir.I992)(UDder 

faclSO(lhis case amendment Usted in § IB1.10(d)"shouId be 

applied mroacrive1yj. 

JUVENILE SENTENCING 

Supreme Court boldsJuveDl1e seDknees are limited b, 

maxilDUID Guidelines seateace that slmllar., situated 

adult could receive. "We hold ••• that applicatioa of tho 

language in [18 U.s.C.] f 5037(cXl)(B) penniuing detention 

(or a period not to exceed "the maximwn term of imprisonment that would be authorized if the jlMlliie bad been Iried 

and convicted as an adult' refers to the maximwn length cI. 

sentence to whicb a similarly situated adult would be ~ject 

if coovicted o( the Idu1t counterpan of the offcIUIo and 

senr.encedUDderthellalUtCrequiringapplicationoftheGuidolines, 18 U.s.c. f 3553(b). Although determining the maximum permissible sentence undeI' f 5037(cXl)(B) will there-

(ore reqi1R sentencing and reviewiDg·couns to deIerminoan 

appropriate guideline range injuvenilo-deUnqueocyproceedings, wcemphasize that it does not require plenary application 

o(theOuidelines tojuveniledeUnquents. WhcrethatslalUtOry 

provision applies. a sentencing court·. conc:cm with the 

Ouidelincs goes solely to the upper limit of the proper guidoline range as scuing the maximum teml (or which a juvenile 

may be committed. 10 official detention. absentcin:umstances 

that would warrant departure under § 3553(b). II 

The Court's bolding resolves the conflict between U.s. Y. 

RL.C .• 915 F.2d320. 32S(8th CU. 199I)(maximwn sentence 

limited by guideline range), and U.s. 'l-MarctJ L .• 868 F.2d 

1121, 1124 (9thCir.)(maxi{nwn termUmiredonlyby"thcSlalute defining the offense"), cen. denied. 110 S. Ct. 369 (1989). 

U.s. v. RL.C .. No. 90-1 S77 (U.S. Mar. 24, 1992)(Souter, 

J.) (concurring ops. by Scalia and Thomas, JJ.: dissenting op. 

O'Connor, J.). 
Guideline Sentencing Update 

OwMM/iIV SCAUllCu., UpdDlil will be distributed periodie&lly by \he CcnlCr to WOtm judgc:a and 0Ihct judicial pascnncl 0( sclCClOCl federal COW1 dccWOI'II on the HIllC:nci.ng 

rd'orm lePlaticrl cI 1914 IIId 1917 and theScnlalcing Gu.icIcIinca. Althwsh the publication may n:.fer to the Scnt.cnc:ing Gu.idcl.inc:a and policy IllAlancnla of the U.s. ScnlCncing 

Convniuian in \he oanlel1 cI npw:Iiag cue holdinp. iI ia 1101. int.cnded to n:port Sentencina Ccmmiuion policies or activitica. Read ... houId n:.f .. to the rudcl.inca, po\.icJ 

IUICI'IICDI&, 0CIIDIJICrII&ry. and ccha- maJ.eria.J.a iaaued by the SconIc:ncina CommiMian for aucn iaformatian. 

PIlblicaaan olGwMMwSaultCiA, Updau.ipUfiealhat the Ceola' RIIudi it aU _ponaihle and valuable wod<.lIahould nOl. becansidc::rcd. rccc:mmendatian oralficial poliey 

oflhe Ctaer. On ..... -. of policy the Ccnla' spe.W anly IIwufb iIa Boud. 

VOLIM! 4. NUMB1!JI20. Ann. 21.1992 

Relevant Conduct 

Nintb Circuit holds that relevant conduct must meet 

test or ''simUarity, regularity, and temporal proximity." 

Defendant WM convicted by a jury on two drug and two 

fueanns counts, based on possession of a fire ann and less than 

one gram of methamphetamine in March 1989. The pesentence repan relied on defendant"s admission that he sold an 

ounce of methamphetamine every three days between Iune 

and September 1988, to calculare a toIaI of forty ounces. He 

was sentenced on that basis to 97 months on the drug charges, 

wbcftas the guidclinerange would have been 10-16 months 

for the amount Cound 81 his arrest. Defendantargucdonappeal 

that the 1988 conductshould not have been used in sentencing. 

The appellate court remanded and set forth the analysis 

district courts should usc to decide whether conduct is "relevant" for sentencing purposes. Citing U.S. v. Santiago. 906 

F.ld 867, 872 (ld Cir. 1990), the court detennined that the 

"pertinent factors to be considered are .•. 'the nature of the 

defendant's acts. his role, and the nwnber and frequency of 

repctilions of those acts. in determining whether they ind.icate 

a behavior pattern.' ••• There must be '''sufficient similarity 

and aemporaJ proximity to reasonably suggest that repeated 

instances of criminal behavior constilllte a pauem of criminal 

conduct. .. , Thus. the essential components of the section 

IB1.3(a)(2) analysis are similarity, regularity. and temporal 

proximity." (Otations omitted.) 

"When one component is absent. however. courts must 

loot for a suonger presence of at least one of the other components. In cases such as the pesent one. where the conduct 

alleged to be relevant is relatively remote to the offense of 

conviction, a suonger showing of similarity or regularity is 

nocessary to compensate for the absence of the Ibird compont:nLCompat"e/U.s. v./Phlllippi.911 F.2d[149,151(8IbCir. 

1990)] (holding that the dates and nature of cooduct occurring 

'u remotely u two years before [the defendant's] arrest' 

must be "clearly established' in ooler to be considered relevant)[,ccrt. daied. 111 S. Ct. 702 (1991») wilh U.s. v. 

COliMa. 929 F.2d 64, 68 (2d Cir. 1991) ('Because of the 

continuous l'IIlUreof dleconductand the citcwnstaoces of this 

case, we are not reluclant to consider relevant the conduct that 

occumdduring the course of a two year period.'). "When "the 

relevance of the exttaneous conduct depends primarily on its 

similarity to the conviction, it is not. enough that the e:xttaneousconductmerely amounts to the sameoffense as theoffense 

for which the defendant was convicted. .•• [A] district court 

must consider wbelbcr spccif'1C similarities exist between the 

offense of conviction and the temporally remote conduct 

allegccl to be relevant under ••• section IB1.3(aX2)." 

"When regularity is to provide most of the foundation for 

tempora11yremOlC.relcvantconduct, specific repeatedevenr.s 

outside the offense of conviction must be identifJed. Regularity is wanting in the case of a solitary, temporally remote 

event. and therefore such an event cannot constitute relevant 

conduct without a strong showing of subslantial similarity." 

Cf. U.S. v. Nunez. No. 91-2752 (7th Cir. Mar. lS. 1992) 

(Bauer.CJ.) (affumed: uncharged cocaine sales that occurred 

from 1986-88 and in 1990fordefendantanestedinOcL 1990 

"amounted to the same course of conduct" -all sales were 

made to same buyer and were interrupCed only by buyer's 

imprisonment); SaNiago, supra, 81871-73 (drug sales 8-14 

months before sale of conviction properly consideftd-a1l 

sales were similar and to same individual). The court noted. 

ho-WCVCl'. that "[i]n extreme cases, the span of time betweeD 

the alleged 'relevant conduct' and the offense of convictian 

may be so great as to fORCloseas amaueroflaw considcntion 

of extraneous events as 'relevant conduct.'" See. e.g., U.s. v. 

Kappes. 936 F.2d 227, 230-31 (6th Cir. 1991) (although the 

two weze similar, "[i]t would take an impennissiblestrel.chof 

the imagination to conclude that the 1983 offense was part of 

the same "course of conduct' M the 19890ffensej. 

In remanding for reconsideration of the 1988 conduct. the 

court cancluded that the government must show "simi1arity, 

regularity. and temporal proximity in sufficient proponions 

so that a sentence may fairly take into account conduct 

extraneous to the events immediately underlying the convictioa. This test is especially imponiRt in cases where the 

extraneous cooductexists in "discrete, identifJ8ble units' apart 

from the conduct for which the defendant is convicted." 

U.S. v. Hahn. No. 89-10592 (9th Cir. Api! 7, 1992) 

(Tang. I.). 

Departures 

SUBSTAN11AL AssISTANCE 

Ninth Cin:uIl bolds that wbeD departure below statutory minimum Is made UDder 18 USC. f 35S3(e), further 

departurerorothermltigatiDgdrcumstaDceslsDOtauthorlzed.DefendantpJedguiltytoadrugchargetbalcarriedateDyear mandatory minimwn sentence, which was greaaer than 

his guideline range (range not. specifim in opinioa). The 

govc:mment made a motion under I 3553(e) and 15Kl.l, p.s. 

for downward departure based on defendllll's substantial 

assislance and rec::ommended a Ih.rec-year sentence. The district court departed downward to impose a 39-monlh sentence. Defendant argued on apptal that the court should have 

departed further based on his claim of aberrant ~vior. 

The appellaIccourtaffinned Ihe sentence and beld that tbe 

district court had no authority to dqxut for any reason other 

than defendant's substantial assistance. The court reasoned 

that generally "district courts do not havo discretion to depart 

downward from mandatory minimum.sentences imposed by 

statute." Section 5Kl.l Mis theonly section [ofthe.Guidc1ines] 

that allows [such] a downward departure . • . . AU other 

sections in pan K address departureS from the 'guidelines.' 

U.S.S.G. §§ SK2.0-5K2.15." 

181 
182 

Guideline Sentencing Update 

"Here, the district court departed downward from the 

mandatory minimwn sentence in response 10 a motion by the 

government based on Valente's substantial assistance .... 

There is no question this downward departw-e was proper. But 

the court had no authority to depart downward below the 

Stalurory minimwn on the basis of Valente's aberrant behavior, nor for that reason to depart below the government's 

recommended downward departure once the minimum sentence level had been breached." 

This is the fust appeUate court to apparenUy suggest that a 

§ 3553(e) departure is limited by the government's recommended senlenCe. The Seventh Circuit has stated that the 

government's recommendation "should be the starting point" 

for the extent of departure. U.S. \I. ThomlU. 930 F.ld 526, 

530-31 (7IbCir.I991).BIlI cf. U.s. v.Pippin, 903 F.ld 1478, 

1485 (1 hb Cir. 1990) (once government makes f SKU 

motion it ''has no coalrOl over whether and to what extent the 

district court departs from the Guidelines." except that it 

may argue on appeal that the sentence was "'unreasonablej; 

U.s. v. Wi/so,., 896 F.2d 856, 859-60 (4th Cir. 1990) (under 

f 3553(e) "'the limit of the district court's discretion is the 

question of whelher or not the sentence imposed was reasonable," and COWl may depart down to probation). 

One other court has specifically held that "only factors 

relating to a defendant's coopmuion" may be considered in 

determining the extent of a departure under § 3553(e). Thomas, supra. 81529-30 (improper to factcr in famiJy responsibilities, f 581.6, p.s., when choosing extent of departure). 

Note that in the instant case the guideline range was below 

the mandarory minimum. The holding here may not apply 

wbal the guideline range is above the mandatory minimum. 

That is. a court could depan for mitigating circumstances 

down to the minimum, then below it for substantial assistance. 

U.s. v. ValeIIIe. No. 91-10256 (9th Cir. April I, 1992) 

(Thompson, l.). 

CRIMINAL HISTORY 

U.S. v.Glas.No.9().3522(7thCir.Mar.16,1992)(Kanne.. 

J.) (affumed upward departure from 24-30 months to 48 

months for defendant with 39 aiminal history points: it was 

reasonable to "create" new criminal history categories above 

VI by adding one for every three points above 13 and increasing the minimum sentence by three montbs-the pattern for a 

defendant at otTense Ieve11~us resulting in new category 

XIV and 48-S4 month range). 

Offense Conduct 

POSSESSION OF WEAPON DURING DRUG OFFENSE 

u.s. \I.SiviLr,No.90-6366(6thCir.Mar.31,1992)(lones, 

J.) (it was no& clearJy erroneous to give § 2D1.l(b)(1) enhancement to defendant who was a county sheriff and carried 

a gun as part of his job-<:arrying the fu-earm "as pan of his 

staIUS as a sheriff ••• does not mean ••• that the weapon could 

not be connected with the offensej. Accord U.s. v. RIIh. 905 

F.ld 499, S08 (1st Cir. 1990). 

U.S. v. SOlO, No. 91-1653 (2d Cir. Mar. 24, 1992) 

(Altimari,l.}(rejecling claim that § 2D 1.1 (b)( I) enhancement 

could not be applied unless defendant had personal knowledge of existence of weapons in apartment where he and 

codefendants were arrested, joining other circuits in holding 

that this "enhancement may be applied 10 a defendant's 

Volume 4· Nwnber 20· April 21. 1992· Page 2 

sentence based on possession of a weapon so long as the 

possession of the frrearm was reasonably foreseeable to the 

defendant"). Accord U.S. Y. McFarlane. 933 F.2d 898, 895' 

(10th Cit. 1991); U.S. Y. Blanco. 922 F.2d 910. 912 (1st Cir. 

1991); US. v. Barragan. 915 F.ld 1174, 1177-79 (8th Cit. 

1990): US. v. Garcia. 909 F.2d 1346. 1349-50 (91h Cir. 

1990); U.S. v.Aguilera-Zapata. 901 F.ld 1209.1212-15 (5th 

Cit. 1990); US. v. White. 875 F.2d 427.433 (4th Cir. 1989). 

Sentencing Procedure 

PLEA BARGAINS 

Second Circuit sets forth options on remand wben 

sentence exceeds plea agreement that only specified 

amountotrines. Defendants and thegovenunententered plea 

bargains that specified the amOWlts of the fllleS to be imposed 

but contained no other IanlU88e limiting the sentence. The 

sentencingjooge imposed fllleS several times higher than the 

agreementspecifJed,stating that he did so becausc he imposed 

probation rather than prison 1emlS. Defendants and the government agreed on appeal Ihat both sentences should be 

remanded. but disagreed as to whether the district cowt sbould 

simply lower the fme amounts or also could replace the 

sentences of probation with terms of imprisonmenL 

The appellate court held that the defendants must be given 

the opportunity to withdraw their guilty pleas or the sentenc· 

ing court "must c:onform the sentence to Ib[e) bargain by 

reducing the fme to the bargainedamOWlL "However,because 

the fine was the only component of the sentence Ihat was 

stipulaled. the district judge may, "if he elects to enfarc:e the 

sentence bargains and reduce the fines, • • . exercise his 

discretion 10 impose tennsof imprisonment with respect to the 

same counts for which the fine comporfenl of the sentence will 

be reduced. The extent of such terms, however, must not be so 

severe as to create an undue risk of deeming others from 

subsequent challenges to sentence components that might be 

unlawful .. The court noted that defendants' "appellate 'viclCI'y' risks consequences that they might well regard as adverse," and therefore gave them the option to withdraw this 

appeal should they prefer "to accept their current sentences 

instead of facing the risk of imprisonment." 

U.s. v. BoM. No. 91·1433 (2d Cir. Mar. 19. 1m) 

(Newman, J .). 

Imposition of Supervised Release 

u.s. \I. Saunders. No. 91-1501 (8th Cir. Mar. 2, 1m) 

(McMilIian,J.) (remandcd: coun may depart to impose longer 

term of supervised release. but departure from 2-3-year tenD 

to 5-yearleml was improper here becauseswulCl'y maximum 

term was three years: however, defendant was convicted of 

multiple counts and court may impose consecutive tenns of 

supervised release to reach same result). 

Determining the Sentence 

CONSECUnVE OR CONCURRENT SEN'IENCES 

u.s. \I. Putz, 956 F.ld 1098 (11th Cir. 1992) (affhmed: 

even when COIlCtIJreIlt sentences are calliil for Under f SG 1.2, 

wthe district court has the authority to impose consecutive 

rather than concurrent sentenceS if it follows the procedures 

for departing from the Guidelinesj. Accord U.S. v. Ptdrioli. 

931 F.2d 31. 32 (9th Cir. 1991). 
Guideline Sentencing Update 

VCJU.ll,E 4 • NUWBI!R 21 • MAy 8, 1992 

Probation and Supervised Release 

REvOCATION OF PaOBA110N 

Third. Circuit bolds that wbea probatioD is revoked 

for druc ptIIISf.SIioD. "Dot less thaD oae-tblrd. 01 the origa- .... leDteace" lD 18 U.s.C. f 3565(a) refers to the oriai .... pldel.. r .... e. ROt the te.... of probatloa _posed. Defendant's pkleline range for her original offense was 0-4 

months and she wassentenCcd to duec)'Cm'S on probation. Her 

probation was 1a&er revoked. panly because she failed two 

drug IeSIS. She was sentenced to pison for one year, in 8CCCX'-

dance willi the 1988 amendment to 18 U.S.C. 3565(a), which 

states: "Notwithstanding any other provision of this section. if 

a defendant is found by the court to be in possession of a 

controlled subsUplce ••• the court shall revoke the sentence of 

probation and sentence the defendant 10 not less than one-third 

of the original sentence." The district court in~ the 

tenD "original sentence" to mean the tiueC Year PrObation tcnn 

rather than the 0-4.month range for the original offense. 

The appellal.e court disagreed and held that. consistent 

with circuil coon interpretation· of "initial sentencing" in 

1 3S6S{a)(2) (see caSe swnmaries below), "original sentence" 

means the pkleline range for the original offense of conviction. The COUIt explicitly disagreed with U.s. v. Corpuz, 953 

F.ld 526 (9th Cir. 1992), which held that "original sentence" 

means the tenD of probation (see 4 GSU #1S). "The Ninth 

Circuit attempted. 10 resolve the conflict between the 1988 

drug amendment and section 3565(a)(2) by noting that the two 

provisions are alternative means of sentencing, since only the 

former applies when the possession of a controlled substance 

is involved. • -; . [WJe conclUde that a beaer reading of the 

'notwithslanding' clause is that it esaablishes a 'floor' below 

whicb the district court cannot resentence despite section 

3565(a)(2) otherwise allowing the imposition of any sentence 

within the original sentencing range. In the case now before 

us. that 'floor' would be one and one-third month imprisonment since the original range was zero to four months." 

In Corpuz the Ninth Circuit noted dial "[p]enologically 

and semantically, probation is a sentence under the Sentencing Reform Act [of 1984].1l is no longer an alternative to sentencing: it is a sentence in and ofitself."The Third Circuit disagreed. fmding that"[a]lthough the seatutory provisions enacted as part of the 1984 act refa' to the • sentence of probation.' ..• this is merely a change in fonn. rather than substance. 

The flDldamental nature of probation remains unaltered." The 

court added that if it followed .. the Ninth Circuit's reasoning 

that probation is a type of sentence, we would be forced to 

conclude that one-third of three years probation is one year 

probation, not one year imprisonmenL" 

The court remanded, slating that"the proper way to resentence [afler] a probation violation for possession of drugs is 

to revoke probation and impose a sentence not less than onethird of the maximum sentence for the original offense." 

U.S. v. Gordon. No. 91-3605 (3d Cu. Apr. 13, 1992) 

(Cowen, J.) (Greenberg, J .• concurring in result only). 

Third Circuit bolds statute. rather t:baD Chapter 7 

policy statements, coatrols revocatioa seoteace, wbida is 

limited. by guideliae ruge for oriai .... oft'ease. Defendant 

was sentenced to probation and then bad p:obation revoked, 

both after the Nov. 1990 amendments 10 U.S.s.G. Chapter 7 

took effect. Defendant's original pkleline range was 0-6 

months, but in sentencing him after revocation the dislrict 

court followed the Revocation Table at 17B 1.4, pol., which 

~ for 3-9 months. The court departed UPWard. however, 

and unposed a 12-month _term. 

The appellate coun held that the '"plain WOIding" of 18 

U.S.C. 1 3565(a)(2) controls. The"sentence that was available • . . at the time of the initial sentencing" refers 10 the 

guideline range applicable to a defendant's original offense. 

and the revocation sentence is limited to that range. Every 

other circuit to rule on this issue has held the same. although 

those cases involved revocations that occurred before Nov. 

1990. See U.s. v.AlIi. 929 F.ld 995, 998 (4th Or. 1991); U.s. 

v. While,92S F.2d 284,286-87 (9th Or. 1991): U.s. v. Von 

Waslrington. 915 F.2d 390, 391-92 (8th Or. 1990) (per 

curiam): U.s. v. Smilh. 907 F.2d 133, 135 (lIth Or. 1990). 

The coon then held that. to the extent 1 7B 1.4 coofIicts 

with the statute, "the two standards must be reconciled with 

the statute always prevailing •••• 'iberefore, the appropriate 

resentencing range in this case following revocation of pr0bation was three to six months, representing a revocalion table 

minimum of duec months and a statutory .maximum of six 

months." The Ninth Circuit has held that "[t]o the extent lhat 

the Guidelines conflict with [I 3565(aX2)], we fmd them 

invalid. .. U.s. v. Dixon, 952 F.2d 260, 261 (9th Cir. 1991) 

(revocation sentence within 12-18 month range caUed for by 

1 7B 1.4, p.s. must be vacated and sentence reimposed within 

original guideline range of 4-10 months) [4 GSU.I6]. 

Because the sentence was remanded the court did aotrule 

whether depanure was appropriaIe. but seated that the DOtice 

requirements set forth in BIU'IU V. U.s .• 111 S. Ct. 2182 (l991) 

"would apply in this case had a departure been pennissible. .. 

U.s. v. Bo}'d. No.91-3597 (3dCir.AJX'.13,1992)(Cowen,l.). 

U.S. v. Maltais. No. 91-8060 (10th Cir. Apr. IS, 1992) 

(Brorby,J.) (Defendant sentenced to probation before the Nov. 

1990 amendments to 1 7Bl, p.s., but whose probation was 

revoked after that date, should be sentenced within guideline 

rangethatappliedlOhisoriginaloffense,notlJllda'the"'Revocation Table" at 1 7B1.4. p.s. '-raking the law which recognizes probation as a sentence itself •.. a sentencing court must 

impose a sentence as calculated at the time of the initial sentencing to fix the applicable guideline range. Obviously. a 

sentencing court could still depart up or down from the Guideline range if the proper circumstances C?risL Thus, as the policy statements concerning probation revocation were nOI in effeci at the time Mr. Maltais was originally sentenced to a tenn 

of probation. they are inapplicable."). Where the revocation 

sentence was imposed before § 7B 1.4 became effective, other 

circuits have held the same. See citations in Boyd. supra. 

183 
Guideline Sentencing Update Volume 4 • Number 21 • May I, 1992 • Pace 2 

General Application Principles believed by jury unconstitutionally pIaces"an intolerable burAMENDMENTS den upon the defendant's right 10 testify in his own behalf"). 

Second Circuit bolds.tbat wbetber to apply amelld. U.s. v. Gardiner, 9SS F.ld 1492, 1499 (11th Cit.I992) 

meat to COIDmeatary that could beaeftt de(eadaDt-but (Reversed: "We conclude as a mauer of law dlat the defeawas adopted after seateadua-sbould be coDSldered In dant'sassenionsdonotjustify[§3C1.l1enhancementbecaUse 

district, Dot appellate court. Defendant pled guilty to dlUg apre-scntenceassertioncannotbemaraialtosentencinBifthe 

chargcsand was scntenccdon the basis of the heroin involved assertion's truth requires the jury's verdict lObe inenor •• ~. 

inLhcoffensesofconvictionasweUasdrug~tsfromtwo Clearly, the probation offlCCt would have to disregard the 

prior swe convictions dw involvcd'relared conduct. After he jury'sdctcrmination, that thedefendantagrecd to anddidposwas senr.cnced the commentary to f IBl.3 was ammded scsscocainewithintenltodistribute,inordertobelicvemede-

(effective Nov. I, 1991) by the addition of applic:al:ion note 7, fcodant's assenion to him dlat he knew noching about the cowhich swes that offense canduc:t for which a sentence was cainc."1bc appe1latccourt considered notes4(c) and S of the 

imposed prior to the conduct in the inslll1loffensc is not to be commcncaryeven though they wcreamendodNov.l990.aft.er 

cansidered rda&cd conduct The drug amounts from the Slate defendant was senr.cnced. because they "serve merely toclarioffenses would likely have been excluded had the amended fy me meaning of the 1989 and cunau wnions 0( aec:dan 

commenWy been in o«ecuuenleDCing. 3Cl.1.j. See also U.s. v. TGbaTu, 9S1 F.2d-40S.410(lItCir. 

The issue on appeal was "whetbetpide1iDeameadments 1991) (enhancementleversedbecauscnoevideocelivinafalsc 

that are adopted after imposition of a senteDcc and that miaht social security number to probation officer rnareriaUy imbenerll defendants are to be appUed retroactively by a court of peeled presaltence investigadon); U.s. v.1k F eUppU. 9SOF.2d 

appeals to cases pending on direct review." Generally 111 ap- 444,447 (7thCir. 1991) (cnJiancemcolleverscd because mispcllatecourt should "apply the law in cffCClat the time itren- SIaIanents to probadon officer about employment biliary war. 

dcnits decision ••• [but) there exists sufflCicntstalutaydim:- immatcrialand could not infiucncescnrence). See 4 GSUII3. 

tion 'toLhcc:oncrary' topecJ.udeappc1latcCOlJl1S,in the rustin- ACCEFTANCEOFREsPoNsmlLlTY 

:;:ce.=~rr::::~~,=; U.s. v. Valencia. 9S7 F.2d 153, 156 (5th Cir. 1992) 

review.Ourconclusion,bowever,wouldnotprecludctheap- (Remanded: Districtjudgc, who was "about halfway conpIicaIion to pending cases of amendments that meaely clarify." vinced" defendant had accepted responsibility, could not 

1bccourtconcludeddwbyimposingupontheSeatencing reduceoffCllSClevelbyonef«"partiallyacc:eptin~rcspon­ Commission, in 18 U.s.C. f 3S82(c)(2), "aconlinumg' ......... to sibility. "U.S.s.O. I 3EI.1 does not conremplatc cither a 

-3 defendant's mere partial acccpcance of responsibility « a 

revise the guidelines, and by aulhorizing. but not requiring, district court's being halfway convinced that a defendant 

sentencing courts to reduce sentences in light of zujdeline re- accepted reaponsibility. The plain language of f 3E 1.1 indivisions, Congress appears to havc cx.pressed a prd'cteRCC fo: .1... Al-..l_ ....... A • • a._ ... It. t..._1 b cliscretionary district court. aCtion in response tb Commission cares _a\WIU"'" court IPIIIIl a_ uKi~'CIlSC Ki"" y IMIO 

chan.,.. rather lhanmandatory appe1latccourt application of levels if i1 finds that the defendant has ckarly ICCepted 

aU post-sentence Commission chanaclto pending appeals. respoDSibililyf«hisc:riminaJconduc:t. ••• To allow ••• aoneWc need not decide at IhiJ point whether section 3S82(c)(2) level reduction permits the disbict court to SU'addle the fence 

applies broadly ••• « whether it applies IIlOIe narrowly only in close cases without explicilly rmeting wbcther me defcato .1.- chanflil"" ...... "'-":_1y ...... ~ 111 ....... 1 scnt_ rvoifta dant did or did DOl accept responsibility. "The appellate court UIIU!Ki .- UIiQ. r.............. I~ - -"Iii noted that if the f 3E1.1 reduction is dcnic:d. "paniaI acc:r.prange. ~ The court noted that the amendment here is not listed "be' A_A' ...... _1_· ..... . ..':.11.1_ 

in § IBI.10(d),-p.s.. bullett "Ihe effect ofthia poUcy state- tancc may c:onsa ...... ""'m ~lIulImg u.,SCI1IeDCC WIUUU 

ment, .•• its relationship 108CCUon 3S82(c)(2)," aDdtheextent the guideline rangc.). 

and cxereisc of the district court's disa'ction under cither Criminal History 

secdon. f« the district court to determine on applicalion of CAItEEIl On1i:NDa PROVISION 

the defendant« sua sponte. u.s. v. CDIDII. No. 91-1360 (2d. Cit. Apr. 6, 1992) U.s. v. Garrett, No. 90-3210 (D.C. Cir. Mar. 17. 1992) 

(N 1 ) (Henderson, J.) (Affarmcd: In the f 4B 1.1 offense level table, cwman. .. ~ S " . VIlen.Be lallUory Max.imwn includes lilY applicable sratuAdjustments lOry sentencing enhancements that inaeasc the maximum 

OBSTRUcnON OF JtJS11CE sentence. Under 21 U.S.C. § 841(b)(I)(BXiii).the max.imum 

senlenCe is 40 years for rust offenders but life f« those, like U.s. v. BtllSDIl, No. 91-2732 (8th Cit. Apr. 7, 1992) defendant,withccrtainpri«dlUgconviclions.1bus.f«this 

(Larson, Sr. DisL 1.) (Remanded:' § 3C1.1 cnhancemcnt for defendant the "Offense Statutory Maximum" is lifc.).Accord 

obsIruc

dan , ] tifail'on ofjustiee~may.~.bc based

f 

h' ~cly upon ([budefCOJ

,- U.s. v. AnW. 926 F.2d. 328, 329-30 (3d Cu. 1991); US. v. 

t s ure to ConVInce .,5 Jury 0 IS umocencc. t It Sanchn-Lo~z, 879 F.2d. 541, 559-60 (9th Cu. 1989). 

may be 'based on the experienced trial judgc's cxpess rmding, bised on the judge's ~ observations~ that [dcfco- Amendment and Correction: 

dan,] tied 10 the jury.' .•. (T]heanalysisdoesnotca1lforthe u.s. v. Valellte. No. 91-10256 (9th Cu. Apr. I, 1992) 

specific fact finding and statements of particularity urged by (Thompson. J .). reported in 4 GSU #20 (April 21. 1992), was 

Benson,butdocscaU foranindependen'ev~uationanddeter· amended on April 29. Please malc:e the fallowiqg changes 10 

mination by the court that Benson's testimony was false." your copy of that GSU: (I) end the quotation in the rU'St 

Here, the district court simply staled that the jury vcn:lict paragraph on p.2 with "Valente's aberrant behavior" by 

demonstrated that defendant gave perjured testimony.). BUI deleting the remaining language of that quote; (2) delete the 

cf. U.S. II. Dunnigan, 944 F.2d 178,183-8S(4thCir.1991)(1O flt'St senlCnce of the next paragraph (note: the rest of the 

apply enhancement because defendant's tcstimony was dis- paragraph is correct but no longer relevant to Valente). 

184==~================================================== 
Guideline Sentencing Update 

GtlitMIiIW S""'1tCUIc Updttu will be cUtribuIocI peciodicall1 by the C-to infOllll juda_ and ocher judicial pcaaIIIIII ~ 1Clec\ed fodenI CIOIUt decioiOlU en Ibe-=, 

n:locm lepl.cicln ~ 19U tad 19171D111he ~ GdcIoIi_ Ahbauab !hepubUQalien may ref'uto!he Sa!I-=i.na Ouid.u-Itod poIiq _II ol!he u.s. ScnICnCin, 

Cammiaiaa ill !he _1oOIIl ~ ~ _1IGIdiDp.1l iI_ iIlWllded to npolt s..:in, CoaIm.ia:ion polideI or aecivili-. Readtft ahould fti .. to the GaideIinea. policy .. _ ... ~. and ___ 1CiaIa __ by Iho s-dqC-m-ian for IUds inl....-maden. 

f'l.lbIlCl_ol~S-_u., U,...,.lipifiaIlhaltheCenw.,..m.il ..... ponaible and vlluab1ewodL Itlhould _be~. ___ orCllllldal policy 

of !he c..... 0IIl __ of poIiq the c.. tpeW an1,1/uautb ill Boud. 

VOUlM! 4 • NUMBIlIt 22· MAY 28. 1992 

Departures 

SUBSTAN'I1AL AssISTANCE 

Supreme Court IaoIds that diitriet courts have authorIty to review ror uaeoastitutional DIOtives IOVeraJDeDt's 

rtrusals to rue substantial assIstaace motloas. Defendant 

faced a 100year ma.ndatay minimum senlence on a drug 

charge. He provided information to the government dI8t led to 

the arrest of another drug deab', but the government ft:fused 

to move fex' a substantial assistance departure under 18 U.S.C. 

• 3SS3(e) and U.S.S.O •• SKU, p.s. The Fow1h Circuit 

affumed. holding that defendants "may not inquire into the 

government's reasons and motives." U.S. v. Wade. 936 F.2d 

169, 172 (4th Cit. 1991) [4 GSU '5). 

The Supreme Court affirmed the decision because defendant had failed to raise and support a claim of improper 

motive, but held that disbiet courts may ft:view for consIitutionaI violations the govenunent's refusal to move f« a 

substantiallSSistance depar1ure. While recognizing that "in 

bod! § 3SS3(e) and § 5Kl.1 the condition limiting the court's 

authority gives the Oovernment a power, not a duty, to flle a 

motion when a defendant has substantially assisted." the 

Court &gleed with defendant dI8t "a proseculOr'S discretion 

when exercising that power is subject to const.itulionallimilations thal dislriCt courts can enforce. Because we see no 

reason why courts should Ireat a prosecutor's refusal to file a 

substanUal-assistance motion differently from a prosecutor's 

other decisions, ••• we hold that federal disbic:t courts have 

authority to review a prosecutor's refusal to file a substanDaJassistance motion and to grant a remedy if they find that the 

refusal was based on an unconstitutional motive. Thus. a 

defendant would be entitled to relief if a prosecutor mused 

to file a substantial-assistance motion, say, because 0( the 

defendant·uaceorreligion." Accord U.s. 'II. Drown. 942F.2d 

55, 59-60 (lst Cir. 1991)[4 GSU '8J: U.s. 'II. Doe. 934F.2d 

3S3.3S8(D.C.Cir.1991)[4GSUI4];U.s. 'II.Bayks.923F.2d 

70, n (7thCir.1991)(dicta). Cf. U.S. 'II.Smil#terman.889F.2d 

189,191 (8th Cit. 1989)(indicatingquestionofproseculOrial 

bad faith or arbitrariness may present due process issue), 

cert. denkd. 110 S. CL 1493 (1990). 

Defendant sought a R:mand "to allow him to develop a 

claim thal the Government violated his constitutional rights 

by withholding a substantial-assislanCe motion 'arbitrarily' 

or 'in bad faith.' •.• As the Government concedes, •.. Wade 

would be entitled to relief if the prosecutor's ft:fusal to move 

was not rationally related to any legitimate Oovernment 

end." However, defendant failed to adequately raise and suppon such a claim, and "a claim that a defendant merely 

provided substantial assistance will not entitle a defendant 

to a ft:medy or even to discovery or an evidentiary hearing. 

Nor would additional butgenera1ized allegations of improper 

motive .... [A] defendant has no right to discovery or an 

evidentiary hearing unless he makes a 'SUbstantial threshold 

showing.'" . 

Wade'll. U.s •• No. 91·Snl (U.S. May 18. I 992)(Souter, J.). 

NOTICE REQUIRED BEFORE DEPAR.TURE 

U.S. v. A1tdruslca, No. 91-2748 (7th Cu. May 18, 1992) 

(Flaum, J.) (holding thal govenunent must receive notice 

before district court may depart downward on ground not 

raised by either party. following reasoning of BlITns 'II. U.S •• 

111 S. CL 2182 (1991). which held that defendant must 

receive "reasonable notice" before dislricl court may depart 

upward on ground not peviousJy identi.fied). Accord U.s. 'II. 

Jagmohan.909F.2d61.64 (2dCir.I990);U.S.S.O., 6A1.2, 

p.s., commenL (n.l) (Nov •. 1991) . 

MmGATlNG CIRCUMSTANcg 

District court bolds departure warruted because government ageDt delayed arrest to trigger mudatory minimum and discover source of clrup. Defendant was convicted on distribution of cocaine base charges. The governmentargued that 50.4 grams were involved in the eight counts 

of conviction, but the dislrict court found there were 49.8 

grams. Fifty or more grams would have required a ten-year 

minimum term by statute. The guideline range was 97-121 

months, but the court departed downward to n months. 

The court reasoned departure was warranted because the 

Sentencing Commission "bas failed to adequale1y consider 

the renifying capacity fex'escalation 0( a defendant's sentence 

based on the investigating offiC'Ct's determination of when to 

make an arrest. The agent in this case was undoubtedly aware 

that defendant's sentence would be inc.rcased two-fold if he 

continued to transact business until over 50 grams of cocaine 

base were sold The court fmds it not at all f«tuitous that the 

agent arrested the defendant only aCta' ~ had arranged 

enough successi~ buys to reach the magic number." 

"For drug offenses. one factor domina&e9 the· ... guideline 

sentenco-'the grade of the otrense' IS evidenced by the 

quantity of diugs involved. ••• [However,l the circumstances 

under which theotrenso wascommiUedsbould be considered, 

especially where undercover agents persevere in their transactions until a suspect provides the aggrcgateamountof drugs 

to bigger a mandatory minimum sentence or where the 1lIKbcover agent's investigation shifts from dleidenlified-seUer to 

the undiscovered 'source,' Both of these circumstances occurred in this offense."ne court noted Eighth Circuit dicta 

alluding to "'sentencing entrapment' as a potential mitigating 

circumstance which could warrant departure." See U.S. v. 

un/esty. 923 F.2d 1293, 1300 (8th Cit. 1991). 

U.S. v. Barlh. No. 4-91-103 (D.MiM. Apr. 9, 1992) 

(Rosenbaum, J .). 

Criminal History 

CALCULATION 

Firth and EleveDth Circuits bold tbatdlstrict court bas 

discretion to allow dereDdaDt tocballenge validity or prior 

cODviction at the sententing bearing. In the Firah Circuit, 

the district court had included a 1982 Texas conviction in 

defendant's criminal history score, and indicated that it did not 

have discretion to consider defendant' s claim that the convic185 
Guideline Sentencing Update 

tionwascon.stitutionally invalid. Between defendant's inSWIt 

offense and sentencing, Application Note 6 to § 4Al.2 was 

amended. The original note excluded from the criminal hislay sccxe convictions "which the defendant shows to have 

been constitutionally invalid." The amendment excludes 

"convictions that a defendant shows to have been previously 

ruled constitutionally invalid" (Nov. 1990) (emphasis added). 

At the same time background commentary to § 4A 12 was 

added. which s&a1ed in part ''The Commissioo leaves for court 

determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction." 

The Ftftb Circuit held that the 1990 amendments applied 

and note 6 does not prohibit a challenge to a prior conviction. 

The court read note 6 and the background commentary as 

complemenlm'y,ralhetcbanconflicting,andcoocludedthatMa 

court is only required to exclude a prior conviction. ; • if the 

defendant sbows it to 'have been previously ruled constitutionally invalid'; otherwise,the disIri.ct court bas di.sc:ftItion as 

to whether or not to allow the defendant to challenge the prior 

conviction atscntencing." Accord U.s. v. Jakobttz. 955 F2d 

786. 805 (2dCir. 1992). COlllra U.s. v.Hewitl.942F2d 1270, 

1276 (81b Cir. 1991) (holding. without discussing the background commentary. that WIder amended note 6 defendants 

may no longer collaterally attack prior convictions). 

The appellalc court remanded because it was unsure if the 

dis&rid court simply refused to let defendant challenge the 

1982 convictioo or allowed the challenge and ruled against iL 

The court set forth factors the disIrict court may consider Min 

deciding whether to entertain the chaUenge to the prior conviction. These include 'the scope of the inquiry that would be 

needed to determine the validity of the conviction, ' ••• comity, 

••• [and] whether the defendant has a remedy other &han the 

sentencing proceeding Ihrougb which to auack the prior conviction." As to the last. the court stated that "a district court 

sbouId ordinarily cntatain a challenge to a prior conviction in 

a sentencing bearing if it does not appear that the defendant 

has an alternative ~y duougb wbich to challenge the 

conviction." The court added that "[i]f the challenged prior 

conviction is one which the district court detennines will not 

affect its sentencing decision in any event. it may so state on 

the record and decline to hear the challenge on that basis. " 

U.s. v. CaMlu. No. 91-5644 (5th Cit. May 7, 1992) 

(Garwood. J.) 

In the E1evenlh Circuit. defendant was convicted of conspiracy to possess with intent to Wslribute cocaine. As in 

CaMles above, he was sentenced after the 1990 amendment 

to § 4A1.2's noces. He contended that a prior state burglary 

conviction, allhougb facially valid. was based on an unconstitutional guilty plea and should not be factored into hiscriminal 

history score.1be district COUIt Id'used to hold an evidentiary 

hearing on the matter and factored in the prior conviction. 

The Eleventh Circuit held that amended note 6 applied to 

defendant and observed that the new language "seems clearly 

to indicate Ihat the Sentencing Commission did not intend to 

provide for coilateraJ attack of a prior convictioo at sentencing." However, the court also recognized Ihat "this suggestion 

is clouded by the 'Background' section .. added at the same 

time, which leaves collateral attack to the discretion of the 

district court. Relying on U.s. v. CorllOg. 945 F.2d 1504, 

15 to-II (II th Cir. 1991), which held that under the amended 

nOles a defendant could auaclc the validity of a prior parole 

revocation, the court held that "the rule in this circuit is that 

district courts have the discretion to collatem11y examine the 

1 86 constitutionality of facially valid prior convictions when 

Volume 4 • Number 22 • May 28. 1992 • Page 2 

determining whether to consider them in computing a 

defendant's criminal history score." 1be case was remanded 

because "the district court abused its discretion in failing to 

properly determine whether to consider Roman '5 challenge 

and hold an evidentiary hearing." 

U.S. 'II. Romtlll. 960F2d 130(llthCir.1992)(percuriam). 

Sentencing Procedure 

u.s. 'II. Canada. No. 91-1691 (1st Cit. Apr. 2, 1992) 

(Campbell. Sr. J.) (Affuming § 3B l.l(b) adjustment for role 

in offense even though presentence report did not recommend it and government did not request iL Bwns 'II. U.S .• 111 

S. CL 2182 (1991), which required notice to defendant prior 

to sua sponte depll'tlR by district court. does not apply: 'We 

do not read Bwns to requR special notice where, as here, a 

court decides that an upward adjustment is wamntcd based 

on offense or offeuder characteristics deline8ICd wilhin the 

Sentencing Guidelines lhemselvcs, at least where the facts 

relevant to the adjustment are already known to the defendanL .•• mhe guidelines themselves provide notice to the 

defendant of the issues about which he may be Called upon to 

comment. "). See also U.s. 'II. McLean, 951 F.ld BOO, 1302 

(D.C. Cir. 1991) (BwllS does nOi require advance notice of 

denial of § 3EU reduction that was recommended in PSR); 

U.s. 'II.Palmer.946F.2d97.100(9IhCir.I991)(samebutnot 

citingBIITIIS); U.s. v. Whil4. 875 F2d 427. 431-32 (4th Cir. 

1989) (defendant was on notice that evidence surrounding 

obstructioo of justice might be introduced). 

Adjustments 

OBSTRUCDON OF JvsnCE 

u.s. v. Thompson. No. 91-3091 (D.C. Cir. May 8, 1992) 

(D.H. Ginsburg, J.) (Wald. J., dissenting) (Affumed obscruction of justice enhancement where jury diclnot belicvedefendant's restimony-although it was "not implausible" and was 

corroborated by witnesses and disuict court specifICally 

found defendant testified untruthfully at 1rial. 1be appcI1ale 

court stated: "On its face. § 3Cl.1 does not requR chat a 

defendant's false testimony be implaUSlOIe or partk:ularIy 

flagranL Rather, •.• the sentencing court must deIcnuine 

whether the defendant testified (1) falsely, (2) as to a mattrial 

fact, and (3) willfully in order to obstruct justice, not merely 

inaccurafdy as the n:sult of confusion or a faulty memory." 

The court also noted that "[t]he admonition in Application 

Note 1 [to § 3CI.l] toevaJuar.c thedcfendant's testimony tin 

a light most favorable to the defendant' apparendy raises the 

standard of proof-above the 'preponderance of the evidence' standard that applies to most ocher sentencing dcIemli· 

nations ..• -but it does DOl require proof of somcIhing more 

than ordinary perjury.,. 

Probation and Supervised Release 

REvOCATION OF SVPERVtiFD Ib:i..EAs:E 

u.s. 'II. Co/atn, No. 91-1786 (6Ih Cir. May22,I992)(Siler, 

J.) (Affumed sent.enceof2 years,ratbertbaD the6-12 monlhs 

called for by § 781.4, p.s., aflel' revocalion of supervised 

release: "we hold that policy sw.ements in § 7BI.4 of the 

Guidelines are not binding upon the district court. but must be 

considered by it in rendering a senaence for a violation of SIIpervisedrelease •••• Therefore.asthedistrictcourtinthiscasc 

considered (and declined to follow) the provisions of § 7B 1.4 

... its judgment is affumed.. ,. Accord U.S. 'II. Let. 957 F.ld 

770. 773 (1OthCir. 1992)[4 GSU#16]; U.s. 'II. Blackstoll. 940 

F.2d 877.893 (3d Cir.), cert. de~d. 112 S. CL 611 (1991). 
Guideline Sentencing Update FI!DI!RAL JUDICIAL 

~ CI!!mlR 

GwiMlilV SnU4ltCiAI Upda .. will be cliatribuLcd periodicall)' by !he Cen&e<1D infarm judi" ond other jI>diciaI pcnonnel of odcc:l.Od fcdcn.l COWl deciGona on !he acma.cinl 

MOIIII 

~ 

Jeci.dotion d 19&4 and 19117 ond lite S-c:ina GuidcIinca. Allbaugh !he publicatiaa _)' .au 1D!he Scalalcina Guidclin .. ond poIic), .... tcmcnta allhc U.s. s-a.cu.1 

in !he canlcXl d n:portinl cue h~dinp. il is no( inlcnded ID Iq>OIl s...a.c:ina Canmiuioa pollciao "" ICIivili ... Rad_ mould .au 10 the Gu.ide\i,... policy 

11&_1&, cammcnwy • .ad oChu malcriala iaaucd by the ~I Conuniaaica far auch infarmation. 

PublicationofGwiMIUwS~_IICiA,Upda .. aipUficllhal!heea.lU ... udail ............. iblcandYa\uab\ewodt.lllhouldnCllbeconsiducd.n:commcndation""atridalpolicy 

of !he CCIIlU. Oa mallaS d policy the ea._ apcalu ani)' IhIou&b ila Boud. 

VOI..UMB 4 • NUMBER 23 • JUNB 10. 1992 

Offense Conduct 

DRUG QUAN1TIY 

Second Circuit holds that uningestible, unmarketable 

portions of drug mixtures should not be counted, but Fifth 

Circuit reaffirms earlier holding that they should. 1be 

defendant in the Second Circuit had attempted to import c0-

caine dissolved in f?ottles of creme liqueur. The cocaine was 

distillable from the liqueur and weighed less than half of the 

toca1 mixture, but the district coon concluded that ChIlpman v. 

U.s.,lll S.Ct.1919(199I)[4GSU#4],mandateduseofthe 

entire drug mixture in setting the offense level. 

The appellale court reversed and remanded, holding that 

Chapman was distinguishable and that the weight of unusable 

portions ofa drug mixture should not be used under U.S .S.G. 

§ 2Dl.l: Min stark contrast to the LSD in ChIlpman. the 

'mixture' here was useless because it was not ready for 

distribution ••• It could not be ingested or mixed with cutting 

agents unless and until the cocaine was distilled from the 

creme liqueur. After distillation, it could be sold ... [and o]nly 

at that point, could Congress' rationale for penalizing a 

defendant with the entire amount of a 'mixture' sensibly 

apply." The court also stated that, "[b]ecause the creme 

liqueur must be separated from the cocaine before the cocaine 

may be distributed, it is not unreasonable to consider the liq uid 

was&e as the functional equiValent of packaging material, ••• 

which quite clearly is not to be included in the weight calculation. Su Chapman. III S. CL at 1926." The court did, 

however, "emphasize the limited nature of our holding. The 

.•• crerneliqueurisnotacuttingagentordilutantwhich, when 

mixed with cocaine, is ingestible. Cutting agents, of course, 

must always ~ factored into the weight calculation." 

The Second Circuit is the third court of appeals to distinguish Chapmma and exclude unusable portions of drug mixtures. See also U.S. v. Jennings. 94S F.2d 129, 136-37 (6th 

Cir. 1991) (methamphetamine mixture) [4 GSU 19]; U.s. v. 

RoltlNk-Gabrkl. 938 F.2d 1231, 1237 (11th Cir. 1991) 

(cocaine mixture) [4 GSU #8]. But see cases below. 

U.S. v. Acosta. No. 91-1527 (2d Cir. May 13, 1992) 

(McLaughlin, J.) (Van Graafeiland, J., dissenting). See also 

U.s. v. Salgado-Molina, No. 91-1644 (2d Cir. May 29,1992) 

(per curiam) (following Acosta). 

In the Fifth Circuit, defendants were sentenced on the basis of the entire weight of a methamphetamine mixture comprised of95% waste product and 5% methamphetamine. The 

appellale comt upheld the sentences, concluding that it was 

bound by its earlier decisions requiring use of the total weight 

ofadrug mixture. See. e.g .• U.S. v.Baker,883F.2d 13 (SthCir. 

1989) (use total weight of mixture containing methamphetamine even though most of mixture was waste material). cut. 

denied. III S. Ct. 82 (1990). Defendants claimed that 

Chapman Meffectively overruled Baker and its progeny," but 

the court disagreed: ''To the contrary, much of the language in 

Chapman supports this court's decision in Baker." See also 

U.s. v. Restrepo-Contreras. 942 F.2d 96, 99 (1st Cir. 1991) 

(use toea1 weight of cocaine mixed with beeswax) [4 GSU # 

12]; U.S. v. MaMchtJ-OIW/re. 936 F.2d 623, 625-26 (1st Cir. 

1991) (use total weight of cocaine and acrylic material chemically bonded together) [4 GSU #7]. 

U.s. v. Walker. 960 F.ld 409 (5th Cir. 1992). 

Ninth Circuit holds that inclusion of drugs distributed 

by others before defendant's involvement requires specific fmding that defendant could have reasonably foreseen earlier transactions. Defendant and five others were 

initially charged under a multiple-count drug conspiracy 

indictment, but defendant· was Ia1er reindicted on, and pled 

guilty to, only one count of aiding and abetting a single drug 

distribution of 252 grams of cocaine on June 28, 1990. No 

evidence COMected defendant with distribution of cocaine 

before that date, but the probation offIcer recommended that 

cocaine sales by other defendants on June II and 20 be 

included as relevant conduct under § I B 13(aX2). The district 

coon sentenced defendant on the basis of the 840 grams 

from all three transactions. 

The appellalc court remanded "for express fmdings regarding whether Chavez-Gutierrez was accountable for the 

June II th and June 20th transactions. " The comt held that 

Munder Section IB l.3(aX2), a district court must include the 

total amount of a controlled substance. alleged in multiple 

counts if the defendant could have reasonably foreseen that 

other persons would commit the alleged crimes in furtherance 

of a joint agreemenL The district coon could not include the 

amount of cocaine distributed on June II, 1990 and June 20, 

1990, in calculating Chavez-Gutierrez's base offense level, 

unless the presentence report set forth facts $howing that the 

defendant aided and abetted these sales or was a member of a 

conspiracy to distribute cocaine prior to June 28,1990." See 

also U.s. v.Edwards.94SF.2d 1387,1391-97 (7thCir.I99I) 

(in conspiracy, must malee specifIC fIDdings as 10 amount of 

drugs "reasonably foreseeable" to each conspirator) [4 GSU 

#12]; U.s. v.MirtwJa-Ortiz. 926F.2d 172,178(2dCir.)(Iateentering coconspirator responsible only for amounts reasonably foreseen),cert. denied. 112 S.CL 347 (1991) [4 GSUII2]. 

U.s. v. ChtJvez-Glllk"ez. No. 91-30025 (9th Cir. Aaril 

24, 1992) (Alarcon, J.). 

Adjustments 

ACCEPTANCE OF RESPONsmn.11Y 

Eleventh Circuit holds that district court may not deny 

§ 3Et.t reduction for defendants' exercise of Firth 

Amendment rights or the right to appeal. Defendants were 

convicted of various drug offenses. TIley argued on appeal 

that, although they had previously admitted their involvement 

in drug trafficking and expressed remo~ "the. district court 

improperly conditioned the two level [§ 3EU] reduction on 

their accepting responsibility for their wrongs in open court 

and on their giving up their right to appeal." 

The appellate court agreed and remanded for reconsideration: 'lhe court's comments during sentencing demonstrate 

'87 
188 

Guideline Sentencing Update 

that it balanced the evidence of acceptance of responsibility 

against the Appel1ants' exercise of theit Fifth Amendment 

rights and their inicnt to exercise theit right to appeal; this was 

improper .•.. The senlenCing coun ~ justif'aed in consi~ 

the defendant's conduct prior to. during, and after the trial to 

deu:nnine if the defendant has shown any remorse through his 

actions« statements. ••• However. if a defeadaDt has shown 

some sign of remOrse but has also exercised constituIional« 

stalUtory rights. tbc sealCnCing judge may ItDI baJanc;e &be 

exercise of &hose rights apinst the defeadaDt's ~ of 

ranorse to dccerminc whether &be 4acc:cptance' 11 adcquarc. .. 

(Emphasis in oriainal.) . . "Stated anotbc.r way, the senlCnCmg c:oun may consider 

all of abe crittria setout in the commentary to section 3E 1.1 as __ II other indicadons of __ "",",I'It'''' of responsibility ~as~ ~-. of and weigh these in tbcdefendant's favor •••• The cxerc:IIC 

[constilutional or saaturory) rights may diminish tbc defendant'. c:bances of being granted abe two lcMl reduction. DOt 

because it is weighed apinst him but because it is 1ikcIy dial 

there is ka evideacc of acceptanee to weigh in his favor.-

U.s. v. Rodrigue'l. 959 F.2d 193. 195-98 (11th Cit. 1992) 

(per curiam). 

Departures 

MmGA11NG CIRCUMSTANCES 

Second Circuit upbolds departure 'or atraorcliDary 

famUy circumstances. calls policy statemeuts "iaterpredve guides" that are DOt tbe eq~lvaleut ~ G~~Uaes.1n 

sentencing defendant fer theft arid bribery conVICtiOnS. abe 

districtcourtdeparteddownwanltenoffenselevelsbccauseof 

defendant's family citcumscanc:es. which included sole responsibility for raising four young childraa. Defendant was 

sentenced to six months of home dctenti.oo, plus supervised 

relcue and subsauUial reslitulion. The govemmentappealed. 

arguing dial under I SRl.6. p.s.-"family ties and responsibilities .•• are notordinarily relevant" for depar1ure&-famiJy 

cireumstances alooe can never justify dowuward departure. 

The appeUalc court upheld the departure and examined 

"abe weightCOUltS should give tosucb poIicystatanents."The 

court concluded lhat"abe policy statementscanaot be viewed 

as equivalent to the Guidelines themselves," ~ dIal."~ 

must carefully distinguish between abe SentencmgGuide1ines 

and the policy statements that accompany Ihcm, and employ 

policy statanents as interpretive guides to. not substitutes for. 

the Guidelines themselves." As to departures. "[t]he cenlral 

question in any departuredccision must be the one imposed by 

the statute: Is there an aggravadng ormitiplingcircumstancc 

DOt adcquarely taken into consideration by abe Sentencing 

Commission?" Policy stalements are to be considered, but 

"do not render the statuta'y standard superfluous." 

Applying .. that standard to the question of family circumstances. ~lhec:oun concluded &hal the wording of I SRl.6-

that family circumstances are "not ordinarily relevant"-

indicates it is"a 'soft' policy statement, raIher than one with 

unequivocal language. If the Commission had intended an 

absolute rule that family cl.rcwnstanccs may never be ~ 

into account in any way, it would have said so ••.• Section 

5Hl.6's phrasing confJrnls the Commission's understanding 

that ordinary family circumstances do not justify departure 

but excraonlinary family circumstances may." Here, the circumstances amply supported the district court's '1inding that 

1ohnson faced extraordinary parental respoosibilides." 

U.s. v. JOMsOll. No. 91-1515 (2d Cit. May 14, 1992) 

(Oakes. CJ.). 

Volume 4 • NUIIIbct 23 -lune 10. 1992 • p.,e 2 

Criminal History 

CAREER OFFENDER PROVISION 

u.s. v. SahoJitua, No. 91-10199 (9th Cit. May 26,1992) 

(Schroeder. 1.) (Remanded.: "foUowing the Novemberl, 1989 

revision of the defmitional provision of U.S.S.G. f 4Bl.2, 

being a felon in possession of a flRlUDl is not a crime of 

violence for purposes of applying the CareetOffender guideline." See also U.S.S.G. App. C (amendment 433) (Nov. 

1991) ,'crime of violence' does DOt include the offense of 

unlawful possession of a fuearm by • fdonj. The Ninth 

Circuit previously held that under the pre-Nov. 1989 clef'milion, feloo in possession of • fuearm was "by its nature" a 

crime of violence. U.s. v. O'NeQ/. 937 F.2d 1369,1375 (9th 

Cir. 1990). However. the 1989 amendment "shifted the emphasis from an analysis of the 'nature' of the crime cltaqed 10 

ananalysisofabeelementsofthecrimecltaqedorwhcdlerthe 

actual cbarged 4cooduct' ofthedefcndaDtJRSellted a serious 

risk of physical injury to another." 1m. defendant was only 

charged widl"possessing ~ fsreann," whicll"does DOt !'&ve as 

an element the actual. attempted or thmUened useofviolence 

nor does the actual cOnduct it charges involve' a serious 

potential risk of physical injury 10 another. j. Accord U.S. v. 

Fitzhugh, 954 F.2d 153, 2S4-55 (5th Cit. 1992); U.s. v. 

Johnso" 953 F.2d 110. 113 (4th Cit. 1991). COnlra U.s. v. 

SIiMo". 957 F.2d 813, 814-15 (11th Cit. 1992) (rWTuming 

prior holding that unlawful possession is crime of violence 

despireamendments). Cf. U.s. v. Doe. 960F.2d221 (lstCir~ 

1992) (citing f 4Bl.2 and amendment 433 as support for 

holding that .. the felon-in-possession crime is not a 'violent 

felony'" for purposes of 18 U.S.C. f 924(e». 

Probation and Supervised Release 

REvOCADON OF PROBA110N 

u.s. v.ByrUIt, No. 91-3808 (8th Cit. AIX'. 24,1992) (per 

curiam) (Muming 8-mondl pison term after revocation of 

poI:laDon fer possession of dntgs wbcR guideline'range for 

original forgC'l)' offense was 0-6 months and:dcfcndant was 

sentenced 10 2 years probation. "We agree with the Nindl 

Circuit's analysis [in U.s. v. Corpuz, 953 F.2d 526, 528-30 

(9dl Or. 1992) (~e 4 GSU 'IS) 1 ... that the last sentence of 

[18 U.s.C.] scd.ioo 3565(a) mandales a sen&ence of at least 

one-third of abe original sentence of protJaIion when the 

probationer violates the condidons of his probaIioD by p0ssessing controlled substances. j. COlllra U.s. v. Gordo". No. 

91·3605 (3d Cit. Apr. 13, 1992)(as amended Apr. 30.1992) 

("original sentence" in § 3565(a) refers to original guideline 

range, not to lenD of probation imposed) [4 GSU 1# 21]. 

REvOCATION OF SlIPERVmm REi...BAsE 

U.s. v. Cooper, No. 91-5455 (4dl Cit. Apr. 24, 1992) 

(Sprouse, 1.) (revened: under 18 U.S.C.I 3S83(e), "disarict 

court is without statulOry authority 10 reimpose. after revoking. a lam of supeMsed releasej. Accord U.S. \I. Hol.s. 

954 F.2d 270, 272 (5th Cir. 1992); U.s. v. BehMzhod. 9(J7 

F.2d896,898(9thCir.I990).ContraU.s. v.Bolittg, 947F.2d 

1461, 1463 (10th Cir. 1991). 

Certiorari Granted: 

u.s. v. DUftnigan. 944 F.2d 178 (4th Cir.-I99 I) [4 GSU 

'101. cert. granud. 112 S. CL - (May 26, 1992) (No. 91-

13(0). Question presented: Does the Constitution prohibit 

district cowt from enhancing defendant's sentence under 

Senlenc:ing Guidelines § 3Cl.l if the coun fands that defendant committed perjury by denying guilt at trial? 
Guideline Sentencing Update 

Vcx.m.e4· NUM88I. 24· JULY 13. 1992 

Departures 

SVBSTANTW. AssISTANCE 

Seeoacl Circuit remamds case for further proceed I. 

on wbether IOvenmeat acted In bad faith In refusing to 

mow lor substantial assistance departure. Defendant entered iota a plea agreement under which the govCl1lllteDl 

would mave for a departure under § SK1.1, p.s. if, in its "sole 

and unfeue.ted discredon. .. it was satisf'1ed with his c0operation. As requested, defendant testified at the Irial of a c0defendant. but the codefendant was acquiued and the goyemment refused to make the f SKl.l motion. At the sentencing 

hearing defendant claimed therefusal was in bad faith, but the 

dist.rict court accqUd the government's reasons for refusing 

and ruled. wilbout. mating specific fmdings. thalthe aovemment acted in good fairb. 

'The appeUate court remanded for further proceedings. 

'The rcconf indicated that the only cooperation sought from 

defendant was his truthful testimony, and Ihcrc was no evidence or claim by the government thal he testified. Wltrutbfully. Of the six reasoos offered by the government for its 

refusal. only one-dIatdefcndant's testimony was "inconsistent" with Iba1 of anoc.hcr testifying codefendant-migbt be 

valid as a mauer of law. However, remand was required 

becauscno specific finding was made on Ihatissue.'Theappellate court indicated Iba1 the inquiry on remand would be affected by the particular cin:wnst.ances of rhis case: ""The district 

court is of course obligated in most cases to allow considerable dcf=nce to the government's evaluation of a defendant's cooperation. But where the contemplaled cooperation 

invol-va solely m-c:ourt testimony, as it apparently did here. 

the disIrict court is weU-situarcd 10 review the defendant's 

performance of his obligations under the plea agreemenL .. 

U.S. v. Knlglrls. No. 92-1016 (2d Cit. June 23. 1992) 

(Pratt. J .). 

MmGA11NG CIRCUMSTANCES 

U.s. v. Vi/CMI. No. 91-50429 (9th Cit. June 23, 1m) 

(l'ang, J.) (Remanded: Dislrict court had no authority to 

depan downward 10 reduce disparity between this defendant 

and another participant in the same heroin distribution scheme 

who was arrested several months earlier, was tried in stale 

coun,andrcceivedashortel'sentence. Govemment'sdecision 

10 leave one case in state court and try the other in federal court 

was not an Wlusual circumstance and "the desire to equalize 

stale and federal sentences does not constitute a pennissible 

basis for departure.j. See also U.s. Y. Re~s, No. 91-50301 

(9thCit.June8.1992)(Pregerson.J.)(affume&discriClcourt 

properly held it did not have authority 10 grant downward 

departure where defendant's "co-accused" was cried in stale 

court and received much lower sentence); U.s. Y. Mejia, 953 

F.ld 461. 468 (9th Cit.) (may not depart downward to avoid 

unequal treatment of codefendants), cen denied, 112 S. CL 

1983 (1992). Cf. U.s. v.SilIOII,No. 91-S01S4(9th Cir. July 2, 

1992) (O·Scannlaio,J.) (affirmed: fact that defendants would 

have received subslandally shorta' sentences had they been 

cried in Slate coort is DOl p:oper basis for depanure); U.s. v. 

Dockery, (D.C. Cir.JWle 9, 1992) (R. Ginsburg,J.)(revelSed: 

may notdepart because U.S. AlIomey first broughtcbargcs in 

D.C. Supcrior Court, then dropped them andrccbargeddcfendant in federal court to take advantage of hamber penalties). 

U.s. v. Higgilu. No. 91-1877 (3d Cit. June 16, 1992) 

(Hutchinson. J.) (Aftinned. in part. remanded: "'To Ihe extent 

that the disparity of senrences among the co-dcfcndants is 'alleged to be a micigating factor, .•. this is not a proper basis f(X' 

a downward departure. .. However, the district court erred in 

holding it could DOl consider defendant's claim Iba1 his yOUlh. 

signifICant family ties and responsibilities. and stable employment record warranted departure-court has d.iscretioo to depart if one of these factors "can be characterized as exttaordinary," and should consider wbelher defendant'scircwnstances "fall within the very nanow catego-y of extraordinary. j. 

EXTENT OF DEPAIlTlJRE 

U.s. Y. SITeil. No. 90-10509 (9th Cir. May 19,1992) (as 

amended) (Goodwin, J.) (Affumed in part and remanded: 

Defendant inflicted bodily injury on arresting offlCCl'S Ibat 

was not accouuted for in his offense gui.deIine. 'The district 

court poperly departed. under! SK2.2. p.s., by analogizing to 

§ 2A2.2(b)(3)(A) (aggravalCd assault), but inconectly gave 

two two-level iDaeases-one for each off'JCel' injuredbecause UIl<b the ruJ.es for grouping offenses only one twolevel increase would have resulted.). 

DEPARTURE ABoVE CATEGORY VI 

U.S. v.S~ars.No.89-31S4(7thCir.June9,l992)(Bauer, 

CJ.) (Aff'umed: Defendant, who was already in criminal 

history category VI, would have been a career offender had 

two prior assaults not been consolidated. It was "eminently 

reasonable" and .. related 10 the structure of the Guidelines" to 

depanupward and senteucedefendant within the range f(X'the 

offense level midway between his offense level and level he 

would have been assigned as a career offender.). 

U.s. v. SITe;'. No. 90-10509 (9th Cit. May 19.1992) (as 

amended) (Goodwin, J.) (Affumed in pan and remanded; 

"We decline to mandate thal sentencing judges adha'C to any 

one particular approach 10 departures beyond [aiminal his· 

tory] category VI. We do require, howevec, that the sentencing 

court follow some reasonable, &niculated methodology consistent with the purposes and structure of ~ gui~lines. " Fa 

career offender, district court could calculate departure by 

"horizontal analogy" to hY]X)thetical categories above VI. 

Accord U.S. Y. Schm.ude. 901 F.2d SSS. S60 (7th Cir. 1990) 

[3 GSU #6]. See also U.S. Y. Molina, 9S2 F.2d S14. S22 (D.C. 

Cir. 1992) (approach in Sc~ "appears to make the most 

189 
Guideline Sentencing Update 

sensei; U.S. 11. Jadson, 921 F.2d 985, 993 (lOth Cir. 1990) 

(en bane) (Schmude method acceptable). However, the sent.ence must be remanded because the court did not adequately 

explain bow it calculated the hypotbedcal categories or why 

it found category IX appropriate rather than vn or vm 

Also, the district court improperly increased the offense 

level, a "vertical analogy," in setting the departure: "[Fjactors 

to be considenld in departing from applicable criminal history 

categories are distinct from those relevant to departing from 

inappropriate offense levels," and thus prioraiminal conduct 

rcIlccting an inadequate criminal history -.:ore "'does not 

provide the basis for an offense level departure. '/. Accord 

U.s. Y. JOMS, 948 F.2d 732. 739 (D.C. Cir. 1991); U.s. Y. 

Thornton, 922 F.2d 1490, 1494 (10th Cir. 1990). 

CRIMINAL HISTORY 

U.s.v.Spears.No.89-31S4(7lhCir.Junc9,1992)(Baues, 

CJ.) (Affinned upward departure: Disttict court held that 

defendant's criminal history categOJY-faftccn prior convictions and coofmement for 20 out of past 32 ycars-did not 

adequately rcIlcct the seriousness ofbispastcriminaJ conduct 

or the likelihood dial he wouldcommitfuturccrimes. f 4AI.3, 

p.s. Thecowtalso held that defendant "fit(s] the classic: profile 

of a care« mcidivist .. wbo is 8 threat to the public we~ and 

safety under f SK2.14, p.s., and the appellate court found "no 

error in the judge's factual findings. /. 

Adjustments 

ACCEPTANCE OF R&90Nsmn.rrv 

u.s. Y. Frazier, No. 91-5865 (4th Cir. June 12, 1992) 

(Luuig. J.) (Affmned: "[C]onditioning the acceptance of 

responsibility reduction on 8 defendant's waiver of his Fifth 

Amendment privilege against seIf-inaiminadon does not penalize the defendant ••• in violation of the Fifth Amendment. .. 

The f 3El.l ftlducdon was properly denied to defendant who 

stole 1.200 money orders worth over five million dollars, 

admiued st.alling them and cooperated with the govemmentin 

retwni.ng most c# the remaining WlCashed money onIers, but 

refused to fwther assist the govemmentin locating the rest of 

the orders on the ground that doing SO required providing 

information thai: might expose him to further prosecution.). 

Accord U.S. v. Mourning, 914 F.2d 699, 106-(17 (5th Cir. 

1990). Conlra U.s. v. Rodriguez. 959 F.2d 193, 195-98 (11th 

Cir. 1992) (per curiam) (""section 3El.l does not allow the 

judge to weigh against the defendant the defendant's exercise 

of constitutional or SlalUtory rights/ [4 GSU 1231; u.s. Y. 

Frierson, 945F .2d6.50,6S8-{;O(3d Cit. 1991 )( denial of reduction forrefusal to admit conduct beyond offense of conviction 

viola1es Fifth Amendment)[4 GSUIll]; U.S. Y. Watt, 910F.2d 

581,592 (9th Cir. 1990) ("court cannot consider against a defendant anyconstilUtionally protected conduct/[3 GSU I 1 0); 

U.s. 11. Oliveras. 90S F.2d 623,626-28 (2dCir. 1990)(percuriam) (denying reduction for refusal to admit to crimes outside 

offense pled to violates Fifth Amendment); U.S. Y. PerezFranco. 813 F.2d4SS.463-64 (lstCit. 1989) [2 GSUII6). 

U.S. v. Shipley, 963 F.2d S6 (5th Cir. 1992) (per curiam) 

(Affumed: Proper to deny § 3E 1.1 reduction to defendant who 

"clearly admitted and accepted full responsibility" for the 

offense but denied he was a leader under § 3B1.1. "Even 

though leadership role in the offense of conviction is covered 

190 in a different section of the guidelines than is acceptance of 

Volume 4· Number 24 ·1uly 13, 1992. Pale 2 

responsibility for cummiuing that crime, such a role is c0nduct related to the offense and thus proper grist for the 

'acceptance of responsibility' mill./. 

ABuSE OF PosmON OF TRUST 

U.s. 11. Williams, No. 91-1371 (lOth Cit. June I, 1992) 

(Moore,J.) (Affmned 1 3BI.3 enhancement fora military pay 

account technician and auditor who embezzled funds. Court 

noted: "In determining whet.b.er a defendant was in a 'position 

of b'ust' courts have consideted a number of faetors. These 

include: the extent to which the position IXOvides the freedom 

to commit a difficult-to-detect wrong, and whether .. abuse 

could be simply or readily noticed; defendant's duties as 

compared to those of other employees: defendant's level of 

specialized knowledge; defendant's level of authority in the 

position; and the level of public crust. .. (CiWions omiUed.». 

General Application Principles 

INCRlMlNA11NG STATEMENTS As PAltTOF 

COOPERA'nON AGREEMENT 

u.s. Y. Marsh. 963 F:ld 72 (5th Cir. 1992) (per cwiam) 

(Remanded: When defendant, pursuant to f IB 1.8(8), entm 

into cooperation agn:emenl with government that Slates he 

would"notbeprosecutedfunherforactivitiesthatoc::cum:dor 

arose out of [his] participation in the crime charged," selfincriminating information provided to probe.Uoa off'1C« may 

not be used against him in sentenclng.). See also U.S.s .• O. 

1 IB1.8,comment. (n.5)(Nov.I99I) (I IB1.8(a) UmilSuseof 

self·incriminating information in detemlining guideline 

range, "e.g .• where the defendant, subsequent to having entered into a cooperation agreement, rcpeaL1 such information 

to the probation otTlC« preparing the presentence reportj. 

MORE THAN MINIMAL PLANNING 

U.s. Y. Maciaga. No. 91-3075 (7tb Cir. June S. 1992) 

(Kanne, J.) (Reversed: Part-time bank security guard who 

stole night deposit bag did not engage in "more than minimal 

planning," I§ 2Bl.l(b)(5) and IBI.I. comment. (n.l(f». J)c.. 

fendant's offense was "mucb less complicated and sbow(ed] 

much less premeditation" than other cases where theenbancement has been applied, involved little activity outside of his 

normal duties., and did not involve "repeatedactsover 8 paiod 

of time." Furthennore, defendant's saeps to cqnceaJ his crime 

were not out of the ordinary and there was"noevideneeofany 

advance planning in Maciaga's efforts at concealment. j. 

U.s. 11. Williams, No. 91-1311 (lOth Cir. June I, 1992) 

(Moore, J.) (Affmned: Noting that "more than minimal planning is deemed present in any case involving repealed acts 

over a period. of time," see f IBt.l, comment. (n.I(f»,court 

held that embezzler engaged in more than minimal planning 

under§2BI.I(b)(5) where embezzlemenlS occurred over period of six months and involved numerous computer enlries. 

Defendant also IOOIc "signiflCaDt seeps" to oonceal the aimes.). 

Sentencing Procedure 

UNLAWFULLY SEIZED EVIDENCE 

U.S. 11. Jessup. No. 91-6296 (10th Cit. June II, 1992) 

(Belol. OisL J.) (Affumed: In denying § 3EU reduction for 

failure 10 accept responsibility, the district court could consider evidence obtained in violation of state law that indicated 

defendant had continued to engage in similar criminal activity 

after his arrest and indictment.). 
Guideline Sentencing Update Gt.iM/Uw s-..a-, UpMt.r will be dialribulOl:l pc:rioc!i.I:aJJy by tbc Calla 10 Wonn.iud,. and ClI.hcr judicial ~ 0( ~ fcdc:n..l c:owt doci.ci.aca ... dIe-.:ina d_Icplaiaa"19Uand19I7uddleS~G!jdcl;n. 

~ 

AIIbouabdlepuI:1IiI:atioclJliI."dcrIoIhoScnIaX:iDa<Nidcli_udpolicyllU_1a0(IbeU.s.SoncmcMa • die _ ....... _ boWinp. it ia _ ialCDclod 10 IIIpOC\ ScncmcMa ~ poI.ida or ICIivilia.. R.cadca IIhouId d_ 1.0 Iho~. paIicy 

•• '_', __ ..".. ud ocbcr IDIIIIri.tla icIIuod by die s-.cadna Ownmiuioa far ncb Woanatim. 

I'IIbliCllioa 0( c;.u,1iM s.......a.., V,.."..,.,1ipi&I1bu Ibe Cmtcr""ctdI it III & zaponsibic and valuable wodr..it cbouW _ beconaidc:nod • .-.mmcnd.otioD oral'fic:ia1 paIicy 

0( tbc Calla. CIa __ .. policy Ibe Cccuc:r ..... only Ihrou&h ba Boucl. 

VOI..I.1MI! 4 • NUMBEJl25· JULY 28,1992 

Criminal History 

CONSOLIDAlm OR REulm CASES 

SeooDd Circuit rejects brigbtliDe rules for decidiDg wileD 

priorcoDvlc:tioosare "related, "holdsrelatedDess fsqUestiOD 

~fact. DclendaDt was convicted of robbing a store and using a 

6reann during the robbery. The district oowt found he was a 

cm.er offender. 1481.1. based on two pior robberies of 

garoIiDc Sladonsc::ommiUed wilhiD a fiftcen-minure period. and 

imposed a 2'7O-month scnrence. Defendant appealed, claiming 

that die two pior robberits 'lIft'ae CQIIU1liued pursuant to a 

CCIIIUI'kXI scheme or plan and Ihus should not have been Ire8ted 

sepaI3fCly. see 14Al.2. comment. (11.3). 

TheSccood Circuitdefamined lhatthedistrictcourterroneousIy held that ""as a mauet of law, robberies commiaed over a 

span of scvtn1 days could DOl be part of a common scheme or 

plan. and that heac:e it would not 'mate much sense' to find that 

robberies conuniaed in a singIc day could be part of a common 

scheme or pIan." The appelIaIc ooun. held Ibat .. [ w]heIhet the 

defendant had a scheme or plan. or whether abe defendant 

commitrcd crimes that weze oIhcrwise IdaI.ed. are questions of 

fact."The COWl remanded abe case beawse "[bJaving adopted 

the view •.• that temporally separated aimes are DOl part of the 

same common scheme or plan as a malItf of law, the district 

courtWd not purJXXttoexplorewhelher[defendanfs] robberies 

had been conuniw:d pursuant to a single common scheme or 

plan. or weze otherwise 'related,. as matters of fact. .. Cf. U.s. v. 

Chapnick. 963 F~224,226(91hCir. 1992)("whechertwopior 

offeasesarerelarcd undcr§4Al.2 isamixed question oflaw and 

fact subject 10 de DOYO .mewj. 

1bec:ounalso DOted d1aI.lCmponl poximity alone does DOt 

meaD offeascs are related: "Tbough die closer twoevc:nts are in 

time Ihe IDOIe Cft'ldibIc die assenion may be that Ihcy occum:d 

aspartofcbesameplan. wecannotcordude that two similar robberies were part of a single common scheme or plan as a mauec 

of law solely because rhey were c:onuniaed IS minutes apart. to 

u.s. v. Sldier, No. 91-1369 (2d cU'. June 23. 1992) 

(Kearse. J,). 

U.s. v. CIu:Jrder. No. 91·1619 (2d Or. June 23, 1992) 

(Kearse. J.) (Affumed careetoffendet status based on fOW' pi« 

robbery convictions thal chc di.sttict court determined were DOt 

U a single common scheme or plan" under § 4Al.2. comment 

(n3). Defendant employed chc same modus operandi in each 

robbery and commiaed them to support his heroin addiction, but 

at least one robbery was a uspur-of-lhe-moment decision," The 

appeLlale cowtexplained thal''the tenn 'single common scheme 

or plan,' must have been intended 10 mean something more than 

simply a repealed pattern of criminal conduct, , . The mere fact 

.•. that. in engaging in a pattern of aiminal behavior, the 

defendant bas as his purpose abe acquisition of money 10 lead a 

particular Jjfesty1e does not mean either that he had devised a 

single common scheme or plan or. if he had. that his course of 

conduct was necessarily part of it .. , While chc four robberies 

•. . fita pattern, ••• they were not part of a single common scheme 

or plan.). For 0Iher cases find!ng prior, similar robberies were 

not part of a single plan er scheme.. see U.s. v. Riven. 929 F ~ 

136. 139-40 (4th Or.) (robberies of two gasoline swions in 

diffemtl srates. twelve days apan). em. denied. 112S. Ct. 431 

(1991) [4 GSU 16]; U.s. v. Jonu. 899 F.2d 1097. 1101 (UIh 

Cir.) (robbery and attempfed robbery of two banks ninety minlIStBapart).cm. tknied. 111 S. a. 27S(I990) [3 GW ta]: U.s. 

Y. Kinney. 91S F.2d 1471. 14'n (10dl Cit. 1990) (robbclics of 

Ihree banks. two ill one SIaIC, OYer Ihrec monIhs. to support drug 

BddktioD).BIIlcf.U.s. Y.HollSi!T. 929F.2d 1369. 1374(91hOr. 

1990) (two piordmg sales wacpartofsingle common scheme 

or pIan-conviclions resuhcd from single invosrigatinn. sales 

were 10 same unden:over- agent and weze charged aepnICIy 

only because Ihey cx:cum:d in different counties) [4 GSU 1161. 

Ninth Circuit holds that there must be formal order or 

other IDdkatioD that prior c:oarictiODs were "coDSOlidated 

forseateDciDg." 1beappellalecounaffumed aaiminalhistory 

calculalion that Ire8ted separatdy Ihrec saarc convictions for 

which defendant wuscnacnced ill abe same proceeding. khcld. 

that the smtcaoes were not "c:onso6dared fer ••• sentcIIcing" 

W1der f 4Al.2. comment. (D.3). and expIaiDed Ihat ... ·s DOl 

enough that abe defendant has been se.nr.eaccd for two er more 

cases in abe same proceeding •••• (W]c bold Ihat there must be 

a fonnal ordcrofc:onsolidation.Otsomeochecindic:ationlhat abe 

trial court consideR.d abe pior convicIioRs to be bWltalDoUDt. to 

a singe offense COt purposes of scnIeDCing." Su alsD U.s, v. 

Lopez. 961 F.2d384.386-87 (2dCir.I992)\1heimposiOonof 

COOCW1"CDlscnrena:satabesamctimebyabesamejudgedoesnot 

establish that 1he c:ascs 'lIft'ae 'c:oasoIidar.ed f(]l' seotcocing' ••• 

WIIess therc exists a close factuaJ Jdationship between abe 

underlying conviclionsj; U.s. Y. PauIJc, 917 F~ 879. 884 (SIb 

Or. 1990)(samc);U.s. Y. YJllarml.960F~ 117.120-21 (10dl 

Cir. 1992) (senrenclag both offenses in one hearing by iIse1f DOl 

sufficient). Bill cf. U.s. Y. WDlSOft. 952 F.2d 982. 990 (8Ih Or. 

1991) \lOOk 10 abe court reoords olthe defendant's pior 

offenses tosce wIlcther-adcclsion was made IOconsolidarethose 

offenses for uiaJ or sent.cncing. ••• rrJhedcc:ision to consolidate 

sentencingsisexp-essedby1hededic:ationofasingleproceeding 

to imposing punishment. for verdicts reached in two or more 

Irials"), cert. denied, 112 S. Ct. 1694 (1992). 

As an example of an "0Iher indication," abe Ninth Circuit 

noted that Mif a court enters an order ttansfening a case for 

sentencing with 8I'IOthet case. and then the defendant receives 

identical col1CUl1'eDt senIcnceS, the c:ascs are deemed consolidated for senlenCing" (citing u.s. v. Chapnick. 963 F.2d 22A, 

228-29 (9th Cir. 1992) (circwnstances indicate that swe judge 

handling senlenCing considered prior offenses "related enough 

to justify treating them as one crime}). Cf. U.s. v. Garcia,962 

F.2d 479,482-83 (5th Cir. 1992) (cases not related even though 

abey had consecutive indictment nwnbe.rs. were Scheduled for 

same day and time, and concurrent sentences were imposedstale did not move to consolidate cases,and separate judgments. 

sentences, and plea agreements were entered) . 

U.s. v. Bachiero. 964 F.2d 896 (9th Cir. 1992) (per curiam). 

191 
192 

Guideline Sentencing Update 

Departures 

Third Circuit selS standards ror departures beyond 

criminal history category VI and departures ror uncounted 

juvenile coovidions; bolds departure cannot be based OD 

criminal CODdud government agreed Dot to cbarge. Defendant pled guiky 10 four COWlIS of making false StalemenlS in 

connection whit acquisition of fJreanl1s in exchange for the 

government's pomise not 10 charge him with possession of a 

fueann by a convicud felon. which carried a minimwn fifteenyear senrence. Defendant's criminal history caJegory VI and 

offenseIe'vd10n:sulleclinarangeof24-JOmondw.1bedislrict 

court 

~ 

imposed a 48-m0nth sentence. fmding that caregory VI 

defendant's aiminal history because of unc:ountecl ju'vaIiIe oonvictions for burglary ,Iikclihood of rccidi· 

vism.,andJ8Olcmocations.DeCendantappealedthedcpanure. 

and die gow:mmeat claimed dial. even if the above grounck 

were invalid, dcpu1ure was warranrcd because if. ccuId have 

charged abe IDOIe serious offense. The appella&e court held. that 

oaly defeaclaaf.',likelibood of recidivism could baYc justified a 

cleparture.butbeca'iseadequarefmdingswel'enotmaderemand 

wa nec:aSIIy_ 

The court fllSt staled that departure abo~ c:alegory VI ~ 

wananIt.d only if defendant's aiminal record ~ '''egregious: 

'serious' or'exIraOrdinary:" &e also U.s. v. Coe,891 F.2d40S, 

413 (2d Cir.l989)(·"[o]n1y die mostcompeJlingcin:UIDSIanCes 

••• 'wouldjustify a [scetion] 4AclepartlJmaboveCatcgory VIj. 

HeR:. dekadant', fi&ea aiminal hisIory poinw ~ faU 

within die two or dwc point range of caJegory VI were such a 

I3I1ge to exist. Given the IIIbJIe of Thomas' criminal record. we 

cannoLSay lhatbisaiminalhistory ~ 'signiflC3lltly mcxeStZious 

chan that of mast defendants in the same criminal history QIIe.-

gory.' U.5.S,G. 4A13, p.s. .• , TbereC(R. an upwanl departure 

be)'OOd caIegOIy VI ~ :p:esumptively unjUSlified in Ibis case.. 

unless IIM::m dead)' exist ciR:wnstances .. thai were DOl .. 

quaIcIy c:onsidcIICd b), the SenIeDCing Commission. A!I. ex· 

pIained below, the court held I.hc:ae were no suchcircumslances. 

Asfordefendant's uncountedjuveni1e conviclions.thecourt 

beId thatdqlar1we was impoper because they wereDOlsimDar 

10 lh~offeose.lIdq)dng the rule in U.s. v. Sanwels, 938 F.2d 

210,214-15 (D.c. Or. 1991) (juvcniJc convictions DOlIisfcd in 

f 4A1.2(d) CID be basis for dcpu1ure only if they iovolwd 

conduct similar to instant offense) [4 GSU, 8]. Bill cf. U.s. y, 

GanrtnoII. 961 F.2d 103, 101...()8 (7th Cir. 1992) (departure 

propel' for dissimilar juYenile oonvictions that .. i.Uustratc a 

significantbistoryof aiminalityj [4GSU '19]; U.s. y.Nkhols, 

912 F.2d S98, 604 (2d.Cir. 1990) (departure proper for lenient 

punishmeat for prior, violent, dissimilar juvenile offense). 

Regarding defendant's parole revocations. the court staled 

thai although"a defendant with a long histayofviolatingparole 

would be a pime candidaIc for an enhanced sentence. particularly if his instant offense is similar 10 the offenses for which he 

had been paroled in the past." defendant's parole revocations 

were adequaady taken into account by the Guidelines and thus 

did not warrant departure. 

Fmally, the cowt held that departure could not be based on 

the government's decision not 10 charge a more serious aime' 

"rrJhis upwarddepanure involves the offense level, ratIa ~ the aiminal history •••• (B]road cfuaetion ~ not available in 

offense level c:lepu1ures. since nowhere do the Guidelines 

permit oonsidetaDon of WlCharged offenses." &e oW U.s. \/. 

FaulIw!r, 9S2 F.2d 1066, 1069-71 (9th Cir. 1991) (upward 

~ basedon eigbl dismissed or uncharged bank robberies 

unpropcr) [4 GSU '81. The court disting.-Jished u.s. Y. Mobley, 

956F.2d450(3dCir.I992),whereitupheldanenhancemenlfor 

Volume 4 • Number 25 -July 28, 1992. - Paae 2 

stolen ftream1s under § 2K2.1 (b )(2) even though defendant was 

not charged with the more serious crime of recei viog or IJ'ans.. 

porting stolen firearms. '1be government's 'end nut' was 

tolerable in Mobley since that case involwd a mandarory enhancement clearly specified in the Guidelines. The case currently before us involves a di9=retionary depanure in which the 

Guidelines are silent as 10 whether an upward departure can be 

based on an uncharged crime .... [W]e will not allow the 

government 10 take a 'convenient detour' by sedcing additiooal 

punishment for an uncharged crime .... " 

U.s. v. Thomas, 961 F.2d 1110, 1115-22 (3d Cit. 1992). 

AOORA VA TlNG CIR.ClIMSTANC:::EI 

U.s. v. Po"'r, 963 F.2d 1.506, lS09-10 (11th Cit. 1992) 

(Af6nncd six Jcvd upward de:partaJm underf SK2.O. p.s. based 

on 

~ 

seriousness of aimc-possessing marijuana and meIbamwiJ.h inlenllO~ ~apisoac:rinac:ounty 

JIll. Assessment of two cflmanal biswry poinu for 

"c:ommiafmaJ the offense .while under any c:riminal ju:saico 

sentence. including •••. imprisonmcnI.- f 4Al.l(d). did DOl 

p-cdudeadepadure: .. [C]ommentary 10 [f4A1.11 indicales Ihat 

the purposeoflhisprovision ismere1y 10 aa:ountfortbcnx:ency 

of the subsequent crime. • • . There is DO indication Ihat the 

Sentencing Commission took into consideration the serious 

DII1IrC of disIn'buting drugs within a jail facility iIself."). 

SUBSTAN'I1AL .Assm-ANCE 

U.s. y. MiJcMU.964 F.2d 454 (5th Or. 1992) (pet curiam) 

(I«manded: Holding 1 SK1.1, p.s. motion opea until after 

senteocing was error-district court must rule 011 it before 

imposing sentence.). Accord U.s. v. Drown, 942 F.2d SSt 58 

(lstCir.I991) [4 GSUI8]; U.s. v.Howard,902F.2d894,896-

97 (11cb Cir. 1990) [3 GSU #9]. 

Offense Conduct 

CALa.Jl.ATING WDGIIT OF DRUGS 

u.s, Y. Robins. No. 91·S0286 (9th Cu. June 24, 1992) 

(Ibompson. J.) (Remanded: Ddendantpun;basccl two'"'bricb" 

of cornrneal weighing 2.. T19 grams. To Irict CUSI.Orntft inlo 

thinking they were cocaine. be careluIly wrapped Ihem. made 

smaU incisioos and poumI a total of oac:>-faIcb of a 8J1ID «c0-

caine inside. The appclJarccourt held it was CIIlU' to incIudo &be 

weight ofthecommealas part of a drug ""mix1Um or substance" 

Wldcr 120 1.1. Using CIttJpman v. U.s., 111 s. 0..1919 (1991), 

asa guide. thecowt reasoned thatthecommealandax:ainewc:re 

easily distinguishable, cornmeal is not a "tool of the trade-or a 

carrier mcdiwn or coding agent for cocaine. and it "did DOl 

faciliwe the distribution of the cocaine. "The court concludcd 

the cornmeal "was thus the functional equivalent of pacbgjng 

material, which the Coon in CluJpman recognized was not to be 

includedinlheweightcalculation. }.AccordU.s. v.Acosta,963 

F.2d 551. SS3-S6 (2d Cu. 1992) (creme liqueur Ihal was 

uningestibJe and unrnmtetable was "the functional equivalent 

ofpackagingmat.erial" and shouJd not be counted) [4 GSU#23). 

Criminal History 

CAREER OFFF.M>ER. PROVlSION 

u.s. v. Bell. No. 91-1965 (1st Cir. June'O, 1992) (Selya.J.) 

(Rcmmded: Following. inter alia, amended Note 2 of § 4B 1.2. 

the court held that "where theofTenseof conviction~ the offense 

of being a convicted felon in knowing possession of a fueann. 

the conviction ~ not for a 'crime of violence' and ..• the career 

offender provision •.. does not apply.}. For odk-z cases. see 

4 GSU#23. 
Guideline Sentencing Update Nfaaa~ 

~ ~ 

of19l4.ad 

updtdl 

1917.ad 

will bet 

thos..maaa 

6Itrihwod~, 

GuidoliM' 

'" 

AI&bouP 

tho c..10 

thopuhlicorioa 

iaCarm.;uq..ad 

_, ._10 adoar the 

judioci&I.--.a $mtew;n,~ ofllCllec:led 

UId 

r.t.al_~ 

pc&y _ of tho 

en 

u.s. 

tho "'=ria, ~ 

0-; .. _tho -'-' of nporIiaa _1IoId.iDp.llia lICIt iaIiIIDIIod 10 ..-S-__ , ~ .. poIidM «aCCiViIia ~ IhouId •• to ilia Ouideljaw. pc&y "_III, -=--ry • .ad odMr matcdaII iauecI br tho S ___ , c-i..jm fm: IUd! ial_rioa. 

PIIbti«*iaaofGttU. .... 3MN1tCiItf updtdl~1bIIlthoc... ...... il •• .....,-ibIo.adyaluablewa:Llllhould_baCOll8idond.~«amdalpc&y 

of tho c-. 011 __ of pc&y tho c.tcripGllu cmlf &bnIII&b Ila Boud. 

V<U/MB S • NUMBml 1 • AUOUST 26, 1992 

General Application Principles 

Sixth Circuit reissues Dap,,.,. after rehearing en baDe, 

rmds that "the Guidelines are a sentencing imperative!' 

The original panel had held that a dislrict court should deI«-

mine "at the outset of ahe sentencing )X"OCeSS" whether there 

were aggravating or mitigating circumstances. If so, the court 

should then follow the statute, 18 U.s.C. § 3553, DOl the 

Guidelines, in sentencing defendant. Su 4 GSU M6. 

The en bane court held that a dislrict coun "must first 

dctennine a guideline senlenCC," whk:b "is mandatory," and 

then may depart only if "ahere exists an aggravating or 

mitigating circumstance of a kind. (ll' to a degree, not adequately taken into consideration by the Sentencing Commission. "18 U.S.C. § 3553(b). In addition, acowt does not have 

discretion to disregard the Guidelines if it considers the guideline senlenCC "greater chan necessary to comply" with the 

purposes orsentencing in 18 U.s.C. § 3553(a). Thecoun also 

held that the Guidelines accounted for a defendant who 

auempted to purchase 500 grams of cocaine but who received 

only 85 grams. The district court properly sentenced defendant based on 500 grams. 

u.s. \I. Davun, No. 90-3681 (6ah Cit. July 21, 1992) (en 

bane) (Kennedy, J.) (Merritt, CJ .. and Keith, Martin, Jones, 

JJ., dissenting), superuding 937 F.2d 1041 (6Ih Cit. 1991). 

Departures 

MmGA11NG CIRCUMSTANCES 

nird Circult atrU'DlS departure for "unusual degree" 

of acceptance 01 respoDSl'bility and for "inappropriate 

DlanlpulatiolLoftbe lDdictmeDt." Defendant pled guilty to 

one count each of bank embezzlement and. auempted income 

tax evasion. Thesen&encing coundeparteddownward for two 

reasons. First. it reduced the offense level by one because 

defendant's acceptance of responsibility was unusual. The 

court swed thal defendant "affumatively e[a]me forward, as 

soon as be was confronted and SIartCd making RStitution. 

AdmiUCd the full amount that he thought was owed, but 

indeed. has e'Ven agreed to a larger amount that the bank h3s 

asserted. including inlerest. He has done everything conceivable. Voluntary and IrUthful admission to the authorities. I 

don't know anything more that he could do •••• " Defendant 

also showed bank officials how to detect improper 1ranSaClions in the accounts he had embezzled. 

Second.thecoun departed downward two levels because 

it could not group the embezzlement and tax evasion charges 

under § 3D 1.2. The court explained that it had never seen a 

defendant charged both wiah embezzlement and with tax 

evasion for the same embezzled sums. and noted that '"the 

result ••• is unusual and d.isparaJe and constitutes, albeit. not 

in bad faiah, an inappropriate manipulation of the indictment. 

whicb the Sentencing Commission asserts that I can conttol 

through the use of departure power." 

The appellale court affmned. f1I'St holding that"a sentencing court may depan downward when the circumstances of a 

casedemonsuate a degree of acceptance of responsibility that 

is substantially in excess of that ordinarily preseDL ••• (W]e 

believe that Lieberman's post-offense ame1ioouive conduct 

adequately justified the district court's decision." Cf. U.s. \I. 

Garlich. 951 F.2d 161. 163 (Sah Cit. 1991) (disttict court 

should have considered whether liming and exteDtof restitution were suffacicndy unusual to wammt departure: "the 

guidelines provide the district cowt with audlorily to depart 

doWDwardbasedonexttaordinaryrestituUon"):U.s.\I.Car~, 

895F.2d318.323(7ahCit.I990)(depar1urcf(ll'acceptanCCof 

responsibility beyond twO-Ie'Ve1 decrease in § 3E 1.1 possible, 

but only in "unusual circumstances"). . 

The court also held that "a sentencing court possesses the 

authority iO depart downward based on the manipulation of 

the indictment"in a situation such as this, to"conect unwarranted sentencing disparities caused by charging decisions in 

those instances when grouping. wbich could also have compensated for the multiple charges. is unavailable •••• [T]here 

is no indication eiaher that ahe [Sentencing] Commission 

rejected the manipulation of the indictment charges as a basis 

for departure or that it intended to foreclose departures on Ibis 

basis. On the contrary, • • • [it] 'recognized that a charge 

offense system has drawbacks' and that 'a sentencing court 

may conttol any inappropriate manipulation of the indictment 

through use of its departure power.' U.s.s.G. Cb. I, Pt. ~ 

(4)(a), Policy StatemenL ••• The adjecti'Ve 'inappropiaf.e' 

does not necessarily suggest bad intent on the part of the 

prosecutor, but can apply to prosecutorial zeal that results in 

charging a particular defendant disproponional.ely to others 

similarly situated" 

U.s. \I. Lieberman. No. 91-5687 (3d Cu. July 24. 1992) 

(Sloviter, CJ.). 

SUBSTAN11AL ~ISTANCE 

U.s. \I. Urbani, 967 F.2d 106 (5th Cir.I992) (Affumed 

district court's refusal to hold an evidentiary hearing to 

examine the extent of assistance by defendant who claimed 

government arbitrarily refused to make a § 5KU motion 

where government agreed to notify the court of defendant's 

cooperation, but did not obligate itself to me motion. The 

appellale court concluded that Wade \I. u.s., 112 S. Ct. 1840 

(1992) [4 GSU #22], "made plain ••• that absent a subslandal 

threshold showing of 0 a constitutionally improper motive, 

district courts lack authority to sautinize the level of the 

defendant's cooperation and intelpOse their own assessment 

of its value. Moreover, this limited scape of review forecloses even the need for an evidentiary hearing solely to 

document defendant's assistance. ••• [Defendant] has DOl at 

any point alleged an illicit motivation underlying the 

government's refusal to request a SKl..J.depar1ure. The entirety of his argument ••• has been that giYel1 his level of 

coopetation with the government. withholding a SKU m0-

tion was arbitrary and wilhout justification. Thus, it is exactly 

the type of claim ... that Wade indicates is unavailing and does 

not warrant an evidentiary hearing.,,). 

193 
Guideline Sentencing Update 

Offense Conduct 

DRUG QUANTITY-RELEvANT CONDlJcr 

Eightb Circuit holds tbat original weight 01 drugs in 

package Is aot ID.cluded as rele\'8Dt eoDdud if defeadaDt 

reasoaably believed package CODtabled less. Postal inspectors intcn.:cpc.ed. a package containing 243 grams of cocaine 

base. replaced aU but leD grams with a substitute, and made a 

cootroUed delivery 10 defendant • s sister. The same day. defendant asked a cousin fc:r one-half gram of aact. The cousin 

qn:cd. informing defendant she hadcrac:kathis sis~'s bouse 

aDd would scllbim some if be went willi her 10 getil Sbedrove 

defendant 10 the house and parked a few blocb away, While 

his cousin waited. defendant located the package and began 

walking dowD die strtIet 10 meet her, alias she directed. Before 

be reacbed her, be was 8I1'CSted. He pled guilty 10 conspimcy 

10 disttibute cocaine base. was given a mandaIory miDimwn 

teo-year IeDIenCC based on me 243 grams, and appealed. 

The appellate court remanded, holding that defaadant 

sbould be sentcDCed fc:r the amount he "reasonably believed 

that die package contained. .. Defendant ""was not found responsible forme conduct of ochers. Rather, the coon based its 

drug caJculaDon on Hayes' own act ofpicldng up the package 

cootaining crac:k and walking down the stteet 10 meet his 

cousin •••• Hayes t.estif'1Cd that he never opened the package, 

and at no time p.ic:r 10 bis anest did be know that it contained 

a large quantity of crack. Additionally, Hayes apparently did 

DOl know thatbis act of tringing me package 10 his cousin was 

aiding die further distribution of the package's contents. 

Rather, ••• it is possible that Hayes reasonably believed the 

package conlaincd a much smaller quantity of cocaine. intended primarily for his cousin's personal use. If this is the 

case, we do not believe that the entire amount of crack: originally contained in me package should be aaributabJe 10 

Hayes •••• The rationale for linking sentence length 10 die 

amount of drugs is daat me more dangerous the drug and the 

larger its quantity, me more culpable the defendanllf Hayes 

at all times reasonably believe that the package contained a 

small amount of drugs, the 243 grams . . • does not reflect 

Hayes' culpability." 

u.s. v. Hayes. No. 91-3843 (8th Cir. July 24, 1992) 

(Magill, J.). -

U.s. v.Mitcheli. 964F.2d454,458-61 (5thCir.1992)(pel 

curiam) (Remanded: Drug conspiracy defendant was not 

accountable for tun twenty kilograms of cocaine in conspiracy. He bad previously purchased small amounts from 

some of the c::onspirators. and tried 10 purchase two ounces 

from last shipment, but thele was no evidence that bek:new the 

extent of the c:onspiracy. "It is well establisbed that district 

couns must consider me extent 10 which a larger drug enterprise is rcasooably foreseeable 10 defendants involved in 

smaller or isolated b'ansactions. j. 

CALCIJLAnONOFLoss 

Sixth Circuit holds that where completed fraud could 

Dot possibly cause a loss, orrense level canDot be IDCrea.sed 

by estimated loss. Defendant was convicted of several counts 

in a scheme 10 defraud insurance companies by getting false 

cenifJCation of his death and having his wife file claims for 

benefits. In addition. his wife applied for Social Security survivor's benefits using die false documents. The Social Security Administration (SSA) did not discover the fraud. but refused payment because defendant's wife was not eligible. As 

relevant conduct, the estimated potential loss 10 the SSA of 

S69,OOOwasaddedlOthelossfromtheoffensesofconviction. 

194 

Volwne 5 • Number 1 • Auglu:l 26, 1992 • Paae 2 

The appella1e cowt held that the $69,000 estimaIe should 

not have been included and remanded for resentencing: "'We 

have before us the rare case where, in the face of complete 

success. the fraud generated no loss ...• In such a case as this, 

where no dollar loss is possible for reasons entirely unrelarcd 

10 the fraud or its discovery, the court does not ha'YC available 

10 it the increases in SCDtencing le'YCI based on fraud loss. ••• 

The Oovemmentcould, however, have soughlan upward departure if the sentence based on the insurance loss amount did 

notreflect the seriousncss of the hann caused by [deCendanl]" 

U.s. v. Khan. No. 91-1626 (6th Cir. July 14, 1992) 

(Merritt. CJ.). 

U.s. v. ewron. 961 F.2d 5, 6 (1st Cir. 1992) (Affmned: 

Amountofinterest that would have been earned onembe:u:led 

funds may be used in calculating loss.). 

Adjustments 

ROLE IN THE OFFENSE 

u.s. v.Sostre,No.91-19l8(lstCir.June29,I992)(Fuste, 

Dist. J.) (Remanded: Defendant who brought drug buYClS 10 

seDers, made some arrangements and telephone calls, and 

possiblycontroDeda loomut,wasnota manager or supervisor 

under § 3Bl.l(b). He did not controllhe drugs, was DOl me 

principal in the drug uansaction, and had 10 contact the sellers 

before making representations 10 buyers: "While [be] certainly played an essential role in the overall aiminal condUCt, 

we do not think that he acted in a managerial or supervisory 

capacity.j. 

OBSTRucnON OF J1JS11CE 

U.s. v. Bernaugh. No. 91~121 (lOth Cir. June 24. 1992) 

(Andetson,J.)(Affuming adjusunent where thedislrictcoon 

found that defendant perjured himself ~ oath at his guilty 

plea bearing regarding the participation in a drug transaction 

of four codefendants who were proceeding 10 trial. Section 

3Cl.l applies 10 obsUuction "in the instant offense" aDd 

"'offense' may include the concerted aiminal activity of 

multiple defendants. See U.S.S.O. Ch. 3, PI.. B, Incro. commenl Consequently, the section 3Cl.l enhancementappl.ies 

.•. in a case closely related 10 [defendant's] oWn, such as that 

of a codefendanl j. 

Probation and Supervised Release 

IMPosmoN OF SvpEIlvlSm RELEASE 

u.s. v. Picot 966F.2d 91, 92 (2dCir. 1992) (per curiam) 

(Courts have authority 10 depart for supervised release. Accord U.s. v. LeMay. 952 F.2d 995. 998 (8th Cir. 1991) (per 

curiam) [4 GSU' 14]. However. because cowt did not follow 

proper departure procedw'es, life term of supervised release 

must be remanded.). 

U.s. v. MaxweU. 966 F.2d 545. 551 (10th Cir. 1992) 

(Affumed: district cowt may impose consecutive ItnIIS of 

supervised release for multiple convictions.). Accord U.s. v. 

Sall/Ukrs, 951 F.2d 1488. 1494 (8thCir. 1992) [4 GSU'20]. 

Criminal History 

CONSOLmA'Im OR RELATED CASES 

Note: The Ninth Circuit opinion in u.s-v. Bachiero. 964 

F.2d 896 (9th Cir.I992) (percuriam).reportedin4 GSU'2S, 

was withdrawn and a substitute opinion was issued Aug. 4, 

1992. The court remanded for resentencing, holding thal the 

prior sentences at issue should be considered consolidalcd 

despite the lack: of a formal order of consolidation. 
Guideline Sentencing Update 

c;,,;,M1iM S-1tdItc uptJ.u will be diJIributccl pc:riocI.icI11, '" tbc CcaIer lOiafarmjlMla .. 1lIIl aW.:c ju.dicial ~ clldor.Ud fodaal CDUltdecWoaa (G tbc taIICDC:iq nfOlDl~ cll984aa.d 1987 and 1hcI~ Gddcli_ AlIhouah tbcp"hicau.., _, _«IOU. ~ Glidclina and po&y _cllbc U.S. Sca&ascm, 

CAmmjqjon ill u. CCIIl~ cl ~ CUll baldiap. il iI DOl. iIIlCadcod 10 rcpad ScnIa:Ic:iIla C........jaoion poIicieI or aaiWiao. R-Ic:rs Ibould nfc:r 1.0 u.~. poliq 

1111_. -CIl1Ia.I)'. and 0IbCI' malCriala iuued b, U. s-dnJ CCIIDIIIiuicc for IRICb mf....,..1iaL 

PllbiicaionclGMiMIiMS._1OCiItf UptJ.uaianific:a IbattbcCauc:rrep.tdl il,,"~1lIIl valuabk wmk..ItIbouldDOl. beCClUidereda _dadmoratficialpoliq 

of U. CCIIl«.. Oa matlCa at policy U. Cc:D1.er IpCIIka cal, IbJou&b ill Boud. 

v 0l..UMS S • NlJ)OII3It 2 • SIlFIt!MBI3It 17. 1992 

Note to readers: The revised Guitkline Semendng: Aa possession of heroin with intent to disaribute. and eacb faced 

OlUline of Appellak Case Law on Sekcted Issuu bas been a range of97-121 mOlUhsanda ten-year mandatory minimum. 

maned to all GSU recipients. You should receive a copy this 1beymadeseveml8UemplStoassistthegOvemment.butnone 

week: or DeJ.L Beginning with this issue oftheUpdale. we will of their infoonation was confmnab1e ex' useful The plea 

refet to relevant Outline sections in the case summaries. agreement did not require the government to move for deparSentencing Procedure tureundet ISU.S.C •• 13553(~)or§ ~1.~.p.s..and it~not do so. At the sentencmg hearing the district court. on lIS own 

DJSMISSED COUNTS motion, continued sentencing. Slated it would not sentcuce 

ED banc Ninth Circuit Joins other circuits In bolding defendants to ten years. and ordered the govcmment to '"work 

that counts dismissed as part or plea bargain should be something OUL" LaJet, thougb the government bad not filed a 

CODSidered ror relevant conduct In setting ofl'ense IeYeL motion. the court imposed 'n-mooth sentences, slating deparDefendant was indicted on fourteen counts relating to mail ture was warranted beCause "factors rhatare being considered 

fraud. He pled guilty to two counts and the others were dis- here are ones ahat are violative of due process and equal promissed as parlof the pleaagreemeDL The district court includ- teclion. " and found rhat the government abused its discretion. 

cd the loss from some dismissed counts in setting the offense The appellate court remanded. It noted rhat in Wade v. 

level. In U.s. v.Flne,946F.2d650(9thCir.I991),theoriginai U.s .• 112S.Ct.1840(I992)[4GSU'22].theCourtswedrhat 

appe11ale panel reversed, basing its bolding on U.s. v. Castro- '''8 prosecutor's discretion [under' II 3553( e) and 5Kl.1] is 

CeTWIIIIU, 927 F.2d 107 (9th Cir. 1m) (counts dismissed as subject to constitutional limitations rhat district courts can enpart of plea bargain may not be used for departure). force.' •.. ThIlS, a district coun can review a prosecwor's reThe en bane court withdrew ahat part olthepanel' s opinion fusal to file a substanUal assistance motion and grant relief if 

and affumed the use oflhe dismissed counts. '"The guidelines, the court flOds that the refusal was based upon an unconstituinterpreted in tight of the application notes. are unambiguous. Iional motive ... or upon due process grounds rhat the refusal 

The fraud section of the guidelines says .•• ahat '[t]be cumu- was not rationally related to any legitimate state objective." 

Jative loss produced by a common scheme or course of con- "Generally, a defendant has no right to discovery, to an 

duct sbouJd be used in determining the offense level. regard- evidentiary bearing, ex'to a remedy unless she makes a subless of abc number of counts of conviction. ' U.S.S.G.I2Fl.l. stantial threshold showing with specific allegations of the im· 

commeDL (n.6) •••• The relevant conduct guideline ••• controls proper reasons for the prosecuur's fallure to move for deparwbed1er the dismissed counts should be used to measure the ture. No evidence that the Government refused to move for 

amount of loss .••• The application note explicitly provides departurebecau.seofsuspectreasons,ex'reasonsnotrationally 

that 'multiple convictions are not required' for acts to be related to any legitimate government end,-W8S presented by 

counted •••• ' U.s.s.G. I 181.3, commenL (n.2) .•• The [defendants]. However, the supervisory powers olthe court 

relevant conduct provisions •••• taken together with the fraud provide the authority to raise sua sponte matfClS dill. may 

and grouping provisions. mean rhatconduct whicb was part of affed the rights of criminal defendants. ••• That Judge Hauer 

the scheme is counted, even though the defendant was not raised the issue of whether departUre would be appropriate 

convicted of crimes based upon the related conduCL" was not eaor. Here, unlike the record in Wade. there is some 

The court Slaled this bolding did not conflict with Castro- indication of an URCOnStiwdonal basis for the Government's 

CeTWllllUar U.s. v. Faulkner, 952F.2d 1066 (9th Cir. 1991). refusal to move for a downward departure as weD as evidence 

"Both cases involve departures and non-groupable offenses, of the defendants' assistance •••• Howevec. the precise nalUre 

so they are disUnguishable from cases involving groupable of the constiwtional violations noticed by the di.sIrict court is 

offenses and no departure. ••• In Castro-Cerwwes. werecog- unclear." ThIlS, remand is required for the district court to 

nized an impUcit assurance that if the court accepted a plea "clarify the legal basis of its sentencing decision [and] make 

bargain, then it would not depan upward from the sentence such rmdings as ..• Wade requires." 

provided for by the Guidelines. The reasonable expectation U.s. v. Dtlgodo-Cartknas. No. 91-50253 (9th Cir. SepL 3, 

upheld by Castro-Cervanles. of a sentence in accord with the 1992) (Hug, J .). 

Guidelines, was honored by the sentence imposed on rUle." See O.aline at VI.F.1.b.iii. 

u..s. v. Fine, No. 90-50280 (9th Cir. Sept. 14, 1992) U.s. v. Miltelstadt. 969 F.2d 335 (7th Cir. 1992)(AppeaI 

(Kleinfel~, J.) (en banc). dismissed: Court recognized that it would have been improper 

See OUlluse at ll.D.4 and DCA.I. to delay ruUngon § 5KU. p.s. motion in order to later assess 

Departures 

SUBSTANTIAL AssISTANCE 

Ninth Circuit holds district court has authority to 

review sua sponte government's decision not to me a 

substantial assis~nce motion and may depart, but remands ror more sp,eci:"ac findings. Defendants pled guilty to 

defendant's cooperation at a Rule 35(blProc~g, but held 

the transcript showed that the district coon had in faa ruled on 

the motion at sentencing and refused to depart. "As is plain 

from the text of Rule 35(b) (which allows a reduction of 

sentenceOllly 'toreflectadefendant'ssubsequenl, substantial 

assistance '), and has been held by several courts, the rule is 

designed to recognize assistance rendered after the defendant 195 
196 

Guideline Sentencing Update 

is sentenced. •.• It is not a substitute for section SK 1.1. j. 

See OlUline at VIP.3. 

U.s. v.Lockyer. 966F.2d 1390. 1391-92 (llthCir. 1992) 

(percuriam) (Affirmed: Downwarddeparturc for"substantial 

8S'Sistance to lbc jqdiciary" was DOl warranted for defendant 

who pled guilty at inilial appearance and waived precrial 

motions. The court distinguished U.s. v. Garda. 926 F.2d 

125, 127-28 (2d Cir. 1991)(affll'D1ed downward departure for 

assistance to judiciary that "broke lhe log jam in a multidcfeodaDt casej [3 GSU 1120], bolding that "'to apply lbc 

Garcia reasoning to this case, which involves a single dcfendaIU wbo bas pleaded guilty to a crime that be alone committed. would rob 'acccpIaDCe of responsibility' of substance and 

render it meaningless. ,. 

See OMlliM at VLP.1.bJ. 

Offense Conduct 

CALaJlA110N OF Loss 

u.s. v. Lghod4ro. 967 F.2d 1028 (5th Cir. 1992) (per 

curiam) (Aft1nned: WI'Icre codefendant's condtEt is "part of 

thejointschcmeorplan which (defendant] aidod and abeued. .. amount of loss auributable to codefendant is also attributable 

todefendant.IIB1.3(a)(I). Also, it is proper to use intended 

loss rather than acaualloss. even roough actua110ss is easily 

c:alculatcd.I2Fl.l, comment. (0.7).). 

See OMlliM at B.D.l and 2. 

MORE THAN MINIMAL PLANNING 

U.s. v.D.,.", 969 F.2d 425 (7th Cir. 1992) (Remanded: 

DisIricl court conuniued clear enor in declining to consiclel' 

whe&berM[d]rafting 40 overdue checks during a singlemonLh, 

few if any of wtUch appear to have been purely oppon:une." 

caastilUCCd ~ acts over a period of time," f IBl.I, 

commcnL (o.l(f», thereby warranting men Ihan minimal 

planning eohancemcnt.). Cf. U.s. v. wUUams, 966 F.2d 555. 

5S8-S9 (lOCh eir. 1992) ("men than minimal planning is 

docmed present in any case involving repealed acts over a 

period oftimej [4 GSU 124]. 

See OMllilre 1U1I..B. 

U.s. v. RomtIIIO, No. 91·1999 (6th Cir. lu1y 16. 1992) 

(Merritt. CJ.) (Siler, 1 .. dissenting) (Remanded: Error to 

apply enbancements both for leada:sltip role undcrl 3Bl.1(a) 

and for men than minimal planning. "[1]f ccrWn conduct is 

used to enhanc:o 1 defendant', sentence under one enhancement provisioa. the defendanl should not be penalized for that 

same condtElapin uDder a separate povision whether or DOl 

the Ouidelines expressly p-ohibit taking thc sameconduclinto 

consideration under two separate provisions. ••• We are persuaded that f 3B 1.1(1) already takes into account the cooduCI 

penaliz.ed in f 2FU(b)(2) because, by its very nature, being 

an organizer or leader of more than five persons necessitates 

morelhanminimaiplanning.,.BlUcf. U.S. v.ClU'lis.934F.2d 

5,53, SS6(4th Cir. 1991)(notdouble-counting); U.S. v.Bou/a. 

932 F.2d 6S1. 6S4-55 (7th Cir. 1991) (same). 

See OIUlint alll.£ and DI.B.6. 

DRUG QUANTITY 

U.S. v. La/uU, No. 91-1597 (2d Cir. luly 24, 1992) 

(Mcskil1.1.) (Remanded: M[B]ccause 'the scope of conduct for 

which a defendantcan be beldaccountable under the Sentenclog Guidelines is significantly narrower than the conduct 

embraced by the law of conspiracy,' ... a sentencing judge 

may not, without further f1Ddings~ simply sentence a defen· 

VohImc S • Number 2 • Sepanber 17. 1992 • Paae 2 

dant according to the amount of nan:olics involved in the 

conspiracy .It is essential that a sentencingjudge in a narcotics 

conspiracy make findings of fact regarding the amount of 

narcotics reasonably foreseeable by each defendanL j. 

See OlUline at U.A.2. 

Adjustments 

ROLE IN OJi1l'ENSE 

u.s. v. BtUttiert. No. 91-5615 (3d Cir. July 22. 1992) 

(Hutchinson, 1.) (R.crnanded! Clear error to find defendant 

was oqanizer or leader, f 3B 1.1(a). where he "made a series 

of unrelated drug sales" to six people. DOne of whom were 

"'led' or 'ocgan.ized' by, nor ·answerable' to, tbc dcfendanL ••• Where an individual is convicled of a series of 

solitary, non-related crimes. such asa series of drug sales by 

one drug seller to various buycn. and &here is DO 'orpnizadon' or ·scheme' between the drug seDer and buyers. or 

between the buyers themselves. that the defendant c::ouJd be 

said to have 'led' or ·orpnized.: section 3Bl.1 cannot apply.,. Accord U.s. v. Reid. 911 F.2d 1456.1465 (l0lh Cir. 

1990). etrl. denkd, 111 S. CL 990 (1991). 

Sec OlUliN at m.B.2. 

OBSTRucnON OF JUS'l1CE 

U.s. v. BeUttiert. No. 91-5615 (3d Cit. July 22. 1992) 

(Hutchinson. 1.) (R.crnanded! Clear error to fmc! drug defendant attempted to obsuucl justice by transferring his inlereat 

in marital property to esuanged wife IS pan of aeparatian 

agreement. Section 3C1.1 requires willfulness. and &here was 

no indication defendanl transferred property to tty to avoid 

forfeiture. Also. fact rhat defendant tested positive for drugs 

aftC'z t.e11ing pobation officer he did not use them was not 

proper basis for f 3Cl.l enhancement "The conunentary to 

section 3CU makes it clear that the section's focus is on 

wiUfulacts or statements intended to obsInJct or impede the 

goverruncn,'s investigation of the offcaae • issue. ••• 

BcIlctiere', ntisswement had nodUng 10 do wiIh the offenses 

forwltich he wasconvict.ed.Furthermore,(it] wasnounaterial 

to the probation offaccr's invesdgation in this paniadar 

case.j. Set also U.s. v. Yatu. No. 91·177g (lslCir. Aug.13. 

1992) (Cwpbell. Sr. 1.) (error to give 13C1.1cnhanc:emenl 

to defendant who gave false name and &hereby biDdcred 

investigation of charge that was dropped but not offense of 

conviction). 

See OMlliN at III.C.1 and 4. 

U.s. v. Ash4rs. 968 P.2d 411 (4th Cir. 1992) (Afl'II'D1ed: 

M[P)roviding a falsified voice exemplar to an cxpett witness 

for the purpose of inducing him to testify that it was unlikely 

that it was Ashen' voice on an incriminating tape recording is 

encompassed within the obstruction of justice guideline."The 

district coon also cited an improper ground for the enhancement, but the appellate coon held remand was not required 

because there was a valid ground. The coon noted that 

Williams v. U.S .. 112 S. Ct. 1112, 1118-19 (1992) [4 GSU 

1# 17]. which held that remand is not required for a departure 

based on both valid and invalid factors if lhe same sentence 

would have been properly imposed absent the invalid factor. 

need nol be applied because departurr.s. and.enhancements 

"are fundamentally different unclei' Guidelines jurisprudence," and thus Williams .'is nOl applicable ..• when an 

appel1ale coon is called upon to review a •.• decision to apply 

an enhancemcnt to the offense level on alternative grounds. j. 

Sec OlUline at I1I.C.2 and 4; X.D. 
Guideline Sentencing Update 

GwittItIIiM ~ U,-,. will be dialribulod periodiWl1 by !be C-IO iaf'_ judi. &lid dbar judicial pcaaancl of ~ fodaaI COWl. cIoc:i.cica ca!be I<IIIIaIciaa 

Owmniwlce 

__ ~ 

ill .. 

at 

__ 

1914 md 

at Jllf"X'irtI1917 &lid !be s--cinc haWlnp.ll 

GuidcIl.in& 

illlIIIt iatendocllO 

AJIhouah!be 

ftIIPCIIl 

pubUatdoa 

ScDencina 

II1II1 

c-iIdoa 

.... 101be 

poIicieI 

Scarcncma or IICdvisia Ouidelinennd 

..... poIic:r IhoWd 

1II.t_ltoflho 

nrer 10 !be 0ui0IcIM. 

u.s. ~ 

poUc:r __ • _."..md 0IMr1llll1llli.W __ by" SaNnrial. C __ im far.a iDfannatiaa. 

~ofGtlilMIiNIS-N1tt:i",U'-"lipifiaIdlatlhec.u.. .. _il ... ~&lldyaluabIoeWOlk.It"'ouIdlllltbeCllUidcnd.RICCImI1IICItdaliator«!idalpoUc:r 

01 .. c...-. On __ at poUc:r !he ea.1a'.-. aa1,l11rouP ill Boad. 

VOLUMB S • NUMBl!R 3 • SllP'I1lMBBIl29. 1992 

General Application Principles 

RELEvANT CoNDVCT 

Ell baDe Elgbth Clrc:uit reissues GtIIlowtll, bolds reieYUt coadad provision Is authorizecl b,. statute and Is 

CODStltudooaL Defendant pled guilty to one count of theft 

from inlenlate shipDenL The PSR included seven similar but 

uncbarged offenses as relevant ,conduct. wbicb roughly 

tripled abc guideline range. The district COUll held that usc of 

the uncbarged conduct would violate the Fifth and Sixth 

AmendmeaUaod did DOt consider it in senrencing defendant. 

An appeUar.e panel aft"umed. but did not address the consIitutional issues. Instead. it held that the senrencing sraturedidnot 

authorize the Sentencing Commission to promulgate the relevant conduct provisions of f IB 1.3(a)(2) to encompass separate uncbarged property aimes. U.S. v. Galloway, 943 F.2d 

891 (8th Or. 1991) [4 GSU liS]. 

The en baac COUll revcned and remanded for resenterJc.. 

ing. The court first determined that starutory authority ex.is&s 

for adopcion of a relevant conduct guideline that includes uncharged conduct "1.TJhereferencc to 'cira.unsrances ••• which 

.•• aggrawrc the seriousness of abc offense: 28 U.s.C. 

994(c)(2), is d.irec:t language showing clear inrent .•• to support en8Clment of ••• f IB1.3(a)(2). Even if it is not so clear, 

we have DO doubt dial, tabn with the II1OI'e gene.rallanguage 

inscctioa994(c)and ISU.s.C. f 3553(a)(2)and f 3661,there 

is sufficientandpermissible statutory underpinning tosuppolt 

sectioa IB1.3(a)(2) and its required consideration of aU 'acts 

and omissioas that were part of the samccot.ne of conductor 

common scbeme or plan as the offense of conviction.· .. The 

court DOled. that "[t]bl'ee other circuits bave concluded that 

statutory authority exists for enacting a relevant conduct 

guideline." SuU.S. v.Daver", 910F.2d 1490(6thCir.lm) 

(en bane); U.s. v. TIwmtu, 932 F.2d I08S. 1089 (5th Cir.), 

em. tknltt.I, 112 S. Ct. 264 (1991); U.s. v. Ebbok. 911 F.2d 

1495, lSOI (7th Cir. (990). 

As to the consdtutional issues, abc court held that "section 

lB 1.3, as applied here, does not transgress the limits of due 

process. Bocause a defendant's uncharged aimes are treated 

as sentencing facton, the rights to indictment, jury trial, and 

proof beyond a reasonable doubt simply do not come infO 

pJay. McMillilll [v. PeJtMYlW1.llJll, 411 U.s. 19 (1986)] explicitly rejecred the argument that the sentencing pIwe requires a 

more stringent standard of p:oof than a preponderance of 

evidence •••• Our conclusion ••• is further bolstered by the 

opinions of tho Third. Seventh. and Ninth Circuits in U.s. v. 

Mobley, 9S6 F.2d 450 (3d Cir. 1m), Ebbole and" u.s. v. 

Restrepo. 946 F.2d 6S4 (9th Or. 1991) (enbanc),eert. denied, 

112 S. Ct.lS64 (1992). "AU three of these decisions rest on an 

inrapreration of McMillOll, and all conclude that a sharp 

distinction exists between conviction and senrencing." The 

court stared that "due process may be violated if the punishment meted out following appUcation of the senrencing factors overwhelms or is extremely disproportionate to the punishment that would otherwise be imposed," but held that the 

increase here was not"so extreme or overwhelming as to raise 

due process conccms." 

The court concluded by noIing that while the Guidelines 

"certainly cbannel the court's disc.reIion in sentencing, •.• 

signif'JClllt responsibility ••. remains with the district judge. 

.•• When uncharged conduct is alleged as relevant conduct to 

subsCanl:ially ina:ease the sentencing range, distticljudgesare 

authorized to require abc Unittd S1I*5 Attorney to undertake 

the bmdenofpRlSCDdngevidence to prove thatconduct. In the 

final analysis. the dett.nninalion of wIw is relevant conduct is 

a factual quesdon to be decided by the district judge. " 

U.s. v. GaJIoway. No. 90-3034 (Sth Or. Sept. 11,1992) 

(en bane) (Gibson,J.) (Arnold, CJ., Beam and McMillian,JJ., 

Lay and Bright, Sr. JJ., dissenting). 

See OuJline generally at I.A. 

SENTENCING FACl'ORS 

U.s. v. JOIJU. No. 91-302S (D.C. Or. Aug. 14, 1m) 

(WtlUams. J.) (Mitva, CJ .. dissenting) (Affinned: District 

court may impose highez sentence within guideline range 

because defendant elected to go to trial instead of pleading 

guilty. The government refused to plea bargain. defendant 

was convicred 8l1rial and. after receiving a reductioo for acceptanCe of responsibility, bad a guideline range of 121-151 

months. The court imposed a sentence of121 months. stating 

that it would have imposed the minimum had defendant pled 

guilty. The appellate COUll held that senr.encing courts bave 

authority "to consider the insdtutional value of guilty pleas as 

an explkit, independent basis of sentence adjustmenL j. 

See OuJline at I.C. 

Challenges to Guidelines 

Tblrd Circuit bolds that f 5£1.2(1) cost of Imprisonment nne II Dot authorized b,. SenteDciD, Reform· Act. 

Defendant pled guilty to bribery offenses. At sentencing the 

disttict court imposed a rmc for tho COSl of defendant's 

imprisonment under f .5Bl.2O) f' ... thecounshaII impose an 

additional rmc that is at least sufficient to pay the costs to the 

govelMlentof any imprisonment ••• j. Defendanlclaimed the 

rme was not authorized by smtute and was unconstitutional. 

The appellate court agreed that f SBl.2(i) is invalid because it is not authorized by stature: "[T}he Act does not 

authorize the assessment of a rme to pay for the costs of a 

defendant's imprisonment. Certainly, there is no specific reference in the sratute to recouping the costs of imprisonment as 

an appropriate goal of sentencing. Nor do we believe that 

assessing fines for that purpose is subsumed within the II1OI'e 

general provisions of tho AcL" The coon rejected the government's argument that the rutes, which actually go to victim 

compensation via tho Crime Victims F.llPd. 8(e justirled as 

restitution: "On its very face, the guideUne states that the costs 

will be paid to the govemmentin an amount based on the costs 

of imprisonmenL It stretches credulity to assume that the 

'purpose' of this rme is other than to compensate the government ... for the costs it incurs for incarcerating a defendanL" 

197 
Guideline Sentencing Update 

The court thus did not have to detennine whether the fine violaIes due process, but noted that "if the guideline is a method 

for assessing JeStiwtion, it runs the risk of being irrational." 

The Ftfih and Tenth Circuits have upheld § SE1.2(i). See 

Outline at V.B.2 and generally at XI.B. 

U,s. \I. SpiropouJos. No. 91-6058 (3d Cir. Sept. 25,1992) 

(Becker, J.). 

Sentencing Procedure 

EVIDEN11AIlY IssuEs 

ED bane Eighth Circuit holds that Conl'roDtatioD 

Clause does DOt .ppl1 to seateaciDg bearlDg. Defendant's 

offense level wasiDcreased for being aD organizer, I 3B 1.I(a), 

on the basis of hearsay testimooy. In u.s. Y. Wise,923 F.2d86 

(8tb Cit. 1991), the Cl'iginal appeUate pud revased the 

senlCDCe because the disttict court bad DOt undertaken the 

Confronlalion Clause analysis required by u.s. Y. Sl1'tt~r. 

907F.2d 781, 792 (SIbCir.I990), BecauseSl1'ttle'''confJidS 

wilb previous decisions of this court." the eo bane court 

addressed ""wbal we assumed in Sl1'ttle" chat is. wbetbec 

sentencing undtz the Guidelines is so different from previous 

practice that the Confrontation C1ause should apply to evidence introduced at sentencing proceedings. .. 

The court concluded that. while the Guidelines have 

"wrought subslantial changes in fedeml sentencing pr0cedures, ••• the sharp distinction between convictioo and sentencing lhatanteda&ed theGuidelinessdll exists." Alluding to 

GtdIoway, supra, the court. stated thal Mf.J1ust as increasing a 

defendant's sentenccon the basis of relevant conduct does not 

coostilUte a c::onviction for a scpararc offense, so also esIablisbing a defendant's role in Ihe offense on which be has been 

convicted does DOt CODSIitute a crimina1 prosecution within 

the meaning of the Confrontation Clause. •.. The right to coofront witnesses, therefore. does DOt attach. ••• We therefore 

overrule our holdings to the conb'aly in" Sl1'ttW and U.s. \I. 

Fortis', 911 F.2d 100 (Sib Cit. 1990) [3 GSU 112]. 

As in Gallqwa;y, the court recognizecI "that iD certain instances a sentence may so overwhelm or be so disproportiooate to thepunislunent that wouldotheswise be imposed absent 

the sentencing facIa'S mandaIcd by the Guidelines that due 

process concerns must be addressed." In this case. however. 

the ~ based on the hearsay appoximatcly doubled the 

gentencingrange (to 37-46 months), whicb was"1essthan chat 

which Galloway held did not biggec due process concerns." 

The court also endorsed Ibe Guideline's .. standard fex the 

consideration of hearsay testimony at sentc:ncing" as set forch 

in I Ml.3, p.s.and the commentary • The parties must have the 

opportunity to present infonnation on any disputed factor and 

any information used must have "sufficient indicia of reliability to suppcxt its probable accuracy_ ••• Unreliable allegations 

shall not be considered. .. 

u.s. \I. Wise, No. 90-1070 (8th Cir. Sept. 17,1992) (en 

bane) (wol1man.J.) (Amold,CJ .• Lay, Sr. J.,and McMillian, 

J" d.i&<Jcnting). 

See Outline at IXD.l. 

Offense Conduct 

Drug Quantity-Relevant Conduct 

Third Circuit outiiaes priaciples for "accomplice 

attribution" of drug quaatities. Defendants weze convicled 

on one count of conspiracy to distribute heroin and six 

telephone counts. The sentencing coon attributed to both 

defendants drug amounts distributed by the conspiracy before 

1 98 they joined it and amounts supplied to the conspiracy by otherVolwne S· Number 3 • Septcmber29. 1m· P_ge 2 

conspirators. It also attributed to one defendant amounts 

supplied by the other. The appellate court remanded. holding 

that while the lauer aunbution was suppon.ed by the evidence. 

it could not determine from the record whethec the ocher 

altributionswereappropriate. Thecoun also set forth"general 

principles for determining relevant conduct" in cases of 

"accomplice attribution" under § 181.3(a)(I). 

Noting that early cases had often "intelpiered the relevant 

conduct provision very broadly ,"thecoundet.ermined that the 

1989 amendment to application note 1 of § IBl.3 "makes 

clear that the standard for accomplice attribution is significantly more stringent •.•. (R]ather than evaluating accomplice atIlibutioo in light of the scope of the conspiracy as 

described in the count of cooviction and the defendant's 

awareness of the possibility that aKODSpirators would disbibuteamounts in addition to those amounts dislribuUld by the 

defendant. courts should look to the defeadant's role in the 

conspiracy •••• (W]hiIe it is appopdate to hold 8 defendant 

who exhibits a substantial degree of involvement in the 

conspiracy accountable fexreasonably foreseeable acts committed by a co-conspiraIor, the same cannot be said for a 

defendant whose involvement was much more limilCd." The 

coon noted that Wustratioo e in the commentary to I IBl.3 

"confirms our view Ihat the aucial factor in accomplice 

aUribution is the extent of the defendant's involvement in the 

conspiracy." The court emphasized that "in deciding whether 

accomplice atttibution is appropriate. it is DOt enough to 

merely determine that the defendant's criminal activity was 

substantial. Rather, a searching and individnalited inquiry 

into the circumstances SUl10UIlding each defendant's involvementin the conspiracy is critical to ensure that the defendant's 

seatence accurately reflects his ex her role." 

As to amounts distnbuted before the defeadants entered 

the conspiracy, "the relevant conduct piOvisioo is DOt coextensive with conspiracy law ..•• In the absence of 1Ilusual 

circumsUmoes, not present here. conductlhat oc::curred before 

the defendant entered into an agreement cannot be said to be 

in furtherance of or within the scope of" the activity that the 

defendant agreed to undertake. 

U.s. Y. Collado. No. 91-1492 (3d Cit:Sept. 16, 1992) 

(Becker. J.). 

See Outline at ll,A,2. 

Departures 

SUBSTAN11AL AssISTANCE 

u.s. v. SpiropouJos. No. 91-6058 (3d Cit. Sepl25. 1992) 

(Becker, J.) (Affmned: District court could limit extent of 

§ SK1.l, p.1. departure on the ground tbatdefendant's coopemtion, duough no fault of his own (target of invCSligatioo 

died). was not valuable. Section SKI.l '"makes crystal clear 

that .•• a court should examine the 'usefulness" of the defendant's cooperation •..• [I]t was consistent with Ihe [Sentencing Refonn] Act and the Guidelines for the district court to 

lemper the extent of its downward departure because the defendant's cooperation proved unhelpful to the government. " 

The court emphasized, howevec, 'ihat cooperation need not. 

result in a prosecution or conviction to justify a large d0wnward departure. In some cases, assistance to an investigation 

may be sufficient in and of itself. The critical point is that the 

Guidelines preserve the discretion of the district court with respect to the extent of section SKI. 1 departures. " The court also 

noled that, once a § SKU motion is filed, "the government 

cannot dictate the extent to which the court will depart. j. 

See Outline at VI.F.2 and 3. 
Guideline Sentencing Update ~ F EDEIlAL JUDICIAL CENTER. 

GuiiM/lI'" S'n~1ICjng Updat, will be distributed periodically by the Center to inform judges and other judicial personnel of selected federal court decisions on the SGltencing 

reform legisl31ion 0( 1984 and 1987 and the Sentencing Guidelines. Although the publication may nefer to the Sentencing Guidelines and policy stat.crnenlS of the U.s. Sc:ntalcing 

CommiS$ion in the conteXI of reporting case holdings. it is not intended to report Senlencing Commission policies or .ctivities. Readers should refer to the Guidelines. policy 

st.lemenl<, commentary, and other m.'Ilerial. issued by the Sentencing Commission for such information. 

PublicalionofGuiiM/iM SltI1l1nc;ng Updat ... ignifies that the Cc:nterneglrds it as a responsible and valuable work. It should nOl be considered a neconunendatioo or official policy 

of the Center. On mailers of policy the Center 'pe:.K. only through its Board. 

VOLUMES· NUMBER 4 • OcrOBER21. 1992 

Departures 

MITIGATING CIRCUMSTANCES 

Ninth Circuit bolds district court erred in fmding 

derendant's childhood abuse was not "extraordinary." 

Defendant pled guilty to bank robbery. The district court 

detennined that the Guidelines covered the effects of childhood abuse in § 5H13, p.s., and that defendant's history of 

abute, although "shocking," was not so extraordinary as to 

warrant downward departure. 

The appellate coon agreed that § 5H13 covers "the psychological effects of childhood abuse" and thus departure was 

warranted only in extraordinary circumstances. Accord U.S. 

v. Vela,927 F.2d 197, 199 (5th Cir.), cert. denied, 112 S. Ct 

214 (1991). However, the court reversed because it was clear 

error to hold that defendant's circumstances were not extraordinary. Thecowt found that defendant was severely abused in 

childhood and after, over a period of fifteen years. Several 

medical experts examined defendant and "[e]ach agreed that 

her history of abuse was exceptional ••.• [One] reported that 

West's abuse was so severe she had become 'virtually a 

mindless puppet '" The court remanded and also suggested 

that, because defendant's history indicated the lack of any 

"meaningful guidance" dwing her childhood. the district 

court consider whether departure was warranted under U.S. v. 

Floyd, 942 F.2d 1096. 1099-1102 (9th Cir. 1991) (affinned 

deparrure based on defendant's "youthful lack of guidancej 

[4GSU#1O].Cf u.s. v.Lopez, 938F.2d 1293, 1298(D.C.Cir. 

1991) (§ 5HUO, p.s., does not preclude consideration of 

defendant's tragic personal history) (4 GSU #5]; U.S. v. 

Diegert. 916F.2d 916, 918-19 (4th Cir.I990) (disbictcourt 

has discretion to determine whether defendant's "Uagic personal background and family history" is "extraordinary" and 

wanants departure). Note: A new policy slatement at 

§5H1.l2,effectiveNov.1. 1992.statesthat"lackofguidance 

as a youth and similar circwnstances indicating a disadvantaged upbringing are not relevant grounds" for departure. 

U.S. v. West. No. 91-30085 (9th Cir. Sept. 18, 1992) 

{Thompson, 1.). 

See Outline at VI.C.l.b and h. 

In two casest Second Circuit bolds that drug rebabiUtation efforts or ''extraordinary acceptance or responsibility" may warrant downward departure. In one case, defendant pled guilty to heroin distribution. Sentencing was postponed over a year to allow her to pursue drug rehabilitation. 

The guideline range was 51--63 months, but the district court 

concluded thatdefendmlt' s rehabilitation efforts, and her need 

for further treatment. warranted departure to a four-year tenn 

of probation that included mandatory drug treatment. 

The appeUate court affinned. Noting that the circuits are 

split as to whether drug rehabilit.'ltion efforts may warrant 

downward departure (see Outline at VI.C.2.a and b), the court 

concluded "that the position opposed to rehabilitation-based 

departures is not persuasive. In the first place, this position 

rests in large pem on the view ... tn.'lt 'rehabilit.'ltion is no longer a direct goal of sentencing.' ... That view is simply mistaken .... 28 U.S.C. 994(k) stands for the significantly different proposition that rehabilitation is not an appropriate ground 

for imprisonment ..• Since rehabilitation may not be a basis 

for incarceration but must be considered as a basis for a sentence [under 18 U.s.C. § 3553{a){2)(D)],Congressmusthave 

anticipated that sentencing judges would use their authority, 

in appropriate cases, to place a defendant on probation in order 

to enable him to obtain 'needed .•. medical care. or other correctional treatment in the most effective manner.''' 

The court disagreed that the Sentencing Commission 

"adequately considered" drug rehabilitation. "The Commission concluded that drug dependence is not a reason for a 

downward departure. U.S.S.G. 5H1.4. Whetherornotthai: flat 

assertion is 'adequate' consideration of the factor it 'considers'-drug dependence, it is surely not any consideration •.. 

of •.• defendant's efforts to end her drug dependence through 

rehabilitation." The court also rejected the argument that 

§ 3E1.1 adequately covers drug rehabilitation. "mooconduct 

that indicates acceptanceof responsibility 'for [a defendant's] 

criminal conduct' must relate directly to the offense. To permit section 3E1.l to serve as the Commission 'sadequate consideration of all mitigating 'post-offense conduct: •.• thereby 

precluding departures regardless of anjthing constructive that 

the defendant might do after his arrest that benefits himself, 

his family, or his community, undermines the statutory standard for departure, 18 U.S.C. § 3553{b). as weD as the statutory requirement to consider the 'characteristics of the defendant,' id. §3553(a)(I)." Note: Anamendmenttothecommentary for § 3El.l, effective Nov. I, 1992. adds '"post-rehabilitative efforts (e.g., counseling or drug tteatment)" as a factor 

demonstrating acceptance of responsibility •. 

The comt cautioned that rehabilitation programs. "easily 

entered but difficult to sustain, cannot be pennitted to become 

an automatic ground for obtaining a downward departure." In 

this case, however, the district court "conscientiously examined all of the pertinent circwnstances" and appropriately 

concluded departure was warranted. 

U.S. v. Maier, No. 92-1143 (2d Cit. Sept. 23, 1992) 

(Newman, 1.). 

In the other case, defendant robbed a bank while under the 

influence of crack. The next day he voluntarily surrendered 

and confessed. explaining that his previous attempts at drug 

rehabilitation had failed and he hoped to get help in prison. 

The district court held it had no authority to depart downward 

for these actions. 

The appellate court remanded. holding that "extraordinary acceptance ofresponsibility" may be grounds fordeparture. "We fmd nothing in the Guidelines which contemplates 

a defendant like Rogers, who. emerging from a drug-induced 

st.'lte and reluizing his wrongdoing, turns himself over to the 

police and confesses .... [C]onduct such as this raises a 

colorable basis for a downward departure." See Outline at 

VI.C.2.a and 4. 

199 
200 

Guideline Sentencing Update 

The appeUate court also held that defendant's career 

offender status did not bar departure. u[T]here is nothing 

unique to career offender status which would strip a sentencingcourtofits 'sensible flexibility' inconsidering departures. 

. . . If a career offender is eli gi ble for departure based on past 

conduct, which is the basis for his status as a career offender, 

we can see no reason why he should not be similarly eligible 

fora departure based on present conduct, which is the basis for 

his conviction and sentence." Some circuits have held that 

departure for career offenders is permissible when the criminal history category overrepresents the seriousness of past 

conduct. See Outline at VI.A.2. 

U.S. Y.Rogers, 972 F.2d489 (2d Cit. 1992). 

U.s. Y.Slater,971F.2d626,634-35 (1OthCir. 1992) (per 

curiam) (Rt.manded: Dislrictcounerred inholding thatdeparture 1IIld.eI' § SHl.4, p.s., is limited to physical impairments so 

severeas 10 warrantanon-cusCOdialscntence. An impairment 

rna'! be "exuaordinary" yet warrant only a reduction in. not 

elimination of, the term of imprisorunent). Accord U.s. v. 

Hilton. 946 F.2d 955, 958 (1st Cit. 1991); U.s. v Ghannam, 

899 F.2d 3'1:1, 329 (4th Cit. 1990). 

See generally Outline at VI.C.1. 

AOORA VA TlNG CIR.CUMSTANCI!'S 

U.s. v. Willi, No. 91-3831 (8th Cir. Aug. 28,1992) (Wollm.an. I.) (Affinned four-level upward departure for defendanC&-Q)nvicted of drug offenses and threatening a witnes&-formating death lhreats against a codefendant and his 

family 10 influence his testimony. Although the obsttucdon 

eMancement in § 3C1.1 covers threats against witnesses. it 

does not adequately address "the nature of [defendants'] 

conduct. Here, the thrr.ars w~ of death., not simply physical 

injury. 'I1Io thrr.ars were ongoing and apparently sincere. ••• 

'I1Io targets of tile IhRats included not only [the codefendant]. 

butalsoinnocent Ihird parties •••• F"u13Ily, the threatsOCC1ll'red. 

while [abc codefendant] was incarcerated. tmable to protect 

his famlly or even free 10 flee himself. j.See allD U.s. v.Baer, 

944 F.2d 88. 90 (2dCir. 1991)(afftrmeddc:panurefotabductingandthreatcningrokillinfonnant); U.s. v. Wadt. 931 F.2d 

300,306 (5th pu.) (affinned dc:panure made partly on basis 

that defendant had coconspirator threaten and shoot at person),cert.denled.112S.o.247(1991);U.s. v. Drew. 894 F.2d 

965.974 (81h Cit.) (affinned departure for auempt to murder 

witness). cert. denied. 110 S. Ct 1830 (1990) [3 GSU #2]. 

See Outline at VI.B.1. 

Sentencing Procedure 

HEARSAY 

ED bane Sixth Circuit affirms tbat Confrontation 

Clause does not apply at sentencing. In three cases consolidated for appeal, defendants' sentences were increased for 

drug amounts inrelevantconduct thai: w~ proved by hearsay 

testimony. The en bane court affumed and rejected defendants' claims that the Confronwion Clause precluded the use 

of hearsay testimony at sentencing: "[Clonfrontation rights do 

not apply in sentencing hearings ..•• When defendants have 

pleaded guUty ••• sentencing does not mandate confrontation 

and cross-examination on information submitted to the court 

through the presentence reports and law enforcement sources. 

Following the mandates of Fed. R. Crim. P. 32 is cansti tulionally sufficient because they are fundamentally fair and afford 

the defendant adequate due process protections." Accord U.S. 

v. Wist.-F.2d-(8thCir.Sept.17,1992)(enbanc)(5GSU 

#3]. See OutUne at IX.D.I. 

Vol"",,, 5· NUIllI",r 4 • Oc1obcr 21 1992· I'age 2 

The court also noted that "[i]t is the law that even illegally 

obtained or otherinadmissibJe evidence may be considered by 

the sentencing judge unlike at a trial involving guilt or innocence." Other circuits agree. See Ou/lillt at IX.DA . 

U.S. v. Silverman. No. 90-3205 (6th Cir. Sept 22.1992) 

(en banc) (Wellford, Sr. 1.) (Merritt, C.J., Keith. Jones, and 

Martin, 11., dissenting). 

Offense Conduct 

CALCULATING WEIGHT OF DRUGS 

U.S. Y. Rodriguez, No. 91-5455 (3d Cir.Sept. 18, 1992) 

(Rolh, J.) (Remanded: Court joined four other circuits in 

holding Wlusable ingIedients should not be included as parlof 

drug "':mixture" under Note '" in § 2D 1.1 (c). Defendants conspired to sell three one--kilogram packages of cocaine, which 

actually consisted of compressed boric acid with a small 

ammmt of cocaine (65.1 grams total) carefully wrapped 

around thcboric acid to fool buyers. Distinguishing Chapman 

v. U.s .• III S.Ct 1919 (1991)[4GSU##4],thecourtheldthat 

defenda:ncs should not have been sentenced on the total 

weight "Chapman concerned a true mixture." \Vhereas"the 

cocaine here was not mixed in among the particles of boric 

acid." Purthennore, "the compressed boric acid was not used 

eitheI" as a cutting agent or routine transpOrt mediwn for the 

cocaine such that its proximity to the cocaine here would 

constitute a 'mix&ure' as Chapman elucidates that term. .. 

'I1Io court also rejected the government's argument that 

"theobjcctoftheconspiracywas threekilogramsofcocaine," 

finding "that abc government produced no evidence of availability 10 thedefeMants ofthreekilogramsof cocaincandthat 

thcdiscrictcourtmadenofindingthatahighcrguidelinennge 

was justified by any ability of defendants 10 de1ivtl' in fact 

three Jdlograms of cocaine to the proposed purchasers" as is 

teqUired Wlder § 201.4, comment (n.1);), 

See Outlille at ILB.land 3. 

Violation of Supervised Release 

REvOCATION OF SUPERVISED RELEASE 

u.s. Y. Koehler, No. 91-1585 (2d Cir. Aug. 21, 1992) 

(Mahoney, 1.) (Remanded: &Tor to reimpose supervised 

release term after it was revobd and a senten<:eof imprisonment was imposed. OrK:eatermofsupervisedre.te.ehasbeen 

revoked under 18 U.s.c. § 3583(e)(3). "thereis nothing left to 

extend, modify, reduce. or enlarge under § 3583(e )(2) • .,. 

U.s. Y.Bermuder, No. 92-1236 (2dCit. Sept l,1992)(per 

cwiam) (Remanded: After revocation of supervised release 

fordefendant who was originally sentenced before me owdelines became effective but after supervised release went into 

effect, district court should still consider Guidelines Clapter 

7 when resentencing. "It seems clear that a violation of 

supervised release is. for this purpose, a separate 'offense' 

from the crime that led to the initial imprisorunent .••• Revocation or modification of supervised release is authorized by 

18 U.S.C. § 3583(e). which requires the court to consider 

certain factors set forth in § 3553(a). including '. • • the 

guidelines that are in effect on the date the defendant is 

sentenced' and 'any pertinent policy Statement ••.. ' Thus, on 

remand, the current Ouidelines should be consulted in resentencing Bermudez." The court noted..J.hat. although courts 

should .. take the [Chapter 7] policy statements into account 

when sentencing for a violation of supervised release:' the 

statements '''are advisory rather than mand.'\tory. OJ· 

See Outline at VII.B.l. 
Guideline Sentencing Update FEDERAL. I 

~ UDIClAL. CENT"E:a 

GwiI:¥li_ S~"uN:i", updau ,.;,n be diaa.ribuwi periodically by the Cenl .... 10 inform judg ... Ind Olhco' judicial pcnonncl. of selected federal COW\ deci.iions on the scnlC:rlcing 

monn legislation ol19S4 and 1m and !he S _eing G",idc:1incs. Allhough the publlgtion may ref .... 10 the Senll:ncinl Ouidelin ... and poIiey SI.Iu:mc:n1l of !he: U.S. Senl.cncinl 

Commiaioa. in the conlCl<l ol reponinl gsc: holdings. il is nOl inlCnded \0 rcpoot Sentencing Commission po1icica or .c:tiviti .... Raden should refet to the Guiddinca. polic)' 

rLltanenll. ecmmcnwy •• nd o!h .... matcri< issued b)'!hc ScnlCncing Commission for such information. 

Publieation of GWdteu-Sell/<ltCi", U pdatnignifi ... lhat \he Ccntctrcgards it u a responsible: and vahuoble worle. II should net be c:onsiden:.d a ~tion orofflcial polic)' 

of the Ccntc:t. On mattC3 ol policy \he Ccntct apc:alcs only Ihroogh ill Board. 

VOl.UME. 5· NUMBER 5 • NOVEMBER 19. 1992 

General Application Principles 

AMENDMENTS 

Third Circuit holds tbat clarifying commentary that 

was added al'ter defendant's sentencing may be consid· 

ered on appeal even if it conDicts with circuit precedent, 

unless It is inconsistent witb the guideline. Defendant. 

convicted of armed bank robbery and possession of a firearm 

by a convicted felon, received a longer sentence because the 

sentencing court detennined that the unlawful possession 

offense was a "aime of violence" under § 4B 1.2(l)(ii). At the 

time, the Third Circuit held that unlawful possession could be 

a crime of violence and courts could look beyond the indictment to the underlying circumstances of the offense to make 

that determination. See U.S. v.JoM,936F.2d764, 767-68 (3d 

Cir.1991); U.s. v. Williams, 892F.2d296, 304 (3dCir. 1989), 

em. denied, 110 S. Ct 3221 (1990). Between defendant's 

sentence and appeal, however, an amendment to §4Bl.2. 

comment (n.2) "clarifie[d] that the application of §4B1.2 is 

determined by the offense of conviction (i&.. the conduct 

charged in the count of whicb the defendant was convicted); 

[and] that the offense of unlawful possession of a weapon is 

not a crime of violence." Ste U.S.S.O. App. C, Amendment 

433 (1991). Defendant argued that because the amendment 

merely clarified the guideline. he should be resentenced. 

The appcUate court remanded, holding that "we may 

consider a new commentary regarding an ambiguous guideline in determining how that guideline should be applied. We 

further bold that a panel may consider new commentary text 

where another panel of this court bas already resolved the 

ambiguity and that a second panel is entitled to defer to the 

new commentary even when it mandates a result different 

from that of the prior panel." Finding §4Bl.2(1)(ii) was 

ambiguous as to whether underlying or only charged conduct 

could be considered. the court concluded that "the reading oC 

§4Bl.2 reflected in the new commentary is a permissible 

reading of that guideline and ••. a sentencing court should look 

solely to the conduct alleged in the count of the indictment 

charging the offense of conviction in order to determine 

whether that offense is a crime of violence ... 

The court also held, however, that if "the Commission 

adopts an interpretive commentary amendment that the tex t of 

the guideline cannot reasonably support, ... we should decline 

to follow its lead. ••. Therefore. to the extent the amendment 

in question purports to make possession of a f1J'eal1D by a felon 

never a aime of violence, we conclude that the text of the 

guideline will notsupport this interpretation. Thus, we decline 

to give it any effecL .. 

Other circuits have followed the amendment, but the 

Eleventh Circuit concluded that the amendment did not nullify circuit precedent that held unlawful possession by a felon 

is "by its nature" a crime of violence. See U.S. v. Stinson, 957 

F.2d 813, 814-15 (11th Cir. 1992) (per curiam). Cf U.S. Y. 

Saucedo, 950 F.2d 1508. 1512-17 (lOth Cir. 1991) (do not 

retrospectively apply clarifying amendment to commenUlry 

that conflicts with circuit precedent and would disadvantage 

defendant in violation of ex post facto clause). 

U.S. v. Joshua. No. 91-3286 (3d Cir. Oct. 5, 1992) 

(Stapleton, I.). 

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

INCRIMINATING STATEMENTS AS PART OF 

COOPERATION AGREEMENT 

u.s. Y. Fanl, 974 F.2d 559,562-65 (4th Cir. 1992) (Remanded: It was "plain error" to base obstruCtion of justice 

enhancement on statements made to probation officers where 

plea agreement. purs~t to § 1 B 1.8(a), stated seJI-incriminating infonnation provided to government would not be used to 

determine the guideline range. Application Note 5 (Nov. I, 

1991). added after defendant was sentenced but "intended 

merely to clarify •.. the proper operation of § IB 1.8," indicates 

that the restriction in § 1 B 1.8(a) "applies to statements made 

to probation officers which are later incorporated into 

presentencing reports."). Accord U.S. \/. Marsh. 963 F.2d 72, 

73-74 (5th Cir. 1992) (per curiam) [4 GSU #24].Bw cf. u.s. 

\/. Miller, 910 F.2d 1321, 1325-26 (6th Cir. 1990) (holding, 

prior to addition orNote 5, that statements to probation offlCet 

are not covered by § IBl.8). 

See Outline at lD. 

Sentencing Procedure 

EVIDENTIARY IssVES 

Sixtb Circuit holds tbat illegally seized evidence may 

not be considered in sentencing under the Guidelines 

unless it is unrelated to the offense or conviction. Defendant 

pled guilty to a 1990 drug conspiracy charge. In determining 

where to sentence wirhin the guideline range, the district court 

considered evidence that was illegally seized during a 1988 

arrest on state drug charges. DeCendant appealed. 

Although the appellate court affl111ledon the facts of the 

case, it disagreed with four other circuits by holding that "the 

exclusionary rule bars a sentencing court's reliance on evidence illegally seized during the investigation or 8ITCSt of a 

defendant for the crime of conviction in determining the 

defendant'S sentence under the Sentencing Guidelines." 

"This conclusion follows in part from the momentous 

changes in sentencing wrought by the federal Sentencing 

Guidelines ... [wbicb] bavedramaticaUychanged thecalculus 

of costsand benefils underlying the exclusionary rule .•.. [S]entencing has to a significant extent replaced triaJ as the pi.ncipal 

forum for establishing the existence of certain criminal conduct It therefore follows that excluding illegally seized evidence from trial but permitting its use at sentencing will result 

in a corresponding decrease in the deterrent effect of theexclusionary rule on unconstitutionallaw-enforcement practices." 

However, because defendant's 1988 state drug charges 

"involved conduct unrelated to that for which Nichols was 

convicted in this case ... excluding the evidence from sentencing on the subsequent conviction would not sufficiently fur201 
202 

Guideline Sentencing Update 

ther the purposes of the exclusionary rule to justify barring its 

use at sentencing." The court held thal, "where evidence is 

illegally seized in relation to conduct that does not fall within 

the relevant conduct provisions of the Sentencing Guidelines, 

and the district court does not otherwise rely on the evidence 

in detennining the defendant's sentence, the court may consider such evidence in determining where to sentence the 

defendant within the recommended guideline range." 

One judge agreed with the result but "prefer[req] not to join 

in some of the dicta that accompany the court's announcement 

of this conclusion. Our disposition of this appeal makes it 

unnecessary to say, for example, whether we agree or disagree 

with the 'broad rule' that other Courts of Appeals have 

adopted with respect to the use at sentencing of evidence 

inadmissible at trial." 

U.S. v. Nichols. No. 91-5581 (6th Cir. Nov. 6. 1992) 

(Iones. I.) (Nelson. I., concurring in part). 

See Outline at !X.D.4. 

Adjustments 

OBSTRUCTION OF JUSTICE 

U.S. v. Colletti. No. 91-5405 (3d Cit. OcL 7. 1992) 

(Fullam, Sr. DisL J.) (Remanded: Committing perjury at trial 

may warrant § 3Cl.l enhancement, but "the perjury of the 

defendant must not only be clearly established, and supported 

by evidence other than the jury' s having disbelieved him, but 

also must be sufficiently far-reaching as to impose some 

incremental burdens upon the government, either in investigation or proof, which would not have been necessary but for 

the perjury."). See also U.s. v. Lawrence. 972 F.2d 1580, 

1581-83 (11th Cit. 1992) (per curiam) (court must make 

independent finding that defendant willfully lied at trial). 

See Outline at IlI.CoS. 

ACCEPTANCE OF RESPONSIBILITY 

U.S. v. Hicks. No. 91-3195 (D.C. Cit. Nov. 3,1992) (Randolph,].) (Remanded: Defendant was convicted on one count; 

the jury could not reach a verdict on a second. At trial, 

defendant admitted the first offense but denied the second. 

The district court refused to granta § 3E 1.1 reduction, holding 

that defendant had to accept responsibility for the second 

offense-as relevant conduct-as well as the offense of conviction. The appellate court, noting the split in the circuits on 

this issue, stated that the Nov. I, 1992 amendment to § 3E 1.1 

"seems to resolve the confusion" by indicating that "the 

Guideline requires the showing of contrition only with respect 

to the offense of conviction." Note, however. that Application 

Note l(a) states that "a defendant who falsely denies ..• relevant conduct that the court determines to be true has acted in 

a manner inconsistent with acceptance of responsibility." 

The court also noted: "Under U.S.S.G. § lB I. 11, also 

effective November 1. 1992. the resentencing will occur 

under the new version of the Guidelines unless such application would violate the Ex Post Facto Clause." The court 

cautioned that "our disposition of this case does not mean that 

a defendant is entitled to resentencing anytime a relevant 

Guideline is amended during the pendency of an appeal. The 

result here is dictated by unique circumsumces-an amendment that appears to render a substantial constitutional issue 

without future importance and a record that does not reveal 

the precise basis for the district court's ruling. We doubt that 

many similar cases will arise in the future."). 

See Outline at I.E and III.E.3. 

Volume:5 • NlIDlocr 5· Novemocr 19,1992' ('age 2 

u.s. v. Rodriguez. 975 F.2d 999. 1009 (3d Cit. 1992) 

(Remanded: In denying acceptance of responsibility reduction, district court erred by not considering reasons why 

defendants refused to plead guilty to entire mdicunent and 

went to trial. The decision to go to trial does not prohibit the 

reduction, § 3EL I (b) and comment. (n.2),and here thedefendants appear to have had specific, valid reasons for refusing to 

plead-one was acquitted on the count he refused to plead 

gUilty to, the other disagreed with the amount of drugs claimed 

by the government and won a lower amount on appeal.). 

See Outline at !ILEA. 

ROLE IN OFFENSE 

U.S. v. Colletti. No. 91-5405 (3d Cit. OcL 7. 1992) 

(Fullam, Sr. Disl J.) (Remanded: Robbery defendant was not 

leader of criminal activity involving five or more persons, 

§3Bl.l(a), because the futh person "was neither 'criminally 

responsible for the commission of the offense" ••. nor was he 

used to facilitate the criminal offense-which was already 

completed" when he became involved. The futh person was 

charged with receiving the stolen goods from the robbery, but 

was not and could not properly have been charged with 

robbery. He did not know the robbery was to occur, assisted 

only after the offense by briefly hiding the stolen goods, and 

did not profit from the crime.). 

See Outline at III.B.2. 

Criminal History 

CALCULATION 

U.S. v. Woods. No. 92-1016 (7th Cit. OcL 6, 1992) 

(Cwnmings. J.) (Affirmed: District court should have followed Application Note 3 of §4Al.2 and treated prior sentences as "related" under §4Al.2(aX2) solely because they 

were consolidated for sentencing. Although U.S. v. Elmendorf, 945 F.2d 989, 997-98 (7th Cir. 1991). cert. denied. 

112 S. CL 990 (1992), held that this note need not be strictly 

followed. and "we still believe that trealingcrimesas 'related' 

simply because they were consolidated for trial or sentencing 

is misguided," the Nov. 1991 additions of §4Al.l(t) and 

Application Note 6 "show that cases that are consolidated for 

sentencing are meant to be considered related." Thus, 

"[1]anguage in Elmendorf to the contrary should be limited to 

cases arising under prior versions of the Sentencing Gui<Je. 

lines." Here. however. "this error was harm1ess" -although 

points were subtracted by treating some prior sentences as 

related. enough points were added under §4Al.1(t) to result 

in the same criminal history category and sentencing range.). 

See Outline at IV.A.I.c and XD. 

Offense Conduct 

CALCULA nON OF Loss 

U.S. v. Bailey. 975 F.2d 1028. 1030-31 (4th Cit. 1992) 

(Remanded: For loss computation in completed fraud. it was 

improper to include projected profits defrauded investors 

would have earned on their investments-only the "out-ofpocket funds actually taken" by defendant are included. Use 

of "probable or intended loss" under § 2FI.l, commenL (n.7). 

is limited to attempt crimes,). 

See Outline at 11D.2. 

Vacated Pending Rehearing En Bane: 

U.S, v. Lambert. 963 F.2d 711 (5th Cir. 1992). Please 

delete the reference to Lambert in the Outline at VLA.3, 
Guideline Sentencing Update FEDERAL JUl>ICIAL 

~ CENTER 

GuideliM Sen~lICing UptUJl~ will be distributed periodically by the Center to infom1 judges and other Judicial per$Ol'W!l of selected fede",1 CO'1ft deci.ions on the senlCnelllg 

refonn legisl.tion of 1984 and 1987 and theSmtencing Guidelines. A!thoug/l the pUblication moy refer to the Sentencing Guidelines and policy statements of the U.S. Sentencing 

Commission in the conlext of reponing case holdinp. it is nol inleoded 10 report Senlencing Commission policies or activities. Readers should refer 10 the Guidelines. policy 

SI.'Itcments. commentary. and oth« materials issued by the Sentencing Commission for such inform3tion. 

Publication of GuUt..liM Selll~ndllg U ptUJt~ signifies thai the Center regards it as a responsible and v.lu.ble worlc.ltshould not be considered a rcconunend3tion or offici~1 policy 

of the Center. On m~tte!$ of pohcy the Center speaks only through its Board. 

VOLUME 5 • NUMBER 6 • DECEMBER 17. 1992 

Adj ustments 

ROLE IN OFFENSE 

D.C. Circuit holds that adjustmeDt ror mitigatiog role 

iD relevaDt cODduct caDDOt he awarded wheD that cooduct 

was Dot used to set the offeose leveL Defendant pled gUilty 

to one count of conspiracy to disttibute cocaine. Her offense 

leve) was based on only the one kilogram of cocaine in her 

count of conviction, not the 2S kilograms disttibuted by the 

overall conspiracy. Defendant requested a downward adjustment under § 3B 1.2, claiming that in the context of the overall 

conspiracy she was a minor or minimal participant The disttict coon refused. fmding that she was a major participant in 

the conduct upon which the base offense level was calculated. 

The appellant coon affinned. Relevant conduct should be 

used for role in offense detenninations. but only if it is also 

used to set the base offense level: "Here the larger conspiracy 

was not taken into account in establishiHg the base level To' 

take the larger conspiracy into account only for purposes of 

making a downward adjustment in the base level would 

produce the absurd result that a defendant involved both as a 

minor participant in alarger disttibution scheme for which she 

was not convicted. and as a major participant in a 

smaller scheme for which she was convicted, would receive a 

shorter sentence than a defendant involved solely in the 

smaller scheme. .•. The GuideUnes do not require this absurd 

result" The courtsta1ed that the new App1icationNote4(Nov. 

1992) to § 3B1.2, and the Introductory Commentary (Nov. 

1990) to § 3B 1 that it replaced, both suppon this result. See 

U.S.S.G. App. C (amendment 456). 

U.S. v. Olibrices. No. 90-3087 (D.C. Cit. Dec. 1. 1992) 

(Sentelle, I.). -

See Outlln.e at m.B.1 and 7. 

U.S. v. Cotto. No. 92-1129 (2d Cit. Nov. 10,1992) (Newman, 1.) (Remanded: Under§ 3B 1.1 (b),disttictcourtdoes not 

have discretion to increase offense level by two. rather than 

the three specified by guideline. for "manager or supelVisor" 

of criminal activity involving five or more participants. "'For 

some enhancements, the Sentencing Commission has explicitly authorized sentencing judges to select an intermediate 

degree of increase between specified levels if the facts warrant 

such an outcome .... No such compromise outcome is penn itted for the aggravating role enhancement j. Cf U.S. v. 

Valencia. 957 F.2d 153. 156 (5th Cit. 1992) (may not give 

one-point reduction for acceptance of responsibility-must 

be two points or no reduction) [4 GSU #21]. 

See Outline generally at 1II.B.6. 

OBSTRUCTION OF JUSTICE 

U.S. v. Lew, No. 92-1144 (2d Cir. Nov. 30, 1992) (Newman, J.) (Remanded: Where the issue was "close," district 

court should have followed § 3Cl.1. comment. (n.l). and 

considered defendant's allegedly obstructive statements "in a 

light most favorable to defendnnC' While awaiting presentment after arrest, defendant made a statement to a potenti.'ll 

codefendant that the government claimed was an invitation to 

fabricate a defense, but defendant claimed was merely a 

suggestion they say nothing to authorities until they could 

discuss the charges against them. The appellatecOlUt held that 

U[a]pplication note 1 is a sensible response to the reality that 

. defendants will often make statements susceptible to various 

interpretations in the anxious moments following apprehension. Before such a statement is used to add a discrete 

increment of punishment for obsttuction of justice. a sentencing judge should be satisfied that the ~menl is really 

misconduct deserving of punishment ••• Viewed in the light 

most favorable to the defendant, the statement does not 

support an obstruction of justice enhancement"). But if. U.s. 

v. Capps, 952 F.2d 1026, 1029 (8th Cit. 1991) (indicating 

Note 1 applies only tolalse statements and does not apply to 

threats against witnesses or conspirators). 

See Outline generally at m.C.2 and 4. 

Determining the Sentence 

SUPERVISED RELEASE 

U.S. v. Chinske. 978 F.2d 557 (9th Cir. 1992) (Affinned: 

Rejected defendanf s argwnent that §§ 5D 1.1 and 5D 1.2. 

which require term of supervised release, conflict with 

18 U.S.C. § 3583(a), which permits optional term. "U.s.s.G. 

§§ 5Dl.l and 5D1.2 can be read consistently with 18 U.s.C. 

§ 3583"-those sections "allow for departure if ... the uial 

judge determines no post-release supervision is necessary," 

and thus" do not take away the trial judge's ultimate discretion 

in ordering supervised release" that is- granted under 

§ 3583(a).).SeealsoU.s. v. West, 898F.2d 1493,1503 (11th 

Cit. 1990) (28 U.S.C. § 994(a) provides authority for Guidelines' mandatory provisions for supervisory release), cert. 

denied. III S. Ct. 685 (1991). 

See Outline at V.C and XI.B. 

Departures 

MmGATING CIRCUMSTANCES 

Eighth Circuit affirms downward departure ror "extraordinary physical impainneot that results io extreme 

vulDerability" iD prisoo. Defendant. convicted of money 

laundering offenses, was subject toa guideline range of 46-57 

months in prison. The district coon departed downward under 

§ 5H1.4, p.S .• to impose probation, home confinement, and 

community service, after concluding that defendant "suffers 

'an extraordinary physical impairment' ... which leaves him 

exceedingly vulnerable to possible victimization and resultant severe and possibly fatal injuries were the Coon to impose 

a sentence of incarceration .... The govelllAlent-appealed, disputing the court's factual rmding that defendanfs condition 

left him exceptionally vulnerable to attack in prison. 

The appellate court affmned, fU'St agreeing with the principle "that an extraordinary physical impairment that results 

203 
204 

Guideline Sentencing Update 

in extreme vulnerability is a legitimate basis for departure." 

The court held that the government failed to present evidence 

to support its claim th.1t the Bureau of Prisons could adequately protect defendMt in prison, Md that defendant met 

his burden of showing departure was justified by introducing 

"the reports of four doctors Md the testimony of one of them; 

all of them stated th.'lt in prison he would be exceedingly 

vulnerable to victimization Md potentially fatal injuries. 

Although these doctors may not have been familiar with the 

facilities available to Long in prison, we do not believe the 

District Court committed clear error by relying upon these 

statements in concluding that 'the imposition of a term of 

imprisorunent could be the equivalent of a death sentence for 

Mr. Long:" See also U.S. v.Lara. 905F.2d 599,605 (2dCit. 

1990) (affumed downward departure based on VUlnerability 

to victimization in prison). 

U.S. v. Long. 977 F.2d 1264 (8th Cit. 1992). 

See Outline at VI.C.l.d. 

U.S. v. Williams, No. 91-50434 (9th Cit. Nov. 3, 1992) 

(percuriam) (Affumed: Agreed with First Circuit that government agent's perjUJ)' before grand jUJ}' "is not a basis for 

downward departure because it does not relate to the 'offense 

or the offender' and is based solely on a 'perceived need to 

reprimand the government'j. See u.s. v. Valencia-Lucena, 

925 F.2d 506, 515 (lstCit.I991)(Remanded:"A sentencing 

departure is not warranted in response to conduct of the 

government or of an independent third party. Thus it was error 

for the district court to base its downward departure upon a 

perceived need to reprimand the government fodts conduct in 

investigating and prosecuting the case. j. 

See OutiiM generally at VLC.4.b. 

U.S. v. Mickens. 977 F.2d 69 (2d Cit. 1992) (Remanded: 

District court may not base departure solely on jUJ)' recommendation, but: "Where ajUJ}"s request for leniency appears 

to be a rational response to facts and circumstances placed 

before it which would themselves lead a colDt to consider a 

downward departure. and the district court so finds, the jury's 

request also may be laken into account" However, the court 

must find that the factors considered by the jury are appropriate bases for departure.), 

See OutliM generally at VI.C.4.a. 

Offense Conduct 

DRUG QUANTITY-RELEvANT CONDUCT 

U.S. v. Navarro. No. 91-30275 (9th Cit. Nov. 16. 1992) 

(Wright, J.) (Remanded: Defendant was responsible only for 

the two grams of heroin he sold. not amounts sold by others 

after he had ended his participation in the conspiracy. District 

court must make specific facrual fmdings as to the amount of 

drugs attributable to defendant as relevant conduct; it may not 

simply adopt conclusory statements from the presentence 

report that are unsupported by the facts or the guidelines.). 

See Outline at II.A.2 

Loss 

U.S. v. Salltiago, 977 F.2d 517 (lOth Cir. 1992) (RemMded: Loss in unsuccessful insurance fraud should have 

been cnlcuL'lted as the $4.800 insurance company would have 

paid. even though defendant filed claim for $11.000. Since 

there was no actual loss, "probabieor intended loss" should be 

used under § 2FI.l, comment. (n.7). Although defendant may 

have believed car was worth SI1,OOO. "whatever a 

defendant's subjective belief. an intended loss under GuideVolume 5· Number 6· December 17.1992· Page 2 

lines § 2F l.t cn.nnot exceed the loss a defendMt in fact could 

have occasioned if his or her fraud had been entirely successful. ... Although the IMguage of that Guidelines section leaves 

room for a contrnry interpret.1tion. we conclude that a valuation or estimate of loss th.1t exceeds that limit llnpermissibly 

ignores economic reality."). Cf U.s. v. Khan, 969 F.2d 218, 

220(6thCir.1992)("offense level may not be increased on the 

basis of M estimated fraud loss when no .actual loss is 

possible") [5 GSU # 1 J. 

See Outline at n.D.2. 

Sentencing Procedure 

PLEA BARGAINING 

U.S. v. LewiS. No. 92-10231 (9th Crr. Nov. 2, 1992) 

(Alarcon, J.) (Affnmed: District court did not exceed its 

authority or violate defendant's due process rights when, to 

determine wbether defendant qualified for career offender 

status, it ordered transcripts of three prior convictions to 

determine whether defendant's guilty pleas in those cases 

were constitutionally valid: As part of the current plea agreement, the government recommended that defendant not be 

sentenced as a career offender, but the PSR indicated he 

should be and it was "entirely proper" for the COIDt to determine for itself whether the prior pleas were constitutional.). 

See Outline at IX.A.4. 

Revocation Of Supervised Release 

u.s. v. McGee. No. 92-1553 (7th Cit. Nov. 30. 1992) 

(Cummings, J.) (Remanded: After revoking defendant's 

three-year term of supervised release and ordering him to 

serve two years in prison, district COIDt did not have authority 

to impose additional five-year term of supervised release: 

"Once a colDt revokes a defendant's sUpervised release and 

imprisons him under [18U.s.C. §] 3S83(e)(3). no residual term 

of supervised release survives revocation. Consequently, 

there is no way for a COIDt to revisit § 3583(e)(2) and create or 

'extend' a second term of supervised release.j. Accord U.s. 

v. Koehler, 973 F.2d 132, 134-35 (2d Cit. 1992) (remanded). 

ConJra U.S. v. Schrader,973F.2d623.62S (8thCir. 1992) 

(Mfumed: Court had authority to revoke three-year term of 

release and sentence defendant to six-month prison term followed by continuation of supervised release to end on the date 

originally scheduled: "[11be district court's action is consistentwith 18 U.S.C. § 3583(e)(3) wbich •.• permits asentencing 

judge to ••. require the offender to serve in prison aU or part 

of the term of supervised release without credit for time previously served on post-release supervision. If a district court 

has that power, it certainly has the power under that subsection 

to impose a less drastic sanction, namely, to require an offender to serve part of the remaining supervised release period in 

prison and the other part under supervised release. j. 

See Outline at vn.B.I. 

CERTIORARI GRANTED: 

U.S. v. Stinson. 943 F.2d 1268 (11th Cir. 1991)(percuriam), on rehearing, 957 F.2d 813(1 IthCir. 1992) (percurlam) 

[4 GSU #19]. cut. granted. 113 S. Ct 459 (Nov. 9, 1992). 

Question: "Whether a court's failure to £oUow Sentencing 

Guidelines commentary that gives specific airection that the 

offense of unL'lwful possession of a firearm by a felon is not 

a crime of violence under V.S.S.G. § 4Bl.l, see U.S.S.G. 

§ 4 B 1.2 comment. (n.2), constitutes an 'incorrect application 

of the sentencing guidelines' under 18 U.S.C. § 3742(0(1)." 
Guideline Sentencing Update FEDERAL JUDICIAL CENTER 

Guidtl;,... S<,,,unciltg Updol<' will Ix: d.Slnbotcd periodically by the Center 10 inform judges .nd other judici.1 personnel of selected federal court decisions on the sentencing 

rdonn lelpsl.tion of 1984 and 1987 and the Sentencing Guidelines. Although the pUblic.otion may refer 10 the Sallalcing Guidelines.nd policy statemenlS of the U.S. Sentencing 

CommiSSion in the contelt of rq><>nlOg ase boldings. it is nol intended 10 rq><>rt Sentencing Commission policies or activitics, Readers sbould reret to the Guidelines. policy 

statcmenlS. commentary. and other material. issued by the Sentencing Commission for such inform"tion. 

Publication ofGuidttin.r S<'nl<,,,,;"g Updot .. signir,csthat the Center regards ita. a responsible and valuable wort.. It should not be considered a rec<>mrn<:ndation oroflici.1 policy 

of the Center. On mattcrs of policy the Center speaks only througb itS Board. 

VOLUME 5· NUMBER 7 .JANUARY 11, 1993 

Departures 

CRIMINAL HISTORY 

Fourth Circuit holds that court may depart by analogy 

to career orrenderguidelinefordefendant who would have 

been sentenced as career orrender but for invalid prior 

conviction. 11te presentence report put defendant in criminal 

history category VI and concluded he had several prior violent 

felonies that qualified him as a career offender. Defendant 

challenged the validity of the prior convictions, but the district 

court ruled that at least two were valid and sentenced him as 

a career offender under § 4B 1.1. As an alternative, the court 

held that even ifoneoftherequiredfe1ony convictions were invalid. the same sentence would be imposed because the underlying facts were not disputed and could be used to depart under § 4A 1.3, p.s .• with the career offender provision as a guide. 

The appellate court affumed., holding that it did not have 

to decide whether the disputed convictions were valid because 

the departure to the career offender ..... ge was proper. "Once 

the district court determines thai a departure under U.S.S.G. 

§ 4A 1.3, p.s. is wananted and that the defendant' s prior criminal conduct is of sufficient seriousness to conclude that he 

should be treared as a career offender. the district court may departdirecdy to Ihe guideline range applicable to career offenders similar to the defendant ..• Thus. if a district court. based 

on reliable infonnation. detennines that a defendant's underlying past criminal conduct demonstrates that the defendant 

would be sentenced as acareeroffender but forthefactthatone 

or both of the prior predicate convictions may not be counted 

[because they are constitutionally invalid], the court may depart direcdy to the career offender guideline range." Cf u.s. 

v. Hinet. 943 F.2d 348, 3S4-SS (4th Cir.) (departure to career 

offender level P!OIJef where defendant missed that status only 

because prior violent felonies were consolidated). cert. denied, 112 S. CL 613 (1991); U.S. v. Dort~, 888 F.2d 79, 80-

81 (11th Cir.1989)(same),cert. denied,llOS.Ct. 756(1990). 

The court added. as a general matter. that "[a]dditional 

Criminal History Categories above Category VI may be 

formulated in order to aaft a departure that corresponds to the 

existing structure of the guidelines." Accord U.S. v. Streit, 962 

F.2d 894. 905-06 (9th Cir. 1992) l4GSU #24); U.S. v. Glas. 

957 F.2d 497, 498-99 (7th Cir. 1992) [4 GSU #20]; U.S. v. 

Jackson, 921 F.2d 985. 993 (10th Cir. 1991) (en banc). A socalled "vertical departure"--moving to higher offense levels 

within category VI-may also be used and is recommended in 

the November 1992 revision of §4A1.3. p.s. 

U.S. v. Cash, No. 91-5869 (4th Cir. Dec. 14, 1992) 

(Wilkins, 1.). 

See Outline at VI.A.l.c, 3, and 4. 

MmGATING CIRCUMSTANCES 

U.S. v.Aslakson.No. 92-1891 (8th Cir. Dec. 18. 1992) (per 

curirun) (Affinned: An offer. which was refused by the 

government, to testify against a codefendant in exchange for 

a SUbSL'Ultial assisl.c'Ulce motion under § SK1.1, p.s .. crumor 

wammt dep.mure under § SK2.0. p.s. on the theory that such 

conduct is not adequately covered by the acceptance of 

responsibility reduction in § 3E 1.1. Assistance in the prosecution of others is covered under § SKU, not § 3El.l, and 

departure cannot be made without motion of the government 

except in very limited circumstances not present here.). 

See Outline at VI.C.4.c. 

U.S. v. Frazier, No. 91-3585 (7th Cir. Nov. 16, 1992) 

(Coffey. I.) (Remanded: General fmding that defendant suffers from a menial disorder is not sufficient for downwaro 

departure under § 5K2.13, p.s. The district court must make 

specific findings that "defendant's menial condition resulted 

in asignificandyreduced menial capacity at the time of the offense [and] contributed-to the commission of her offense .•.. 

[S]uch a link cannot be assumed." District court also erred in 

basing the departure on its opinion that there was "nothing to 

be gained" by imprisoning defendant, in tenns of either punishment or general deterrence: "Departures must 'be based on 

policies found in the Guidelines themselves rather than in the 

personal penal philosophy of the sentencing judge. ',. 

See Outline at Vl.C.l.b and 4.b. 

AOORA VA 11NG CIRCUMSTANCES 

U.S. v. Medina-Gldierre%, No. 92-2094 (5th Cir. Dec. 23, 

1992) (DuM. I.) (Remanded: Plain error to use § 5K2.6, p.s .. 

as a basis for departure in offense of transportation of fuearms 

in interstate commerce. That offense "is. technically, a crime 

in which weapons are used, and therefore seems to warrant a 

§ SK2.6 upward departure. P:ractically speaking, however. 

this section must refer to aimes that may be committed with 

or without the use of a weapon. otherwise, every fueanns sentence would require upward departure. "It was not error ,however. to depart upward because of defendant's frequent purchases of weapons: "a criminal defendant who luis repeatedly 

engaged in a criminal activity evidences a dangerousness not 

apparent in a defendant who bas acted illegally only once."). 

See Outline at VI.B.l and 2. 

SUBSTANTIAL AssISTANCE 

U.S. v. Easter, No. 91-6103 (10th Cir. Dec. 10, 1992) 

(Baldock. I.) (Seymour. I .• dissenting) (Affumed: Defendant 

claimed for the fust time on appeal that the government 

refused to makea § SKl.l. p.s. motion because he was the only 

conspirator to request ajury trial. The appellare court rejected 

his request for a remand and hearing on the government's 

motives: "Defendant's exercise of his constitutional right to a 

jury trial would be an improper basis for the government to 

withhold a motion. Nevertheless, defendant did not raise this 

argumentin the district court," so it could only be reviewed for 

plain error. But the court, characterizing this as a factual dispute to which "plain error review does not apply," dismissed 

the appeal: "Defendant's suggestion regarding 1he government's motive for failing to bring a motion raises the factual 

issue of, not only the government's motive, but whether the 

Defendant in fact provided substantial assistance."). 

See OINline at Vl.F.l.b.iii. 

205 
206 

Guideline Sentencing Update 

Criminal History 

ARMED CAREER CRIMINAL 

U.S. v. MedilUl-Gutierrez, No. 92-2094 (5th Cir. Dec. 23. 

I 992)(Duhe,J.)(Afflfmed: Whetherpriorviolcnt felony con· 

victions were "related" under § 4A 1.2 is irrelevant to semencingasannedcareercriminal under §4B IA. Ddendamargu.ed 

that three burglary convictions should be treated as one VIOleOl felony because they were commilled within weeks of one 

another as part of a common plan and were consolidated for 

sentencing. However. §4B 1.4 applies to defendants subject to 

enhanced sentence under 18 U.S.C. § 924( e), and the appellate 

cowt stated that "what matters under § 924( e) is whether three 

violent felonies were commiued on different occasions; 

whether they are •.. 'related cases' under §4A1.2 is irrelevant j. See also §4B 104. comment. (n.l) ("the definitionO 

of 'violent felony" ••• in 18 US.C. § 924(e) [is) not identical to 

the defmitionO of 'aime of violence' ... used in §4B1.l,. 

(To be placed in new section IV.O in next edition of OUlline.) 

CALCULA nON 

U.s. v. Tabaka. No. 91·3882 (3dCir. Dec, 28,1992)(Weis, 

J.)(Remanded: Ifa prior sentence is suspended, only the portion that was served should be considered in the criminal history calculation. Defendant had received a sentence of a minimum 48 hours and maximum 1 S months that was suspended 

after two days. TheappeUate coun held it was error tocorisider 

themaximumsentence(forthreecriminalhistorypoinLS)ratherthan the two days actuaUy served (one point). Normally the 

"sentence ofimprlsonment" used to calculate criminal history 

points is the maximum sentence imposed, rather than time 

actually served. See § 4A1.2(b)(I) and comment (n.2). However, § 4A 1.2(b)(2) specifically states: "If Pm: of ~ sentence; 

of imprisonment was suspended, 'sentence of Impnsonment 

refers only 10 the portion that was not suspended.,. 

See Olllline at IV.A.2. 

Determining the Sentence 

CONSECUI'IVE OR CONCURRENT SENTENCF.s 

u.s. v. Gullickson. No. 92-1398 (8th eir. Dec. 8, 1992) 

(MagiD,J.) (Rtmanded: District COW1S retain discreti~n under 

18 US.C. § 3S84(a) 10 impose concwrent or consecutive ~­

tences, but they must also follow § SG 13 unless depanure IS 

warranted. Here, § SG 13( c) (Nov .1991) called for concurrent 

sentences. but the district COWl improperly made the federal 

sentence consecutive to defendant's unexpired state sentences without "follow[ing] the usual guidelines procedures" 

to determine whether departure was ~,arranted.). 

U.s. v. Parkinson, No. 91-2233 (lstCtr.Dec.4, 1992)(per 

curiam) (Affmned: In determining under § SG 1.3 (c) lhc extent to impose sentence consecutively to prior unexpired state 

sentence look at "the actual total prison term likely to be 

served [~n state sentence). not the putative terms or imprison. 

ment imposed." Defendanl was serving a 10-2? year stale 

term and for the instant federal offense he received a 24().. 

mon~h sentence to run consecutively. DcfendaOl argued that 

this was actuaU; a departure because it would result in a tOlal 

sentence of 30-40 years, which exceeded the maximum 327 

months that"approximate(d] the tolal punishmenlthat would 

have been imposed .. , had all of the orfenses been rcdeml 

offenses for which sentences were being imposed at the same 

lime," §SG 1.3,commenL(n.3)(1991). However, theappcllnte 

court held that good-conduct crcdiland parole "could potentially result in defendant serving less than seven ye'lfs or r the 

state} sentence," for a total sentence of less than 327 months.). 

Volume 5 • Number 7 • January II, 1993 • Page 2 

NOle that crrective Nov. 1,1992. § 5GI.3(e) was designated a policy stalement, but the substance of the guideline is 

essenlially the same. 

See Outline at V.A.3. 

FINES 

U.S. v.Fair,No. 92-2098 (SthCir. Dec. 9, 1992)(DuM.J.) 

(Remanded: PSR indicated defendant could n9t pay fine. and 

court improperly imposed fine without articulating reasons: 

"specific findings are necessary if the coWl adopts a PSR's 

findings. but then decides to depart from the PSR's recommendation on fmes or cost of incarceration." Defendant may 

rei y on PSR' s conclusion that he cannot pay fme; burden then 

shifts to government to prove ability to pay. Oistrictcourtalso 

erred in imposing cost of incarceration fine under § SE1.2(i) 

without fU'St imposing punitive fine under § SEl.2(a),). 

See OUlline at V.E.l and 2, 

Offense Conduct 

CALCULATING WEIGHT PF DRUGS 

u.s. v. Davis. No. 92-3143 (6th Cir. Dec. 16. 1992) 

(Gilmore, Sr. DisL J.) (Affirmed: Where defendant was convicted of conspiracy to distribute cocaine, but the unusual 

circumstances of the case prevented the district COWl from 

reaching any reasonable estimate of the quantity of cocaine 

alUibutable to defendant, it was proper for the court to use the 

lowest offense level applicable to cocaine under the Orug 

Quantity Table.). 

See Outline at n.B3. 

U.S. v. Reyes, No. 91-6398 (10th Cir. Nov. 11. 1992) 

(Baldock,J.) (Remanded: Oistrictcourtc1early erred in finding that defendant negotiated to sell additional. pound of 

cocaine, see § 201.1, comment (n.12)f'the weight under 

negotiation in an uncompleted distribution shall be used). 

The undefCover agent testified that he believed that defendant 

agreed. to sell him another pound. but "[nlathing in the 

recorded conversation indicates an affll11lative response by 

Defendanlto supply an additional pound of cocaine. .. , and 

nothing in the record. other than [the agent's] subjective 

belief, indicates that Defendant agreed 10 it" 

See OUlline at II.B3. 

Adjustments 

ROLE IN OFFENSE 

u.S. v. Kalora. No. 91·3S0S (3d Cir. Dec. 7, 1992) 

(Mansmann, J.) (Becker, J., dissenting) (Remanded: Adjustment under § 3Bl.1(c) could not be applied to equaUyculpable codefendants who organized only non.:culpable persons. nOl each other or other culpable participants. The fact 

that defendants "shared responsibility for creating and carrying Out the fraud doles) not indicate that either [dc;fenda?t} 

organized the other. Rather, ... [defendants] were orgamz· 

ers' only in the sense that they were 'planners' of the offense. 

Just as section 3B1.1 cannot enhance the sentence of a solo 

offender •... neither can it enhance the sentences of aduo when 

they bear equal responsibility for 'organizing' their own 

commission of a crime." Defendants did organize innocent 

third parties. but under § 3B 1.1 "use of non-culpable ·outsid· 

ers' [may only be used] to calcula~extensiveness,' not 

. role: ... [W}e conclude thallhe application of sections 3B 1.1 

and 3B 1.2 has two prerequisites: mulliple participants and 

1\ome differentiation in their relative culpabilities."), 

See Outline at III.B.2, 6. and 7. 
Guideline Sentencing Update 

Guiik/j"" S~_ncj"g Updal~ will be distribuled periodically by the Center to infolm judges and other judicial pe",onnel of selected federal court decisions on the sentencing 

",(ann legislation or 1984 and 1987 and the Sentencing Guidelines. Although the publicatio.n may refer ~ the S~~cing G~i?elines and policy statements of the U.S. Sentencing 

Commission in the contelt o{ reporting case holdings. it is not intended to report SentenCtng Commission poliCIes or act!vllles. Reade", should ref ... to the GUldelmes. pohcy 

statemenl&. eommentary. and other materials issued by the Sentencing Commission (or such infonnatioo. . '. . 

Public.al.ioa ofGuUttlillt! S~nI~1OCi"g U pdatlSignifies that the Center regards ius a responsible and valuable wort. It should not be conSIdered a recommcndalton or offiCIal policy 

of the Center. On matters of policy the Center speaIts only through its Board. 

VOI..UMB 5· NUMBBR 8· FEBRUARY 4, 1993 

Violations of Probation and 

Supervised Release 

REVOCATION OF SUPERVISED RELEASE 

Tenth Circuit cbanges circuit rule, holds that super· 

vised release term may not be reimposed after revocation 

and incarceration. Defendant's supervised release was re· 

voked for drug possession under 18 U.S.C. § 3583(g), based 

on a positive urinalysis. The district court sentenced him to 12 

months' incarceration to be followed by almost 26 months of 

additional supervised release. Defendant argued on appeal 

that a positive test indicates only drug use, not "possession" 

under § 3583(g), and that a new term of supervised release 

could not be imposed after revocation of the original term. 

The appellate court upheld the revocation based on the 

positive urinalysis and defendant's admission that he had used 

marijuana: '7herecanbe no more intimate form of possession 

than use. We hold that a conlrolled substance in a person's 

body is in the possession of that person for purposes of 18 

U.S.C. § 3583(g), assuming the required mens rea. " 

The court reversed the reimposition of supervised release, 

however. U.S. v.Boling,947 F.2d 1461,1463 (lOth Cir. 1991) 

[4 GSU #23]. ruled that release could be reimposed after 

revocation. But developments since then, the current panel 

noted."warrant truscourt's serious reconsideration of Boling. 

••• We have sua sponte presented this issue to all the active 

judges of the court, .•. and we have now been authorized by 

those judges to announce that this circuit's prior decision in 

[Boling] is here!>y overruled. We have also been authorized to 

hold, as the law of this circuit governing pending and future 

cases, that upon breach of a condition of supervised release, 

the disttict comt may revoke supervised release and order the 

defendant to serve a term in prison pursuant to 18 U.S.C. 

§ 3583(e)(3). or may extend the defendant's term of supervised release pursuant to 3583(e)(2), but not both ..•. Our 

holding on this issue compels the conclusion that Rockwell 

cannot be ordered to serve an additional term of supervised 

release. Since 3583(g) requires incarceration, the options presented in 3583(e)(2) and (e)(4) are not available to the court, 

and 3583(e)(3) is available only to the extent of fIXing the 

maximum term of incarceration which may be imposed." 

U.S. v. Rockwell, No. 92-6121 (lOth Cir. Ian. 29, 1993) 

(Anderson, J.). 

See Outline at VII.B.I and 2. 

U.S. v. Glasener, No. 92-1976 (8th Cir. Dec. 3, 1992)(Gibson,I.) (Afflrmed: Defendant on supervised release committed and pled guilty to a new offense that violated the terms of 

his release. The court revoked his release and imposed a 24-

month term ofimprisonment. The next day , he received an 88-

month sentence forthe new offense, whic h was ordered to run 

consecutively to the revocation term. TheappelJate court held 

that consecutive sentences were proper, and that it did not 

matter which sentence was imposed fllSt. Application Note 5 

of § 7B 1.3, p.s. recommends that any sentence imposed after 

revocation be run consecutively to any revocation sentence. 

Also, had the order of sentencing hearings been reversed, 

§ 7B 1.3(f) would have required consecutive sentences.). 

See Outline at VII.B.1. 

REVOCATION OF PRODA TION 

U.S. v. Clay, No. 92-5562 (6th Cir.Jan. 6, 1993) (Jones.J.) 

(Remanded: Under 18 U.S.C. § 3565(a), defendant must be 

sentenced "to not less than one-third of the original sentence" 

when probation is revoked for drug possession. "Original sentence" means the maximum term of imprisonment under the 

Guidelines for the original offense, and a sentence after probation revocation is limited to the original guideline range. 

Thus, it was error to impose revocation sentence of fifteen 

months when the guideline r:1aximum was seven months.). 

Accord U.S. v. Granderson, 969 F.2d 980, 983-84 (11th Cir. 

1992); U.S. v. Gorclon, 961 F.2d 426, 430-33 (3d Cir. 1992) 

[4 GSU#21]. Contra U.S. v. Byrkett. 961 F.2d 1399,1400-01 

(8th Cir. 1992) (per curiam) ("original-sentence" includes 

probation, affinned eight-month prison term where original 

guideline maximum was six months and sentence was two 

years' probation) [4 GSU #23]; U.S. v. Corpuz, 953 F.2d 526, 

528-30 (9th Cir. 1992) (same, affirmed one-year sentence 

where original guideline maximum was seven months and 

sentence was three year's probation) [4 GSa # 15]. 

See Outline at VII.A.2. 

General Application Principles 

AMENDMENTS 

u.s. v. Warren. No. 91-30464 (9th Cir. Dec. 8, 1992) 

(Tang, I.) (Affirmed: Defendant, sentenced after the 1991 

amendments to the Guidelines, had to be sentenced under the 

1989 version of § 2K2.1 because of ex post facto concerns. He 

argued that the court should use the 1991 version of §5Gl.3, 

which could produce a shorter total sentence. The district 

court. however, used the 1989 version of § 5G 1.3. reasoning 

that the 1989 Guidelines should be applied in their entirety. 

The appellate court agreed: u[WJe think it more appropriate 

that sentences be determined under one set of Guidelines 

rather than applying the Guidelines piecemeal .... Our decision is also consistent with the approach recently promulgated 

by the Sentencing Commission for sentf,Wces imposed on or 

afterNov.l,1992.SeeU.S.S.G.§ IBl.ll(b).p.s.&comment. 

(n.1) (Nov. 1, 1992) (earlier editions of Guidelines Manual, 

when applicable. are to be used in their entirety)."). 

See Outline at I.E. 

207 
208 

Guideline Sentencing Update 

u.s. v. Seligsohn, No. 91-2083 (3d Cir. Dec. 9, 1992) 

(Weis, J.) (Remanded: For defendants convicted of multiple 

counts, it was error to apply post-Nov. 1989 version of 

Guidelines to all counts when ex post facto considerations 

required that earlier version of Guidelines be used for some 

counts. The appellate court concluded the government's "socalled 'one-book rule'" would lead to ex post facto problems 

here, and stated that district courts should determine "which 

version of the Guidelines is applicable to specific counts."). 

See Outline at I.E. 

Determining the Sentence 

SUPERVISED RELEASE 

U.S. v. Gullickson. No. 92-2162 (8th Cir. Jan. 5, 1993) 

(Gibson,].) (Remanded: 18 U.S.C. § 3624(e)(1988) prohibits 

imposition of consecutive terms of supervised release, and 

"dictum" to the contrary in U.S. v. Saunders, 957 F.2d 1488, 

1494 (8th Cir. 1992) [4 GSU #20], should not be followed: 

"we believe the statute unambiguously states that terms of 

supervised release on multiple convictions are to run concurrently.j.ContraU.S. v.Maxwell, 966F.2d545,550-51 (10th 

Cir. 1992) (did not discuss 18 U.S.C. § 3624(e» [5GSU #1]. 

See Outline at V.C. 

FINES 

U.S. v. White, No. 91-3346 (11th Cir. Jan. 8, 1993) 

(Kravitch, J.) (Remanded: A defendant convicted of criminal 

contempt under 18 U.S.C. §401(3) cannot be fined under 

§5E1.2(a)ifatermofimprisonmentwasimposed:"18U.S.C. 

§ 401 employs the disjunctive and authorizes the punishment 

of a 'fine or imprisonment' (emphasis added), The mere 

existence of the Sentencing Guidelines does not change that 

clear expression of Congressional intent. H). 

See Outline at V.E.1. 

Adjustments 

ACCEPTANcE OF REsPONSmn..rrv 

U.S. v. Morrison. No. 92-5033 (6th Cir. Jan. 12, 1993) 

(Jones, J.) (Remanded: The § 3El.l reduction for acceptance 

of responsibility may not be denied for "criminal activity 

committed after indictmentfmformation but before sentencing, which is wholly distinct from the crime(s) for which a 

defendant is being sentenced." The appellate court distinguished cases that upheld denials based on additional criminal 

conduct, noting that in those cases the criminal activity was 

somehow related to or was the same type as the offense of 

conviction~ though it noted that two cases indicated denial 

may be based on any criminal conduct. See U.S. v.O'Neil,936 

F.2d 599, 600-01 (lstCir. 1991); U.S. v. Watkins, 911 F.2d 

983,985 (5th Cir.1990).ReferringtoNote l(a)to§ 3EI.l,the 

court concluded that "we consider 'voluntary termination or 

withdrawal from criminal conduct' to refer to conduct which 

is related to the underlying offense. Such conduct may be of 

the same type as the underlying offense, ... the motivating 

force behind the underlying offense, ... related to actions 

toward government witnesses concerning the underlying offense, . . . or may involve an otherwise strong link to the 

underlying offense .... We are persuaded by the rationale that 

Volume 5· Number 8· February 4.1993· Page 2 

an individual may be truly repentant for one crime yet commit 

other unrelated crimes.") (Kennedy. J .• dissentirg). 

See Outline at III.E.I. 

MUL 11PLE COUNTS 

U.S. v. Sneezer, No. 91-10457 (9th Cir. Dec. 30,1992) (per 

curiam) (Remanded: Two counts of aggrava.ted sexual assault 

on the same victim that occurred within a few nunutes dwiog 

the same course of conduct should have been grouped. Generally, under § 3D1.2(b), counts are grouped if they involve 

the same victim, are connected by a common criminal objective or plan, and involve substantially the same hann. In some 

instances separate assaults of the same victim should not be 

grouped, but the appellate court determined that, under the 

guideline and application notes 3 and 4, "whether to group 

independent offenses ••. turns on timing," and essentially contemporaneous assaults must be grouped.) (O'Scannlain, J., 

concurring in judgment). 

See Outline at m.D. 

Sentencing Procedure 

u.s. v. LeROY, No. 92-5086 (10th Cir. Jan. 26, 1993) 

(Anderson, J.) (Affmned: District court properly refused to 

grant defendants' request for discovery of data used by the 

Sentencing Commission in formulating the Guidelines in order to determine whether defendants were outside the "heartland" of the guidelines applicable to them: "Discovery of 

Commission files or deliberations relating to promulgation of 

the guidelines is prohibited. The controlling statute could not 

be more clear on the poine 'In determining whether a circumstance was adequately taken into consideration, the court shall 

consider only the sentencing guidelines, policy statements, 

and official commentary of the Sentencing Commission. 18 

U.S.C. § 3553(bY .... 'Consideration' of the guidelines does 

not imply investigation into the processes or data from which 

they emerged. The reasons are obvious. Djscovery into the 

guideline formulation process would be an intrusion into a 

quasi-legislative rulemaldng function delegated by Congress 

solely to the Commission. 28 U.S.C. §§ 991, 994, 995. And, 

any conclusion drawn from such discovery would be a usurpation of the Commission's power. Beyond that, the pmctical 

problems are too numerous and apparent to warrant discussion. Accordingly, no denial of due process, violation of law, 

or misapplication of the guidelines resulted from the district 

court's denial of the discovery."). 

See Outline generally at IX.E. 

Vacated pending rehearing en bane: 

U.S. v. Jones, 973 F.2d 928 (D.C. Cir. 1992) (district court 

may impose higher sentence within guideline range because 

defendant chose to go to trial instead of pleadmg guilty) 

[5 GSU #3J, vacated in pertinent part, Oct. 22. 1992. See 

OutUne at LC. 

U.S. v. Roman, 960 F.2d 130 (lIth Cir. 1992) (clistrict 

coill1s have cliscretion to allow constitutional challenge to 

prior conviction) [4 GSU#22]. vacated, 968F.2d It (11thCir. 

1992). See Outline at IV.A.3. 
Guideline Sentencing Update 

Guitk/iN! Slflunciflg Updal. will be distributed periodically by !he Cc:n1U 10 infonn jodge4 and other jodiml pcrsonnel of selecl.<d fedcl1ll court decisions on the sentencing 

",Conn legislation of 1984 and 1987 and the Sentencing Guidelines. A1thougl! the publication may refer 10 the Sc:nlalcing Guideline4 and policy statements of the U.S. Sentencing 

Commis.sion in the context of reporting ca.se holdinp. it is not intended 10 rep<)1t Sentencing Commission polici"" or activitie4. Readers should ref ... to the Guidelines. polic)' 

statementS. commentary. and oth~ maberials issued by the Sentencing Conunisaion for such infonnation. 

Publication of GuiM/ilV S • ..uncifll Updau.ignifiea that theCc:n1U regards it AI a responsible and valuable won.:.ltshould not be considered& recommendation or official policy 

of the Center. On matters of po liey the Center s.peaks only throus)! ill Board. 

VOI.UMs5· NUMBER 9· MARCH 1. 1993 

Adjustments 

OBSTRUCTION OF J USnCE 

Supreme Court reverses Dunnigan, upbolds application of § 3Cl.I to perjury by defendant. At defendant's 

trial for conspira£y to distribute cocaine. several witnesses 

testified about her drug activities. Defendant testified and 

denied everything. claiming that she had never possessed or 

distributed cocaine, but the jury found her guilty. The sentencing court concluded that defendant's denials were unttuthful 

and warranted the § 3C 1.1 enhancement for obsttuction of 

justice. The Fourth Circuit reversed, holding that applying 

§ 3Cl.l "for a disbelieved denial of guilt under oaIh [is1 an 

intolerable burden on the defendant's right to testify in his 

own behalf." US. 'V. Dunnigan, 944 F.2Ai 178, 183-85 (4th 

Cir. 1991) [4 GSU #10]. 

The Supreme Court reversed the court of appeals, holding 

that enhancement for perjury is not unconstitutional. The 

Court fU'St addressed the findings required before enhancement n[N]ot every accused who testifies at uial and is 

convicted will incur an enhanced sentence under § 3CU for 

committing perjury .... [A1n accused may give inaccurate 

testimony due to confusion. mistake or faulty memory. In 

other instances, an accused may testify to matters such as 

lack of capacity, insanity, duress or self-defense. Her testimony may be ttuthful, but the jury may nonetheless find the 

testimony insufficient to excuse criminal liability or prove 

lack of intenL For these reasons, if a defendant objects to a 

sentence enhancement resulting from her trial testimony, a 

district court must review the evidence and make independent 

fmdings necessary to establish a willful impediment to or 

obstruction of justice, or an attempt to do the same .... When 

doing so, it is preferable for a district court to address each 

element of the alleged perjury in a separate and clear finding. 

The district court's determination that enhancement is required is sufficient, however, if, as was the case here, the 

court makes a finding of an obsttuction or impediment of 

justice that encompasses all of the factual predicates for a 

fmding of perjury." 

The Court then held that the Guidelines' requirement of a 

§ 3Cl.l enhancement for perjury "is consistent with our 

precedents and is not in contravention of the privilege of an 

accused to testify in her own behalf." A defendant's right to 

testify "does not include a right to commit perjury," and the 

"concern that courts will enhance sentences as a matter of 

course whenever the accused takes the stand and is found 

guilty is dispelled by our earlier explanation that ... the trial 

court must make findings to support all the elements of a 

perjury violation in the specific case." 

U.S. v. Dunnigan, No. 91-1300 (U.S. Feb. 23, 1993) 

(Kennedy. 1.). 

See Outline at lILe.S. 

VICTIM-RELATED ADJUSTMENTS 

U.S. v.Morrill,No. 91-8386(llthCir.Feb.16,1993)(en 

banc) (per curiam) (Remanded: "We now hold that bank 

tellers. as a class, are not vulnerable victims within the 

meaning of section 3A1.1. To Ihe extent that [U.S. 'V. Jones, 

899 F.2Ai 1097 (11th Cir. 1990) [3 GSU#811 holds to the 

contrary, that case is overruled. •.. This is not to say that bank 

tellers in individual cases never may be parti.cularly susceptible or otherwise vulnerable victims of a bank robbery. 

Enhancement is appropriate under section 3Al.l when a 

particular teller-victim possesses unique .characteristics 

which make him or her more vulnerable or susceptible to 

robbery than ordinary bank robbery victims •.•. "). 

See Outline at m.A.1. 

MULTIPLE COUNTS 

U.S. v. Taylor, No. 91-30418 (9th Cir. Jan. 21. 1993) 

(Poole, J.) (Remanded: "We join the Tenth Orcuit in holding 

that grouping under section 3D 1.2( d) is not appropriate when 

the guidelines measure harm dKferendy ,"Thus, fordefendant 

convicted of one count of engaging in an illegal monetary 

transaction covered by § 2S 1 2, which measures harm by "the 

value of the funds" attributable to the scheme, it was improper 

to include as relevant conduct amounts from a dismissed wire 

fraud count, which measures harm under § 2Fl.l as "the loss" 

attnoutabletothescheme.}.AccordUS. v.JoMson, 971 F.2d 

562, 576-76 (10th Cir. 1992) (remanded: improper to add 

funds obtained from wire fraud scheme as relevant conduct to 

funds in money-laundering conviction). 

See Outline at m.D.1. 

Criminal History 

CALCULA nON 

F'lI'St Circuit bolds tbat five bank robberies could be 

considered related as ''part 01 common scheme or plan." 

Defendant was sentenced as a career offender on the basis of 

five prior convictions for five bank robberies committed 

during a brief period in 1968. Defendant argued that the 

robberies should be treated as a single felony under the 

definition of related cases in § 4AI2(a)(2}, commenL (n.3) 

("prior sentences are considered related if they resulted from 

offenses that ... were part of a single common scheme or 

plan"), because all five were part of a common plan to rob 

banks. The district court rejected defendant's argument and 

his request for an evidentiary hearing. 

The appellate court remanded, finding that under the 

language of the guideline defendant may be correct. "At flJ'St 

blush. it might seem unlikely that the Sentencing Commission 

intended a defendant to escape career offender status, in the 

teeth of two prior convictions for different bank robberies at 

different times and places. simply because those prior robber· 

ies were assertedJy linked by a further felony, namely. an 

209 
210 

Guideline Sentencing Update 

overarching conspiracy to rob banks that could literally be 

called a 'common scheme or plan .. " The court stated that if the 

Commission did not intend this resUlt. "we might disregard 

the literal language of the commentary and treat as a single 

conviction only those convictions so closely related in time 

and function that separate treatment would disserve the purpose of the career offender provision. Yet a broader perspective suggests that the Commission. in defining related convictions, did mean to adopt binding 'rules of thumb.' such as this 

one, as weU as the even more mechanical rule that convictions 

for entirely separate crimes should be treated as one if they 

happen to be consolidated for Irial or sentence." 

"Once we decide that the 'common scheme or plan' 

definition is both intentional and valid, [the] language should 

be given its ordinary meaning. This same language is used in 

Fed. R. Crim. P. 8 (to determine joinder) and there is no doubt 

that in that context a conspiracy to rob banks would constitute 

a common scheme or plan .... We do not, however, think that 

the district court is required to hold an evidentiary hearing if 

the court concludes that it would impose the same sentence 

even without the • career offender' label. The guideline commentary itself asserts that the rule of thumb here ..• is over· 

inclusive and invites judges to depart upward where the rule 

of thumb operates to understate criminal history. Acc0rdingly, the requirements for departure are satisfied if the judge 

supportably concludes that . . • five priex' bank robberies, 

united by a conspiracy to rob banks, makes [defendant] 

deserving of a sentence similar to that he would receive ifhe 

were classified as a career offender ... 

The court noted that the net effect of having a strict rule of 

thumb with the ability to depart "is to increase the range of 

disaetion of the district judge in these situations, which may 

be just what the Commission intended. As we have noted. an 

evidentiary hearing is not automatically required in cases Iik:e 

this one-not because the judge can 'find' no common 

scheme orplan in the face of a proffer like this one and without 

a hearing, but rather because the judge may depart rather 

readily even if.such a scheme or plan is assumed." 

U.S. v. Elwell. No. 91·1621 (1st Cir. Jan. 20, 1993) 

(Boudin,I.). 

See Outline at IV .A.I.b. 

Offense Conduct 

DRUG QUAN11TY 

U.S. v. Gilliam, No. 90-5548 (Feb. 12. 1993) (Wilkins, 1.) 

(Widener,I., dissenting) (Remanded: District court erred in 

automatically attributing to conspiracy defendant the 30 kilograms of cocaine described in the indictment to which he pled 

gUilty. A guilty plea alone is not an admission of responsibility 

for drug amounts that are attributed generally to a conspiracy. 

And, "while a plea of guilty to an indictment containing an 

allegation of the amount of drugs for which a defendant is 

responsible may, in the absence of a reservation by the 

defendant of his right to dispute the amount at sentencing. 

constitute an admission of that quantity for sentencing purposes, Gilliam's indictment did not make any such attribution." Here. defendant admitted only to distributing a much 

smaller amount and no other evidence was presented to allow 

the court to make an independent determination of the 

amounts he should be held responsible for.). 

See Outline at ILA.3. 

Volume 5 • Number 9 • March I. 1993 • Page 2 

Loss 

u.s. v. Bartsh. No. 92-1470 (8th Cir. Jan. 13. 1993) 

(Gibson. Sr. J.) (Affumed: Agreed with U.S. v. Curran. 967 

F.2d5.6 (lstCir. 1992). that amountofloss under § 2B1.1 in 

embezzlement offense includes lost interest.). Note that 

§ 2B 1.1 and its Commentary do not mention interest. but 

Note 7 of § 2Fl.l, which refers back to § 2B~.1 to calculate 

loss. was amended Nov. 1. 1992. to state that loss does not 

include interest that could have been earned on stolen funds. 

See Outline at n.D.l. 

Departures 

CRIMINAL HISTORY 

U.S. v. Brown, No. 92·50247 (9th Cir. Feb. 10. 1993) 

(Canby ,I.) (Remanded: Departure for career offender may be 

considered if nature of prior offenses and youth at time of one 

prior conviction "render his criminal past significantly less 

serious than that of a typical career offender." Although 

§ SH1.l, p.s. states that age'is not ordinarily relevant to departure, age "becomes relevant when it causes a defendant's 

criminal history score significantly to overstate the seriousness of his criminal record. •.. [1berefore], nothing in the 

guidelines would preclude the district court from departing if 

it found that, in view of the nature of Brown's prior convictions or Brown's age when he committed one of the p:edicaIe 

offenses, placement in the career offender category significantly exaggerated the seriousness of [his] criminal hist<X'y .'1. 

See Outline at VI.A.2. 

MmGATlNG CIRCUMSTANCES 

U.S. v. Brown, No. 92·50247 (9th Cir. Feb. 10, 1993) 

(Canby, 1.) (Remanded: District court incorrecdy concluded 

that it did not have authoo.ty to consider downward departure 

for defendant who alleged "extraordinary abuse" during his 

childhood and "extraordinary acceptance of responsibility. j. 

See Outline at VI.C.I.b, h. and 4.c. 

AGGRA VA TlNG CIRCUMSTANCES 

U.S. v. Bartsh. No. 92·1470 (8th Cir. Jan. 13, 1993) 

(Gibson, Sr. 1.) (Affinned: Although defendant received 

§ 3B 1.3 abuse of trust enhancement, court could depart upward because ....... ere is nothing in the Guidelines to indicate 

that the Sentencing Commission considered an abuse of trust 

by a United States bankruptcy trustee embezzling funds. This 

defendant's embezzlement of nearly $1.5 million from an 

account that he as a federal officer was charged with faithfully 

managing represents an inordinate abuse of trust that is of a 

different kind and substantially in excess of the degree which 

is ordinarily involved in the usual abuse of trust offense."). 

See Outline at m.B.8.a and VI.B.1. 

U.S. v. Gray, 982 F.2d 1020 (6th Cir. 1993) (Remanded: 

For defendant convicted of selling drug paraphernalia who 

had also sold large amounts of a cutting agent to a cocaine ring. 

"the district judge erred when and to the extent that he 

considered greed and the danger of narcotics to our society as 

factors justifying [upward] departure. _. Greed is obviously 

the chief motivation for drug-related crimes. For the drafters 

of the Sentencing Guidelines to have overlooked thIS is simply 

not credible. The fact that distribution of narcotics is a danger 

to our society is precisely why promoting it is a crime."). 

See Outline at VI.B.2. 
Guideline Sentencing Update ~ FEDERAL JUDICIAL CEN'T'ER 

VOLUMB 5 • NUMBBR 10· APRn. 9, 1993 

Offense Conduct 

DRUG QUANTITY 

Second Circuit holds that whether mandatory miDimum sentence under 21 U.s.C. I 841(b) applies to conspiracy defendant is determined by "reasonable 

foreseeability" standard used to determine drng quantity 

under Guidelines. Defendant was convicted of conspiracy 

on an indictment that stated the object of the conspiracy was 

to seD more than five kilograms of cocaine. Evidence indicated that defendant participated in only one transaction of 

one kilogram right bef<Xe the conspiracy ended. The district 

court applied the to-year mandatory minimum sentence applicable to a conspiracy "involving" five or more kilograms of 

cocaine. 21 U.S.C. § 841(bXA). Defendant appealed. 

The appellate court remanded. holding that the reasonable 

foreseeability standard f(l' drug quantity under theGuidelines 

also applies to conspiracy convictions under 21 U.S.C. § 846 

sentenced under § 841(b). The govem.ment had argued that 

because foreseeability is not required for substantive offense 

mandatory minimums under § 841(b), it should not be required for § 846 conspimcies, especially in light of the 1988 

revision off 846 which directed that conspiracy defendants be 

sentenced as if they hadconuniued theunderlying substantive 

offense. The appellate court disagreed: "the purpose of § 846 

as amended was 10 synchronize the penalties forconspiracies 

and their underlying offenses. ••• [TJhere is nothing in the 

legislative history to indicate that Congress intended the 

revision to expand the accountability of defendants beyond 

their substantive offenses. ••• H the government's argument 

WeIe to prevail. § 846 would effectively eviscera1e the Guidelines' approach to fixing accountability in drug conspimcies. .. 

"'We find that Congress did not intend to ovenule the 

Guidelines in its revision of § 846 and require strict liability in 

any case whete an individual smaD-time dealer becomes 

associated with a Jarge-scale conspiracy. The Guidelines ••. 

require reasonable foreseeability in orderto hold a conspirator 

accountable for the acts of a coconspirator. This is not inconsistent with § 846, which only requires that a conspirator be 

sentenced to the same penalty applicable to the underlying 

conduCL" Accord U.s. v.Jones, 965 F.ld 1507 (8thCir.t992). . 

U.S. v. Martinez. No. 92-1461 (ld Cir. Mar. 8. 1993) 

(Altimari, J .). 

See Outlin.e at II.A.2 and 3. 

Departures 

CRIMINAL HISTORY 

Third Circuit holds that criminal history departure 

under f 4Al.3, p.s. is not subject to the ''Dot adequately 

taken into consideration" requirement of 1510.0, p.s. and 

18 U.S.C. § 3553(b). At the initial sentencing, the district 

court departed downward for several reasons. including the 

belief that careeroffenderstatus overstated defendant's criminaI history, but it did so under § 5K2.0. The appellate court 

reversed. holding that the cited factors were adequately considered by the Commission and could not support a § 5K2.0 

depanure.SeeU.s. v.Shoupe, 929F.2d 116 (3dCir. 1991).On 

remand, defendant specified that he sought departure under 

§ 4Al.3 because his career offender status significantly overrepresented the seriousness of his criminal history. The district court denied the motion. concluding that the appeIlate 

coon opinion precluded departure. 

The appellate court again remanded, holding that departure under § 4Al.3 could be consideted. "[l]n Guidelines 

§ 4Al.3, the Commission specifically provided district courts 

with flexibility to adjust the criminal history category calculated through the rigid formulae of §4Al.l or §4B1.l •••• 

Section 4A1.3 is both structurally and in its purpose unlike 

§ SK2.0 and 18 U.S.C. § 3SS3(b), which allow district courts 

to depal1 from the sentencing range calculated under the 

Guidelines for mitigating circumstances not adequately considered by the Commission in formulating the Guidelines .••• We therefore conclude that thestabltory authority for 

the promulgation of§4Al.3liesnotin 18U.S.C. §3553(b),as 

the government urges. but in the basic provision of the 

Sentencing Ref(l'm Act that gives the Sentencing Commission the authority 10 promulgate the Guidelines and to take 

into account, Where relevant, the defendant's criminal back-

. ground. See 28U.S.C;:§l994(a) & 994(d)(10) ..•• We hold 

that as the plain language of § 4Al.3 provides, a district court 

consideringa§4Al.3departuremayweigh."reliableinformalion [that] indicates that the criminal history category does not 

adequately reflect the seriousness of the defendant's past 

criminal conduct' •••• including factors that the Commission 

may have otherwise considered in promulgating otherprovisions of the Guidelines." 

U.S. v. Shoupe, No. 92-7204 (3d Cir. Mar. 12, 1993) 

(Becker, J.). 

See Outline at VI.A.1 and 2 

Second Circuit holds that upward departure may not 

be based on fact that defendant is awaiting sentencing 

under the Guidelines on another federal ofTense. Defendant was convicted on drug charges. The district cowt departed upward by two criminal history categories (CHC) on 

the grounds that defendant committed the crime after being 

released to allow cooperation with the government in another 

offense and because defendant had not yet been sentenced for 

a prior federal offense. Although the first departure ground 

was proper. the appellate court remanded for clarification of 

the extent of departure and because ifie seCond departure 

ground was improper. 

The court distinguished prior cases that "upheld CHC departures for defendants awaiting sentencing on various other 

crimes. Those cases .•. involved defendants who were to be 

211 
212 

Guideline Sentencing Update 

sentenced in state court for stale offenses. Since state-oourt 

sentencing is not governed by the federal Guidelines, we 

viewed the district court as having discretion to depan on that 

basis because if the federal court does not depart to take 

account of the unsentenced state crimes, there is no 8SSlD'3I1ce 

that the entire range of defendant's pertinent history will be 

considered in either proceeding." Here, however, defendant 

would be sentenced for the other federal offense under the 

Guidelines, and the instant offense would be accounted for 

there. Thus. "since •.. the overall Guidelines scheme provides 

for effect to be given to both offenses in specified. ways, •.. a 

departureon this basis for a defendant awaiting sentencing on 

a federal offense would result in a double counting that was 

not intended by the policy statement in Guidelines §4AI.3, 

and .•• a departure on this basis is impermissible." 

U.S. v. Stevens, 985 F.2d 117S (2d Cir.l993). 

See Olllline at VI.A.1.f and B.1. 

AOORA VAnNG CIRCUMSTANCES 

Eigbtb CImdt holds that pregnane, resulting from 

rape ma, be proper groud for departure. Defendant was 

convicted of raping a 15-year-old. She became pregnant with 

twins-one died in utero and. after complications. hospitalization, and a cesarean, the other was born with a faIal disease 

and died three weeks later. The government moved. for an 

offense level increase under § 2A3.1(b)(4). arguing that the 

pregnancy and its consequences constituted a "serious bodily 

injury." Alternatively, the government argued that upward 

departure was warranted under these circwns1anCeS. Both 

motions were denied. 

The appellale court affinned. the denial of an increase 

under § 2A3.1(b)(4): "As defined in the guidelines, serious 

bodily injury easily includes any immedialc serious physical 

tmuma resulting from a rape. In contrast. intetprcting the 

language of the guideline definition to include the life altering 

consequences of a rape-induced pregnancy stretches that· 

language too far." 

However ... the court detennined that pregnancy resulting 

from rape may be an unusual circumstance that warrants 

departure and remanded: "We are not aware of any facts that 

indicate a pregnancy 'commonly' results from a single instance of rape. Nor are we aware of any guideline provision or 

reconk that indicate the Commission considered rape-induced p:egnancy as a basis for an adjusunent or departure. 

Rather. we are loathe to conclude that when formulating 

U.S.s.O. § 2A3.1(b)(4), the Commission considered both the 

trauma of an unwanted rape-induced pregnancy and of an 

immediate obvious physical injury, but chose to increase 

punistunent only for the physical injury." 

U.S. v. Yankton. No. 92·1404 (8th Cir. Mar. I, 1993) 

(Hansen. 1.). 

See Outline generally at VI.B.l. 

U.S. v. Merritt. No. 91-1637 (2d Cit. Feb. 9,1993) (Leval, 

Dist. 1.) (Affirmed upward departure based on danger to 

public health, disruption of a governmental function, and 

defendant's attempts to keep the proceeds ofms crime (nearly 

$1 million) through continued fraudulent conduct. nae district court also factored into the departure defendant's "continuing dishonesty and greed, and his cynical determination to 

profit from his crime after service of his jail time." The 

appellate court concluded that the Sentencing Reform Act 

Volwne 5· Number 10· April 9. 1993 • Page 2 

allows. and the Guidelines do not prohibit. consideration of 

personal characteristics in unusual cases and that it was 

appropriate here: "[T]he departure was attributable toconduct 

and characteristics that went well beyond simple 'failure to 

pay voluntary restitution' and 'concealment of assets: It is 

clear that Merritt's profound conuption and dishonesty, and 

his elaborate fraudulent manipulation-eVel! after his guilty 

plea-designed to preserve the huge benefitsofhis crime after 

service of jail time, are not" adequately considered under the 

Guidelines.). Cf U.s. v. Bryser. 954 F.2d 79.89-90 (2d Cit. 

1992) (departure for failw-e to return stolen money); U.S. v. 

Valle. 929 F.2d 629,631-32 (11th Cit. 1991) (same) [4#3]. 

See Outline at VI.B.1. 

SUBSTAN11AL AssISI'ANCE 

U.s. v. Love, 985 F.2d 732 (3d Cit. 1993) (Affirmed: 

District court properly held that the § SKU. p.s. requirement 

for a government motion applies to assistance to state authorities. not just federal: "There is no indication in the language 

of § SKU m-in the accompanying commmtary that the Commission meant to limit 'assistance to authorities' toassistance 

to federal authorities. The IX'Ovision is mtided 'Substantial 

Assistance to Authorities.' and describes the assistance as 

'substantial assistance in the investigation or prosecution of 

another person who has committed an offense. 'j. 

See Outline generally at VI.F.1. 

EXTENT OF DEPAImJRE 

U.S. v. Lambert. 984 F.2d 658 (5th Or. 1993) (en bane) 

(Affirmed: Resolving inconsistent opinions within the circuit, 

the en bane court held that to depart under § 4Al.3. p.s.. district courts must follow the procedure in that section and 

"evaluate each successi~ criminal histOry caaegory above or 

below the guideline range for a defendant as it determines the 

proper extent of departure. j. 

See Outline at VI.D. 

Criminal History 

INvALID PRIOR. SENTENCES 

u.s. v. Vea-Gonzales. 986 F.2d 321 (9th Or. 1993) (Remanded: District COW1 erred in not allowing defendant to 

challenge validity of prior conviction at sentencing hearing. 

"lTlhe Constitution requires that defendants be given the 0pportunity tocoUaterally attackprior convictions which will be 

used against them atsentencing."Bven though a 1990 amendment to § 4Al.2. comment (n.6) indicales consideration of 

such claims is discretionary. and some circuits have so held. 

"we have previously held that a defendant is constitutionally 

entitled to coUaterally at1aCk allegedly unconstitutional prior 

convictions. The Guidelines cannot have changed that. j. 

See Outline at IV.A.3. 

Adjustments 

OBSTRucnON OF JUSTICE 

U.S. v. Kirkland, 985 F.2d 535 (11th Cir. 1993) (Remanded: Bank's investigation, conducted by bank employees 

prior to any law enforcement activit¥-r was-not an "official 

investigation" under § 3CI.I, comment. (n.3(d». Therefore. 

district court erred in applying obstruction of justice enhancement to defendant who caused someone else to lie to bank 

investigators in an ~tempt to hide embezzlement.). 

See Oulline generally at III.C.4. 
Guideline Sentencing Update 

GuUkliM S_~ Updau will bo distributed periodiaUy by the Center to worm judges and other jo>dicial pcISOGDe.I of selected fcdual court decisions on the ._cing 

refonn legislation of 1984111:1d 1981 and !ho Sentencing Guidclinca. Allhollgh the publication may ",fer to the ScoteooiDa Guidelines a.nd policy llalements of !he U.S. SentCllcing 

Commission in the _ten of reporting c:uo holdinp. it is not iolended to IqlOrt Scotmcing Coromillion policies or actividca. Read_ lIbould refer to the Guidelina. poHcy 

statcmen .... commentary. and o!her materia .. iaoed by the Sentencing Commission ror aucb wonnadOll. 

I'Ilblieadon of GuidttliM S#/'IUttci", UpdQ,.,signifies lhat the Center regards it IS a responsible a.nd v alliable work. Jtllboold ooc.bo considered" recommendation oroffic:ial policy 

or the Center. On mattem of poHcy the Center sp<:llb only Ihtough illl Board. 

VOLUMB 5 • NUMBER 11 • APRIL 22, 1993 

Offense Conduct 

DRUG QUAN'ITI'Y 

Firth Circuit sets method to c:akulate orrense level 

wbeD drug aDd prec:ursor chemical are preseDt iD smgle 

oft'ease. Defendant pled guilty to possession of amphetamine 

with inlent to distribute. A quantity of phenylacetic acid. a 

precursor chemical. was included as relevant conduct in the 

offense level. The PSR converted the amphetamine and 

phenylacetic acid to marijuana equivalents. using the Drug 

Equivalency Table in § 2Dl.l. and added the results for an 

offense level of34. Defendant argued that, because his offense 

occurred after the effective date of § 2D 1.11. it was plain error 

to not use thal section for the phenylacetic acid. 

The appellale court remanded. agreeing that § 2D 1.11 

should have been considered. However. the Guidelines "do 

not provide an express method for combining section 20 1.11 

precwsorchemicalswithsection2D1.1controlledsubstances 

or immediate precursors where. as here, the presence of the 

precursor chemical is merely conduct relevant to possession 

of a controlled substance." The equivalency tables in 

§§ 20 1.1 and2D1.11 convert todifferent substances and there 

is "no cross-equivalency table. nor is there any indication 

elsewhere in the Guidelines as to bow quantities of controlled 

substances and precursor chemical are to be aggregated when 

relevant conduct is involved." 

The co1D1looked to the multiple counts guideline for an 

awropriaIe way to combine the amounts. It determined that 

they should be treated as separate offenses groupable under 

§3Dl.2(d). which ''lnentionssections 201.1 and 201.11 explicitly and allows grouping on the .,.is of the quantity of the 

substance or substances involved." That still left the problem 

of aggregating the different amounts DOled above. '"The solution that seems most ~nable to us .•• is to convert the 

phenylacetic acid to marijuana by equating the amounts of 

each that would give rise to the same offense level" in their 

respective quantity tables in §§ 2Dl.l and2Dl.11. Using this 

method, the phenylacetic acid here would have the same offense level as 400-700 kilograms of marijuana under § 201.1. 

The amphetamine converted to 90.72 kilograms of marijuana.. 

using the Drug Equivalency Table in § 2D1.l(c), commenL 

(n.lO). "Giving the defendant the benefit oflenity." the co1D1 

used 400 kilograms for the phenylacetic acid, for an offense 

level of 28 for the combined 490. n kilogram equivalenL 

U.S. v. Hoster, No. 92-8223 (5th Cit. April 7. 1993) 

(Garwood. S.). 

See Outline generally al n.B.4.b. 

Departures 

MmGAnNG CIRCUMSTANCES 

Eighth Circuit holds tbat departure may be permitted 

tor ''senteDcing entrapment,tt but was improper m this 

case. Defendant made seven sales of crack cocaine to an 

undercover officer. He was convicted on six counts of disttibution and one count of possession with intent to distribute. 

The district C01D1 departed pursuant to 18 U.S.C. § 3553(b), 

finding that the continuation of sales after the fourth ttansaction constituted "sentencing entrapment" that was not adequately considered by the Sentencing Commission. 

The appellate court upheld the principle. but reversed on 

the facts: "[W]e bold that sentencing entrapment may be 

legally relied upon to depart under the Sentencing Guidelines. 

but factually was not present in this case .... While we are 

concerned. with tbegovemmentconductin this case,Barth has 

failed to demonstmtethal the govenunent's conduct was outrageous or thal the undercover-officer' s conduct overcame his 

predisposition to sell small quantities of crack cocaine. " The 

court added that it would "not attempt to determine in the 

abstract whatis pmnissibJe and impennissible conduct on the 

pan of government agents. We share the confidence of the 

FU'St Circuit that when a sufficiently egregious case arises, 

the sentencing court may deal with the silUalion by excluding 

the tainted ttansaction or departing from the SenlenCing 

Guidelines." (Reference is to U.S. v. Connell. 960 F.2d 191, 

196 (1st Cit. 1992).) COlUra U.S. v. WiUiams. 954 F.2d 668, 

673 (11th Cit. 1992) (rejecled sentencj.ng entrapment theory 

"as a matter of law;. 

U.S. v. Barth. No. 92-2152 (8th Cit. Apr. 6. 1993) 

(McMillian, S.). 

See Ouiline at V1.C.l.g and 4.8. 

D.C. Circuit bolds that dermitioD or l'DOD-violeDt ot· 

fease" iD f 5K2.13, p.s. is Dot CODtrolled·by f 4Bl.l dermitioD of "crime of violeaet." Defendant ro~bed a bank by 

using a threatening note. He was unarmed, did not hann 

anyone. and shortly thereafte:r surrendered to police without 

struggle. IDs tequest for downward departure for "significantly reduced mental capacity," § SK2.13. p.s.. was denied 

by the district court. which ruled "as a matter of law" that use 

of the threatening note was an act of violence that precluded 

a § SK2.13 departure in a "'non-violent offense." 

The appe1la1e court remanded, holding that the district 

court should examine the circumstances of the offense to 

determine whetheritwas,in fact,non-violenL The coun noted 

that "'non-violent offense' ••• is not defined in section SK2.13 

or anywhere else in the guidelines, nor does section 510.13 

provide examples of 'non-violentoffense[s].' To give content 

to that tenn. a number of courts have looked to the definition 

of 'crime of violence' found in section 4B 1.2" for career 

offenders. See, e.g., U.s. v. Pojf. 926 F.2d 588. 591-92 (7th 

Cir.I991) (en bane); U.S. v.Rosen.896F.ld789. 791 (3dCit. 

1990); U.S. v. Borrayo. 898 F.ld 91. 94 (9th-Cit. 1989); U.S. 

v.Maddalena, 893 F.ld 815,819 (6thCir. 1989). Othercomts 

have considered § 510.13 without reference to § 4B 1.2. See 

U.S. v. Philibert. 947 F.2d 1467,1471 (11th Cir. 1991); U.S. 

v. Spedalieri, 910 F.ld 707. 711 (10th Cit. 1990). 

213 
214 

Guideline Sentencing Update 

The court here declined to use the § 4B 1.2 definition. First. 

"[nJothing in the Guidelines themselves or in the Application 

Notes suggests that section 4B1.2 is meant to conttol the 

interpretation and application of section 5K2.13." While 

"some courts have taken this silence as supporting the decision to rely on section 4 B 1.2." the court found such reasoning 

unpersuasive. 

Second, "significant policy concerns support the view that 

section 5K2.13 andsection4B1.2 should be interpretedindependently. for the sections address entirely different issues." 

Section 4B 1.2 is designed to identify and maximize sentences 

for career offenders. and in its purpose and structure "can be 

read as depriving career offenders of the benefit of the doubt., 

and assuming the worsL" However. "the point of section 

5K2.13 is to treat with lenity those individuals whose 'reduced 

mental capacity' conttlbuted to commission of a crime." 

Noting that departure under I 5K2.13 is not allowed if 

defendant's aiminal history indicares "a need for incarceration to protect the public." the comt concluded that "the term 

'non-violent offense' in section SK2.13 refers to those offenses that. in the act., reveal that a defendant is not dangerous. 

and therefore need not be incapaciUded for the period of time 

the Guidelines would otherwise recommend. ••• A dete.nniJ1a. 

tion regarding the dangerousness of a defendant., as manifested in the particular details of a single crime •••• is best 

reached through a Cact-specific investigation. We therefore 

believe thataDisttictCourt. when deciding whetl1eraparticuJar crime qualifies as a 'non-violent offense: should consider 

all the facts and circumstances swrounding the commission of 

the crime." and the sentencing comt "is not in any way bound 

by the definition of 'crime ofvioJence' under section 4B 1.2." 

U.s. v. Chatman, No. 91-3294 (D.C. Cit. Mar. 16. 1993) 

(Edwards. I.) (Ginsburg. I .• concurring in judgment). 

See Outline at VI.C.1.b. 

Sentencing Procedure 

EVlDEN'I1ARY IsslJES 

u.s. v.Mfi!Ii!. No. 91-3855 (3d Cit. Mar. 22. 1993) (Beeker.I.) (Remanded: District comt based drug quantity on testimony of addicHnfonnant without adequately determining 

whether that testimony had the "sufficient indicia of reliabi1~ 

ity" required by 16Al.3. Pol': "Because of the questionable 

reliability of an addict-informant., we think it is crucial that a 

district comt receive widt caution and scrutinize with care 

drug quantity or other precise information provided by such a 

witness before basing a sentencing determination on that information.j.SeealsoU.s. v. Simmons.964 P.2d763. 776 (8th 

Cit. 1992) (remanded quantity determination--testimony by 

addict-infonnant that was "marred by memory impairment" 

resulting from history of addiction lacked "sufficient indicia 

ofreliabilityj; U.S. v. Robison. 904 P.2d 365. 371-72 (6th 

Cit. 1990) (remanded quantity determination based on estimates by addict-witness with admittedly "hazy" memory). 

See OutliM at H.A.3 and IX.A.3. 

U.s. v. Wise, No. 91-3275 (10th Cit. June 11. 1992) 

(Barrett., Sr. J.) (Remanded: Distt'ict court erred in refusing to 

allow defendant to question probation officer about factual 

basis for conclusions in PSR. Defendant "was entitled. upon 

request., to be infonned by the probation officer preparing his 

presentence report.. of the factual basis or source of any 

infonnation contained in the report which may have had an 

Volume 5 • Nwnber II· April 22. 1993· Page 2 

adverse effect on him during the sentencing process. Upon 

receipt of !he factual basis or source of such infonnation. Wise 

is entitled to a reasonable period of time within which to 

comment upon the reliability of such infonnation in accordance with Rule 32 as construed in Burns [v. U.S., 111 S. Ct. 

2182.2185-86 (1991)].,. [Note: Opinion originally unpublished. released for publication March 199;).1 

See Outline at IX.A.3. 

Criminal History 

ARMED CAREER CRIMINAL 

U.S. v. Max~, No. 92-10336 (9th Cit. Mar. 23. 1993) 

(Hall, J.) (Affinned: In sentencing defendant as an anned 

career criminal. disttict court properly refused to use 14Al.2 

to determine whether two prior convictions were "lelaled" 

and should be counted as one: '*We conclude that section 

4B1.4 does not incorporate section 4A1.2·s definition of 

'related· offenses in determining whether a defendant is 

subject to sentence enhancement under its provisions. and that 

the Guidelines do not displace section 924(e) and ~ law 

interpreting it,. Accord U.s. v. Medina-Gutierre:, 980 P.2d 

980.982-83 (5th Cir. 1992) [5 GSU#7]. 

See OutliM at IV .D. 

Probation and Supervised Release 

REVOCATION OF PROBATION 

U.S. v. Diaz. No. 92--2158 (10th Cir. Mar. 22. 1993) 

(Seymour.J.) (Reversed: When probation is revoked under 18 

U.S.C. § 3565(a) for drug possession and defendant must be 

sentenced "to not less than one-dtird of the original sentence:' 

the tenn '''original sentence' ••. refers to the term ofincan:eralion available at the time of sentencink." not the lengdt of 

probation. Therefore. the revocation senttnce must be based 

on 0-6 month guideline. range. not three-year probation 

term.). Accord U.s. v. Ctay, 982 F.2<i 959. 962-63 (6th Cit. 

1993) [SGSU#8]; U.S. v. Granderson, 969 P.2d980. 983-84 

(11th Cit. 1992); U.S. v. Gordon, 961 P.2d 426. 430-33 (3d 

Cir.lm) [4 GSU#21].COnira U.s. v.B".,tett,961F.2d1399. 

1400-01 (8th Cir. 1992) (per curiam) [4GSU123]; U.s. v. 

Corpuz, 953 P.2d 526.528-30 (9th Cir. 1992) [4GSU'1S]. 

See Outline at VU.A.2. 

REvOCATION 0Ji' SUPERVISED R:a.EAsB 

U.s. v. Tatwn. No. 92--2232 (11th Cit. Apr. 7. 1993) (pet" 

curiam) (Remanded: "We join the majcxity of circuits that 

have addressed this issue and hold that upon revocation of a 

term of supervised release. adistrict court is without stabltoly 

authority to impose both imprisonment and another tam of 

supervised release. j. 

See Outline at VU.B.1. 

Adjustments 

VULNERABLE VICI1M 

u.s. v. Lallemand. No. 92·2178 (7th Cir. Mar. 29. 1993) 

(Posner,J.) (Affumed: Vulnerable victimadjustment., § lAl.l. 

was properly applied to extortion defendant who specifically 

targeted married homosexual who engaged in homosexual 

sex. While susceptibility rp the offense is a "typical feature" 

of extortion, .. [b ]lackmail victims are not all suscq>tible to the 

same degree" and married homosexuals may be considered "a 

particularly susceptible subgroup of blackmail victims. j. 

See OutliM at m.A.l.aand d. 
Guideline Sentencing Update 

GuidlliM Smt.IICUtg Updau will be distributed periodicaUy by the Center 10 inform judges and other judicial pen.DMCl of ocIec:t.ed federal court decisions on the u:01<:neing 

reConn legislation of 1984 wi 1987 ADd tbeSealaleing Guidclina. Although the publication may ftlfCf 10 the Senlaleing OvideliDca ADd policy lllat.emenla of the U.S. Sentencing 

CommisoioQ ill !be coo,", of n:porting cue hoIdinp. it iI not iIlla1ded 10 n:port Senu:neing CommiAion policies or activities. Readen should ftlf« to !be Guidclinea. policy 

stalanents, commentary. and othct materialtl iaa.ucd by !be Sentencing Conunwion Cor such information. 

Publicatioo of GuUJ.1i1llt S,IIUIfciIt, U"",*significa that the Ceoll-..r ",garcia it ... responsible ADd valuable work. It should not be eonsidctcd a n:commendatioo or official pollcy 

of !be Cc::alet. On maltcnI of policy !be Ceo\« ..-u only through ilS Board. 

VOLUME 5 • NUMBBR 12· MAy II, 1993 

General Application Principles sion of the felon-in-possession offense from the definition of 

COMMENTARY 'crime of violence' may not be compelled by the guideline 

Supreme Court bolds that commentary is binding. texL Nonetheless. Amendment 433 does not run afoul of the 

Defendant was sentenced as a career offender, panly because Constiwtion or a federal statute, and it is not 'plainly erronehis instant offense-possession of a firearm by a convicted ous or inconsistent' with § 4B 1.2 •.•• As a result. the comfelon-was held to be a "crime of violence" under §4B1.2. mentary is a binding interpreWion of the phrase 'crime of 

The appe1lare court affirmed., holding that such possession violence.' Federal courts may not usc the felon-in-possession 

"by its nature" is a crime of violence for career offender offense as the predicare crime of violence for purposes of 

pmposes. U.S. v. Stinson. 943 F.2d 1268, 1271-72 (11th Cir. imposing the career offender provision of USSG §4B 1.1 as 

1991) [4 GSUII0]. Shortly after that decision, the commen- to those defendants to whom Amendment 433 applies." 

tary to § 4B 1.2 was amended to expressly exclude the felon- The Court did not address whether the amendment should 

io-possession offense from thedefinition of crime of violence. be applied retroactively, finding that the issue was not pro~ 

Defendantrequesledarehearing, arguing that the amendment edy before the Comt and should be decided first by the 

should be given retroactive effect. The appellate court denied appellale court on remand. 

the request and reaffinned, holding that the amended com- StillSon v. U.S .• No. 91-8685 (U.S. May 3, 1993) 

mentary is not binding. U.s. v. Stinson, 9~ F.2d 813, 815 (Kennedy,].). 

(11th Or. 1992) (per curiam) [4 GSU 119]. See OutUne at I.E and F, and IV.B.1.b. 

In a unanimous decision, the Supreme Court vacated and 

remanded. holding "that commentary in the Guidelines Criminal History 

Manual that interprets or explains a guideline is authoritative CAREER. OFFENDER. PROVISION 

unless it vioJales the Constitution or a federal stabile. or is 

inconsistent with, or a plainly erroneous reading of, that 

guideline. "The Court cited its decision in WilUam.r v. U.s .• 

112 S. CL 1112, 1119 (1992): "Where .•• a policy statement 

prohibits a district court from laking a specified action, the 

statement is an authoritative guide to the meaning of the 

applicable guideline." and failure to follow such a policy 

statement is "an incorrectapplication of the sentencing guidelines" undea'18 U.S.C. § 3142(f)(1).1fele the Court held that 

"[o]ur hoJding in Williams dealing with policy statements 

applies with equal force to the commentary befom us." See 

DUO § IB 1.1 (failure to follow commentary that interprets or 

explains a guideline "could constitute an incorrectappJication 

of the guidelines" subject to reversal). 

The Court added that "[i]t does not follow that commentary is binding in all instances .••• moo guidelines are the 

equivalent of legislative rules adopted by fedetal agencies. 

The functional purpose of commentary (of the kind at issue 

here) is to assist in the intetprel:ation and application of those 

rules, which are within the Commission's particular area of 

concern and expertise and which the Commission itself has 

the first responSibility to formulate and announce. In these 

respects this type of commentary is akin to an agency's 

interpretation of its own legislative rules. As we have often 

stated, provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it 

must be given 'conlrOlling weight unless it is plainly erroneous or inconsistent with the regulation. , .. 

Following these principles. the Comt concluded that the 

amendment must be followed: "We recognize that the excluD.C. Circuit holds that the career offender provision 

does DOt apply wbeD the iDstaDt oI!'~ is a conspiracy 

to commit a contnUed substance crime. Defendant pled 

guilty to a conspimcy charge undez 18 U.S.C. § 371, the 

object of which was possessioo with intent to dis1ribute PCP. 

He was sentenced as a career offender under §4Bl.1 and 

appealed, arguing that the definition of controlled substance 

offenses in §4Bl,2. comment (n.1), exceeded the statutory 

mandate in 28 U.s.c. § 994(h) by including conspiracies to 

commit such offenses. 

1heappeUatecourtagreedandremanded. The Sentencing 

Commissioncxplicitlybased theC8l'eel'offenderprovision on 

§ 994(h). which in relevant part stales that a sentence "at or 

near the maximum term authorized .. sha1l be imposed on a 

defendant who is convicted of one of sevetal specifically 

listed drug felonies-eachofwhich is asubstantiveoffenseas well as two prior such drug felonies or violent felonies. The 

court reasoned that "conspiracy to commit a aime involves 

quite different elements from whatever substantive crime the 

defendants conspire to commit •.•• Thus. conspiracy to violate the sections specified in § 994(h) cannot be said to be one 

of the offenses "described in' those sections." 

The court concluded that "the Commission has acted 

explicitly upon grounds thai: do not sustain its action. Because 

. we fmd its stated basis-§ 994(h)-inadequate for Application Note l's inclusion of conspiracies;Note .... cannot support 

Price's sentence as a career offender." Although in this case 

only the instant offense and § 994(h)(1)(B) were at issue, the 

court noted that § 994(h)(2)(B). which applies to prior qualifying felonies, "poses the same problem. "The court left open 

215 
216 

Guideline Sentencing Update 

whether the Commission could reach the same result under 

different authority. such as its broader mandate in § 994(a). 

U.S. Y. Price. No. 91-3335 (D.C. Cir. Apr. 23, 1993) 

(Williams. J .). 

See OUJiine allV.B .2. 

Departures 

MmGA11NG CIRCUMSTANCES 

Niatb Circ:ultaflirms departure 'or "coercive" govern-

• eat coaduct duria, iavestl,atioa aad 'or oae 

de'eadaat'. DledicaJ coadidoa. In the course of investigating illep1 weapons sales at "swap meets" in Arizona. an 

unden:over agent made conlaCt with defendants. Defendants 

initially demurred when the agent tried to get them to sell 

automatic weapons and silencers. but over the next three 

moatbs the agent persisted and persuaded them 10 do so and 

also to seU several handguns to a convicted felon. After 

defendants refused a plea agreement and unsu.ccessfu1ty filed 

motions to dismiss the indictmentforoutrageou.s governmental conduc::t during the investigation, the government filed a 

superseding indictment with additional charges against one 

defendanL Defendant's motion to dismiss that indictment f(l" 

prosccutorial vindictiveness was denied. At bial, defendants 

unsuccessfully moved f(l" acquittals based on entrapment. 

were found guilty on several counts, and filed motions for 

judgment notwithstanding the verdict. 

The district court denied the mov motions. but departed 

from the defendants' 1S-21-month ranges to six months of 

house arrest. sixty months' probation. and 100 hours of 

community service. The court found departure appropriate 

because "the conduct of this investigation, although DOl 

amounting to entrapment. was sufficiently coercive in nature 

as to warrant adownward depanuIe undcrOuidelineSK2. 12," 

p.s. Tbc court also departed. pursuant to II SH13, p.s. and 

SK2.0, p.s., for one defendant who "suffers from a medical 

condition. pmic disorder with agomphobia. which is a mitigating ractorof a kind not adequately raken into consi<b:ation 

by the Sentencing Commission." 

The appellacc court affinned: "We arc satisfied that the 

senleDCing court was sufficiently Il'OUbled by the defendants' 

arguments on entrapment. prosecutorial misconduct and vindictive prosecution to the extent that although not satisfied 

that the indictments should have been dismissed and a judgment NOV entered. it had the authority to reflect its concern 

in p:onouncing sentence. The court stated in advance what it 

intended to do, and opcntingprecisely within the Sentencing 

Guidelines, it relied on section SK2.l2, p.s. to support its 

action .••• Agent MwiUo did not threaten the defendants. but 

it was he who initially proposed the illegal activity and 

persistently contacted Joe Juarez by telephone and in person 

over several months until the scheme was completed. This sort 

of aggressive encouragement of wrongdoing. although not 

amounting to a complete defense, may be used as a basis for. 

departure under section SK2.12," The coW't noted that. CODtrary to the government's argument. "threats of violence are 

not a prerequisite to application of the guidelines in cases of 

'imperfect entrapment. , .. 

For the one defendant's mental condition. the court concluded "that the district court had authority to grant a downVolume 5· Number 12· May 11, 1993 • Page 2 

ward departure based on sections SHI.3 and 5K2.0. The 

language in section 5H 1.3 •• Mental and emotional conditions 

are not ordinarily relevant' (emphasis supplied), indicates 

that the commission intended these factors to playa part in 

some cases, albeit a limited number." The cowt noted that 

this departure was not based on § 5K2.l3. p.s., "which concerns diminished capacity." 

U.S. Y. Garza-Juarez. No. 92-10187 (9th Cir. Apr. 23, 

1993) (Aldisert, Sr.J.). 

See OUlliM at VI.C.I.b and g . 

U.S. Y. Gaslcill. No. 92-5588 (3d Cir. Apr. 16.19(3) (Weis, 

J.) (Remanded: Districtcourt incorrectly held it lacked discretion to depart downward for fraud defendant who was sole 

caretakerofhis seriously mentaUy ill wife. Section SHl.6. p.s. 

precludes departure f(l" family ties and responsibilities under 

ordinary circumstances. but "[t]he rc:con:I demonstrates circumstances quite out of the ordinary. The degree of care required f(l" the defendant's wife-the lack of close supervision 

by any family member other than the defendant. the risk to the 

wife's weU;being, the relatively brief., . imprisonment sentence called f(l" by the guidelines computation, the lack of any 

end to be served by imprisonment other than punishment. the 

lack of any threat to the community-indeed. the benefit to it 

by allowing the defendant to care f(l" his ailing wifo-are all 

factors that warrant depanure." The court emphasized that 

"departureS are an important pan of the sentencing process 

because they offer the opportunity to ameliorate. at least in 

some respects, the rigidity of the guidelines themselves. 

District judges, therefore, need not shrink from utilizing 

departures when the opportunity presents itself and when 

circumstances require such action to mng about a fair and 

reasonable sentence. j. 

See OUJliM at VI.C.l.a. 

U.s. Y. MUler, No. 92-30083 (9th Cir. Apr. IS, 1993) 

(Kozinski, J.) (Remanded: The district C9Urt departed d0wnward 10 a sentence of six months' home detention, which 

defendant completed before this appeal. In remanding for 

reconsidcIaIion of whether any departure was proper. the 

appellate court held that if the appropriate sentence must 

include prison time. the district court *may depart downwanl 

by up to six months to take into account [defendant's] home 

detention" because the Sentencing Commission "seems not to 

have considered the issue of compensating for time err0neously served.j. 

See OUJliM generally at VI.C.4. 

U.S. Y.Uwinson, 988F.2d 1005 (9thCir. 19(3)(Affmned: 

Appellate court rejected the government's argument that 

defendant's reduction in mental capacity was not "sufficiently 'significant' or 'serious' to meet the requirement of 

§SK2.13[, p.s." • Tjhe govemmentasks us to read into this 

section a requirement that the 'qualifying mental disease 

be severe, [and] that it affect the defendant's ability to perceive reality,' However, the plain~guage of this section 

authorizes departure on a showing of 'significantly reduced 

mental capacity' without qualification as to the nature or 

cause of the reduced capacity (except with respect to voluntary drug use).,. 

See OurliM at VI.C.l.b. 
Guideline Sentencing Update 

rat'ocm 

GtoiMIiM 

iqpIllllial 

~ 

011914 

u,-,. 

.. 1m 

wiD..,. 

IIId the 

~ 

s..c.mna J*iooIicaIly 0v.i.0nIiae 

by 

~ 

the C_IO 

.. pulIIicaIiaa 

iDfann juda 

may 

.. aItIII 

M!If 

dher 

10 the 

jIodicW.,--...I 

s.~ 0uid0IiaM 

olllllieclM 

I11III 

fed..t 

poIicy .. 

OOUJI. 

_ 

~ 

ollhe 

lID 

u.s. 

the 

~ 

~ 

CcmmUIicIa ill .. __ 01 RIJICIrIiIIl-1aaWiftp. ill. DOl ....... 10 RIfIOI' SanIa>ciIII C--kws poIicica cwllClivilia ....... Ihould MfIt 10 tho GWdeIincc. policy 

•• 1 .... CCIIIIlIICIIIII. and ocbcr IDIIlaWa Iaued by" !lIa!tarin1 Ommi..;m l«.uch iftfaauw.. 

PlablicmmoiGtoiMliM~ UpMMapm._ .. CenIer .... il •• ~altlllvahlabicworlt.Jlohould_beccnaidc:rocl. _dalimorCJftici&lpolicy 01 .. CeDer. 011 __ 01 policy It. CenIer IpeIb aaI.:r &hrcJa&b ila Boud. 

VounGS • NUMBBa 13. JlINII3. 1993 

General Application Principles 

RELEvANT CONDUCT 

SecoacI Circuit holds that Double Jeopard, Clause 

prublbits puaishment for aD offense wben the aaune conduct WIll used to iDcrease delendaDt·. offense levellD a 

prior proeeecl.iq. Defendanl was coovictedon scvem1 fraud 

charges in the DisIliCl of Coonecticut. 0Ibcr fraudulent c0nduct that had occurred in Vermona. and far whicb defendant 

faced federal charges there, was used as relevant conduce to 

incttase bis offease level. After die Conoecticut sentencing, 

defendant moved to have an of the charges in Vennont 

dismissed on double jeopardy grounds. Tbc Vennont district 

courtbeld that prosecution was barred ooly on the counts used 

by the Coonecticutcourt to increase that offense level. Defendant appealed the order, and the government cross-appealed. 

arguing that theIe was no double jeopardy poblem at all 

Tbcappellalecourtaffirmed.andfoUowedthe dJreo.factor 

analysis set forth in U.s. v. Koonce, 945F.2d 1145.1149-54 

(lOCh Cir. 1991) [4 GSU 19). in bolding that proseeution of 

conduct already used 10 set a Ouidelines offense level would 

violate the "multiple punishments prong of the Double Jeapanly Oause. .. F'D"Sl. the Connecticut sentence "'reflects part of 

McCormick's Vermont conduct. Thus. any fwther prosecu. 

don ••• far this ronduct would subject him to die possibility 

ofmuldplepunislunentsforthesamecooducc."Second, "[a]n 

examinadon of the Ouidelines: and tho fraud guideliDe in 

particular, indicates that Congress and tho Commission did. 

not intend to allow a defendant "to beprosecutcd for conduct 

already used to eo.bance bis or bel offeose IeveL"1binl. "the 

avaDability Of concurrent senliellCcS does not climiD8le this 

double jeopardy pobIem" because of the ""potential adverso 

coUataa1 c:onsequences'" of furtber' convictions. On the otber 

band, "tbosc c:ounIS of the [Vermont] indiament that did not 

affect dleConDedicutcomt's Ouidelincs calculations are not 

simi1ady barred from use. .. U.s. v. McConnkk. No. 92-1470 (2d Cir. Apr. 28, 1993) 

(Oakes. J.) (Mahoney. J .• dissenting from dismissal of Vermont counts). 

See OutUne at I.A.3. 

SENTENCING FACTORS 

U.s. v. Harris. 990 F.2d 594 (l1tb Cir.l993) (Remanded: 

In light of28 U.s.C. I 994(k). Hit is inappropriate 10 imprison 

or extend the term of imprisonment of a federal defendant for 

the purpose of providing him willl rehabilitative treatment" 

Defendant was serving a state sentence forconduct Iaken into 

account in his offense level for the instant federal offense. 

Under I SG1.3(b) (1991), his fedeml sentence should have 

been concurrent with the state term, but the districtcowt made 

it consecutive so that the defendant would serve enougb time 

in federal prison to undergo a full drug treatment program.). 

See Outline at I.C and V.A.3. 

AMENDMENTS 

U.s. v. Prezioso, 989 F.2d S2 (1st Cir. 1993) (Afranned: 

Two criminal history points under 14Al.1(d) were properly 

added becausedefeadantc:ommiued the instant offense while 

under a "aiminal justice sentence" -an unpaid fine. Before 

defendant was sentenced, the commentary 10 14AI.I(d) was 

changed to "clarify" that a sentence 10 pay a fine was nota 

"criminal justice sentence." Tbc appeDate court held. bowever, that in light of clear circuit precedent to the contrary Ibis 

amendment. altbougb labeled as "clarifying," was actually "a 

change in die meaning of a clear and unambiguous guideline 

.•. [and] is not entitled. to retroactive effect j. 

See Outline at I.E and IV.A.6. 

Adjustments 

OBSTR.UcnON OF JUS11CE 

Yarst Circuit holds that attempted escape froID state 

custodJ before start of federal Investigation IDa, warI'IIIt obsCrudion enhaDcenaent. After bis arrest by Maine 

police for a check-kiting scheme. defendant unsuccessfuUy 

auempted to escape from the county jail. ShonIy lhereaftet 

a federal investigation of defendant's activities began and 

evencua11y led to federal cbarges and a plea of guilty to bank 

fraud and impetSOD8f.ing an IRS aaent. Based 00 the escape 

auempt., the district court increased his offense le'vel under 

I3CU forobsuuction of justice. DefendantappeaJed.claimins that an auempted escape from SIafe aulborities before the 

federal investigatioo had begun was DOl a proper basis for the 

enbancemenL 

The appellate coon affu:med: "The commentary to 

[13Ct.l] makes clear that 'escaping or attempting to escape 

from custody before Irial ex' seDCencing' falls witbin the 

defJDition of obsIructiveor impeding conduct. ••• The slightly 

more difficult task is defining when conduct can be said 10 

have occuned 'during the investigation ••• of the instant 

offense.· .. 11Jc cowtconcluded that "the guidelines should be 

read in a common-sense way. Doing SO here strongly suggests 

that the povisioo may be uiggered if, notwithstanding the 

lack of an ongoing federal investigation, there is a close 

connection between the obstructive conduct and theoffenseof 

conviction. In this case the connection is skin tighe the 

behavior underlying appellant's arrest by local gendarmes •.. 

is the very essence of the offense for which the disllict coun 

sentenced him." 

11Jc court also reasoned tbal the commentary to § 3CU 

consistently refers to obstructive conduct "without any limitation 10 federal custody, federal officers, or official federal 

investigations." In swn, "we hold that~ long as some official 

investigation is underway at the time of the obstructive conduct. the absence of a fedeml investigation is not an absolute 

bar to the imposition of a section 3Cl.l enhancemenL" See 

also U.S. v. Lato. 934 F.2d 1080, 1082-83 (9th Cir. 1991) 

21 ' 
218 

Guideline Sentencing Update 

(affmned enhancement for obstruction of stale investigation 

prior to federal action) [4 GSU #1]. 

U.s. v. EmI!ry. No. 92·1619 (1st Cir. Apr. 28. 1993) 

(Selya.J.). 

See Ou.tline at m.C.4. 

ACCEPTANCE OF REsPONSmlLlTY 

U.s. v. BrolLSsard, 987 F.2d 215 (5th Cir. 1993) (Remanded: It was error 10 deny § 3El.l reduction to defendant 

who refused plea agreement and went 10 Irial in order 10 

contest whether the law applied 10 IUs conduct; he did not 

"den[y] the essential factual elements of guilt." see § 3EU, 

comment. (n.2).). 

See Olllline at m.E.4. 

Criminal History 

INvALID PalOR C0NVlC110NS 

Wbe&her Appl.icatioo Note 6 10 § 4Al.2 (as amended Nov. 

1990) limits chaI1eages to prior convictions at sentencing 

continues 10 divide the circuits. TIuee recent opinions: 

U.s. v. Elliolt. No. 92·2434 (8th Cir. May II, 1993) 

(Loken. J.) (Affmned: Appellate counrejected challenge 10 

U.s. v.Hewiu,942F.2d 1270 (8th Cir. 1991), whichheJdlhal 

Note 6 requires that any priorcooviction not invalidaled pria 

to sentencing must be counted. The coon also held "that 

Application Note 6 as coastrucd in Hewiu passes constitutional mUSltZ" in limiting collateral attacks.) (Arnold, CJ., 

dissenting on constitutional issue). 

U.s. v. Roman. 989 F.2d 1117 (lIth Cit. 1993) (en bane) 

(peI:curiam) (Affirming disarlctcourt,reversing panel opinion 

that held 14Al.2 and ac:companying commenwy gave the 

dislrict c:oun discrctioD 10 review priclr convictions. see 960 

F.2d 130 (I1thCir. 1992) [4 GSUm]. Theenbanccounheld 

that "'Ibo amended text of Note 6 is plain: under 14Al.2, 

dislrid: courts can exclude only convictions that have already 

been ruled invalid. Nothing in Note 6, much less the guidelines 1bemsCJvcs. authorizes district courts 10 question stale 

convictions for the first time at sentencing." The court also 

stated that the Constitution requires such c:ol1ateral review 

only when a defendant "sufficicndy asc:rts facts that show 

thatsearlierconvictioo is 'presumpd~yvoid,'" a showing 

not made in this case.). 

U.s. v. Browll, No. 92-7353 (3d Cit. Apr. 30, 1993) (Alito" 

J.) (Remanded: District coon incorrecdy ruled it did DOt have 

di.scretionto considerdefendant'sconstitutional chaUengesto 

prior convictions. -We bold that under the CUl1'tlDt versioo of 

the Guidelines. a sentencing judge has authority 10 pennit 

such constitutional challenges. •.. If the Commission did not 

intend Ibis intetpreWion. it can very easily clarify irs inlent 

whenitnextpromulgaresGuide1inesamendments."Thecourt 

also Slated that such challenges should be handled by following the procedures set forth in U.s. v. JollU. 977 F.2d lOS, 

110-11 (4th Cir. 1992).). 

SecOu.tliM at IV.A3,and summary of U.s. v. Yea-Gonzales. 

986 F.2d 321 (9th Cir. 1993) in 5 GSU #10. 

CONSOLIDATED OR RELATED CASES 

U.s. \I. Smilh, No. 91·50029 (9th Cir. Apr. 22, 1993) 

(Wiggins. J.) (Reversed in part: Opinion at 982 F.2d 354 

Volumc 5· Number 13· June 3,1993. PaIC 2 

withdrawn and reissued., the appellale court now holding that 

defendant's two prior assault convictions should be COWlIed 

as one. Even though the two assaults involved different 

victims, dates, and locations. and were not part of a common 

scheme. the cowt held that they "must be considered related 

because they were 'consolidated for ... sentencing: U.S.S.G. 

§ 4Al.2(a)(2) &. commenL (0.3) .•.. ThereJs no need for a 

formal consolidation order for cases to be 'related' undec 

section 4Al.2. .•• The rule is 'all prosecutions combined for 

lrial or sentencing [count] as a single conviction: ••. Smith's 

prior convictions were sentenced in the same poceeding by 

the same judge under the same docket nwnber. This satisfies 

section 4Al.2. ,. 

See Ou.tliM at IV .A I.e. and delete reference 10 Smilh in 

paragraph 3. 

CAREER OWENDEIt. 

U.s. v. CDTrilIo, No. 9O-S0704 (9th Cir. Ap'. 19, 1993) 

(waUace. CJ.) (Affirmed: Defendants were properly sentenced as care« offenders even though one of their required 

prior violent felonies was committed at age 17 and they were 

committed 10 the California Youth Authority. Both defendants had been tried as adulrs and received sentences exceeding one )'tar and one month. Thus. under the defmitions in 

§ 4Al.2(d)(I) &. commenL (n.7) and § 4B1.2, commenL 

(0.3), each defendant had received an "adult sentence of 

imprisonment" for a "prior felony conviction.,. 

See Ou.tline at IV .A4 and generally at IV .B.2. 

Departures 

CRIMINAL HISI'ORY 

u.s. v. HtwlerlOlI, No. 92-1019 (9th Cir. May 17. 1993) 

(Beezer, J.) (Remanded: District court improperly departed 

upward 00 ground that defendant's criminal history score 

inadequately reflected the "extIemely violent and serious" 

-nature of his two previous convictions. Citing U.s. v. Morrisoll. 946 F.2d 484, 496 Om Cir. 1991) [4 GSU '10], the 

appeUar.e coon concluded that the "district c:oun did DOl believe lhal the Sentencing Commission overlooked anything 

in awarding aiminal bistaypoints; thedislrictc:oun believed 

that the SeDlCDCingCommission did DOtassigo enough points 

for these panicuJar offenses. That belief may be morally correct. However, the Senteocing Commission c:bosc 10 award 

defendants three aiminal histmy points for every conviction 

leading to a sentence ofgreater than one year,regard!ess of the 

nature of the underlying offense conduct," and thus 

defendant's prior offenses were '·adequately considCled. j. 

See Ou.tline at VI.A1.c. 

Sentencing Procedure 

PRocmURAL REQUIREMENTS 

u.s. v. Palrick. 988 F.2d 641 (6th Cir. 1993) (Affirmed: 

District court is not obligated 10 notify defendant before 

sentencing hearing that it wiD disregard presentence report 

recommendation 10 allow acceptance of responstbility reduction: "the guidelines clearly put lhe..burde!l of proof on the 

defendant 10 show acceptance of responsibility. The favorable 

recommendation of the probation deparUnent does not all« 

this, whether or not the government objects. j. 

See Ou.tline at IX.E. 
Guideline Sentencing Update FEDERAL JUDICIAL 

~ CENTER 

GWMU,., S~ItCu., Upda'" wiU be distributed periodicaUy by the Center 10 Worm judges and ather judicial pezsoo.oel of $elected federal court decisions on the sentencing 

refonn"e~~iOQ of 1984 and 1987 and the Sentencing Ouidelines. Although the publicatioft may refer 10 !he Sculcllcing Ouidelines and policy mlCmenls of the U.S. Sentencing 

Col'llllllilalon m!he _ten of I'qIOrting c:.ue boldiop. it ia nOl intended 10 report Sentencing Commission policies or activities. Read"", should refer to !he Guidelines. policy 

Slat_I&, commentary. and otbet mal.eriala iaaucd by the Sentencing Commission for such infonnation. 

PllbiicatiOQ of GWMIi,., S,.""'lICi,,, Upda"'signifies that the Center regards it &$ a respollSibie and valuable work. II should lIot be considered a recommendation or official policy 

of the Center. On malle .. nf policy the Center spat. only through its Board. 

VOLUMB 5· NUMBBIl 14· JUNt! 22. 1993 

Departures 

MrnGATlNG CIRCUMSTANCES 

First Circuit revises standard or review ror departures 

to give district courts more ''leeway" in some situations. 

10iningtwodownwarddepartw:ecasesforpwposesofappeal. 

the FU'St Circuit revisited the issues of district coon d.isaetion 

in and appellate review of departures. One defendant was 

convicted of a drug offense and requested departure based on 

hel" circumstances, which included sole care of three young 

children. dependence on welfare. and no previous criminal 

record. The district coon denied the departure. indicating ic 

felt constrained by the guidelines. The o. defendant embe:l:zled from his union and received a departure to probation. 

The coon reasoned that defendant would lose his job and the 

ability to pay restitution, and that imprisonment served no 

useful purpose. 

The appellate coon began by analyzing the four basic 

kinds of departures set forth in the Guidelines. There are 

"encouraged" departures, such as those in § SK that list 

specific factors that may warrant departure. There are departures that are "discouraged" but not prohibited, as in § SH 

whel"e cmain factors are listed as "not ordinarily" warranting 

departure: 1'hus, a sentencing court, considering whether tY 

not the presence of these 'discouraged' factors warrants 

departure, must ask whether the factors themselves are 

present in unusual kind or degree." There are also "forbidden" 

departures, prohibited for cmain factors even if they make a 

case "unusual." 

Then there are cases that fall outside the "heartland" of 

typical offense behavior. The Introduction to the Guidelines 

"makes clear that (with a few exceptions) a case that falls 

outside the linguistically applicable guideline's 'heardand' is 

a candidate for departure.. It is, by definition, an 'unusual 

case.' ... The statute says that the senlenCing court considel"-

ing adeparture must ask wile. the Sentencing Commission 

has 'adequately taken into consideration' the aggravating tY 

mitigadng circumstance that seems to make a case unusual. 

But, the Commission itself has explicitly said that (with a few 

exceptions) it did not 'adequa.lely· take unusual cases 'into 

consideration. ." Thus, aside from the relatively few "forbidden" factors. "the sentencing court is free to consider, in an 

unusual case, whether or not the factors that make it unusual 

(which remove it from the heartland) are present in sufficient 

kind or degree to warrant a departure .••• The court retains this 

freedom to depart whether such departure is encouraged, 

discouraged, or unconsidered by the Guidelines." 

With this in mind, the court expressed concern that U.S. v. 

Diaz-Villafane, 814 F.2d 43 (lst Cir. 1989). "suggested review that provides no 'leeway' for the district court" because 

it stated that review of "whether or not" thecin:umstances "are 

of a kind or degree" to warrant a departure is "essentially 

plenary." The court therefore m~ the standard of review 

to distinguish "certain decisions in this category where review 

should take place without 'leeway: from others where, despite the technically legal nature of the question, we nonetheless should review with 'full ... respect for' the sentencing 

coon's 'superior "feel" for the case: ... Plenary review is 

appropriate where the question on review is simply whethel" 

or not the allegedly special circumstances ... are of the 'kind' 

that the Guidelines, in principle, pennit the sentencing court 

to considel" at all ••.• Plenary review is also appropriate where 

the appellate court, in deciding whelhel" the allegedly special 

circumstances are of a 'kind' that pennits departure, will have 

to pmonn the 'quintessentially legal' function ... of interpreting a set of words, those of an individual guideline, in light 

of their intention or purpose, in order to identify the nature of 

the guideline's 'heartland' (to see if the allegedly special 

circumstance falls within it)." 

"In many othel" instances, not anticipated by Diaz-VUlajane, the district coon's decision that circumstances are of a 

'kind,' or 'degree: that warrant departure will not involve a 

'quintessentially legal' interpretation of the words of a guideline, but rather will amount to a judgment about whethel" the 

given circumstances, as seen from the district court's unique 

vantage point, are usual or unusual. ~ or not ordinary, 

and to what extenL ••• [A]ppellate courts should review the 

district coon's determination of 'unusualness' with 'full 

awareness of. and respect for, the triel"'S supcrior"feel" ftYthe 

case: ... not with the undezstanding thatreview is 'plenary. '" 

With that, the appellate court remanded both cases. In the 

first case, most of the circumstances are of the kind for which 

departure is "discouraged," but not forbidden. The district 

coon should detennine whethel" they are unusual enough to 

I1lC2it departure. It may not be unusual for a drug offender to 

be a single mother with family responsibilities, '"but.. at some 

point, the nabJre and magnitude of family responsibilities 

(many children? with handicaps? no money? no place for 

children to go?) may transform the 'ordinary' case of such 

circumstances into a case that is not at all ordinary." 

In the othel" case. the cowt held that "the embezzlement 

guidelines encompass, within their 'heartland,' embezzlement accompanied by nonnal restitution needs and 

practicalities (i.e., the simple facts that restitution is desirable 

and that a prison tenn will make restitution harder). "Thus, 

"ordinary restitution circumstances ... do not wanant departure." However. "a special need of a victim for restitution, and 

the surrounding practicalities, might, in an unusual case, 

justify departure." Here, for example, there was evidence that 

defendant would not lose his job if imprisoned no more than 

one year, which would only requi.re1ttJuee..month departure, 

and the district court may consider this fact on remand. 

U.S. v. Rivera, No. 92-1749 (1st Cit. June 4, 1993) 

(Breyer, CJ.). 

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

219 
220 

Guideline Sentencing Update 

u.s. v. Aguilar. No. 90-10597 (9th Cit. May 12. 1993) 

(O'Scannlain. J.) (Hall. J., dissenting) (Affirming that downward deparrure may be based on "the additional punislunent" 

a convicted federal judge "would suffer during the course of 

potential disbarment and impeachment hearings." Potential 

removal from life-tenured position, disqualification from 

future government appointments, and loss of pension rights, 

distinguish defendant's situation "both qualitatively and 

quantitatively. from the 'substantial pain and humiliation' 

suffered by criminal defendants who are 'well-known figures in the worlds of government and finance.' For that 

reason, we reject the suggestion that the additional punishmentJudge Aguilar will suffer is not 'atypical'" Also, "Judge 

Aguilar is the first convicted federal judge to be sentenced 

under the Guidelines. As such, his case does not appear to fall 

within the heartland of cases for which the Guidelines were 

designed." Case was remanded. however, for cxplanadon of 

extent of departure.). 

See Outline at VI.C.1.h, 3, and 4. 

AGGRAVA11NG CIRCUMSTANCES 

U.S. v. McAninch. No. 91-30433 (9th Cir. May 20, 1993) 

(Fletcher, I.) (Affirmed: Defendant. who pled guUty to mail 

fraud and mailing threatening commWlications. "waged a 

campaign of harassment and intimidation" against people 

whom he did not know but believed to be interracially married. The disttict court departed upward. in pan because of the 

racist nature of defendant's offenses. "Because it is not 

o!herwise treated in the guidelines. we •.• agree with the districtcourtthat adefendant's racist motivaDon is avaUd ground 

for departure. j. 

See Outline generally at VLB.1. 

Criminal mstory 

CAREER OFFENDER PRO~ION 

u.s. v. Hayes. No. 91·30432 (9d1 Cit. June 9. 1993) 

(Wright, J .)(Affinned: Defendant was properly sentenced as 

a career offender because his instant offenses of being a felon 

in possession of a sawed-off shotgun and possessing an 

unregistered sawed-off shotgun "otherwise involve conduct 

that presents a serious potential risk of physical injury to 

another," §4Bl.2(IXii). "We have held that 'being a felon in 

possession of a fueann is not a crime of violenceforpurposes 

of applying the Career Offender guideline.' ••• Those cases. 

however. did not consider charged conduct involving sawedoff shotguns. . • . [S]uch weapons are inherently dangerous, 

lack usefulness except for violent and criminal purposes and 

their possession involves the substantial risk of improper 

physical force."). 

See Outline at IV .B.l.b. 

U.S. v. Wagner, No. 92-2011 (10th Cir. May 18. 1993) 

(Brorby. J.) (Remanded: Instant conviction for possessing a 

listed chemical with intent to manufacture a controlled substance, 21 U.S.C. § 841(d), is not "a controlled substance 

offense" for career offender purposes. First. even though an 

"immediate precursor" of methamphetamine-P2P. which is 

classified as a controlled substance-was seized when defendant was arrested, "the definition of controlled substance for 

Volume 5· Nwnber 14' June 22.1993· Page 2 

purposes of the career offender section ... refers to the charged 

offense" only, not to relevant conduct. Second. § 84l(d) "is 

not, by its plain terms, a federal or stale law that prohibits 

manufacture or possession ofa controlled substance," and the 

Guidelines "specifically distinguish possession of a controlled substance from possession of a listed chemical with the 

intent to manufacture a controlled substance. j. 

See Outline generally at IV.B.l.a. 

Offense Conduct 

CALCULATION OF Loss 

U.S. v. Watkins. No. 92-5830 (6th CU. June 1. 1993) 

(Engel, Sr. J.) (Remanded; District court improperly calculated loss under § 2Fl.l as face value of worthless checks in 

chect-Idting scheme without makirig specific findings on 

intended and possible loss. "[T]hree factors must be present 

for an amount of loss to be relevant under section 2Fl.l. First. 

as application nole 7 instructs. the defendant must have 

intended the loss. Second, it must have been possible fex the 

defendant to cause the loss. 'I'hird. the defendant must have 

completed or been about to complete but for intemJption. all 

of the acts necessary to bring about the loss." For the last 

factor. the appellate court held that note 7 "must be read in 

conjunction with section 2X1.1(b)(l), which governs attempts. ••• If the defendant's conduct does not meet [that 

section's] requirements. that conduct qualifies only as an 

attempt. and section 2Xl.l(b)(l) directs that the offense level 

be reduced accordingly.j. Cf. U.s. v. Frydenlund, 990 F.2d 

822,825-26 (5th Cir. 1993) (affirmed: check-Idting would 

not be treated lite fraudulendy obtained loans, in which loss 

is reduced by whalever collateral bank: may recover; here. 

amount of loss was properly calculated as bank's out-ofpocket loss because no repayment had been made at time of 

sentencing and future payments were speculalive). 

See Outline at ll.D.2.a. 

DauG QUAN'ITI'Y 

U.s. v. Wagner, No. 92-2011 (10th Cir. May 18. 1993) 

(Bmby, J.) (Remanded: Defendant pled guilty to possessing 

a IisIed chemical (phenylacetic acid) with intent to manufacture a controlled subsCancc (methamphetamine). The only 

substance actually seized after arrest was a quantity of P2P, 

an "immediate precursor" of methamphetamine made from 

phenylacetic acid. The district court incorrecdy set !he base 

offense level by estimating the amount of methamphetamine 

that could have been produced from theP2P. The Guidelines 

have a two-step procedure when a listed chemical offense 

involves an attempt to manufacture a conttolled substance. 

F'ust. apply §2D1.1l to the amount of phenylacetic acid 

involved (estimating if no amount was actua11y seized). Then, 

following the cross-reference in § 2Dl.ll(c)(I), use 

§2Dl.l(c) and comment.(n.l0) to convert the P2P into its 

marijuana equivalent to get an offense level. Use the higher of 

the two resulting base offense levels')-cf U.S. ". Hoster, 988 

F.2d 1374. 1380-82 (5th Cir. 1993) (discussing interaction 

of §§ 2D 1.1 and 2D 1.11 when controlled substance and listed 

chemical are both present) [5 GSU #11]. 

See Outline generally at n.B.4.b. 
Guideline Sentencing Update 

GNidrlilW S-1Idnt Upda,. will be distributed pmodlcalJ)' by !be C-to Worm judpa aad odIer judidal peISOCIDd of rdocud federal court ~ OG !be HIIIoeGc:iD, ~ 1epIMioa0l' 19&411Dd 1911 aod Ibe~ GIriddlaa.. AIIboaab dlepablialioll_)' .crto!beScat.eaciD& GuiddlD .... nd poIiq 51&_11 ohho U.s. Sc:m.mcia, 

Coa:ImiIlioo iD die _teat 01' rcportia, cue bokliDp., it. ill DOt iatcado4 to IN:pOtl Sc:m.mcia, 0... .... policies or accmlia.. Readas IhouId mel'to !be ~ poliq 

5I&1aMaII, COIIBIIlCDI&I').1IDd other .... teriaIs iaocd by !be Sc:m.mcia,Commleeloll ror.- WOIIDIICioD. 

PlabllCIIiooDtO"'UMS./lkltCiAr Upda,.aipirlCltbat!beCcalct ...... it •• -ro-'bIoaad ....... wort.lttboWdllOtbeccnsidercd. RlCOIIIIIIa\da\iooorolrdalpoliq or !be Caar. 011_ 01' poliq \he Ccalef..,.u oaJ)' Ihroot)I ita Booud. 

VOLUMBS· NUMBBit IS· JULY 22. 1993 

Offense Conduct 

DRUG QUAN'IlTY 

Seventh Circuit holds that Guldelilles' foreseeability 

aDalysis must be used to determiDe quaDtity of drugs 

aUribufable tGcoaspiracy defeDdaDt for purposesotmaadalorJ RDteDces. Defendant was convicted of a marijuana 

distribution conspiracy. The district court held him zesponSIDle for lite entire amount attributed to the conspiracy12,500 plants-which resulted in a mandatory life sentence 

under 21 U.s.c. § 841{b)(IXA). The evidence indicaled thai 

defendant had acted as a broker. and received a commission. 

for one sale of 700 pounds. He argued on appeal that u.s. v. 

Bdwards. 94S F.2d 1387 (7th eir. 1991). which held Ihalonly 

.reasonably foreseeable drug quantities may be attributed to 

a conspiracy dd'endant undet the Guidelines. should also 

apply 10 computing quantity under § 841{b). 

The appcUate court asr= and remanded. The court 

found persuasive the "reasoned approach" of the two cin:tiits 

that have "dercrmincd that the foreseeability analysis employed in the Guidelines context is also applicable in the 

SIalUtory context." See U.s. v. Marlinez, 987 F.2d 920. 923-

26(2dCir.I993) [SGSU#10]; U.s. v. JOIW,96S F.2d 1507. 

1516-17 (8th Cit. 1992). "Accordingly. we join the other 

circuill thal have confronted the issue in holding that. in 

imposing a sentence for conspiracy under the mandatmy 

provisions of section 841{b). the district court must determine the quantity of drugs thai the defendant could reasonably have foreseen." 

The court added that. under Edwards, ""lite scope of the 

agreement lJet!Ieen the defendant and his co-conspirarors" is 

of "particuJar impmance." Also. the district court should 

make ""specific factual findings regarding each defendant's 

no:asonableawareness of the quantity of drugs involved in the 

conspiracy." See also U.s. v.Becerra.No. 92-30115 (9thOr. 

1uly 16. 1993) (Wright. J.) (At nOle 2: ""We reject the 

government's argument thai sentencing under lite statutory 

minimumsshouiddifferfromtheGuideUncs. ••• Accordingly. 

the govcmme.nt still must show thai a particular defendant 

had some connettion with the larger amount on which the 

sentencing is based tx' that he could reasonably foresee thai 

such an amount would be involved in the lnUlSaCtions of 

which he was guilty.") (opinion was originally issued May 5. 

1993 and printed 31992 F.ld 9(0). 

u.s. v. Young, No. 92-1431 (7tb Cir. June 24. 1993) 

(Ripple. J.). 

See Outline at n.A.2 and 3. 

Loss 

u.S. v. Ravoy, No. 92-2661 (8th Cir. June 7. 1993) 

(Hansen, J.) (A£fumed: In equity skimming scheme that 

involved defaulting on mortgages, defendants were properly 

held responsible under § 2Ft.1 for the loss caused by another 

who defaulted on the mongage of a house purchased from 

defendan1l. Before selling that property defcndanll made no 

mongage payments and. as with the other properties in their 

scheme. never intended to pay that mongago-"1ltc loss the 

defendanll intended 10 inflict at the time they skimmed. the 

propcn.y ~ the loss ultimately sustained. j. 

Sec Ol#llne at D.B.2.b. 

Criminal History 

INvALID PRIOR CoNVlCDONS 

u.s. v. /ItIIICS, No. 92-2129 (1st Cir. June 22. 1993) 

(Oakes. Sr. J.) (Affirmed: Note 610 §4AI.2""is intended 10 

ptT.cludc c:ol1atera1 review of prior convictions," and the 

Background Commcntaly "does not provide an independent 

basis for the review ofpriorconvictions .. but is only meant 10 

leave 10 the sentencing court whether the Constitution requires such a review. On the bttez issue., the appellate court 

held that ""the Constitution tt.quUes a review of the constitutionality of pritx' convictions at sentencing only where the 

priorconvicdon is "presumptively void.· .. tbaUs. ... constitutional violation can be found on lite face of the pri~ conviction. without further factual investigation. "). 

U.s •. v. Byrd. No. 92-5623 (4th Cr. June IS. 1993) 

(Walkins, J.) (Affirmed: "Applicalion Note Six provides no 

independent authority ftx' a district court 10 refuse 10 count a 

prior conviction that has not previously been ruled c0nstitutionally invalid. ••• [TJho Background Commentaly does not 

change the meaning of Application Note Six; it merely ICCOgnizes that the Guidelines cannotUlkeaway a-right 10 anaclcthe 

validity of a prior conviction at sentencing that is afforded by 

the Cons1itutir ;" or a statute. ••• Thus. the Guidelines provide 

that prior convidioDs that have not previously been· mled 

constitutionallyinvalidmustbecountedunder§4AI.2unJess 

the Constitution tx' federal statute tt.quires that the district 

court entertain a chaUenge 10 the conviction. "). 

Sec Outline at IV.A.3 and cases in 5 GSU #13. 

CONSOLIDATED OR RFLATED CASES 

U.s. v. McComber, No. 92-3298 (8th Cir. June 28. 1993) 

(per curiam) (Affirmed: District court did not CD' in ttealing 

prior sentences as wuelated under § 4Al.2(a)(2) and Note 3. 

Defendant's five prior sentences ""were imposed 31 a single 

March 17. 1992. sentencing proceeding. However. the sentences resulted from different offenses committed over a 

lengthy period of time. They were imposed on the same day 

because sentencing for some of.the offenses had been postponed 10 allow restitution. while sentencing for others followed tbcrevocation of probation. Mostoftheiinal sentences 

were made concurrent. but the cases remained under separate 

docket nwnbers and no order of consolidation was entered. "). 

See Outline at IV .A.l.c. 

.. 

221 
222 

Guideline Sentencing Update 

Adjustments 

ACCEPTANCE OF RESPONSmlL1TI' 

Fourcireuits have recendy held that the 1992amendrnent 

to § 3E 1.1. that allows an additional one-point reduction for 

acceptance of responsibility in some instances. should not be 

applied retroactively. See U.S. v. A vila. No. 93-1063 (lOth Cir. 

June 28. 1993) (per curiam); U.S. v. Dowty, No. 93-1634 (8th 

Cir. June 25. 1993) (per curiam); Desouza v. U.s .• No. 92-

2444 (1st eir. June 14. 1993) (per curiam): U.s. v. Cacedo. 

99OF.2d707.710(2dCir.I993). 

See OutliM generally at I.E. m.E.4. 

General Application Principles 

RELEVANT CONDUCf 

u.s. v. Evbuomwan. 992 F.2d 70 (5th Cit. 1993) (Remanded: Error to attribute fraud loss caused by third party 

without a specifIC finding that such activity was within the 

scope of agreement with defendanL Even if defendant knew 

of the activity, "the mere knowledge that aiminal activity is 

taking place is not enough for sentence enhancement under 

§ IB 1.3. The rule does not hold accountable any person who 

reasonably suspectS that criminal activity is taking place. 

regardless oftheir' own involvemenL To [be] accountable fa:' 

1hccrimeofa third person, the govemmenimustestablish that 

the defendant agreed to jointly undertake aiminal activities 

with the third person. and that the particular crime was within 

thescopeofthatagreernenL ••• TheappropriatcappHcationof 

§ IB 1.3 requires giving temporal primaq to the detelJnina. 

fun of whether a defendant has agreed to jointly undenake a 

criminal aclivity.1f the defendant has not joined the criminal 

ac:Iivity, it does not matter that he could have foreseen the 

criminal acL The reasonably foreseeable standard applies 

only ~ it is shown that a jointly undertaken activity has 

taken place. j.See also U.s. v. Garrido.No. 92-2925 (8th Cir. 

June 3, 1993) (Magill. J.) \Simple knowledge" that cocon· 

spiralorpossessedothetdrugsisnotsufficient-mayattribute 

those drugs to..defendant only if coconspi!at«'s possession 

was in furthcranceof conspiracy and reasonablyforesceablc); 

U.s. v.lmaond. 993 F.2d 1498 (11th eir.I993)(districtcourt 

must make "individualized findings concerning the scope of 

criminal activity undertaken by a particular defendant"). 

See Outline at I.A and n.D.4. 

AMENDMENTS 

U.s. v.Fagan.No. 88-5439 (9th Cir.June2S. 1993)(Canby,J.) (Appellate. court remanded sentences, noted thatdefendant should then be resentenced under the current Guidelines 

even Shough he was originally sentenced in 1990: "It is well· 

settled that. when sentencing a defendant, the district court 

must apply the version of the Sentencing Guidelines in effect 

on the daleof sentencing •••• [U]pon remand forresentencing. 

• • • absent an ex post facto problem, the district court must 

apply the version of the Sentencing Guidelines in effect on the 

dale of resentencing. j.Accord u.s. v. Gross. 979 F.2d 1048. 

1052-53 (5th eir. 1992); U.S. v. Hicks. 978 F.2d 722. 72J5-27 

(D.C. Cir. 1992); U.s. v. Bermudez, 974 F.2d 12. 14 (2d Cir. 

1992): U.s. v. Edgar, 971 F.2d 89, 93 n.4 (8th Cir. 1992): 

U.s. v. Kopp. 951 F.2d 521. 534 (3d Cit. 1991). 

See OutliM at I.E. 

Volume 5· Number 15· July 22.. 1993· Page 2 

Departures 

CRIMINAL HISTORY 

U.S. v. Ruffin. No. 92-1335 (7th Cir. June 29. 1993) 

(Easterbrook,. J.) (Remanded: It was error to fix the extent of 

upward departure by reference to the career offender guideline instead of following the criminal history departure procedure in § 4A13. p.s. Defendant did not have the required two 

prior felony convictions as defmed in § 4B l:2;and "[n]othing 

in the career offender guideline, or any of the commentaIy 

concerning departures. invites ajudge to apply these pcnallies 

to defendants who have not been 'convicled..' ••• Only R\al 

convictions support a sentence under sec. 4B 1.1. Rec0nstructions and other efforts to approximate the seriousness of a 

criminal history ••• must be treated as sec. 4Al.3 provides. j. 

See Oudine at V1Al.b. 

AooRA. VA11NG CIRCUMSTANCES 

U.s. v. Hicks, No. 92-50127 (9th Or. June 28. 1993) 

(O'ScannJain. J.) (Affinn_ in pan: Propel' to depart upward 

under I SK2.12, p.s.. fa:'"terroristic nature of" and "'potential 

for great destruclion" from defendant', activities. Defendant 

carried out a series of "terroristic" attacks (Xl the Intemal 

Revenue Service ova' four years. Among other dUngs, he 

planted car bombs at and launched. mortar attacks againstlRS 

buildings. Theapplicableoft'ense guideline. f 2K1.4, does not 

account fa:' such activity. And while that guideline "oonlemplates the possibility that the conduct underlying the offense 

mayhaveputpeopleatristofbodilyhannoreYCll death.1here 

is nothing to indicate that fit accounts for] the degree of risk 

thatthe district court foundwaspresentbaelt--had thebombs 

and mortars worked propedy, many people would probably 

have been killed and injured. However, i.he senleaCe must be 

remanded because the district court did not provide a sufficient explanation for the extent of the depanure.). 

See Outline at V1.B.1. 

Determining the Sentence 

SuPERVISED RD.BAsE 

u.s. v. Ravoy. No. 92-2662 (8th Cir. june 7, 1993) 

(Hansen. J.)(lWnanded: Sencencing court coukl not impose 

a term of "inactive supervised releaso"-"'strictly fa:' the 

purposes of administering and monitoring the rqJllJIDCIIt of 

{defendant's] reslitution obUgalioos"--chat. combined widt 

the "active" tem1S of release. exceeded the maximmn SIaIUttry teim of supervised releafe. This had die effect of impos. 

ing conseculive te:rmsof release.. which are prohibited by u.s. 

v. GuIUc:boll.982F.2d 1231,1235-36 (Bib Cir.I993)(supervised release lenns must be concurrent) [5 GSU 18].). 

See OU/line at V.C. 

Certiorari Granted: 

u.s. v. Granderson. 969 F.2d 980 (11th Cit. 1992). cert • 

granted. 113 S. CL - (June 28.1993) (No. 92-1662). Issue: 

Does "original sentence" in 18 U.S.C. § 3S6S(a)--which 

mandatesasentenceof'*ootlessthanooe-thinloftheorlginaJ 

sentence" when probation is revoked for drug possessionrefer to the term of probation originally imposed or to tem1 of 

imprisonment originally available under the Guidelines? 

See OUllineal Vll.A.2and cases in 5GSU#II. 
Guideline Sentencing Update 

G .... ~,.. ~./WN:"" UpdtJlIt will be distributed ,periodically by ~ Ccmer to inl<>?" ~g .. and other ~ici.1 ~ or seIec1cd fedenl court dccisioR5 Oft ~ --.cing 

n:Ionll.~1~1OIl 0( 19841.Od 1987-:00 the Sml<:nCUlg GUIdelines. Although the publtcallon lI'I&y refer to the Sentencing Guidclin .. and policy stau:mcnllO of the u.s. Scntmcing 

Commi_ 1ft the context of rq>Ol'tIn, cue holdings. it is not intended to rq>OJt Sentencin, Collllllisaion polic::i .. or ~ ..... Reade" sbould refa to the Guidelinea. policy -_cau. _ry. ADd other mateNla iaUJed by the Sentencing Coram.iaion for AICh infotm.llioft. 

PllbliCllion of G .... Ii,.. S./WlICiAr Upda ... ,ijplifi .. wt ~ Center rqardll it as a raponsible md valuable _Ik. It sbould _ be considered .. tcCOrnntendatioa or offic::ial policy 

of the Center. OIl maltenl of policy the Ccnlet opct.b only Ihtough iu Boatd. 

VOI.JJMB 6· NUM81!R 1 • AUOUST 9,1993 

General Application Principles 

POLICY STATEMENTS 

Seventh Circuit bolds tbat district eourts "must rollow 

policy statemeats unless they contradict a statute or the 

Guideline5.t

• Defendant's five-year tenn of supervised release was revoked for drug possession. Under 18 u.s,c. 

§ 3S83(8), he was subject to a prison tenD of not less than 20 

months. Under die Guidelines he was subject to a 12-18 

month tenn, or 20 months in light of the mandatory tenD 

undert3S83(s). See §§ 7B1.3, 7Bl.4(a) &: (b)(2), p.s. The 

government argued that the Chapter Seven policy stalements were merely advisory, not binding. The district court 

agreed and sentenced defendant to 36 months. 

The appeUarccowt remanded: "Both parties agree that the 

correct interprecation of this policy statement leads to the 

conclusion that the district court must sentence Lewis to 20 

months imprisonment-no more and no less. •.• While we 

may have been previously inclined to accept the proposition 

that policy swements arc merely advisory •.•• this view has 

been explicidy rejected by •• • Sdnsoft v. u.s., 113 S.Ct.1913 

(1993). In reaching its holding that sentencing guideline commentary is binding, unless contrary to statute or the Guidelines 

themsdws. die Court [stated]: 'The principle that the Guidelines Manual is binding on federal courts applies as well to 

po1icystatements.'/d.at191'."Therefore,"weareccmpel1ed 

to hold that the districtcounerred by notsentencing Lewis to 

2Omonlhs imprisonment. absent a departure. ... U.s.s.G. sec. 

1B1.4(b)(2) does not conflict with any statute or the Guidelines themselves. Consequently. Lewis must be resentenced." 

U.s. v. /:;ewil. No. 92-2586 (7th Cit. July 8. 1993) 

(Kanne,J.). 

Note: This appears to be the first circuit to hold that the 

Chapter Seven policy Stalemcnts must be followed. Most of 

thecin::uits hadheld,priortoSdnsoft,thalOiapIetSeven must 

be considered but is not binding. See OUtliM generally at YD. 

Offense Conduct 

DRUG QUAN'ITIY-MANDATORY MJN1MUMS 

U.S. v. Mergusoft, No. 92-1179 (Sth Or. July 12, 1993) 

(King. J.) (Remanded: For defendant convicted of conspirICY to distribute heroin, it was error to use amounts he 

negotiated to seD to find him responsible for over one kilogram Of heroin and thus subject to the Slabltol'y minimum 

term under 21 U.s.C. § 841(b)(I)(A)(i). Although Regotiared amounts are used under the Guidelines. see § 2Dl.1. 

comment (n.12), ""§ 841(b)(1)(A)(i) requires that drug quantities actually be possessed with the intent to distributerather than merely being negoUated-[and] the district 

court's ftndings for purposes of guidelines sentencing are in 

large part inapplicable to the court's separate fmdings pursuant to § 841(b)(1)(A)(i)." Therefore. "the district court had 

to fand ... that Mergerson actually possessed or conspired ... 

to actually possess over a kilogram of heroin during the 

conspiracy. , .. Mere proof of the amounts 'negotiated' with 

the undercover agents, •. would not count toward the quantity of heroin applicable to the conspiracy count j. 

See Outline at D.A.3 and BAa 

Departures 

SUBSTAN11AL AssISTANCE 

Third Circuit bolds govenunent may DOt deay f SKI.I 

modoD to penalize defendant for exerdsiDl riBht to trial. 

The government offere4to move for a substantial assistance 

depanure if defendant pled guilty to mail !mud and money 

laundering charges. Defendant refused to plead to money 

laundering because he beUeved thestalutedid notapply to his 

conduct. The government responded by "Mthdmw[ing] the 

proposed t SKU plea agreement offer based on [defendant's] refusal to plead." and added that it also had "serious 

reservations" about defendant' S 1nIthfulness. which could also pecludea § SK1.1 modon. Defendant was convicted 00 all 

counts and no § SK1.1 motion was made. Defendant claimed 

the district cowt could depart under Wade v. U.s •• 112 S. Ct. 

1840 (1992), because the government had an unconsdtutional 

motive for denying the motion-to penalize him for going ro 

triaL He also claimed that his assislancewasequaltoorgrearer 

than that of two defendants who pled guilty and received 

departures. The district court denied defendant's request. 

stating that Wadt did not prohibit the government's action. 

The appellate coon remanded: -rile Court in Wade stated 

that a district coon may grant relief to a defendant if the 

prosecutor bas 'an WlCOftSIitutional motive' for withholding a 

§ SK 1.1 motion •••• OJt is an elementary yioladoo of due 

process for a prosecutor to engage in conduct detrimental to a 

criminal defendant for die vindictive purpose of penalizing 

the defendant forexercising his constitutional right to atrial." 

On remand, defendant can attempt to pove prosecutorial 

vindictiveness. He is not entided to a presumption of vindictiveness. however, '1Jecause the government has proffen:d 

legitimaJe reasons ••• for its refusal to file a SK1.1 motion: 

namely. that defendant's assistance was not. in fact.substantial. Thus.. defendant "must prove actual vindictiveness in 

order to prevail. • • • [H]e must show that die prosecutor 

withheld a SKU motion solely topenafu:e him forexercising 

his right to Irial." and this requires showing '"that the 

government's staledjustifications ••• are pretextual." 

u.s. v. Paramo. No. 92-1861 (3d Cir. July 1, 1993) 

(Cowen. J .). 

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

Fifth CIrCuit relUDds refusal_ fde-§5KI.lmotioo 

because "signifICant ambiguities" in the plea agreement 

require a determination oltbe iDtent oftbe parties. Defendant entered inro a plea agreement with the govemmenL At 

defendant's rearraignment. the government told the diSbict 

223 
224 

Guideline Sentencing Update 

court ",bat it is implicit although oot spelled out in the 

agreement tbat jf Mr. Hernandez should provide substantial 

assistanee to the Govenunent, ... tbat the Government may 

make a motion for downward departure at sentencing." Defendant provided information, but the government claimed 

the assistance was insubstantial and did not rue a motion. 

Defendant claimed that he provided the govenunent with all 

the infonnation it requested, but the government did not 

follow up on it and did not Bive him an opportunity to provide 

more assistance. Defendant was scnlenCed to the statutory 

minimum after refusing the chance to withdraw his plea. 

The appellate coon remanded, holding that the district 

court must determine whether the government's conduct was 

consistent with the parties' reasonable understanding of the 

plea agreement. which in this case involves "the parties' 

interpretation of what might constitute substantial assistance." Here. "it is unclear from the reconl what more 

Hernandez could have provided-«. more to the point. what 

more the government could possibly have contemplar.ed that 

he would provide-in order to earn a motion for downward 

departure." The Flfth Circuit has held that when a defendant 

accepted a plea agreement in reliance on government reprcsenWions"and did his part, orstooci ready to perform but was 

unable 10 do so because the government had no further need 

or opted oot to use him, the government is obliged to move for 

a downward departure." See U.s. v. Melton. 930 F.2d 1096, 

109S-99 (5th Cir. 1991) [4GSU IS]. 

As to whedter the government's use of "may" instead of 

"shall" move fordeparture pveitgreaterdiscretion. the court 

stated: "We fand it difficult if not impossible to believe that 

any defendant who hopes 10 n:ceivea [f SKU motion] would 

knowingly enter into a plea agreement in which the government retains unfettered discretion to make or not to make that 

motion, even if the defendant should indisputably provide 

substantial assistance. On remand •••• the govemment should 

not be heard to maIce the legalistic argument that merely by' 

using the word 'may' the government is free 10 exercise the 

prosecutor's discretion whethet to make the motion .•.• 

Frankly ,We are incredulous that any defendant would consciously make such an obviously bad deal absent some 

exttemcly compelling need to plea ralbet than stand 1riaI." 

U.s. v. Hef'NJlldn. No. 92-7485 (5th Cir. July 7.1993) 

(Weiner, J.). 

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

U.S. v. Dixon. No. 92-S780 (4th Cir. July 2. 1993) (HaU,J.) 

(Remanded: The government breached the plea agreement by 

not making a § SKl.1 motion. Theagn!ement staled that if defendant's .. cooperation is deemed by the Government as pr0-

viding substantial assistance in the investigation or prosecution of another person." the government would maIce the m0-

tion. The government "repeatedly conceded" defendant had. 

in fact. substantially assisted an investigation. but wanted 10 

withhold the motion until defendant assisted in a ft.Jtwe 1riaI. 

Noting that the agreement provided for assistance in the 

investigation or prosecution of another, the appellate court 

held that "the government has no right to insist on assistance 

in both investigation and prosecution ..•• Dixon's providing 

substantial assistance in the investigation of another person 

has already triggered the government's duty under the plea 

agreement .... Dixon is entitled to specific performance. j. 

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

Volume 6· Number I • Aup"'t 9.1993' Page 2 

u.s. v. Beckett. No. 92-5091 (5th CiI. July 7. 1993) 

(DeMoss.l.) (Remanded: Although the government specified 

it was moving under § SKU only and not for a departW'e 

from the statutory minimum under 18 U.S.C. § 3553(e). the 

district court bad discretion to depart below the statutory 

minimum. U[O]nce the motion is filed, the judge has the 

authority to make a downward departure from any or all 

counts. without regard to any statutorily mandated minimum 

sentence. We see nothing in these provisions that causes us 

to believe that Congress intended to pennit the government 

to limit the scope of the court's sentencing authority by 

choosing 10 pac1cage its substantial assistance representation 

in a 5K1.1 motion rather than a 3553(e) motion. ,. 

See Outline at VI.F.3. 

Adjustments 

ACCEPTANCE OF REsPONSIBILITY 

u.s. v. Clemons. No. 92-6285 (6ch Cir.July 19. 1993) 

(Milburn, J.) (Affinned: Adopting the reasoning of u.s. v. 

Frazier, 971 F.2d 1076, 1084 (4th Cir. 1992), the appellate 

court held that "conditioning the acce~ of responsibility 

reduction on a defendant's waiver of his Fifth Amendment 

privilege against self·incrimination does not penalize the 

defendant for assertion of his right against self incrimination 

in violation of the Fifth Amendment." Thus, it was proper 

to deny the f3El.1 reduction to a defendant who accepted 

responsibility for the offense of conviction but refused to 

admit to reIaIed conduct. The court noted, however. that the 

1992 amendments to §3Et.1 and Applicatioo Note 1(8), 

which did not apply to defendant. "'would appear 10 pteelude 

the Fifth Amendment issue from arising in the future •••. ' 

U.s. v. Hicks. 978 F.2d 722. 726/..D.C. Cir. 1992).,. See 

also U.s. v. Mtuch. No. 92-3343 (10th Cir. July 9. 1993) 

(Logan. J.) (Affirmed: § 3El.1 reductioo properly denied to 

defendant who followed advice of counsel and refused 10 

discuss circumstances of offense with probation officer preparing presentence repcrt,. claiming he might incriminate 

himself and desuoy basis for appeaL). But see U.s. v. 

iAPie"e. No. 92·10321 (9th Cir. July 12. 1993) (Norris. J.) 

(Remanded; District coon may not deny'§ 3E1.1 reduction 

because defendant claimed privilege apinst self-incriminalion and refused to discuss facts with probatioo officer and 

planned to appeal-excrcise of constitutional rights may not 

be weighed against defendant.). 

See Outline at m.E.2 and 3. 

ROLE IN mE OFFENSE 

U.S. v. Webster. No. 9()..50699 (9th Cir. June 11,1993) (per 

curiam) (Remanded! Di$lrict court should consider whether 

defendant qualiftes for minor participant adjustment-based 

on all relevant conduct-for his role as a courier. However. 

downward. depanme may not be considered under U.S. v. 

Valdn-Gonzaln. 957 F.2d 643 (9th Cit. 1992). which held 

that depanme for a drug courier may be appropriate if the 

courier was the only jJarticipanf' in the offense of conviction. The Nov. 1990 amendment to § 38's Introductory Commentary. which states that relevant conduct should be uscY 

for role in offense adjustments, effectively overwmed t1 

reasoning of Valda-Gonzaltz. which focused on the fact 

tbat the earlier version of § 38 1.2 did not adequately account 

for a defendant's role in relevanl conduct}. 

See Outlint~ at 111.8.5. 
Guideline Sentencing Update n:f';;;:~~~a!:,~:~Cli;LU:::::~;:~ !~IY by the: Center to inform judges and other judicial personnel of selected federal court decisions on the: sentencing 

C " 'the: III WIlleS, Allhwgh the publlcauon may n:fer 10 the: Sentencing Guidelines and policy SlatemenlS of the: U S Sentenc' 

omnuSSlon In conte"t of reponiog ca.se holdings. it is DO( intended 10 n:port Sentencing Commission policies 01' activities Readers should n:fer 10 the: Gui.iei'nes l~'" slateme?u.. ,commenl,ary" and ollx:r ~a11 i~ by the Sentencing Conunission fOl' such information,' I , po ICy 

PublicallOllofGulde/llle Se_ItCIIII UpdlUe S1gntflCldlatthe:Cenr.:rn:gardsit uan:sponsible and valuable work. It should do! be 'den;d ndati " 

of the Cenler, On mattt:n of policy the: Cenler speaks ooly Ihrough ilS Board. COIISI a recomme on OC'olTlCIaI policy 

VOLUME 6 • NUMBER 2 • SEPTEMBER I, 1993 

Offense Conduct 

DRUG QuANTITY-MANDATORY MINIMuMs 

Fourth Circuit holds Guidelines' reasonable foreseeablllty analysis should be used to determine drug quantities for mandatory minimum sentences under 21 U.s.C. 

§841(b). Two defendants in a large drug conspiracy were 

s~bject to ten-year minimum terms if they were held responSible for the full amount of drugs distributed by the conspiracy.21 U.S.C. §§ 846 and 841 (b). However. under the Guidelines' reasonable foreseeability analysis a smaller quantity of 

drugs would be attributed to them and their sentences would 

be significantly lower. The district court sentenced them to the 

mandatory tenn using the full amount from the conspiracy. 

but also imposed alternative sentences under the Guidelines. 

The appellate court held that it was improper to automatically use the full amount of drugs from the conspiracy for 

purposes of the mandatory minimum. The court looked to the 

statutes and legislative history to "conclude that the most 

reasonable interpretation of the relevant statutory provisions 

requires a sentencing cowt to assess the quantity of narcotics 

attributable to each coconspirator by relying on the principles 

set forth in Pinkerton [v. U.S., 328 U.S. 640(1946)]:'Tohold 

a defendant liable for acts of other conspirators under 

Pinkerton, .. the act must be 'done in furtherance of the 

conspiracy' and 'be reasonably foreseen as a necessary or 

natural consequence of the' conspiracy," 

The relevant conduct section of the Guidelines "incorporates the concept of reasonable foreseeability as described in 

Pinkerton" and should be used to "determine the application 

of § 841(b}for a defendant who has been convicted of § 846." 

~ court held ~t "in order to apply §841(b) properly, a 

district court must first apply the principles of Pinkerton as set 

forth in the relevant conduct section of the Sentencing Guidelines. U,S.S.G. § 1B1.3, to determine thequantityofnarcotics 

reasonably foreseeable to each coconspirator within the scope 

of his agreement. If that amount satisfies the quantity indica.~ in § 841 (b). the district court must impose the mandatory 

minimum sentence absent a higber sentencing range resulting 

from application of the Sentencing Guidelines. If the quantity 

is less than that set forth in § 841 (b). the statutory mandatory 

minimum sentencing provision would not apply." 

The court held that the alternative sentences imposed 

under the Guidelines in this case were proper, and remanded 

for amendment of the judgments. 

U.S. v. Irvin, No. 91-5454 (4th Cir. Aug. 23, 1993) 

(Wilkins. J.). 

See Outline at n.A.2 and 3. 

CALCULATING WEIGlIT OF DRUGS 

U.S. v.Johnson, No. 91-1621 (7thCir.July29.1993)(Lay, 

Sr. J.) (Remanded: For defendant convicted of possession 

with intent to distribute cocaine. it was error to include the 

weight of waste water in which a small amount of cocaine base 

was mixed. 'The waste water does not serve as a diJutant, cutting agent or carrier medium for the cocaine base. It does not 

'facilitate the distribution' ... of the cocaine in that cocaine is 

not dependent on the water for ingestion, and unlike a dilutant 

or cutting agent, the waste water does not in any way increase 

the amount of drug available at the retail level. The liquid. with 

just a trace of cocaine base. is merely a by-product of the 

manufacturing process with no use or market value .... To read 

the statute or Chapman [v. U.S., 111 S. Ct. 1919 (1991)] as 

requiring inclusion of the weight of all mixtures, whether or 

not they are useable, ingestible. or marketable. leads to absurd 

and irrational results contrary to congresSional intent."). 

See Outline at n.B.I. 

General Application Principles 

SENTENClNG FACfORS 

D.C. Circult holds en bane that, alter granting a 

reduction for acceptance of responsibility, the sentencing 

court may consider defendant'. decision to go to trial 

when plcldng the sentence within the guideline range. 

Defendant was convicted at trial on a drug charge. The district 

court granted a § 3Et.t reduction, but expressed reservations 

about giving defendant the full benefit of the two-point reduction in light of his going to trial win "he. in effect, had no 

defensc," and later made a "rather meager" acknowledgment 

of responsibility. The court stated that, if defendant had pled 

guilty before trial. it would "have sentenced him at the very 

~ttom of the ?uidelines," ~ut because "the case did go to 

tnal, I am gOlDg to add an additional six months to the 

guideline sentence that I intend to imposc," and sentenced 

defendantto 127 months instead of121. The original appellate 

panel affinned. rejecting defendant's claim that he was punished for exercising his Sixth Amendment right to trial. U.S. 

v. Jones, 973 F.2d 928 (D.C. CII'. 1992) [S GSU'3]. 

The en banc court affirmed, "although on narrower 

grounds .... [I]t is clear ••. that the district judge could not 

properly be described as enhancing defendant's punishment. 

Instead, in considering appellant's decision to admit guilt only 

after conviction. the judge merely viewed the appellant's 

timing as pertinent to· the scope of the benefit he should 

receive. The judge decided he should give appellant less of a 

benefit than he would have allowed an otherwise identical 

defendant who showed greater acceptance of responsibility 

by acknowledging his guilt at an earlier stage." 

The court added that, looking at the pre-adjustment guideline range as a "baseline sentence." "the sentencing judge 

. appears simply to have given the defendant four-fifths of the 

possible credit for acceptance of r~onsil?iJity (24 out of 30 

possible months). explaining that if Jones had shown greater 

?vidence of contrition (in this instance by pleading guilty), the 

Judge would have made a greater adjustment."1t was "legally 

relevant (and constitutionally unobjectionable)" for the districtjudge to conclude thal, "within the 121 151 month range 

225 
226 

Guideline Sentencing Update 

the judge was bound to work within, Jones's limited remorse 

deserved only a 24-month reduction." 

U.S. v. Jones, No. 9]-3025 (D,C. Cir. July 2; 1993) (en 

banc) (Williams. J.) (three judges dissenting). 

See Outline.at I.C and III.E.4. 

RELEvANT CONDuer 

U.S. v. Jenkins. No. 91-3553 (6th Cir. Aug, 20, 1993) 

(Joiner, Sr. Disl J.) (Remanded: It was error to attribute to 

defendant all drugs distributed by the conspiracy on the basis 

that defendant "certainly could have reasonably foreseen" 

such amounts! "foreseeability is only one of the limitations on 

the ability of the court to charge one participantin a conspiracy 

with the conduct of the other participants •.•. Anotbel' limitation on the court's ability to charge a defendant with the 

conduct of othel's is that the conduct must be in furtherance of 

the execution of the 'jointly undertaken criminal activity.' .. 

Thus, the district court must also determine ''the scope of the 

criminal activity [defendant] agreed to jointly undertake:"). 

Sec Outline at I.A.1 and n.A.2. 

Departures 

MmGATING CIRCUMSTANCES 

u.s. v. Restrepo. No. 92-1631 (2d Cir. July 26, 1993) 

(Kearse. J.) (Remanded: Although consideration of alienage 

is not prohibited by the Guidelines, it was improper to depart 

downward for defendant who faced deportation and other 

coUatera1 consequences due. to his status as a permanent 

resident alien. Consideration of "national origin"is prohibited 

by § 581.10, p.s., but national origin "is notsynonymous with 

·alienagc,' i.e .. simply not being a citizen of the country in 

which one is present. ••• Thus, the prohibition against consideration of national origin does nOt constitute a prohibition 

against consideration of alienage. • • • ['110 the extent that 

alienage is a characteristic shared by a large number of 

persons subject to the Guidelines, it is a characteristic that, for 

sentencing pwposes, is not 'ordinarily relevant." It remains, 

however, a characteristic that may be considered if a sentencing court finds that its effect is beyond the ordinary" in nature 

or degree. In tbis.casc, however, "none of the bases relied on 

by the district court, i.e., (1) the unavailability of preferred 

conditionsofconfincment, (2) the possibility ofan additional 

period of detention pending deportation following the 

completion of sentence. and (3) the effect of deportation as 

banishment from the U.S. and separation from family,justified thedepanurc.j. Cf. U.s. v. Alvarez-Cardenas. 902 P.2d 

734, 131 (9th Cit. 1990) ("possibility of deportation is not a 

proper ground for departure'"); U.s. v. Ceja-He17llJlldez. 895 

F.2d 544, S4S (9th Cir. 1990) (reversed upward departure 

based on fact that anticipated deportation after release precluded imposition of fine or supervised release). 

See Outline generally at VI.C.4.b. 

U.S. v. Ziegler. No. 92-3242 (lOth Cir. July 23, 1993) 

(Brorby, J.) (Remanded: District court improperly departed 

downward for defendant's post-offense drug rehabilitation. 

"[W]e hold drug rehabilitation is taken into account for 

sentencing purposes under U.S.S.G. 3EU (l991) and, therefore. rehabilitation is generally an improper basis for departure." Even in extraordinary or unusual cases rehabilitation is 

not a proper basis for departure: "Although [§5Ht.4, p.s.) 

explicitly refers to drug dependence, not drug rehabilitation, 

Volume 6' Number 2' SeiXember I, 1993' Page 2 

we interpret this section as encompassing both phenomena 

because drug rehabilitation necessarily presupposes drug dependence .... A departure based upon drug rehabilitation rewards drug dependency because on ly a defendant with a drug 

abuse problem is eligible for the departure. For this reason. 

we hold the Guidelines do notcontemplatedrugrehabilitation 

as a grounds for departure even in rare circumstances."), .. 

See Outline at VI.C.2.a. 

U.S. v. Gaither. No. 92-3222 (lOth Cir. July 23. 1993) 

(Brorby. J.) (Reversed, in light of ?legler. departure based on 

post-offense drug rehabilitation, but remanded for further 

findings on defendant's claim that departure was also based 

on his "exceptional acceptance of responsibility." Such a 

departure is proper only if ''the district court finds the acceptance of responsibility to be so exceptional that it is 'to a 

degree' not considered by U.S.S.G. 3E1.1.'"). 

Sec Outline at VI.C.4.c. 

U.S. v. Sclamo, ·997 F.2d 970 (1st Cir. 1993) (Affinned: 

"Applying the modified standard of review for such cases 

recently announced in U.S. v. Rivera," 994 F.2d 942 (1st Cir. 

1993), the district court properly departed downward-from 

the 24-30 month range to probation with six months' home 

confinement-for defendant' s unusual family circumstances. 

Defendanthadbcen living with a divorccd woman and her two 

children since 1989, and had developed a special relationship 

with the woman's son that had helped ameliorate the son's 

serious psychological and behavioral problems. Evidence 

that the son "would risk regression and harm if defendant 

were incarcerated amply supports the district court's determination that Sclamo's relationship to James is sufficiently 

extraordinary to sustain a downward aeparture. j. 

Sec Outline at VI.C.1.a. 

Determining the Sentence 

FINES 

U.S. v. Turner. No. 93-1148 (7th Cir. July 14. 1993) 

(Easterbrook. J.) (Remanded: The required cost-of-imprisonment fine, § SB1.2(i), is authorized by statute. Case is remanded, however', because the district court imposed the fine 

aftcc finding that defendant was unable to pay a punitive fiDe 

under' § SEl.2(a) and (c). Although the appellate court dee1ined to hold that a cost-of-imprisonment fine may never be 

imposed unless a punitive fine is imposed first, it concluded 

that if defendant "cannot pay such a fine, then be cannot be 

expected to pay anything computed under sec. SE1.2(i).j. 

Sec Outline at V.E.2. 

Probation and Supervised Release 

REVOCATION OF PROBATION FOR DRUG POSSESSION 

U.S. v. Sosa, 997F.2d 1130 (5thCir. 1993)(Affinned: In 

sentencing defendant for revocation of probation for drug 

possession to "not less than one-third of the original sentence."18 U.S.C. § 3565(a), "original sentenc-,c" refers to the 

. length of probation and is not limited to the max.imum original 

guideline sentence.). 

Three courts have now held that "original sentence" refers 

to probation; four have held it is limited to the original guideline sentence. The Supreme Court granted certiorari in one of 

the latter cases. See U.S. v. Granderson, I 13S.Ct.3033 (l993). 

See Outline at VD.A.2. 
Guideline Sentencing Update @ FEO£IlAl JUOIOAL CENTEJt 

GwiJdiN ~lImlcillg UpdiJle will be diwlbuted periodically by tbe Center (0 infonn judges and OIher judicial personnel of selected federal COUlt decisions on !he senlencing 

reform legislauon of 1984 and 1987 and !he Senlel1cill! Guidelines, Although !he publication may refer to !he SenleAcinB Guidelines and policy mtemenU ohbe U.S, Sentencing 

Commission in !he COOlnl of reponing cue holdings. II is not intended \0 report Sentencing Commil$ion policies or acu'liues, Reader, should refer to * Guidelines. policy 

stlllmtlenlJ, COmmclnury. and 0Iher materials imoed by the Senlencin, Commission for such informatioo, • 

This Federal Judicial Center publication was underla/cen in fiutberanc:e of the Centet', stanllary mission to condUCt and oIimulw research and'developmenl for the improvement 

of judicial admillilU'alion, The 'liew. eApressed are !bose of !he autIQ and not necessarily Ibose of the Federa/ Judicial Cen1t:l', 

VOLUME 6 • NUMBER 3 • SEPTEMBER 24. 1993 

Criminal History 

lNV ALiD PRIOR CONVICTIONS 

Sixth Circuit holds en bane that "a narrow window of 

cbaUenge to prior convictions Is available" to defendants 

sentenced under the Guidelines. Defendant challenged the 

validity of two prior state convictions for violent felonies that 

would have placed him in the career offender category. 1be 

district court held that the convictions were invalid under 

state law and defendant should not be sentenced as a career 

offender.1be original appellate panel held that the validity of 

the convictions had to be determined not under state law but 

under federal constitutional standards, and remanded after 

finding that federal standards were not violated. That opinion 

was withdrawn for rehearing en banc "to decide whether a 

defendant may challenge at sentencing a prior state court 

conviction not previously ruled invalid which would result 

in a longer sentence ifincluded within the Sentencing Guidelines calculus. to 

The majority of the en banc court held that "under certain 

limited circumstances it is within a sentencing court's discretion to entertain a challenge to the inclusion of a prior state 

conviction in a criminal history score .... [TJhe defendant 

must first comply with the procedural requirements for objecting to the conviction's inclusion in the criminal history score. 

The defendant also must state specifically the grounds 

claimed for the prior conviction's constitutional invalidity in 

his initial objection and 'the anticipated means by which proof 

of invalidity will be attempted-whether by documentary 

evidence. including state court records, testimonial evidence. 

orcombination--with an estimate of the process and the time 

needed to obtain the required evidence.' ... An example of a 

challenge that a court should entertain would be a challenge to 

a previously unchalJenged felony conviction where the defendant was not represented by counsel. counsel was not validly 

waived, and court records or transcripts are available that 

document the facts." 

"In addition to the types of proof that will be offered, the 

court also should consider whether the defendant has available an alternative method for attacking the prior conviction 

either through state post-conviction remedies or federal habeas relief. While this factor should not be dispositive of 

whether a sentencing court should entertain such a challenge, 

the availability of an alternative method should playa significant role in the court's decision." The court stated that its 

holding is similar to the Fourth Circuit's approach that "district courts are obliged to hear constitutional challenges to 

predicate state convictions in federal sentencing proceedings 

only when prejudice can be presumed from the alleged constitutional violation, regardless of the facts of the particular case; 

and when the right asserted is so fundamental that its violation 

would undercut confidence in the guilt of the defendant." U.S. 

v. Byrd. 995 F.2d 536,540 (4th Cir. 1993) [5 GSU #15J. 

As to defendant's challenge, the en bane court held that the 

district court erred in finding that the prior convictions were 

invalid under state law: "When the inclusion of a prior state 

conviction in the criminal history score is challenged, the 

validity of that conviction must be detennined solely as a 

matter of federal law." Holding that the convictions were 

valid under federal law, the court reversed and remanded. 

Twelve of the fourteen members of the en banc court 

joined in the result. Sixjoined the opinion on the issue of what 

circumstances a district court must consider before allowing 

a challenge to prior convictions; one judge concurred but 

would allow district courts more discretion. Five judges would 

further limit such challenges. The two judges who dissented 

from the result would allow challenges to prior convictions as 

a matter of right. as in U.S. v. Vea-Gonzalez. 999 F.2d 1326 

(9th Cir. 1993) (superseding 986 F.2d 321 [5 GSU #10)). 

U.S. v. McGlocklin. No. 91-6121 (6th Cir. Sept. 17, 1993) 

(en banc) (Guy, J.) (dissenting opinions noted above). 

See Outline at IV.A.3. 

Sentencing Procedure 

Eleventh CIrc:u1t holds that defendants may waive 

right to appeal Guidelines sentences, but the waiver must 

be spedflcally addressed in the plea colloquy. Defendant 

appealed his sentence. 1be government argued the, appeal 

should be denied because defendant's plea agreement included a waiver of his "right to appeal or contest ... his sentence 

on any ground," unless the sentence was in violation of law. 

The appellate court held that. under most circumstances. 

"a defendant's knowing and voluntary waiver of the right to 

appeal his sentence will be enforced." However, "for a waiver 

to be effective it must be knowing and voluntary (and] ... in 

most circumstances. for a sentence appeal waiver to be 

knowing and voluntary, the district court must have specifically discussed the sentence appeal waiver with the defendant during the Rule 11 hearing." To enforce a waiver, either 

the district court must have "specificaUy questioned the defendant concerning the sentence appeal waiver during the 

Rule 11 colloquy" or it must be "manifestly clear from the 

record that the defendant otherwise understood the full significance of the waiver." 

Here, the court held the district court "did not clearly convey 

to Bushert that he was giving up his right to appeal under most 

circumstances .... Nor does ... the record (show 1 that Bushert 

otherwise understood the full significance of his sentence 

appeal waiver." The court concluded that "the remedy for an 

unknowing and involuntary waiver is....essentially severance" -the waiver "is severed or disregarded ... while the rest 

of the plea agreement is enforced as written and the appeal 

goes forward." The appellate court found defendant's claims 

of sentencing error had no merit and affinned his sentence. 

U.S. v. Busher1, 997 F.2d 1343 (11th Cir. 1993). 

227 
Guideline Sentencing Update 

EVIDENTIARY ISSUES 

U.S. v. Jenkins. No. 91-3553 (6th Cir. Aug. 20, 1993) 

(Joiner, Sr. Dist. J.) (Affinned: Cocaine excluded at trial because it was seized during an unconstitutional search was 

properly used to calculate defendants' offense levels. Evidence illegally seized for the purpose of sentence enhancement would be excludable, but there was "no indication in the 

record that this evidence was obtained to enhance defendants' sentences." The court distinguished as dicta the conclusion in U.S. v. Nichols. 979 F.2d 402. 410-1 1 (6thCir. 1992). 

that unlawfully seized evidence should not be used in setting 

the base offense level.) (Keith. J .• dissented on this issue). 

See Outline at IX.D.4. 

Adjustments 

USE OF SPECIAL SKILL 

U.S. v. Mainard. No. 92-10298 (9th Cir. Sept. 20, 1993) 

(Fernandez, J.) (Remanded: Enhancement under § 3BI.3 for 

use of special skill was improperly given for defendant's 

"sophistication in methamphetamine manufacturing" and 

"ability to pass his expertise along to others. "lbere was "no 

evidence that Mainard was a trained chemist or pharmacist ... 

who abused his skills to produce drugs." "Although the methamphetamine laboratory might have been sophisticated. nothing indicates that Mainard used any ·pre-existing. legitimate 

skill not possessed by the general public .... and "being skilled 

at the clandestine manufacturing of methamphetamine is not 

a 'legitimate' skill" under § 3B 1.3.). Accord U.s. v. Young. 

932 F.2d ISIO. lS12-1S (D.C. Cir. 1991) (mere fact that 

defendant learned how to manufacture PCP-which by definition requires special skill-insufficient for § 3B 1.1). 

Compare U.S. v. Spencer. No. 93-1041 (2d Cir.Aug.2S. 

1993) (Altimari. J.) (Remanded for recalculation of drug 

amount. but affinned special skill enhancement for defendant 

convicted of methamphetamine offenses. Although "special 

skill" "usually requir[es) substantial education. training. or 

licensing," § 3B 1.3, comment. (n.2), and defendant was selftaught. he "presents the unusual case where factors other than 

formal education, training. or licensing persuade us that he 

had special skills in the area of chemistry .... [He] experimented often as an amateur chemist ... , built an extremely 

sophisticated home chemistry laboratorY ... , used his chemical acumen professionally ... to conduct a joint project [with 

a chemist) to develop a sophisticated medical testing device," 

and had taken college courses.). Accord U.S. v. Hummer. 916 

F.2d 186, 191-92 (4th Cir. 1990) (self-taught inventor had 

acquired requisite "special skill" through experience). 

See also U.S. v. Muzingo. 999 F.2d 361 (8th Cir. 1993) 

(Affirmed: Defendant used "special skill" to break into safe· 

deposit boxes He made keys to the boxes, "a skill that he acquired during his ten-year employment with a company that 

manufactures safe-deposit boxes and keys." There was also 

evidence he had technical drawings and a "little gadget" he 

used to determine the profile of the keys that he required.). 

See Outline at III.B.9. 

Probation and Supervised Release 

REVOCATION OF SUPERVISED RELEASE 

U.S. v. Truss. No.92-2171 (6th Cir. Sept. 8. 1993) (Suhrheinrich, J.) ("[W)e find the majority's position persuasive 

228 and join [most circuits] in holding that, while an additional 

Volume 6 • Number 3 • September 24. 1993 • Page 2 

term of supervised release may be in the best interests of an 

orderly administration of justice. no additional term of supervised release is permitted by § 3583(e)(3)."). Accord U.S. v. 

Tatum, 998 F.2d 893 (II th Cir. 1993) (per curiam) (Remanded: "We join the majority of circuits that have addressed this 

issue and hold that upon revocation of a term of supervised 

release, a district court is without statutory authority to impose 

both imprisonment and another tenn of supervised :release."). 

See Outline at VILB. t. 

Offense Conduct 

MORE THAN MINIMAL PuNNING 

U.S. v. Wong. No. 92-5S70 (3d Cir. July 30, 1993) (Mansmann, J .)(Affirme<t: When appropriate, both enhancement for 

more than minimal planning and adjustment for role in offense may be given: "The upward adjustments mandated respectively by §§ 2Bl.I(b)(S) and 3B 1.1 (<:) operate independently of each other .... [W]e hold that where a defendant is 

not only a participant in a sophisticated criminal scheme, but 

is also one of the more culpable individuals in that scheme. the 

two enhancements may be applied in tandem."). 

Contra U.S. v. Chichy, No. 92-3481 (6thCir.Aug.6,1993) 

(Contie, Sr.J.) (Remanded: ltis "impennissibledouble counting" to impose both enhancements. The appellate court held 

it was bound by U.S. v. Romano, 970 F.2d 164,167 (6th Cir. 

1992), which held that separate enhancements under 

§ 2Fl.l(b)(2)and § 3B 1.1 (a) were improper. "We believe the 

same reasoning applies to subsection (c) of § 3B 1.1 .... Although it is possible for a defendantto receive an enhancement 

under § 2FI.l(b)(2) for more than minimal planning without 

being an organizer. leader, manager. or supervisor under 

§ 3BI.I(c), the converse is not true. A defendant cannot recei ve an enhancement for role in the offense under § 3B 1.1 (c) 

unless he has engaged in more than minimal planning."}. 

See Outline at Il.E and m.B.6. 

CALCULATING THE WEIGHT OF DRUGS 

U.S. v. Newsome, 998 F.2d IS71 (Hth Cir. 1993) {Remanded: U.S. v. Rolande-Gabriel. 938 F.2d 1231 (11th Cir. 

1991), a drug importation case, applies to conspirac) to manufacture and possess cases. Thus, for defendants convicted of 

conspiracy to manufacture and possess methamphetamine, it 

was error to include amounts of discarded "sludge" that 

contained less than one percent methamphetamine and "were 

not only unusable, but also toxic." Courts may, however. use 

"the approximation approach" in § 20 I.I, comment. (n.12). if 

the amount of drugs seized does not reflect the scale of the 

offense and the evidence supports that method.). 

Compare U.S. v. Nguyen. No. 92-8032 (10th Cir. Apr. 13. 

1993 )(Saffels. Sr. Dist. J.) (Affinned: District court properly 

used entire weight of "a 10.3 gram 'eight-ball' comprised of 

small pieces of yellowish cocaine base mixed with white 

sodium bicarbonate powder." Defendant argued that crack 

cocaine is not usually combined with sodium bicarbonate 

powder. but the appellate court stated: "This is not an absurd 

case. but one in which the sodium bicaroonafe could have 

remained after the distillation into the final cocaine base 

form. In addition, the defendant purchased the drug in this 

form and sold it in this form.") (previously unpublished table 

opinion, 991 F.2d 806. to be published in full). 

See Outline at II.B.I. 
Guideline Sentencing Update FEDERAL JUDIClAL Q;NTER 

GUiJd',ltt Stltttltem!? UpJUIt will be distnbuled ,Penoilically by the Center 10 Inform judges and other judicial personnel of selected federal coun decisions on the sentencing 

reformleglsl~uon of 1984 and 1981 and the Sentencing GUldeh~, Although the publication may refer 10 the Sentencing Guidelines and policy statements oftbe U.s, Sentencing 

COmmissIOn In the conte~1 of reporong C,Me holdings. n 15 /lOI Intended 10 report Senlencing Commission policies or activiues, Readers should refer to tbe Guidelines. policy 

statements. commenwy. and other matenals ISsued by the Sentencing Commission for such information, 

lb~s Federal J~dicial Center publication was undertaken in funberance of the Center's statutory mission to conduct and stimulate research and development for tbe improvement 

of JudiCial adrrunlstratlon. The VIews e~pressed are those of the author and nol necessarily those of the Federal Judicial Center, 

VOLUME 6· NUMBER 4· OcrOBER 14, 1993 

Offense Conduct 

DRUG QUANTITY-MANDATORY MINIMUMS 

Second Circuit vacates mandatory minimum sentence 

that was based on inclusion of relevant conduct that was 

not part of the offense of conviction. Defendant was arrested 

in November 1991 and charged with possession of a firearm 

in connection with a drug trafficking offense and possession 

of cocaine with intentto sell. In February 1992, defendant was 

arrested again and charged with conspiracy to possess with 

intent to distribute and conspiracy to distribute cocaine. Pursuant to a plea agreement, he was convicted of the November 

weapons charge and the February charges; the November 

drug charge was dropped. In sentencing defendant on the 

February drug charges, which involved .431 grams of cocaine 

base, the district court included the 12.86 grams of cocaine 

base involved in the November transaction and sentenced 

defendant to the mandatory minimum five-year sentence for 

a conspiracy involving more than five grams of cocaine base. 

21 U.S.C. §§ 841(b)(l) and 846. 

The appellate court remanded. holding that the November 

drug amount could be included as relevant conduct in computing the guideline sentence. if appropriate. but could not be 

counted toward the mandatory minimum, "Unlike the Guidelines. which require a sentencing court to consider similar 

conduct in setting a sentence, the statutory mandatory minimum sentences of 21 U.S.C. § 841(b)(I) apply only to the 

conduct which actually resulted in a conviction under that 

statute. Thus, the district court erred in concluding that it 

should include_the cocaine from the November episode not 

only as related conduct relevant to the base offense level for 

the February episode. but also in detertnining whether the 

mandatory minimum for the February offense applied .... 

[Section 841 (b)( 1) 1 indicates that the mi nimum applies to the 

quantity involved in the charged, and proven. violation of 

§ 841(a). In this case. Darmand's violation of § 841 (a) was 

found to involve only .431 grams. Consequently. the mandatory minimum should not have been imposed." 

U.S. v, Darmand. No. 93-1009 (2d Cir. Sept. 8, 1993) 

(Oakes, J.). 

See Outline at II.A.3. 

DRUG QUANTITy-RELEVANT CONDUCT 

U.S. v. Adams, I F.3d 1566 (lIth Cir. 1993)(Remanded: 

In detertnining what drug amounts were reasonably foreseeable to conspiracy defendant who had participated in only one 

abortive flight to pick up marijuana. it was error to attribute to 

him "a hypothetical second load that [he 1 never attempted to 

transport." While it may sometimes be appropriate to hold a 

defendant liable for other flights, "[a] sentencing court may 

not speculate on the extent of a defendant's involvement in a 

conspiracy; instead. such a finding must be supported by a 

preponderance of the evidence .... There was no evidence that 

Adams intended to be involved with another flight or that it 

was foreseeable to him that there would be another flight."). 

See Outline at n.A.I. 

Criminal History 

CONSOLIDATED OR RELATED CASES 

Seventh Circuit holds that there must have been a formal consolidation order or other judicial determination 

for prior convictions to be "consolidated for sentencing." 

The district court sentenced defendant as a career offender 

after finding that two of defendant's prior convictions for 

bank robbery-which had been charged in the same indictment-were related. but that a third. separately indicted 

robbery was not. Defendant argued that the convictions had 

been "consolidated for sentencing." § 4AI.2, comment. (n.3). 

"Both indictments were returned by the same grand jury at the 

same time, The cases. which had separate docket numbers. 

were assigned to the same judge and identical bonds were set. 

The charges proceeded together through arraignment. motions, motion hearing. plea agreement, plea hearing. sentence 

hearing, and subsequent sentence modification. All three 

offenses ... were the subject of Russen's plea agreement. 

Russell recei ved I 5-year concurrent sentences for each of the 

three offenses, in separate orders. but one order referring to 

the separate cases by number modified the sentences to ten 

years on each count." The district judge detertnined that the 

separate offenses, indictments. minute sheets. judgments. and 

convictions "do not suggest consolidation." Also, there was 

no formal consolidation order, and the two robberies in the 

first indictment were committed by defendant alone while the 

third was by defendant and his brother. 

The appellate court affirtned. noting initially that Application Note 3 is binding and thus consolidated sentences must 

be treated as related, but that "the commentary does not 

answer the question of when sentences should be deemed to 

have been 'consolidated' for sentencing." The court concluded that .. the purpose of the guideline would best be 

implemented by requiring either a fortnal order of consolidation or a record that shows the sentencing court considered 

the cases sufficiently related for consolidation and effectively entered one sentence for the multiple convictions .... 

In other words. there must be a judicial detertnination by the 

sentenci ng judge that the cases are to be consolidated. treated 

as one. for sentencing purposes. Consolidation should not 

occur by accident through the happenstance of the scheduling of a court hearing or the kind of paRers filed in the case 

or the administrative handling of the cas;" -

In this case, although there were "many characteristics of 

a consolidated sentencing." the district court "did not err in 

treating the two separate indictments as 'unrelated.'" The 

appellate court found that "there was no showing that there 

229 
230 

Guideline Sentencing Update 

was a request in the plea agreement that the cases be consolidated for sentencing purposes. The cases were continually 

treated as separate except for the various court proceedings 

being held al the same time before the same judge .... There 

is nothing in the record to indicate that the district court 

considered or made a determination that the cases were so 

related that they should be consolidated for sentencing purposes because one overall sentence would be appropriate for 

the three crimes, or that, except for the concurrent provision, 

the sentence for one con viction was somehow affected by the 

conduct under the other charge. At each hearing the two 

indicunents were treated as separate cases, and there is nothing to show that the sentence for any charge would have been 

different if the cases had been heard on different days before 

different judges at entirely separate sentencing hearings." 

V.S. v. Russell. 2 F.3d 200 (7th Cir. 1993). 

See Outline at IV.A.l.c. 

CAREER OFFENDER PROVISION 

U.S. v. Hayes. No. 91-30432 (9th Cir. Oct. 8. 1993) (Order 

amending original opinion at 994 F.2d 714. to remove holding 

that the offense of felon in possession of a sawed-off shotgun 

is a crime of violence: "Because we hold that possession of an 

unregistered sawed-off shotgun is a crime of violence, we 

need not decide whether being a felon in possession of a 

sawed-off shotgun is a crime of violence." Defendant's status 

as career offender is reaffirmed.). 

Note to readers: This affects the entries for Hayes in 5 GSV 

#14 and Outline at IV.B.l.b. 

General Application Principles 

RELEV ANT CONOuer 

u.s. v. CarroWl. No. 92-1798 (lst Cir. Sept. 16. 1993) 

(Campbell, Sr. J.) (Remanded: In sentencing RICO defendant, district court erred in "conclud[ing] that relevant conduct in a RICO case was, as a matter of law, limited to the 

specific predicate acts charged against the defendant ... and 

conduct relatil]g to the charged predicates .... We hold that 

relevant conduct in a RICO case includes all conduct reasonably foreseeable to the particular defendant in furtherance of 

the RICO enterprise to which he belongs." Also, "the term 

'underlying racketeering activity' in §2El.l(a)(2) means 

simply any act, whether or not charged against the defendant 

personally, that qualifies as a RICO predicate act under 18 

U.S.C. § 1961(1) and is otherwise relevant conduct under 

§ IB1.3." However. the statutory maximum sentence, which 

for RICO can be increased depending on the seriousness of the 

underlying racketeering activity, "must be determined by the 

conduct alleged within the four comers of the indictment," 

and uncharged relevant conduct affects only where defendant 

is sentenced within the statutory range.). 

See Outline generally at I.A.4. 

Departures 

MITIGATING CIRCUMSTANCES 

u.s. v. Benish. No. 92-3311 (3d Cir. Sept. 16. 1993) 

(Sloviter, C.J.) (Affirmed: ''The exclusive focus [in § 2D 1.1] 

on the number of marijuana plants leads us to conclude that the 

Commission considered and rejected any other factors. Thus, 

we see no basis on which a district court could conclude that 

the age or sex of particular marijuana plants are factors that 

have not 'adequately' been considered by the Commission. 

Volume 6' Number 4 • October 14. 1993· Page 2 

... We see nothing atypical or unusual in the fact that the 

particular plants here were male, old, and possibly weak."). 

Cf U.S. v. Vpthegrove, 974 F.2d 55,56 (7th Cir. 1992) (poor 

quality of marijuana is not ground for downw_ard departure). 

See Outline at II.B.2 and VLC.4.b. . 

U.S. v. Hadaway, 998 F.2d 917 (lIth Cir. 1993) (Remanded: Defendant. who pled guilty to' pOssession of an 

unregistered sawed-off shotgun. claimed the district court 

erred by refusing to consider a downward departure on the 

grounds that his conduct was "outside the heartland" of such 

cases, did not cause the harm the law was intended to prevent 

(he averred that he acquired the gun on a whim. meant to keep 

it as a curiosity or for parts, and did not even know if it 

worked), and the rural community in which he lives considers 

the sentence to be excessive. The appellate court remanded 

because "it is clear that the district court had the authority to 

depart downward if it were persuaded that Hadaway's case 

truly was 'atypical ... where conduct significantly differs from 

the norm,' U.S.S.G. Ch. I, Pt. A, n.4(b), or ~at Hadaway's 

conduct threatened lesser harms, U.S.S.G. §SK2.11," p.s. 

However, departure cannot be based on the community's 

view of the crime: "[W]e join the First and Fifth Circuits in 

holding that departures based on 'community standards' are 

not permitted." See V.S. v. Barbontin, 907 F.2d 1494 (5th Cir. 

1990) (rejecting upward departure for community standards); 

U.S. v. Aguilar-Pena, 887F.2d347 (lstCir.1989)(same).). 

See Outline at VLB,2 and VI.C.4.b. 

Probation and Supervised Release 

REVOCA nON OF SUPERVISED RELEASE 

U.S. v. Levi, 2 F.3d 842 (8th Cir.I993) (Affirmed: Ex Post 

Facto Clause is not violated by application of amended revocation policy statements, § 7Bl (Nov. 1990), to defendant 

who committed the underlying offense before the amendments but violated his supervised release afterwards: "This 

court has found that the sentencing court is required only to 

'consider' Chapter 7 policy statements .... Being merely advisory, a Chapter 7 policy statement is not a law within the 

meaning of the Ex Post Facto Clause .... Consequently, the 

fact that the district court considered a Chapter 7 policy statement that had been amended subsequent to Levi's initial 

sentencing does not implicate the Ex Post Facto Clause."). See 

also V.S. v. Schram, No. 92-30023 (9th Cir. July 22, 1993) 

(Farris, J.) (Affirmed: District court correctly applied Nov. 

1990 version of § 7B 1 even though defendant's underlying 

offense occurred before then: "Sections 7Bl.3 and 7Bl.4 

were amended before Schram violated the terms of his supervised release. They were not applied 'retroactively' because 

they were not applied to conduct completed prior to their 

enactment."). Cj. V.S. v. Bermudez. 974 F.2d 12, 13-14 (2d 

Cir. 1992) (per curiam ) (consider Chapter 7 policy statements 

after revocation of supervised release even though defendant 

was originally sentenced before effective date of Guidelines). 

See Outline generally at VII. 

Certiorari Granted: 

v.s. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. 

g ranted. No. 92-8556 (Sept. 28, 1993 ).Issue: Whether a prior 

uncounseled misdemeanor conviction can be used in calculating defendant's criminal history score. 

See Outline at IV.A.5. 
Guideline Sentencing Update FEDERAL Jt:PICIAL CENTER 

Guid./ill. SlfnltnCII.tf UpdDllf will be distributed periodically by the Center to infonn judges and other JudiCial personnel of selected federal coun decisions on the sentencing 

refonn legislation of 1984 and 1987 and the Sentencing Guidelines Although \he publication may refer to \he Sentencing GUidelines and polIcy statement> of the U.S. Sentencing 

Comminion in the context of reporting case holdings. it is not Intended 10 report SentenCing Commission policies or .etiviues. Readers should refer to the Guidelines. policy 

... tement$, cOlll/llentary. and other _nals issued by the Sentencing Commission for such information. 

This Federal Judicial Center publicacion was undenalten in funherance of the Center' 5 statutory mission 10 conduct and stimulate research and development for the improvement 

of judicial adminislnllion The view. expressed are those of \he allmor IIId not :leCeuarily those of the Federalludidal Center 

VOLUME 6' NUMBER 5' NOVEMBER 2. 1993 

Offense Conduct 

DRUG QUANTITy-MANDATORY MINIMUMS 

Nlntb Cin:uit holds that, for mandatory minimum 

senteaces, conspiracy drug amounts should be deter· 

lllined under Guidelines' reasonable foreseeabUity analy. 

sis, rqardless of amounts specified la the Indictment. 

Defendants were convicted of conspiracy to distribute cocaine and heroin. The conspiracy count specified that at least 

one kilogram of heroin and five kilograms of cocaine were 

involved in the conspiracy. and the sentencing court ruled that 

it was not free to detennine whether defendants were responsible for smaller amounts for purposes of the statutory minimum under 21 U.S.C. § 841 (b)(1)(A). 

The appellate court held this was error and remanded for 

one defendant (the error was held hannless for the otherdefendant). The mandatory sentence under "§ 841 (a) does not alter 

the court's responsibility to assess a defendant's 'individual 

... level of responsibility' for the amount of drugs involved in 

an offense by detennining, in accord with the Guidelines. the 

amount that the defendant 'could reasonably foresee ... would 

be involved' in the offense of which he was guilty." 

"The sentencing court's responsibility to determine the 

quantity of drugs attributable to a defendant is not altered by 

the fact that the amount involved in a drug conspiracy is 

specified in the indictment. Quantity is not an element of a 

conspiracy offense .... The drug amount attributable to a defendant for purposes of sentencing is not established merely 

by looking to the amount of drugs involved in the conspiracy 

as a Whole, '[u]nderthe Guidelines each conspirator. for sentencing purposes. is to be judged not on the distribution made 

by the entire conspiracy but on the basis of the quantity of 

drugs which he reasonably foresaw or which fell within "the 

scope" of his particular agreement with the conspirators.' ... 

{Ijt is not relevant for sentencing purposes whether or not an 

indictment specifies the amount alleged in the conspiracy." 

U.S. v. Castaneda. No. 92-30077 (9th Cir. Oct. 5. 1993) 

(Nelson. J.). 

See Outline at II.A.2 and 3 and summary of Irvin in 6GSU#2. 

CALCULATING WEIGHT OF DRUGS--MIxruus 

U.S. v. Palacios-Molina. No. 92-2887 (5th Cir. Oct. 27. 

1993) (Johnson. J.) (Remanded: Weight of liquid that cocaine 

was dissolved in for transport should not be included. 

"The cocaine in the present case was not a usable substance 

while it was mixed with the liquid in the bottles. Only after 

the liquid was distilled out would it be ready for either the 

wholesale or retail market. ... Thus. as this liquid was not 

part of a marketable mixture. it is not implicated under the 

market-orientedanalysisinChapman{v. U.S .. III S.Ct. 1919 

( 1991)] and should not have been considered part of a mixture 

... under § 2D 1.1 .... For sentencing purposes, the method of 

transporting the drugs is unimportant. Rather. it is the amount 

of that commodity trafficked that counts."). 

U.s. v. Killion. No. 92-3130 (10th Cir. Oct. 13. 1993) 

(Alley. Dist. J.) (Affinned: Holding that Chapman v. U.S .• 

III S. Ct. 1919 (1991). did not change circuit precedent for 

detennining weight of amphetamine precursor mixture: "we 

today again hold that so long as a mixture or substance 

contains a detectable amount of a controlled substance. its 

entire weight. including waste by-products of the drug manufacturing process. may be properly included in the calculation of a defendant' s base offense level under § 2D 1.1."). 

Accord U.S. v. Innie. No .. 92-50239 (9th Cir. Oct. 5. 1993) 

(O'Scannlain, J.) (for methamphetamine). 

See Outline at II.B.l. summaries of Newsome and Nguyen in 

6 GSU#3.JOMson in 6 GSU#2. and list of amendments below. 

Loss 

U.S. v. Lowder. No. 92-6378 (10th Cir. Sept. 17. 1993) 

(Kelly. J.) (Affinned: It was proper to include in the loss 

calculation the interest that could have been earned (\n fraudulently obtained funds where defendant had guaranteed investors a 12% rate of return. Section 2Fl.l. comment. (n.7). 

states that loss does not include "interest the victim could have 

earned on such funds had the loss not occurred." which the 

appellate court interpreted "as disallowiag 'opportunity cost' 

interest. or the time-value of money stolen from victims. 

Here. however, Defendant defrauded his victims by promising them a guaranteed interest rate of 12%. He induced their 

investment by essentially contracting for a specific rate of 

return. He also sent out account summaries. showing the 

interest accrued on their investment. This is analogous to a 

promise to pay on a bank loan or promissory note, in which 

case interest may be included in the loss. See U.S. v. Jones. 933 

F.2d 353 (6th Cir. 1991) (interest properly included in loss 

calculation where defendant defrauded credit card issuers). to). 

See Outline at II.D.2.b. 

Departures 

CRIMINAL HIsrORY 

U.S. v. Carr. No. 92-3767 (6th Cir. Sept. 28, 1993) (Ryan. 

J.) (Remanded: Extent of upward departure for defendant 

whose criminal history category was VI should not have been 

calculated by using hypothetical category IX based on 20 

criminal history points. Although this methodology was previously accepted, the Nov. 1992 amendment to § 4A 1.3. p.s .• 

"disapprove(d] oftrus method .... Thus. instead of hypothesizing a criminal history range more than VI. the Guidelines 

require a sentencing court to look to the other axis and 

consider available ranges from higher .2ffens~ levels." Here, 

defendant's "offense level would have to be increased from 

18 to 21" to receive the sentence imposed. If the district court 

resentences defendant to the same sentence using offense 

level 21. "it must demonstrate why it found the sentence 

imposed by each intervening level to be too lenient."). 

See Outline at VlA.4. 231 
Guideline Sentencing Update 

u.s. v. Carrillo-Alvarez. 3 F.3d 316 (9th Cir. 1993) 

(Remanded: Depanure above criminal history category VI 

for defendant with 19 criminal history points was improper 

because his "criminal history is simply nol serious enough to 

justify a departure." Under §4AI.3. p.s .. "a court should not 

depan unless the defendant's record is 'significantly more 

serious' than that of other defendants in the same criminal 

history category .... However. defendants in category VI are 

by definition the most intractable of all offenders. The record 

does not reflect that Carillo. among all those in that criminal 

history category. has a criminal record so serious. so egregious. that a departure is warranted .... The sheer number of 

a defendant's criminal history points is not. so to speak. the 

point. A sentencing court must look. rather. to the defendant's overall record .... We emphasize, as does the Sentencing Commission. that a departure from category VI is warranted only in the highly exceptional case."). 

See Outline at VI.A and A.4. 

AGGRA VATING CIRCUMSTANCES 

U.S. v. Schweitzer, No. 92-5713 (3d Cir. Sept.' 16, 1993) 

(Stapleton. 1.) (Remanded: For defendant convicted of conspiring to bribe a public official to secure confidential information from the Social Security Administration. it was error 

for the district court to base an upward departure partly on 

defendant having given multiple media interviews "as well as 

telling about what he had done and, on the Oprah Winfrey 

Show. how much money he got out of it. and bragging or 

predicting that he would get probation." There were other 

factors that warranted departure. such as defendant' s "corruption of a government function" and the "loss of public confidence:' see § 2C 1.1. comment. (n.5), but "it was inappropriate for the district court ... to take into account Schweitzer's 

media efforts to call attention to the alleged ease of acquiring 

confidential infonnation held by the government," "a situation that is unquestionably a matter of public concern. "). 

See Outline generally at VI.B.2. 

Detennining the Sentence 

FINES 

U.S. v. Norman. 3 F.3d 368 (lIth Cir. I 993)(per curiam) 

(Remanded: "Section 5EI.2(i)'s plain language imposing 

costs of imprisonment and supervision as an additional fine 

amount supports the holding of the courts in Labat. Corral, 

and Fair that such additional fine may not be imposed unless 

a (punitive] fine pursuant to § 5El.2(a) is also imposed."). 

Contra U.S. v. Favorito. No. 92-50465 (9th Cir. Sept. 28, 

1993) (Brunetti. 1.) (Affinned: Adopting U.S. v. Turner. 998 

F.2d 534.538 (7th Cir. 1993) [6 GSU#2J: "The district court 

did not err in imposing a fine of costs of imprisonment 

without imposing a separate punitive fine."). 

See Outline at V.E.2. 

Adjustments 

ABUSE OF POSmON OF TRUST 

U.S. v. Lamb, No. 92-2846 (7th Cir. Aug. 27, 1993) 

(Coffey. J.) (Remanded: It was errorto refuse to give § 3B1.3 

adjustment for abuse of trust to defendant letter carrier who 

pled guilty to embezzlement of U.S. mail. "Based on the facts 

in the case before us, we conclude that a government em232 ployee who takes an oath to uphold the law <as does a mail 

carrier) and who perfonns a government function for a public 

Volume 6' Number 5· November 2. 1993' Page 2 

purpose such as delivery of the U.S. mail. is il' a position of 

trust."). See also U.S.S.G. § 381.3. commen1. (n.l) (Nov. 

1993) ("because of the special nature of the United States mail 

an adjustment for an abuse of a position of trust will apply to 

any employee of the U.S. Postal Service who engages in the 

theft or destruction of undelivered United States mail"). 

See Outline at m.B.8. 

Probation and Supervised Release 

REVOCATION OF PROBATION FOR DRUG POSSESSION 

U.S. v. Alese. No. 93-1198 (2d Cir. Sept. 28. 1993) (per 

curiam) (Remanded: "We think the most reasonable interpretation of [18 U.S.C.) § 3565(a) is that a person found to have 

committed a narcotics-related violation of probation is to be 

sentenced to a prison tenn that is at least one-third the length 

of the maximum prison tenn to which she could originally 

have been sentenced." Thus, defendant whose original 

guideline range was 2-8 months should be res~ntenced "to a 

prison tenn of not less than 2213 months and not more than 

eight months."). 

See Outline at VII.A.2 and summary of Sosa in 6 GSU #2. 

Rehearing En Bane Granted: 

U.S. v. Aguilar, 994F.2d 609 (9th Cir. 1993) [5GSU#l4]. 

See Outline at VI.C.l.e and h. 4.a. 

Note to readen: Because the next Guideline Sentencing: An 

Outline of Appellate Case Law will not be issued until February 1994, we include here a list of Outline sections that will 

be significantly affected by some of the Nov. 1993 Guidelines amendments. This list is designed solei y to alert readers 

to these changes. not to explain them. and does not include all 

of the new amendments. 

O~ES~ON-AM~DMarr 

II.B.I - The definition of "mixture or subs~nce" in § 201.1. 

comment. (n.1). was revised. Also. a new method for 

determining the weight of LSD is ·set forth in 

§ 201.1 (c)(n."') and comment. (n. 18). Note that these 

amendments are retroactive under § I B 1.10, p.s. 

II.B.3 - A new definition of "cocaine base" is provided in 

§ 201.1(c)(n. "'). 

I1.D.I - § 2BI.1, comment. (n.2). now states that loss does 

not include interest that could have been earned on 

stolen funds. 

I1.E and m.B.6 - § IBI.I. comment. (n.4), now directs that 

adjustments from different guideline sections are to 

be applied cumulatively. absent instruction to the 

contrary. 

III.B.6 - § 3B 1.1, comment. (n.2). was added to clarify that 

the aggravating role adjustment only applies to one 

who controls other participants. but that an upward 

departure may be warranted for one who controls 

only property, assets. or activities. 

III.B.8.a - The definition of an abuse of position of trust in 

§ 3B 1.3, comment. (n.I), was refonnulated. 

IVA3 - § 4A 1.2, comment. (n.6). was amended to clarify that 

the guideline and commentary are not meant to 

enlarge a defendant's right to collaterally attack a 

prior conviction. 
Guideline Sentencing Update ~ F£IlUAL JIIDICIAL CEHTU. 

VOLUME 6· Nur.t8EJt 6· NOVEM8EJt 29. 1993 

OtTense Conduct remanding for repleading: Districtcoun violated Fed. R. Crim. 

C.U.CtlLA TlNG WEIGHT OF DRUGS P. 11 by nOl informing defendant that. although his indictment 

Tentb Circuit afIlnns coavertlDl powdered cocaIae purposely omitted alleging drug quantity in order to avoid 

lato cocaIae base for Hateada. where racta showed that the mandatory minimum sentences under 2 J U .S.C. § 841 (b), 

object of the coaspll'1lC)' was to coavert powder to crack. he could still be subject to a mandatory term after the GuideDefendant was convicted of eleven drug.rela.ted counts. lines' calculation of quantity. "Because statutory minimum 

including conspiracy to distribute cocaine base. distribution sentences are incorporated in the quantity-based Guidelines, 

of cocaine. and manufacture of cocaine base. The presentence the government is prevented from avoiding application of the 

report stated that defendant had distributed both cocaine statutory minimum sentences prescribed in § 841 (b)(J )(A) 

powder and cocaine base. In determining what amounts and and (8) by simply failing to include a quantity allegation in an 

kinds of cocaine to attribute to defendant for sentencing. indictment or information in hopes of having the less severe 

the probation officer concluded that the intent of the conspir- penalty range of § 84 t (b)( I )(C) applied by default. The failure 

ators was to distribute the cocaine as cocaine base. and to include a quantity allegation in an indictment or informarecommended converting the amount of powdered cocaine tion has no effect whatsoever on the determination of the 

involved to cocaine base. The sentencing court aarced. find. appropriate sentence under the Guidelines." 

ing that the conspirators routinely converted powder cocaine "At ~ ti~e of Watch's guilty plea. he was not guaranto crack and provided "cooking" instruCtions for coconspir- teed apphcatlon of the sentence range provided for in 

alOrs when necessary. The coon sentenced defendant based § 841 (b)( t ~9' as represented by the government and a.:cepton the quantity of cocaine base-after the conversion- ~ by the district coun, because the quantity of drugs involved 

ultimately distributed. and defendant appealed. In the offense had yet to be determined. While the districtcoun 

The appellate coun affirmed: "According to U.S.S.G. was not required to calculate and explain the applicable sen2DI.4 (1991) [now consolidated into 12Dl.I). '(i)fa defen- tence under the Guidelines before accepting Walch's guilty 

dant is convicted of a conspiracy or an attempt to commit an plea ... , we find that the dislrict coon was required to inform 

offense involving a controlled substance. the offense level Watch of any possible statutorily required minimum senshall be the same as if the object of the conspiracy or attempt tences he might face as a result of application of the quantityhad been completed.' The district coun made the factual based Guidelines .... The practical consequence of this deterdetermination that the cocaine powder involved in the con. mination is that a prudent district judge hearing a plea from a 

spiracy was routinely convened to crack. The eventual con- ~efendant charged under an indictment or information aUegversion was f~le to. if not directed by. Mr.. Angula. Ing a ~ 841 <a) violation but containing no quantity allegation 

Lopez. Under the Guidelines, it is proper to sentence a defen- may SImply walk a defendant through the statutory minimum 

dant under the druS quantity table (or cocaine base if the se~t~ncesprescribedin~841<b),explaininsthatamandatory 

record indicates thatthe defendant intended to transform pow- minimum may be apphcable and that the sentence will be 

dered cocaine into cocaine base •••• The record supportS the based on the quantity of drugs found to have been involved 

district coun's findings that Mr. Angula.Lopez intended the in the offense with which the defendant is charged."). 

powdered cocaine to be convened into crack:' See O"tlin~ atlI.A.3 and IX.A.2. 

St!~ also U.S. v. Pal.. 927 F.2d J 76. J 80 (4th Cir. 1991) : 

(where "a defendant is convicted of conspiracy to manufac. " Departures 

ture crack. but the chemical seized was cocaine. the district SUBSTANTIAL ASSISTANCE 

coun must ... approximate the total quantity of crack that i Ninth Circuit aBinns sentence below statutory mini· 

could be manufactured from the seized cocaine"); U.S. ". : mum in absence ohubstantial assistance motion as rem· 

Ha}'~~s. 881 F.2d 586. 592 (8th Cir. 1989) (for defendant: edyrorgovernment'sbreac:horpleaagreemenLDefendant 

convicted ~f conspiracy to distribule cocaine. evidence sup- ; pled guilty to a drug count under an agreement with the 

port~ findtng that defendant sold ~rack, not cocaine ~wder. I g?~ern~ent. In ~xchange for defendant's cooperation in pra. 

and It w~ proper to c~nven seIzed powder cocaine and I vldang information and testifying against his cousin. the 

currency anto crack cocaane for sentencing). : ~overnment agreed to inform the district coun of his cooperaU.S. \'. AtlRulo-Lop~:.. No. 92-6370 (10th Cir. Oct. 26. I lion and "to recommend to the sentencing coun that defendant 

1993) (Brorby. J.). : be sentenced to the minimum period of incarceration required 

See Outline 8111B.3. I by the Sentencing Guidelines." Defendiiit's guideline range 

DRUG QUANTI MA M I was 41-51 months, but he was sentenced to the applicable 

TY- NDATORY INIMUMS ! five-year mandatory minimum after the government refused 

U.S. ,'. ~al(,~. No. 91-867.1 (5th Cir. ~ov. 5 •. 1~3) I· to move under 18 U.S.c. §3553(e) for a lower sentence. 

(Barbour. Chief Dlsl. J.) (Vacating defendant s conviction. Defendant did not appeal. but later move.d under 28 U.S.C. 

233 
234 

Guideline Sentencing Update 

§ 22SS to vacate his conviction or correct his sentence. 1lIe 

districtcoun found that the government had breached the plea 

agreement by not making a § 3553(e) motion and that its 

continued refusaJ to recommend departure was in bad faith. 

The coun changed defendant's sentence to 41 months, which 

it concluded was the sentence called for by the plea agreement. 

The appellate court affirmed. The issue here was "what the 

defendant reasonably understood to be the terms of the agreement when he pleaded guilty .... As with other conQ"aCts, pr0-

visions of plea agreements are occasionally ambiguous: the 

government 'ordinarily must bear responsibility for any lack 

of clarity .... The term "minimum period of incarceration required by the Senteocing Guidelines" was ambiguous because 

it could be taken to mean the computed guideline range or. as 

the govemmentargued, the mandatory minimum term, which 

under § SG 1.1 (b) be4:omes ''the guideline sentence." 

Volume 6· Number 6. November 29, 1993' Page 2 

General Application Principles 

RELEVANT CONDUCT 

u.s. \I. Wishnqsky. No. 93-3009 (D.C. Cir. Oct. 29. 1993) 

(Ginsburg. J.) (Affumed: Criminal conduct that occurred 

outside five-year statute of limitations may be considered as 

relevant conduct under the Guidelines. District court properly 

included amounts embezzled from t 980-t986 as "pan of the 

same course of conduct or common scheme or plan" in 

calculating loss caused by defendant convicted of embezzlement during 1987-1990.). 

See Outline at I.A.4 and n.D.4. 

U.S. v. Syus. No. 92-2984 (7th Cir. Oct. 22, 1993) 

(Rovner. J.) (Remanded: Following test for "similarity. 

regularity, and temporal proximity," it was error to include 

as relevant conduct fourth fraud count that was dismissed 

as part of the plea agreement. Without more, general similar· 

ity of defendant's attempts to obtain money or credit by 

using false name and social security number: does not comprise "same course of conduct or common scheme or plan" 

under § IBI.3(aX2). Here. defendant's acts, four frauds in 

a 32-month period, were "not sufficiently repetitive to 

enable us to call her conduct 'regular"'; the conduct in the 

fourth count occurred 14 months after the third; and "the 

acts charged in count IV differ in significant respects from 

the earlier conduct."). 

See OalliM atl.A.2. 

The appellate court was also persuaded by the fact that. to 

accept the government's position, it would have to conclude 

that defendant agreed to cooperate in exchange for no benefit. 

At the time of the agreement all the sentencing factors were 

known, and "the parties should have been aware that De la 

Fuente's guideline sentencing range of 41-51 months would 

lie entirely below the statutory minimum of 60 months. By 

providing for a sentencing recommendation in this circumstance,the parties must surely have envisioned a sentence below the statutory minimum. Otherwise, the provision would 

have served no purpose •... We are unwilling to impute to the 

government the level of cynicism and bad faith implicit in 

negotiating an agreement under which it persuaded a defen- Adjustments 

dant to help convict his relative by offering what appeared to MULTIPLE CouNTs 

be a reduced sentence but in factoffercd him no benefit. Even U.S. v. Lombardi. S F.3d 568 (1st Cit. 1993) (Affirmed: It 

if we believed that the government in fact acted in such an was proper to group defendant's three mail fraud counts 

unfair manner in this case, we would decline to acknowledge separately from two counts of money laundering (for 

and reward such conduct in light of the high standard of fair depositing in a bank the insurance proceeds that were redealing we expect from prosecutors." ceived as a result of the same frauds). The fraud and money 

U.S. \'. De la Fuenle. No. 92-1 07 I 9 (9th Cir. Oct, 27, 1993) laundering counts could not be grouped together under 

(Reinhardt. J.). § 3DI.2(a) or (b) be4:ause they involved distinct acts and 

See Outline al VI.F.I.b.ii. different victims. Defendant contended that all counts should 

Se be pouped under t 3D 1.2(c) be4:ausc the kno'tliledge that the Detennining the ntence money laundered funds were derived from mail fraud 

SUPERVISED RELEAsE "embodies conduct that is treated as a specific offense charU.S. \'. Chllkwara. No. 92-8737 (II th Cir. Nov. t, 1993) acteristic" in the money laundering guideline. The appellate 

(Hatchett. J.) (Affirmed: As a condition of supervised re- court held. however, that "[tJhe 'conduct' embodied in the 

lease. the district court had authority to order deportation of mail fraud counts is the various acts constituting the frauds. 

foreign national who was already subject to deponation .. coupled with the requisite intent to deceive; the 'specific 

~8 U.S.c. § 3S~3(d) "plainly Slates that if a defendant is SUb-1 offense characteristic: in U.S.S.G. § 25 1.2(b)( l)(D), is 

Ject to deportauon. a coun may order a defendant deported knowledge that the funds being laundered are the proceeds of 

.~ a cond~tion of superv!sed release.' 1lIe statute ,!,en pro- I a mail fraud. It happens that Lombardi's knowled~e of the 

vldes that If the coun decIdes to order the defendant 5 depor- funds' source derives from the fact that he committed the 

tation, it then 'may order' the defendant delivered to a 'duly frauds. but that does not make the fraudulent acts the same 

authorized immigration official' for deportation .... The lan- thing as knowledge of them." To hold otherwise would 

guage is unequivocal and authorizes district courts to order allow a defendant to "get exactly the same total offense 

deportation as a condition of supervised release, any time a I level whether the defendant committed the mail fraud or 

defendant is subject to deportatjo~." The appella~e coun ~Iso I merely knew that someone else had commined it"). 

held that defendant was not denIed a deportatIon heanng: I See Ourlin~ at In.D.I. 

"The Sentencing Guidelines specifically require sentencing . 

courts to address many of the factors that arise at regular INS I ACCEPTANCE OF RFSPONSIBILITY 

deportation hearings. While we do not require district courts, I U.S. \I. It/dana-Oniz. 6 F.3d 601 (9th Cir. 1993) (per 

contemplating whether to order a defendant deported. to I curiam) (Affinned: Nov. 1992 amendment to U.S.S.G. 

conduct an INS type hearing. we are confident that in this § 3E 1.1 (b) providing for possible three-point reduction is not 

case the sentencing hearing met those requirements."). I retroactive.). 

See Outli,.~ at v.c. ! See Outline allll.E.4. 
Guideline Sentencing Update FEDERAL JUDla Al CEI'iTEIl 

Glllli,liIt, Stnttncing Upda/t will be distributed periodically by the Center 10 inform judges and other judicial penonnel of selected federal coun decioions on the senlencin& 

reform lesi,tation of 1984 and 1987 and the SenlellCing Guidelinel, Allbaugh the publiCMiOCl may refer 10 the Sentencing Guidelines and policy ,tatemenll< of the U,S, Sentencing 

Commission in the contellt of reponin, case holdin,s. it is IlOl inc.eaded to report Sentenc:in, Commission policies or Ktivities. Readers should refer 10 the Guidelines. policy 

SlalCmenlS. commentary. and other mMeriais issued by the Sentencina Commission for r.ucb information, . 

This Federal Judicial Center publiClliOll was undenllken in funberInc:e of the Center's slaIUtory mission to conduct and stimulate research and development for the Impcovement 

of judicial adminiltnltion, The views expressed .e IIIoIc of the IUthor and IlOl necanrily IIIoIc of the fedenII Judicial Center, 

VOLUME 6· NUMBER 7 • JANUARY 5, 1994 

Probation and Supervised Release 

REvOCA nON OF SUPERVISED R.El..EAsE 

Ninth Clrwit holds tbatmandatory minimum peoalty 

In 18 U.s.c. Il583(g)-revocalion oIsuperrisecl release 

for drug possession-may not be required wben underlyiDg ofI'eose was committed before effectlve date of that 

section. Defendant committed his offenses in April and 

May of 1988; he pled guilty and was sentenced in 1990. On 

Dec. 31,1988, the supervised release statute was amended to 

provide that release must be revoked for possession of a 

controlled substance and the defendant sentenced "to serve in 

prison not less than one-third of the term of supervised 

release." 18 U.S.C. § 3583(g). Defendant began serving his 

supervised release term in Dec. 1990. had it revoked in Aug. 

1992 for drug possession, and was sentenced under § 3583(g) 

to 12 months, one-third of his tenn of supervised release. The 

district court ruled that even though defendant's original 

offenses occurred before § 3553(g) became effective. the 

conduct that caused the revocation occurred thereafter and 

the ex post facto clause was not violated by imposing sentence after revocation under § 3553(g). 

The appellate court reversed. "We find virtually 

dispositive the strong line of cases that decides this precise 

issue in connection with revocation of parole .... These cases 

hold that the ex post facto clause is violated when a parole 

violator is punished in a way that adversely affects his ultimate 

release date under a statute that was adopted after the violator 

committed the! underlying offense but before he Violated the 

terms of his parole. For purposes of an ex post facto analysis. 

there is absolutely no difference between parole and supervised release .... In both cases, the question is at what time the 

prisoner is to be released from prison. A delay in that date 

constitutes the same punishment whether it is imposed following a parole violation or a violation of supervised release." 

Accord U.S. v. Parriell. 974 F.2d 523, 526-27 (4th Cir. 1992). 

U.S. v. Paskow. No. 92-50616 (9th Cir. Nov. 26, 1993) 

(Reinhardt. 1.). 

See Outline at VII.B.2. 

U.S. v. O'Neil. No. 93-1325 (1st Cir. Dec. IS. 1993) 

(Selya. 1.) (Remanded: "We hold that the [supervised release 

revocation] provision (SRR), 18 U.S.C. § 3583(e)(3), permits 

a district court. upon revocation of a term of supervised 

release, to impose a prison sentence or a sentence combining 

incarceration with a furthertenn of supervised release, so long 

as ( I ) the incarcerati ve portion of the sentence does not exceed 

the time limit specified in the SRR provision itself, and (2) the 

combined length of the new prison sentence cum supervision 

tenn does not exceed the duration of the original tenn of 

supervised release." The district court here exceeded these 

limits by imposing a two-year prison tenn plus a new threeyear term of supervised release after revoking defendant's 

original three-year term of release. 

In remanding for recalculation of a new revocation sentence, the court added in a footnote that "we today join six 

other circuits in recognizing [Sentencing Guidelines] Chapter 

7 policy statements as advisory rather than mandatory .... On 

remand. the lower court must consider. but need not necessarily follow, the Sentencing Commission's recommendations 

regarding post-revocation sentencing," The court reasoned 

that "although a policy statement ordinarily 'is an authoritative guide to the meaning of the applicable guideline: Williams v. U.S .• 112 S. Ct. 1112. t 119 (1992), the policy statements of Chapter 7 are unaccompanied by guidelines, and are 

prefaced by a special discussion making manifest their tentative nature."). But see U.S. v, Lewis, 998 F.2d 497,499 (7th 

Cir. 1993) (Chapter 7 policy statements are bindinl unless 

they contradict statute or guidelines) [6 GSU #1 J. Cf. U.S. 

v. Levi, 2 F.3d 842,845 (8thCir. I 993)(finding. in context of 

ex post facto issue, that Chapter 7 is "a different breed" of 

policy statement and not binding law) (6 GSU #41. 

See Outline at VII and VII.B.I, summaries of Truss and Tatum 

in 6GSU#3. 

Departures 

CRIMINAL IIIsTORY 

u.s. v. Clark. 8 F.3d 839 (D.C. Cir. 1993) (Remanded: 

District court departed downward to a sentence within the 

range that would have applied absent defendant's career 

offender status. Of the three grounds for departure, one was 

invalid and two were valid but required further findings. It 

was improper to depart based on the "unique status of the 

District of Columbia," wherein the U.S. Attorney controls 

whether prosecution is brought in local or federal court and 

defendant likely would have received a much lighter sentence 

in the local court. This is an exercise of prosecutorial discretion and "is not a mitigating factor within the meaning of 

18 U .S.C. § 3553(b).·' 

Departure because career offender status overrepresents 

the seriousness of defendant' s criminal history may be appropriate, but further findings are required here. Departure on the 

basis of defendant's lack of guidance as a youth and exposure 

to domestic violence may also warrant departure, Although 

the Nov. 1992 amendment to § SH 1.12..JJ.s .. 2rohibits departure for lack of youthful guidance "and other similar factors," 

defendant'S offense preceded the amendment and its application to his disadvantage would violate the ex post facto clause. 

Accord U.S. v. Johns,S F.3d 1267. 1269-12 (9th Cir. 1993). 

The appellate court cautioned. however, that "there must be 

235 
236 

Guideline Sentencing Update 

some plausible causal nexus between the lack of guidance and 

exposure to domestic violence and the offense for which the 

defendant is being sentenced." 

The court further noted that the district court may "consider whether a nexus exists between the circumstances of 

Clark's childhood and his prior criminal offenses. for purposes of detennining whether the seriousness of his criminal 

record is overrepresented under § 4AI.3." Additionally. "the 

district court may want to contemplate whether Clark's childhood exposure to domestic violence is sufficiently extraordinary to be weighed under U.S.S.G. § SHI.3." 

Finally. the court held that if the disuict court properly 

finds that career offender status overrepresents the seriousness of defendant's criminal history, it may depart to "the 

criminal history category and offense level that would have 

been applicable absent the career offender increases." See 

also Reyes, infra.). 

See Outline at VI.A.2. VI.C.I.b and h. 

U.S. v. Reyes. 8 F.3d 1379 (9th Cir. 1993) (Brunetti. J., 

dissenting) (Remanded: District court had authority to depart 

downward for career offender based on the overrepresentation of defendant's criminal history and offense compared to most career offenders. "His conduct was not at all 

of the magnitude of seriousness of most career offenders .... 

Convicted for selling .14 grams of cocaine, he was subject to 

the same base offense level and sentencing range as if he had 

sold almost 4000 times that much. 21 U.S.C. §84l(b)(1)(C). 

Under the career offender guideline a de fendant convicted for 

a fraction of one gram of cocaine is accorded the harshest 

punishment due an offender trafficking in up to 500 grams. 

21 U.S.C. §841(b)(I)(C)." 

The appellate court stressed. however. that the departure 

was not based on the small quantity of drugs per se: "Instead 

of emphasizing the absolute quantities of drugs involved, [the 

sentencing judge] cast the issue of quantity in comparative 

terms. Reyes'-criminal history was 'comparatively minor.' 

His offenses were 'minor' as compared to others (not small on 

some absolute scale) .... Quantity serves merely as the means 

to compare the similar treatment of defendants whose offenses differ by exceptional orders of magnitude .... While ... 

the Commission did take into account varyi ng penalties linked 

to different drug quantities ...• we conclude that the sentencing ranges resulting in exceptional discrepancies were not 

adequately considered." 

However. the district court did not adequately explain the 

extent of departure, which was down to the range that would 

have applied absent c areer offender status. The appellate court 

stated that such a departure may be appropriate, but the 

reasons must be articulated.). 

See Outline at VI.A.2. 

SUBSTANTIAL ASSISTANCE 

U.S. v. Baker. 4 F.3d 622 (8th Cir. 1993) (Remanded: 

Defendant pled guilty to a drug charge and agreed to assist 

the government by providing infonnation about others' drug 

traffic Jcj ng. Although she provided some infonnation, the 

government did not file a § 5K 1.1, p.s. motion. The district 

court departed anyway under § 5K2.0, finding as a mitigating 

circumstance that "defendant was required to inform the 

Volume 6' Number 7' January 5. 1994. Page 2 

Government of circumstances involving a close relative," 

which exposed her to family problems and "made it most 

difficult for the defendant to believe that she had not fulfilled 

her obligations .... The Court finds that. subjectively, the 

defendant had fulfilled her obligations and was therefore 

entitled to the SK 1.1." 

The appellate court held this was an 'invalid departure. 

'''The repercussions Baker experienced are mild fonns of' the 

"injury" or "danger or risk of injury" listed as a consideration 

in § SKl.I(a)(4), p.s., and "thus were considered by the 

Sentencing Commission." Defendant's "subjective belief that 

she had compl ied with the terms of the cooperation agreement 

is relevant only to the question of whether she did comply, 

which is merely a factor a district court should consider when 

detennining the extent of a departure under § SK l.l. see 

U.S.S.G. t 5Kl.J(a)(1 )-(3). p.s." The court also held that 

cooperation with the prosecution "simply cannot be sufficiently extraordinary to warrant a departure under § 5K2.0." 

The court reasoned that because there are no limits on the 

extent of a departure under § 5K I .1. "a district court may 

depart all the way down to a sentence of no imprisonment 

under § 5K 1.1 so long as that departure is 'reasonable' in light 

of the defendant" s assistance. The availability of an unlimited 

departure proves that § 5Kl.l, if it recognizes a defendant's 

assistance at all, cannot recognize it inadequately."). 

See Outline at VlC.lj. VI.F.1.b.i. 

Adjustments 

ACCEPTANCE OF REsPONSIBILITY 

U.S. v. Gonzalez. 6 F.3d 1415 (9th Cir. I 993)(Reversed: 

Disuict court erred in denying § 3E 1.1 reduction because it 

did not believe defendant's reason for committing the crime. 

"Under § 3E1.1, Gonzalez was required to recognize and 

affirmatively accept personal responsibility for his criminal 

conduct. The record shows he did .... Neither t 3E 1.1 nor any 

cases we have found state or otherwise indicate that a 

defendant" 5 reason or motivation for committing a crime is an 

appropriate factor to consider in determining whether to grant 

the adjustment. Even if it were established that Gonzalez at 

some point in the proceedings lied about why he committed 

the crimes, this lack of candor ... should play no part in the 

district court's § 3EI.I detennination."). 

See Outline generally at III.E. 

Detennining the Sentence 

CONSECUTIVE OR CONCURRENT SENTENCES 

U.S. v. Ballard, 6 F.3d 1502 (11th Cir. 1993) (Affirmed: 

District coun had authority to order that sentence for federal 

offense--committed by defendant while he was in state jail 

awaiting trial on state charge-would be consecutive to whatever state sentence defendant recei ved. would nol begin until 

after defendant's release from state custody. and would not be 

reduced by any time served on the state charge. Although the 

statute and Guidelines "do not address Ballard's exact situation," see 18 U.S.c. § 3S84(a), U.S.S.G. § 5G1.3(a) and (c), 

they do not preclude the district court'S action and. in fact, 

"evince a preference for consecutive sentences "'hen imprisonment tenns are imposed at different times."}. 

See Outlifl~ at VA2. 
Guideline Sentencing Update FEDERAL JUDICIAl 

~ CernR 

G .. ;d~lin~ S~",~roc;"11 Updau will be diSUlbuled periodically by the Center 10 inform judce' and other judicial penonnel of ..,lected federal coun decisions on the sentencinl 

reform legislation of 1984 and 1987 Uld the Sentencing ?~deli,?, Although the publiealion may ref~ t~ the Sentencinl G~i~lines and policy slJllemenu or the U .S .. SelllCnc~nl 

Convni.sion in the conlCxt of reponinl cue holdinls. II IS IlOl Intended to report SenlCDClnl CommiUlon pollC'~ ar 8CaVIIIe,. Raden should refer to the Guideh_. policy 

statements, comment.ry. and ocher lNIIIeriai. iaaued by the Seatcnciftl Cornmiuion far ,uch information. . 

This FederaJ Judicial Center publialion wu undenaltea in rwtherance of the Center', ,tatutory million to conduct and stimulate research anddeveloplllCftt far the tmprovemelll 

of judicial administration. 1lte view. expressed are those of the authar and IlOl neceuarily those of the Fedentl Judicial Center. 

VOLUME 6· NUMBER 8· JANUARY 28. 1994 

Offense Conduct 

Second aDd Sixth Circuits split on whether drug quantity must be found by the Jury or sentencing court when 

quandty determines whether a conYktion for possasion 

of crack is a felony or misdemeanor. Both defendants were 

acquitted of possession with intent to distribute crack cocaine 

but convicted of the lesser included offense of simple possession of crack cocain~ misdemeanor for amounts under five 

grams if defendant has no prior drug convictions but a felony 

with a five-year minimum sentence for more than five grams. 

See 21 U.S.C. § 844(a). Neither jury verdict specified the 

amount of crack that defendants were guilty of possessing. 

Each district court found there was more than five grams 

involved and sentenced defendants under the Guidelines. 

Both defendants appealed. claiming that quantity is an element of the offense and must be found by the jury. 

The Second Circuit rejected that claim. holding "that 

quantity is not an element of simple possession because 

§ 844(a) prohibits the possession of any amount of a controlled substance, including crack .... TIle task of determining 

how much drugs Monk was carrying falls to the sentencing 

judge. He. therefore, had to find that Monk possessed more 

than 5 grams of crack in order to treat the crime as a felony." 

The appellate court noted that "it is beyond cavil" that more 

than five grams was involved, since defendant essentially 

admitted to possessing 340 grams, claiming only that he had 

no intent to distribute. In addition, the indictment specifically 

alleged possession of 50 grams and the jury returned a special 

verdict form of gUilty "as charged in the indictme!'t" 

U.S. v. Monk, No. 93-1349 (2d Cir. Jan. 24, 1994) 

(McLaughlin, J.). 

The Sixth Circuit, however, concluded that ''the amount 

possessed constitutes an element of the offense." It would be 

"an impermissible usurpation of the historic role of the jury" 

to allow a defendant to "be convicted of a felony, as opposed 

to a misdemeanor, on the strength of a sentencing judge's 

factual finding on the amount of crack cocaine possessed by 

the defendant .... The felony of which Mr. Sharp was convicted ... was a 'quantity dependant' crime, ... and the facts 

relevant to guilt or innocence of that crime-including possession of a quantity of crack cocaine exceeding five gramswere for the jury to decide." Accord U.S. v. Puryear. 940 F.2d 

602,604 (10th Cir. 1991) ("We conclude that drug quantity 

constitutes an essential element of simple possession under 

section 844(a) .... Absent ajury finding as to the amount of 

cocaine, the trial court may not decide of its own accord to 

enter a felony conviction and sentence, instead of a misdemeanor conviction and sentence, by resolving the crucial 

element of the amount of cocaine against the defendant"). 

U.S. v. Sharp. No. 93-5117 (6th Cir. Dec. 28. 1993) 

(Nelson, J.). 

See Outline generally at II.A.3. 

Adjustments 

ACCEFfANCE OF REsPONSIBILITY 

FIfth CIrcuit holds that where defendant met threepart test for additional one-level reduction under 

13El.l(b), district court had no discretion to deny that 

reduction because defendant had allo obstructed justice. 

Defendant lied about his prior criminal record in his presentence interview, and was assessed a two-point enhancement for obstruction of justice under § 3CI.1. Despite that, 

the district court awarded the two-point reduction for acceptance of responsibility. Because of the obstruction. however, 

the court refused the extra one-point reduction under 

§ 3E 1.1 (b). which defendant otherwise qualified for because 

of his timely plea and cooperation. 

TIle appellate court devised a three-step test to determine whether a defendant qualifies for the § 3E 1.1 (b) reduction. The first two steps, which were not in dispute here. are 

that a defendant qualifies for the two-point reduction under 

§ 3E 1.1 (a) and has an offense level of 16 or greater before that 

reduction. The third step is met by "(1) timely providing 

complete infonnation to the government concerning his 

own involvement in the offense, or (2) timely notifying 

authorities of his intention to enter into a plea of guilty, 

thereby permitting the government to avoid preparing for 

trial and permitting the court to allocate its resources efficiently." See § 3E 1.1 (b). The issue here was whether defendant satisfied (2). . 

Based on the language of § 3El.I(b) and accompanying 

Application Note 6, the court concluded "thil the timeliness 

required ... applies specifically to the governmental efficiency to be realized in two-but only two-discrete areas: 

1) the prosecution's not having to prepare for trial, and 2) the 

court's ability to manage its own calendar and docket. without taking the defendant's trial into consideration. Of equal 

importance in the instant case is that which the timeliness of 

step (b)(2) does not implicate: time efficiency for any other 

governmental function, including without limitation the 

length of time required for the probation office to conduct its 

presentence investigation. and the 'point in time' at which the 

defendant is turned over to the Bureau of Prisons to begin 

serving his sentence." 

Therefore, it was errorto deny the extra deduction because 

defendant's obstruction may have delayed the presentence 

report and the beginning of his incarceration: "[A]s long as 

obstruction does not cause the prosecution to prepare for trial 

or prevent the court (as distinguished from the probation 

office) from managing its calendar efficiently. obstruction of 

justice is not an element to be considered .... [A] defendant 

who has satisfied all three elements of subsection(b)'s tripartite test is entitled to-and shall be afforded-an additional 

I-level reduction." 

U.S. v. Tello. 9 F.3d 1119 (5th Cir. 1993). 

237 
238 

Guideline Sentencing Update 

In another case, the Fifth Circuit used "the Tello test" to 

reverse a denial of a § 3EJ.I(b) reduction. The district court 

granted a two-level reduction but denied the additional reduction. apparently because it mistakenly thought defendant's 

offense level was not 16 or higher. The appellate court 

determined that defendant's offense level "indisputably was 

above 16" and concluded that defendant also met the third 

step of the Tello test: "Mills clearly took the step defined in 

subsection (b )(2) when ... less than a month after his arraignment and only six weeks after he was charged ... he notified 

authorities of his intention to entera plea of gUilty .... Having 

thus satisfied all three prongs. Mills was entitled-as a matter of right-to the third I-level reduction in his offense level. 

... [T)he court was without any sentencing discretion whatsoever to deny Mills the third I-level decrease." Because "the 

sentencing court left no doubt that. as far as it was concerned. 

Mills should be incarcerated for the maximum term permitted 

under the applicable Guidelines range." instead of remanding 

the appellate court chose to "reverse the term of incarceration 

imposed by the district court. modify that term to one of 30 

months-the maximum within the correct sentencing 

range-and affirm Mills' sentence as thus modified." 

U.S. v. Mills. 9 F.3d 1132 (5th Cir. 1993). 

See Outline generally at m.E and X.D. 

Departures 

MmGATlNG CIRCUMSTANCES 

u.s. v. Newby. No. 92-5711 (3d Cir. Nov. 30. 1993) 

(Cowen. J.) (Affirmed: The district court properly refused to 

consider downward departure for inmate-defendants who. in 

addition to the penalty for their instant offenses. would lose 

good time credits as an administrative penalty for the same 

conduct. "Loss of good time credits is not a factor that relates 

to the defendants' guilt for their conduct; the defendants' 

being sanctioned administratively does not show that they 

were morally less culpable of the charged crime .... {P)rison 

disciplinary sanctions througb loss of good time credit do not 

constitute a proper basis for a downward departure." TIle 

appellate court refused to follow U.S. v. Whitehorse, 909 F.2d 

316, 320 (8th Cir. 1990) ("District Court did not err in considering the loss of good time as one of the aggregate of mitigating factors justifying a downward departure in this case"). 

See Outline generally at VI.C.4. 

U.S. v. Crook. 9 F.3d 1422 (9th Cir. 1993) (Remanded: 

Defendant pled guilty to manufacturing 75 I marijuana plants. 

The district court departed downward two offense levels on 

the grounds that defendant had grown the marijuana for his 

personal use and the Guidelines did not take into account that 

a defendant could lose his home-which was not acquired 

with proceeds from drug sales-through civil forfeiture. 

(Note: On this issue the court cited U.S. v. Shirk, 981 F.2d 

1382 (3d Cir. 1992), as support, but that case has been vacated. 

See last item.) The appellate court held that "the Guidelines do 

not allow for departure on account of civil forfeiture." Also. 

the district court clearly erred in finding that the marijuana 

was for defendant's personal use. Even using a conservative 

estimate. it was five times more than defendant could use at 

his admitted rate of smoking-Uwe are convinced by the size 

of Crook's marijuana crop that he must have been manufacturing marijuana. at least in part. for sale or distribution."). 

See Outline at VI.C.I.i and 4.b. 

Volume 6· Number 8' January 28. 1994' Page 2 

U.S. II. One Star. 9 F.3d 60 (8th Cir. 1993) (Affirmed: 

Downward departure to five years' probation for defendant 

convicted of being a felon in possession of a firearm was 

properly based on combination of factors and "the unusual 

mitigating circumstances of life on an Indian reservation 

noted ... in U.S. v. Big Crow. 898 F.2d 1326. 1331-32 (8th Cir. 

1990)." Defendant did not appear to present a danger to the 

community. especially with a no-alcohol con-dition of probation. He had strong family ties and responsibilities-including the sole support of nine family members-and a good 

employment record. Defendant also "submitted a resolution 

by the Rosebud Sioux Tribe and numerous letters from tribal 

officers and others praising his work record and contributions 

to the community and urging that he not be incarcerated." The 

appellate court also rejected the government's contention 

"that the degree of departure was unreasonable because it 

requires a reduction from offense level twenty to offense level 

eight to make One Star eligible for a sentence of probation. 

... The maximum prison term for a violation of § 922(g)( I ) 

is ten years. St!t! 18 U.S.C. §924(a)(2). Therefore. the district 

court had statutory authority to sentence One Star to probation. See 18 U.S.C. §§ 3559(a), 3561 (a). That being so, and 

its findings being legally sufficient to warrant a departure. 

the court's decision to impose probation 'is quintessentially 

a judgment call.' ... Though the district court's decision to 

depart and the extent of its departure no doubt approach the 

outer limits of its sentencing discretion under the Guidelines. 

we conclude that One Star's sentence was a reasonable 

exercise of that discretion."). 

See Out/ine at VI.C.I.a and e. 3. and D. 

Criminal History 

CAREEIt OFFENDER PROVISION 

U.S. v. Calverley, No. 92-1175 (5th Cir. Dec. 29, 1993) 

(Garza. J.) (Affirmed: Defendant. convicted of possession of 

a listed chemical with intent to manufacture a controlled 

substance under 21 U.S.C. § 841 (d)(l), y!as properly sentenced as a career offender. "[W]e hold that a sentencing 

court. in determining whether an offense is a controlled substance offenseunder§ 4B 1.2(2). may examine the elements of 

the offense-thougb not the underlying criminal conduct-to 

determine whether the offense is substantially equivalent to 

one of the offenses specifically enumerated in § 4B 1.2 and its 

commentary .... [PJossession of a listed chemical with intent 

to manufacture a controlled substance . . . is substantially 

similar to attempted manufacture of a controlled substance. 

and is therefore a controlled substance offense within the 

meaning of U.S.S.G. §4BI.2." The court refused to follow 

U.S. v. Wagner. 994 F.2d 1467. 1474-75 (10th Cir. 1993) 

[5GSU'14]. which held that §841(d) is not a controlled 

substance offense under § 4B 1.2(2) and should not be treated 

as an attempt to manufacture a controlled substance.). 

See Outline at IV.B.2. 

Certiorari Granted and JudgrmmtVacated: 

U.S. v. Shirk. 981 F.2d 1382 (3d Cir. 1992). certiorari 

granted and judgment vacated by Shirk v. U.S .• No. 92-1841 

(U.S. Jan. 18, 1994). for rehearing in light of Ratr.lafv. U.S., 

No. 92-1196 (U.S. Jan. II, 1994). Please delete reference to 

Shirlc in Outline at VI.CA.b. 
Guideline Sentencing Update 

O"iMliM MIlUJlCu., Updou will be dillribllied periodically by !he Ceali:r1O iaform jIICIpa ud ocher judicial ~ oIaiccled fedenI_ deeilliooa 011 the semmdll& 

reform iepSIaliOll 011984 ud 1987 ud the SeIll.eDCiIll G1IideIiDa. AJlbouch die publicalioa may refer 10 die ~III Guideliaa ud poIiq IUIIemeIIII of cbe US. Semalcinl 

COIIIIIIiAioIIID the coorat 01 repaninl ~ holdinp. it I, !lOt iafeIIded 10 report Selltelldlll CoIIuniuiae polieIeI or IliCtMIia. Readcn IbouId refer 10 the Guideli-. poIiq 

IIIIICmeIItI. CIOIIIInCDIIrY. ud ocher....n.ls iaIIed by die ~ CcJmmiuioII for ... i~ 

ThiaFedenlJudicialCeali:rpublic:alioD_Ulldl:nUcDiafurlllenlDceolcbeCeali:r'lllIIIIbymillioaIlOQOIIduccud ___ l1IIICIIrCbuddevelopmeatforcbeiIl1l'DvenlCllI 

of judiciaI .... nilnlioa. The views ~ .-.: thole 0I1he IIIIhor ud !lOt AeCeSUrily thole 0I1he Federal Juclidal C-. 

VOLUME 6· NUMBER 9· FEBRUARY 14, 1994 

Offense Conduct 

DRUG QuANTITY-RELEvANT CONDucr 

NInth Orcult holds that drup held solely for penoaal 

use should DOt be used to set ofI'ease leftl for possessloD 

wItb lateDt to distribute. Defendant pled gUilty to p0sse$-

sion of cocaine with intent to distribute. He admitted to 

possessing 80-90 grams, but claimed most of the cocaine 

was for his personal use and only the 5-6 grams he intended 

to distribute should be used in sentencing. The district court 

appeared to aan:e that personal use amounts should not be 

used, but determined those amounts could not be distinguished and used the full amount. 

The appellate court remanded: "Drugs possessed for mere 

personal use are not relevant to the crime of possession with 

intent to distribute because they are not 'pan of the same 

course of conduct' or 'common scheme' as drugs intended 

for distribution. Accordingly, we hold that in calculating the 

base offense level for possession with intent to distribute, the 

district court must make a factual finding as to the quantity 

of drugs possessed for distribution and cannot include any 

amount possessed strictly for personal use." 

U.S. v. Kipp. 10 F.3d 1463 (9th Cir. 1993). 

See Outline at B.A. I . 

U.S. v. Roederer. 11 F.3d 973 (lOth Cir. 1993) (Affirmed: 

Following interpretation of "same course of conduct" set out 

in U.S. v. Perdomo. 927 F.ld III (2d Cir. 199 I). court apeed 

that defendant's cocaine sales in conspiracy that ended in 

1987 were relevant conduct for instant offense of cocaine 

distribution in May 1992: '"We hold that the evidence, when 

viewed in its entirety, establishes that Roederer was actively ensaaed in1he same type of criminal activity, distribution 

of cocaine, from the J980s throuJh May, 1992. Roederer's 

conduct was suffICiently similar and the instaDce$ of cocaine 

distribution were temporally proximate."). 

See Outline at tA.2 and B.A. 1. 

DRUG QUAN11TY-OnIER IssuEs 

u.s. v. Tavano. No. 93-1492 (1st Cir. Dec. 29, 1993) 

(Sely .. J.) (Remanded: District court erred when it ''formulated a per se rule" that evidence presented at trial conb'Ols 

and refused to consider defendant's evidence regarding drug 

quantity that differed from the testimony at trial. The appellate court held that "both Fed. R. Crim. P. 32(c)(3XD) and 

U.S.S.G. §6Al.3 require a sentencing court independently 

to consider proffered information that is relevant to ... the 

sentencing determination."). 

See Outline at II.A.3. IX.D.3. 

CALCULATING WEIGHT OF DRUGS 

U.S. v. Crowell. 9 F.3d 1452 (9th Cir. 1993) (Affirmed: 

"[ W1e join the otherCircuit Courts ... which have held that the 

weight of the dilaudid tablet, rather than the weight of the 

hydromorphone. is the proper measure of drug quantity .... 

We find that use of the gross weight of the tablet is entirely 

consistent with" Chapman v. U.S .• 111 S. CL 1919 (1991).). 

Accord U.S. v. YOWIg, 992 F.2d 207.209-10 (8th Cir. 1993). 

See Outline at B.B.1. 

U.S. v. CooIu!y. 11 F.ld 97 (8th Cir. 1993) (Remanded: 

Defendant WIS sentenced for an LSD offense before, but his 

appeal came after, the Nov. 1993 amendment to §2Dl.1(c) 

(providing new method to determine weight of LSD). He 

challenaed the old method of including the carrier medium 

and also challenged the new method, claiming it was arbitrary 

and violated the Sentencing Commission's statutory grant 

of authority. The appellate court reaffirmed prior precedent 

that upheld use of the.carrier medium and also upbcld the 

new method. The case was remanded, however, for the district court to consider whether it should retroactively apply 

the new method pursuant to § IBI.IO(a).). 

See Outline at D.B.I. 

Adjusbnents 

VULNERABLE VICTIM 

Sixth Circuit holds that relevut c:oDCIac:tsboulcl Dot be 

used for f3At.t adJ .......... t. Defendant was convicted of 

conspiracy to defraud the IRS by filing false tax returns and 

claiming fraudulent tax refunds. He convinced several 

people to assist him. and the government claimed that some 

of these people were ''particularly vulnerable in some way" 

and that defendant "prey[ed] ontheirwlnerabilities in recruiting them to his scheme." The district court agreed and imposed t 3AI.l's two-level enhancement. 

The appellate court remanded., holding "that the language 

of section 3A 1.1 requires that individuals targeted by a defendant be victims of the coaduct underlyill8 the offense of 

conviction." Here. the victim of the offense 'of conviction 

was the aovemment, ad while some of the others "may have 

been 'victimized' by Wriaht in the sense that he may have 

taken advantage of them, we do not believe they were 

victims of the offense." 

In addition, because "section 3A 1.1 applies only in cases 

where there is a victim of the offense of conviction, we further 

hold that a court cannot apply the adjustment based upon 

'relevant conduct' that is not an element of the offense of 

conviction. Section I B 1.3 has no application in a section 

3A] .] adjustment." 

U.S. v. Wright. No. 93-3055 (6th Cir. Dec. 14. ]993) 

(Kennedy, J.). 

See Outline at m.A.l.b. 

OBSTRUcrlON OF JumCE 

U.S. v. Haddad. 10 F.3d 1252 (7th Cir. 1993) (Reversed: 

It was error to give § 3C 1.1 enhancement for allegedly threatening prosecutor and attempting to infh:rence-witness. "Neither the factual findings made nor the actual record below 

support an 'obstruction' enhancement" for attempting to 

influence the witness. As to the alteged threat, § 3CI.l "must 

be interpreted and determined on the basis ofthe language in 

239 
Guideline Sentencing Update 

[f) IB1.3(a)(I)," which holds a defendant responsible for 

conduct "that occurred ... in the course of attempting to avoid 

detection or responsibility for that offense." Thus, it would 

have to be shown "that the acts of the defendant alleged to 

obstruct or impede justice were done 'willfully' and with the 

specific intent 'to avoid responsibility' for the offense for 

which he was being tried .... [E)ven if there was a threat (as 

to which the record is unclear) it is obvious that such acts 

were not committed 'in the course of attempting to avoid 

responsibility for the offense of conviction. ott). 

See Outline at m.C.4. 

U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993) (Affirmed: 

Defendant's plea agreement required him to cooperate with 

government investigators and testify truthfully at a coconspirator's trial. The district court held that defendant gave 

false testimony that merited a 13CU enhancemenL The 

appellate court affumed, holding that "violation of a plea 

bargain warrants a sentence enhancement for obstruction of 

justice." See also U.S. v. Dulce, 935 F.2d 161. 162 (8th Cir. 

1991) (enhancement warranted where defendant did not provide truthful infonnation as required by plea agreement). 

The court also agreed with the Tenth Circuit that 13Cl.1 

"applies when 'a defendant attempts to obstruct justice in a 

case closely related to his own, such as that of a codefendant.' 

U.S. v. Bemaugh. 969 F.2d 858, 861 (10th Cir. 1992)."). 

See Outline at m.C.2 and 4. 

Departures 

MITIGATING CIRCUMSTANCES 

U.S. v. Omtu. No. 92-30211 (9th Cir. Dec. 21, 1993) 

(Reinhardt, J.) (Canby, J., concurring in part) (Remanded: 

District court erred in holding that Vietnam veteran suffering 

from post-traumatic stress disorder did not have "significantly reduced mental capacity" for purposes of 15K2.13, p.s. 

'''Reduced mental capacity' •.. comprehends both organic 

dysfunction and behavioral disturbances that impair the 

formation of reasoned judgments .... Therefore, a defendant 

sufferinc from post-traumatic stress disorder, an emotional 

illness, is eligible for such a departure if his ailment distorted 

his reasoning and interfered with his ability to make considered decisions." The fact that defendant also hid an alcohol 

problem did not disqualify him for depanure. Under 

§ SK2.13, defendants "are disqualified only if Iheir voluntary 

alcohol or drug use caused their reduced mental capacity .••. 

If the reduced mental capacity was caused by anotbcr factor, 

or if it, in tum, causes the defendant to use alcohol or another 

drug, the defendant is eligible for the departure." 

The court also joined other circuits that held .. the disorder 

need be only a contributing cause, not a but-for cause or a sole 

cause, of the offense .... [Section 5K2.13] requires only that 

the district court find some degree. not a particular degree of 

causation .... [T)he degree to which the impairment contributed to the commission of the offense constitutes the degree 

to which the defendant's punishment should be reduced." 

The court added: "Resolution of disputed facts concerning 

mental impairment requires more than simply a neutral process. The court's inquiry into the defendant's mental condition and the circumstances of the offense must be undertaken 

'with a view to lenity, as § 5K2.13 implicitly recommends.' 

U.S. v. Cholman. 986 F.2d 1446, 1454 (D.C. Cir. 1993). 

Lenity is appropriate because the purpose of § SK2.13 is to 

treat with some compassion those in whom a reduced mental 

capacity has contributed to the commission of a crime."). 

2 40 See Outlin~ at VI.C.I.b. 

U.S. v. White Buffalo, 10 F.3d 515 (8th Cir. 1993) (Affirmed: "Lesser harms" depanure under § 5K2.11. p.s .. was 

appropriate for defendant convicted of unlawful possession 

of an unregistered firearm (a.22 Single-shot rifle with shortened barrel). Defendant lived in a remote area of an Indian 

reservation and used the gun solely to shoot animals that 

preyed on his chickens. He had been steadily employed for a 

few ycars and had no prior arrests or convic;ti()ns. The appellate court affu:med the conclusion that defendant's actions 

"were not the kind of misconduct and danger sought to be 

prevented by the gun statute," and rejected the government's 

contention that § 5K2.ll should not be applied to possession 

of shortened unregistered weapons. Cj. U.S. v. Ho44way,998 

F.2d 911, 919-20 (11th Cir. 1993) (district court may consider § 5K2.11 departure for defendant convicted of p0ssessing unregistered sawcd-off shot,un) [6GSUI4]. 

The district court erred. however, in finding that departure 

was also justified under 15K2.0 for the kind of personal and 

community factors upheld in U.S. \I. Big Cmw. 898 F.2d 1326 

(8th Cir. 1990). The facts were simply "not sufficiently unusual" to support departure: However, "15K211 provided a 

legally sufficient justifiCation for departure in this case:' and 

"the district court reasonably exercised its discretion in imposing probation" after departing from offense level 15 to 8. 

q. U.S. v. OneS1I:Ir, 9F.3d 60, 62 (8thCir.1993) (upholding 

departure toprobation from 33-41-monthrange) [6GSUfi].). 

See Ollliine at VI.C.l.a, generally at VI.C.4, and X.A.2. 

General Application Principles 

STIPlJLATlON TO AoDmONAL 0F.n:NsEs 

u.s. v. Saldana, No. 93-10050 (9th Cir. Dec. 20, 1993) 

(Nelson. J.) (Remanded: Defendant pled gUilty to three drug 

counts; twelve food stamp counts were dismissed, but the 

stipulation off acts in the plea agreement provided evidence of 

the food stamp offenses. The district court held that it had 

discretion whether or not to consider the food stamp counts 

under § I B 1.2( c) and declined to do so. The appellate court 

held this was error: "Nothing in the Guidelines, the commentary, or prior decisions of this court support a conclusion that 

a district court is free to ignore the commahd of § IBI.2(c) 

requiring it to consider additional offenses ~lished by a 

plea agreement.j. q. U.S. v. Moort!. 6 F.3d 715, 718-20 

(lIth Cir. 1993) (Atrumed: Under 11B1.2(c:), the dislric:t 

court ''was required to consider Moore's unconvicted r0bberies, to which he stipulated in his agreement, as additional 

counts of conviction .•• under section 3Dl.4 .•.. Even if the 

parties had agreed that these unconvicted robberies were to be 

used ... in some other way, the district court was obUgaud 

to consider these unconvicted robberies as it did."). 

To be included in Outline at I.B. 

Criminal History 

OrHER SENTENCES OR CONVICTIONS 

U.S. v. Kipp. 10 F.3d 1463 (9th Cir. 1993) (Remanded: 

State deferred sentence that had no supervisory component, 

and was treated by the district court as a suspended sentence. 

did not warrant two criminal history poipts under § 4A 1.1 (d). 

"[A] suspended sentence, standing alone without an accompanying term of probation, is not a 'crimbral justice sentence.' 

as that term is used in 14A 1.1 (d)."). q. U.S. \I. McCrary, 881 

F.2d 485, 489 (4th Cir. 1989) (because § 4A 1.2 requires actual 

imprisonment to count as "sentence of imprisonment," improper to count suspended sentence with no imprisonment). 

See Outline at IV .A.5. 
Guideline Sentencing Update 

GtliMIiM ~ U,.. wiD be dillriblnod periodically by !be CcnICf to ilIf_ judpI.ad QIbcr judidal,.-l of aeIeaI:cI fcdenI COIIIt decilliou OG !be 1e1lltllCi", 

n;f_~ofI9l4_19I7_1be~1I10uidc1i_.AIIboucb!bepublic:alioallllYrd:rtotheSalalcillaGuidelilla.adpolicy_ofIheU.S.SclllnCin, 

Commiui_ I. !be CIOIIIIlIt 01 ftIIIOI\iIII- boIdiep. It illICIt iIIcaIded to Iepoft ScIIIaciDl Commiuiao palic:itl or IICIiYifiea. Raden Ihould n;tcr to the OIlicleIiIlCl. policy .--. __ y .... __ ..... iuued by the SI n r" 'DI CommiuioII for IUCb iDfCll"lllllliOlL 

ThitFedenlJudil:WC-pubIiCldoa_lIDIk:nIIIreIIillfllnhrnaceofcbeCatcr' • ...-yllliuiolltoCDllduct ... IIli_ ... --= ... dcWilopmaalforlheilllpVYemelll 

of jDdidaIllllmillilallOlL Tbe ............ _ .... oftbe..mar", _ -.rily .... oftbe Fedenl JwdidaI C-. 

Departures 

MrnGATING CIaCVMSTANCBS 

U.S. 11. TsosUt. No. 93-2145 (lOth Or. Jan. 14, 1994) 

(Godbold. Sr. J.) (R.emanded: Downward departure is per~ 

missible for volUntary manslauJbter defendant wbere the 

victim was havins an affair with defeodant's wife and died 

after a fiabt with defendant. FUIt. the district court properly 

found. unda' tbe toeaIity of the circumstances. that defendant's bebaviorwas an abemtioo-bc bad "a lonl history of 

continuous employment with the Navajo Tribe, ••• a reputation for being economically supportive ofhis family, [and he] 

bas DOt been enaased in any prior criminal activity ." Second. 

the victim's conduct '"contributed sipificandy to provoking 

Tsosie's offense behavior," havinJ "consisted DOt merely of 

having an affajr with TIOsie's wife but also of beinJ in a 

vehicle with Tsosie', wife &be day after abe took hercbildren 

away and pve a false excuse about her whereabouts. ••. 

Further, in the ensuing fiJbt. [the victim] took offhis belt and 

hit Tsosie on the nose with it and actively panicipated in the 

affray" that led to his dea1b. Thus. it was proper to consider 

under I SKl.IO(a) that '"the victim was of a greater physical 

sizeandstreDglb than thedefendant. "and thefactadistinJUish 

this case from U.S. 11. DuomutfIMIJC. 952 F.2d 182 (8th Or. 

1991), and U.s. v. SIrDrtt, 919 F.2d 1325 (8th Or. 1990). 

Finally. when defendant laW the victim was seriously injured 

he went for help. then recumed and tried to stop the bleeding. 

"Rendering aid to a victim is a flCtor'that is not considered by 

the Guidelines." Remand is n:quired. however. because the 

district court did DOt adequately explain the departure from the 

41-51~monthf!DlCtoafour-monthterminahalfw~yhousc.). 

Sec OIllliM at VI.C.1.c and I. 3. and 4.a. 

U.S. v. M~ello. 13 F.3d 752 (3d Cir. 1994) (Affirmed: 

Defendant convicted of structuriq bIIIk deposits in order to 

evade reportinl requirements was not eliJible for downward 

departure based on abernnt behavior. "Aberrant behavior 

must involve a lack of planninl: it must be a single act that 

is spontaneous and thoughdess. and no consideration is 

given to whether the defendant is a firat-time offender. . .. 

The district court correctly applied this standard and found 

that some pre-planning was required to deposit $9,000.00 

each day over a one-week period of time. j. 

See Ou"ine at VI.C.1.c. 

AOORA. VATING CIRCVMSTANCES 

U.S. v. Tomu-Lopez" 13 F.3d 1308 (9th Cir. 1994) (Remanded: Upward departure for high-speed car chase while 

transporting illegal aliens was improper. Defendant's flisht 

"was only afew minutes and less than five miles Ions •... was 

not unusually fast or reckless." and was "within the bou~ 

aries of 3CI.2." Also, defendant did not treat the alien 

passensers in a dangerous or inhwnane manner so as to 

warrant departure under t 2L1.1, comment. (n.8). '"In sum, 

there is nothina bere., aside from tbe bare presence of illegal 

aliens, to suuest that Torres~Lopez's flisht from authority 

was in any way extraordinary."). 

Sec Ou,liM at VI.B.1.b and j. 

Offense Conduct 

0nD:a DI!:rBNDANTs' DRUG QuANTITIES 

U.S. v. Ounron, 11 F.3d 122S(5thCar.I994)(R.emanded: 

"We hold today that relevant conduct as defined in 

t IB1.3(a)(I)(B) is prospective oaly. and coosequendy rdevant conduct UDder t IB1.3(a)(1)(B) cannot include conduct occwr:inJ before the defendant joins a conspiracy." It 

was therefore improper to count dru, quantities trafficked by 

the conspiracy before defendant joined it. On remand the 

district court must deIenniDe: "I) when Carreon joined the 

conspiracy •••• 2) whltdru,quantities were within 1bescope 

of Carreon', conspiratorial ap:ement •••• and 3) of these 

drug quantities. which were reasonably foreseeablo-prospective1y oaly-by Camon." Defendant's knowl~ of 

the conspiracy's prior conduct may be used. but only as 

"evidence of what Carreon asreed to and what he reasonably 

foresaw when he joined theconspiraey.j. 

Sec OIllIiM at 1I.A.2. 

POSSESSION OF WEAPON BY DRUG i>EnNDANT 

U.S. v. Zimmer. 14 F.3d 286 (6th Cir. 1994) (Remanded: 

It was error to give drug defendant l2Dl.l(d)(l) enhancement for rifles found in his home. Defendant presented 

"unrefuted testimony that these rifles were for hunting and 

were unconnected with the marijuana. ..• The District Court 

failed to consider that the defeadant was charged with a 

marijuana manufacturiq operation. Tbc:re are 110 allegations 

Ibat Zimmer was actively seIlinl the substance from his 

home. We do DOt have a situatioD in which 'drul dealinl' 

was occwr:inJ on the premiseI. dminl which a weapon miabt 

be utilized. None of the weapons were found anywbere near 

the marijuana." Funber, one rifle was disassembled and 

inoperable, supporting defendant's claim that he was repairin, it for a friend. and tbere was no ammunition in the house 

for an unloaded second rifle, supporting defendant's asscr~ 

tion that the rifle did not belong to him. ''Given the nature 

. of the operation' (manufacturing, . not dcalinS). the setting 

(rural). and the location of the contraband (in basement) 

away from the weapons, 'it is clearly improbable that the 

weapon(s) [were] connected with the offense.' U.S.S.G. 

§ 2D1.I. comment.(n.3)."). 

Sec Olllline at D.C. I and 3. 

DRUG QUAN11TY _ 

U.S. v. 7immer. 14 F.3d 286 (6thCir. 1994) (Retnanded: In 

determining relevant conduct, the disuict court could not 

assume defendant produced a certain number of plants in the 

past based only on defendant's admission that he had grown 

241 
Guideline Sentencing Update Volume: 6 • Number 10 • March 18, 1994 • Page 2 

marijuana before. ''The coun's dctennination that the defen- Violation of Probation 

dant grew an additional 200 plants is not supported any- REvOCATION FOR DRUG POSSESSION 

where in the record. lbe District Court may not 'create' a U. S P N 93 5190 (4th C' Feb 17 1994) (Erv' . ,v. eM, o. - Ir.. , an, 

quantity when there is absolutely no evidcoce to support that CJ.) (Remanded: Defendant's probation was revoked for 

amounL An estimate can suffice, but 'a preponderance of the druS possession under 18 U.S.C. § 3565(a), subjecting him to 

evidence must support the estimate.' •.. 1be information and imprisonment for "not less than one-third of the orisinal 

equipment seized in the case clearly demonsuatcs that the sentence." The district court construed "oriSinal sentence" 

'sophisticated' indoor arowins operation was but 1 few to mean defendant's three-year probation teml.rather than his 

months old. Thus, the size of defendant's opcnIion at the 6-12-monthguidclincransc, and sentenced him to 12 months. 

time of IlleSt cannot be manipulated to infer 1 certain amount The appellate court remanded. holdinS "that the most rcaof past 'success' (25 plants per year) when there cUstI not sonable interpretation of § 3565(1) is that 1 person found to 

a scintilla of evidcoce to support such 1 findinS· 1bat the have committed a narcotics related violation is to be rcsendefendant pew marijuana durinS the years prior to his tenced to a term of incarceration that is atlcast one-third but 

arrest is not in question; he admiued as much. The amount does DOt exceed the maximmn prison tam to which the per_ 

auributcd to him by the District Court. however, was c:reated son could have been ~ under the Guidc:Jines. Therefrom whole clocb. It is improper ••• to limply "peas.' The fore. although defendant could still be sentenced to 12 

rdevant conduc:t cnhancemeDt is tberefore reversed and the months. the minimmn tam required is only 4 months.). 

District Court is directed to resenteace defendant baled OD See Outline at VJLA.2, summary of Alese in 6 GSU IS. 

the ICtUaIIDlOUIIt of marijuana seized. "}. 

See OutUne at B.B.4.d and seneraJly at B.A.I. REvOCAl1ON OJ' PROBATION 

U.s. Y. Forrutt!r. 14~F.3d 34 (9th Or. 1994) (Affinned: 

Adjustments Defendant. oripnally subject to 33-4I-month suideline 

OmCIAL VICI1M ruse but siven a five-year term of probation after departure. 

V.S. Y. Ortiz.-GrtJIfIIdos. 12 F.ld 39 (5th Cit. 1994) (At- was properly ICIltftlced after revocation to 33 months instead 

firmed: Bnhanc:ement under §3AI.2(b) for assault on law of the 3-911lODtbs called for by f7B1.4, p.s. LTJbe policy 

enforcement officer by • eoconspirator was properly siveD Sfafaneats of Qapter 7 me not bindiq. [altbouab] Forrester 

to defendant convicted of dru, offenses. Altbouab App1ica- is comet in .-pins that the sentencins court must consider 

tion Note I to § 3AI.2 indicates there must be • specified them. ••• Here., the district court considered Cbapf« 7. In 

"'victim .. of the offense of conviction, Note I should not be footnote 1 of its order revokins probation it Jtated that 'even 

applied to subsection (b) because it conflicts with the pide- if [it] sentcDc:cd Defendant under (bapter 7, the court would 

line and accompanyinS Note 5, both of which were added DOtbeboundbythe3-9monmran,esugestedbyDcfendanL 

later.). Accord V.S. Y. Powell. 6 F.ld 611, 613-14 (9dl Cit. Commentuy note 4 to § 7Bl.4 provides that, "[w]hcre the 

1993) (same. for defendant who assaulted officer durin, oriainal SCDtence was the result of 1 downward departure 

unlawful possession of weapon offense). See tdso U.s. Y. ( .. , •• as 1 reward for substantial assistance) ••• , an upward 

Gonzlllu. 996 F.2d 88, 93 (5th Cir.I993) (affirmed enhance- departure may be wananted. ... HavinS considered the policy 

ment where codefendantsbot officer). statements of Cbapta" 7, the court was free to reject the 

See OIllUne at J.F and DI.A.2. suuested sent.eac:c ranae of3 to 9 months."}. 

OBSTRucnON OJ' JusuCB See 0IIIliM at vn. 

V.s. Y. CDn.r. 14 F.ld 300 (7th Cir. 1994) (Aftinned: Criminal HIstory 

Section lei. I eabIIam.ent wu properly siven to defeadaDt INvALID PIlIoa CoNvicnONS 

wbopluned to murder. nonexistent iDfonnat thIt UIIder- V.s. 1I.btMla.No.92-2068(1ItCir.Jan.2S,I994)(Oab:s. 

co ....... bid blamed for the fidJure of a draa dell • ......., Sr.J.)(RemIDded:TheOuidelines.in §4AI.2,c:ommcat.(n.6 

obsUuction enhucanent is appIicIbIe not just to defeD.. &. bIcts'd) (Nov. 1990). do not provide a sentencin, court 

danrs who have actually obstructed justice but also to those with independent authority to review the validity of • prior 

who have IltaDpted to do so, •.. and the district court conviction. The Constiwtion may require such review, but 

explicidy based [defendant's] enhancement on his attempt. "only where the prior conviction is 'presumpcively void.' ••• 

not his success, in obsIructin,justic:e. 1bat [defendant] and [A] prior conviction is 'presumptively void' iflconstitutional 

his coploaers ultimately could DOt have murdered the ficti- violation can be found on the face of the prior conviction. 

tious informant does not diminish the sincerity of any ...... 4\. ........ ~A_._I . .. Under I' .• ....1 • Whuuut.J.UlUJR ....... _.Invesuptton.~·.:.. Imtwu CU'-

efforts to accomplisb that end. Futile attemptS 'becauic of' cumstances. however, a conviction may be 'presumptively 

factual impossibility me attempts sliU the same. j. void' even if 1 constitutional violation cannot be found on the 

See OutUne at DLC.1. faceofthepriorconviction .... Where an oft'enderchalleqes 

U.S. Y. Washington. 12 F.3d 1128 (D.C. Cir. 1994) (At- the validity of a prior conviction on 'structural' arounds"-

finned: Section 3CI.2 enhancement was properly siven to sucb as deprivation of certain trial riabts or judicial bias-". 

defendant who led police on 1 car chase in an urban area. "In district court sbouId entertain the chalJense whether or Dot 

his attempt to escape the police. [defendant] drove in 1 fast the error appears on the face of the priCLconypjon. .. Here. 

and recIdess manner Ibroush. series of ncigbborbood alleys defendant's cballense should not have been heard because 

and ended up flippin, his car. It was DOt clearly erroneous there was DO facial invalidity and he did Dot alleae 1 "suucfor the district court to find that this bcbavior constituted turaI error'" in the prior conviction.) (replacinS opinion oriSreckless cndanprment durinS f1iahL j. inally issued June 22. 1993, and reported in S GSV.IS). 

242 ;;;;; ~See==O=d=me===at=DL==C=.3=.=======================See==O=utMw====d=N=.A.==3=!~==m=mmy=:=of=U==CG=Wc==~=m=i=n=6=G=~U==~=. 
Guideline Sentencing Update fEDERAL JUDICIAL 

~ CENTER 

(j"iddint St:1IIt:ncing Update will be distributed periorucally by the Center to infonn judges and other judicial personnel of selected federal court decisions on the sentencing 

reform legislation of 1984 and 1987 and the Sentencing Guidelines. Although the pUblication may refer to the Sentencing Guidelines and policy swemenlS of the U.S. Sentencing 

Commission in the COntext of reporting case holdings. it is not intended to report Sentencing Commission policies or activities, Readers should refer to the Guidelines. policy 

statements. commentary. and other materials issued by the Sentencing Commission for such information. 

This Federal Judicial Center publication was undenaken in furtherance of the Center's statutory mission to conduct and stimulate research and development for the improvement 

of judicial administration. The views expressed are mose of the author and not necessarily those of the Federal Judicial Center . 

. _--------------------_ .. __ .. _------------'------ VOLUME 6· NUMBER 11 • APRIL 14. 1994 

Violation of Probation 

REVOCATION FOR DRUG POSSESSION 

Supreme Court resolves circuit split, holds that the 

minimum sentence after revocation of probation for drug 

possession is one-third of the original guideline maximum. 

Defendant was originally subject to a guideline range of 0-6 

months' imprisonment, and was sentenced to a 60-month 

term of probation. He violated probation by possessing cocaine and was subject to 18 U.S.C. § 3565(a), which states that 

for "possession of a controlled substance ... the court shall 

revoke the sentence of probation and sentence defendant to 

not less than one-third of the original sentence." The district 

court interpreted "original sentence" to mean one-third of 

the probation term, and sentenced defendant to prison for 20 

months. The appellate court reversed, holding that "one-third 

of the original sentence" should be read to mean the maximum sentence available under the original guideline range; 

thus, defendant should have been sentenced to "not less than" 

2 months, with a maximum sentence of 6 months. See U.S. v. 

Granderson, 969 F.2d 980 (11th Cir. 1992). [See Outline at 

VII.A.2 for other circuit holdings.] 

The Supreme Court affirmed the appellate court ... According the statute a sensible construction, we recognize, in 

common with all courts that have grappled with the 'original 

sentence' conundrum, that Congress prescribed imprisonment as the type of pu nishment for drug -possessing probationers. As to the duration of that punishment, we rest on the 

principle that '''the Court will not interpret a federal criminal 

statute so as to increase the penalty ... when such an interpretation can be based on no more than a guess as to what 

Congress intended.'" ... The minimum revocation sentence, 

we hold, is one-third the maximum of the originally applicable 

Guidelines range, and the maximum revocation sentence is 

the Guidelines maximum." 

Two justices concurred in the judgment only, and two 

justices dissented. 

U.S. v. Granderson, No. 92-1662 (U.S. Mar. 22. 1994) 

(Ginsburg, J.). 

Outline at Vn.A.2. 

Violation of Supervised Release 

SENTENCING 

U.S. v. Anderson, 15 F.3d 278 (2d Cir. 1994) (Affirmed: 

After revocation of supervised release, defendant was subject 

to a statutory maximum of 24 months' imprisonment and a 

range of 6-12 months under Guidelines Chapter 7. The district court sentenced her to 17 months, stating that it departed from the Guidelines because defendant needed "intensive 

substance abuse and psychological treatment in a structured 

environment." The appellate court held that the prohibition in 

18 U.S.C. § 3582(a), "that imprisonment is not an appropriate 

means of promoting correction and rehabilitation" (see also 

28 U.s.c. § 994(k», does not apply to sentencing after revocation of supervised release under 18 U.S.C. § 3583(e). "In 

determining the length of a period of supervised release, ... a 

district court may consider such factors as the medical and 

correctional needs of the offender .... Because [of that], and 

because a district court may require a person to serve in prison 

the period of supervised release, the statute contemplates that 

the medical and correctional needs of the offender will bear on 

the length of time an offender serves in prison following 

revocation .... We conclude, therefore, that a court may 

consider an offender's medical and correctional needs when 

requiring that offender to serve time in prison upon the 

revocation of supervised .release." (Kearse, J., dissented.) 

The court also "declined to extend Williams Iv. U.S., 112 

S. Ct. lIl2 (1992),] to Chapter 7 policy statements," and 

reaffirmed its pre-Williams holding that "Chapter 7 policy 

statements are advisory, rather than binding .... Accordingly, 

the district court need not 'make the explicit. detailed findings 

required when it departs from a binding guideline; ... [and] 

we will affirm the district court's sentence provided (I) the 

district court considered the applicable policy statements; (2) 

the sentence is within the statutory maximum; and (3) the 

sentence is reasonable." The court found those conditions 

were met and affirmed the sentence.). 

Outline at VII and VII.B.I. 

Criminal History 

OTHER SENTENCES OR CONVlcrIONS 

U.S. v. Thomas, No. 92-2112 (8th Cir. Mar. 10, 1994) (en 

banc) (Hansen, J.) (four judges dissenting) (Affirmed: District court may consider constitutionally valid but uncounseled prior misdemeanor conviction in deterinining Guidelines sentence. Under Baldasar v. Illinois, 446 U.S. 222 

(1980) (per curiam), "one cannot be sent to jail because of a 

prior uncounseled misdemeanor conviction, either upon the 

initial conviction or because of the conviction's later use in a 

subsequent sentencing, but if the subsequent sentence to 

imprisonment is already required as a consequence of the 

subsequent crime, the prior conviction may be used as a factor to determine its length."). 

Outline at IV.A.5. 

CAREER OFFENDER PROVISION 

U.S. v. Heim, 15 F.3d 830 (9th Cir. 1994) (Affirmed: 

Disagreeing with U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 

1993) [5 GSU#12], and holding that "the Sentencing Commission did not exceed its statutory authority in including 

conspiracy within the meaning of 'controlled substance 

offense' in §§ 4B 1.1 and 4B 1.2."). 

Outline at IV.B.2. 

U.s. v. Baker, 16 F.3d 854 (8th Cir. ~4)"(Remanded: 

District court erred in holding that defendant's 21 U.S.C. 

§ 856 conviction for managing or controlling a "crack house" 

was a "controlled substance offense" for career offender 

purposes under § 4B 1.2(2). Although managing a residence 

for [he purpose of distributing a controlled substance would 

243 
244 

Guideline Sentencing Update 

qualify, managing a residence for the purpose of using drugs 

does not, and thejury's verdict was ambiguous-"it does not 

clarify whether Baker was convicted of a possession § 856 

offense or a distribution § 856 offense. When a defendant is 

convicted by an ambiguous verdict that is susceptible of two 

interpretations for sentencing purposes, he may not be sentenced based upon the alternative producing the higher sentencing range."). 

Outline at IV.B.2. 

CHALLENGFS TO PRIOR CONVICTIONS 

U.S. v. Mitchell, No. 92-3903 (7th Cir. Feb. 23, 1994) 

(Flaum. 1.) (Affirmed: "[W]e agree with the result reached 

by the First, Fourth, Sixth, Eighth. and Eleventh Circuits, 

and hold that a defendant may not collaterally attack his prior 

state conviction at sentencing unless that conviction is presumptively void, ... that is a conviction lacking constitutionally guaranteed procedures plainly detectable from a facial 

examination of the record." The court also determined that, 

although it and other circuits had found that early versions of 

Application Note 6 to § 4A 1.2 indicated such challenges 

should be allowed, amendments to the commentary in Nov. 

1990 and later have made it clear that the Sentencing Commission did not intend to enlarge a defendant's right to 

COllaterally attack a prior conviction "beyond any right otherwise recognized by law."). 

Outline at IV.A.3. 

Departures 

CRIMINAL HIsrORY 

U.S. v. Fletcher, IS F.3d 553 (6th Cir. 1994) (Affirmed: 

Downward departure for career offender-to his offense level 

before career offender designation and criminal history category V instead of VI-was appropriate. "Fletcher argued 

that his case was ripe for a downward departure because of his 

extraordinary family responsibilities. the age of the convictions on his record (1976 and 1985). the time intervening 

between theconvictions, and his attempts to deal with his drug 

and alcohol problems. Moreover. Fletcher specifically requested the couft to compare him 'to other defendants who 

would typically be career offender material.' Fletcher also 

argu('.d that the court should consider his 'likelihood of recidivism' in light of his success in rehabilitating himself." The 

appellate court held "that these circumstances present a satisfactory basis for a downward departure. Fletcher's unrelated 

past convictions, ... the type of convictions, his attempts to 

deal with his alcohol problems •... the age ofthe convictions, 

and Fletcher's responsibilities to his parents are circumstances that indicate that the seriousness of Fletcher's record and his likelihood of recidivism were over-stated by an 

offense level of 32 and a criminal history category of VI .... 

While we note that the age of Fletcher's convictions, standing 

alone, does not warrant a downward departure, a district court 

may take the age of prior convictions into account when 

considering a defendant's likelihood of recidivism."). 

Outline at VI.A.2. 

MITIGATING CIRCUMSTANCES 

U.S. v. Monk., 15 F.3d 25 (2d Cir. 1994) (Remanded: 

Defendant, convicted of simple possession of crack but acquitted of possession with intent to distribute, was sentenced 

to 135 months. The district court concluded that it had no 

power to depart, although it wanted to because "the interests 

Volume 6' Number II • April 14. 1994· Page 2 

of justice require it. given the rather harsh result on the facts 

of this case" due to the inclusion of relevant conduct in setting 

the offense level. The appellate court concluded that "the 

sentencing judge failed to appreciate his authority to depart 

under [18 U.S.C.l § 3553(b). See u.s. v. Concepcion, 983 

F.2d 369. 385-89 (2d Cir. 1992) (where relevant conduct 

guideline would require extraordinary increase in sentence 

by reason of conduct for which defendant VIas' acquitted by 

jury. district court has power to depart do~nward) .... We 

repeat that when there are compelling considerations that 

take the case out of the heartland factors upon which the 

Guidelines rest, a departure should be considered."). 

Outline generally at VI.CA. 

U.S. v. Sharapan, 13 F.3d 781 (3d Cir. 1994) (Remanded: 

District court could not grant downward departure "because 

of its concern that incarceration of the appellee would cause 

his business to fail and thereby result in the loss of approximately 30 jobs and other economic harm to the community. 

We hold that this departure is inconsistent with U.S.S.G. 

§ 5H1.2. which provides that departures based on a 

defendant's 'vocational skills' are generally not permitted." 

The court added that "we see nothing ex traordinary in the fact 

that the imprisonment of [the business's] principal for mail 

fraud and filing false corporate tax returns may cause harm 

to the business and its employees. The same is presumably 

true in a great many cases in which the principal of a small 

business is jailed for comparable offenses."). 

Outline at VI.C.I.e. 

Determining the Sentence 

SUPERVISED RELEASE 

U.S. v. Porat, No. 93-1095 (3d Cir. Mar~3,1994)(Roth,l.) 

(Remanded: Home detention was available as a condition of 

supervised release under § 5CI.I(d) and (e)(3), but the district court could not allow it to be served in Israel. "Having 

determined that home detention is suitable in this particular 

instance, there must be assurance that the defendant complies 

with his sentence. To do so, the probation office must closely monitor his actions. In order that the probation office 

effectively perform its responsibilities, we believe that Porat 

must serve his home detention in the United States. It is not 

clear that the probation office could properly insure that Porat 

is complying with his sentence if he is allowed to serve his 

term of supervised release in IsraeL"). 

Outline generally at V.C. 

Note to readers: 

The latest revision of Guideline Sentencing: An Outline of 

Appellate Case Law on Selected Issues, which supersedes the 

August 1993 issue, has been printed and is being mailed to all 

recipients of Guideline Sentencing Update. Please note the 

following changes that should be made to your copy: 

VII.F.l.b.ii - U.S. v. Hernandez. 996 F.2d 62 (5th Cir. 1993), 

was modified March 7, 1994, to be reprinted at 17 F.3d 78. 

Please delete the sentence and quote that immediately precedes the citation on p. 87 of the Outline. The holding of the 

case did not change. Also, the citation for Hernandez in 

VI.F.I.a on p. 85 should be changed to 17F.3cf78. 

IX.D.4 - Atp. 100. u.s. v. Tincher, 8 F.3d 350(8thCir. 1993). 

was withdrawn and replaced by an unpublished per curiam 

opinion listed at 14 F.3d 603. 
Guideline Sentencing Update FEDERAL JUDIOAL 

~ CENTCR 

Guid~lin~ S~nltncinll Updalt will be distribuled periodically by the Center to inform judges and other judicial personnel of seleclcd federal court decisions on the sentencing 

reform legislation of 1984 and 1987 and the Senlt'llcing Guidelines. Although the publication may refer to the Sem.eDcing Guidelines and policy sllillt:menu of the U.S. Sentencing 

Commission in cbe context of I'Cponing cue holdings, il is DO! inlt'llded 10 report Sentencing Commission policies or activities. Readers should refer to the Guidelines. policy 

swemenlS, cOmIDenlll!y. and other malerial. issued by the Sentencing Commission for such information. 

This Federal Judicial Center publication WIIS undertaken in t'unbenulce of the Center's SWUIO<y mission 10 conduct and stimulate research and developmenl for the improvement 

of judicial adminisntion. The views expressed are those of the author and DO! necessarily those of the Federal Judicial Center. 

VOLUME 6· NUMBER 12' MAY 12. 1994 

Determining the Sentence 

FINES 

Third Circuit bolds that a rme-induding a departure 

to a larger rme-may be based OD poteDtIaI future earniags from sale of rigbts to story of the crime, but the value 

of those rigbts must be supported by evideDce. Defendants, 

husband and wife, kidnapped a business executive to hold for 

ransom. Although the victim died within four days from a 

wound suffered during the kidnapping, defendants continued 

their attempts to receive ransom for six weeks. during which 

time the case generated extensive media coverage. The husband pled guilty to seven felony counts. the wife to two, and 

both were given lengthy prison terms. They were also subject to fines up to $250,000 under §5E1.2(c); however. the 

district court departed and imposed the maximum fines allowed under 18 U.S.C. §3571-$250,000 for each felony 

conviction-equaling $1.75 million for the husband and 

$500,000 for the wife. Both defendants had received offers for 

the rights to their stories, and the court determined that their 

potential gains required a departure to "ensure both the disgorgement of any gain from the offense ... and an adequate 

punitive fine." See U.S.S.G. § 5EL2, comment. (n.4), 

The appel1ate court remanded because there was no evidence that defendants' rights were worth those amounts. but 

approved the use of future story rights as a basis for fines and, 

in an appropriate case, for upward departure. "Future earning 

capacity is obviously an appropriate factor to consider .... At 

least in cases such as this, when it is a near certainty that the 

literary and other media rights to the story of a crime are 

marketable, possjble future sales of those rights may be 

considered when determining whether a defendant is able to 

pay a fine .... [W]e are convinced that, given the facts and 

circumstances surrounding this highly publicized crime, the 

district court was realistic in finding that [defendants] might 

become able to pay a fine in the future." 

However, "while it is entirely proper in cases such as this 

for district courts to look to potential sales ofliterary and other 

media rights as a source of future income ... , the value of 

those rights must be supported by more than hypothesis or 

speculation to justify departures from the applicable Guidelines fine range. This is'especially so-where-C-ongress-h 

chosen to permit only the government to initiate a petition for 

modification of a fine if circumstances change so that a defendant is truly unable to pay it." The evidence that the husband 

had the potential ability to pay a $1.75 million fine did not 

meet the clear and convincing standard of proof the appellate 

court held was required for a sevenfold departure from the 

maximum Guidelines fine, See U.S. v. Kikumura, 918 F.2d 

1084. 11 00-02 (3d Cir. 1990) (extreme departures must meet 

clear and convincing standard). The court also held that, even 

under the preponderance standard, the facts did not support 

the finding that the wife could pay a larger fine. Cj. U.S. v. 

Wilder. 15 F.3d 1292, 1300-01 (5th Cir. 1994) (affirming upward departure to $4 million fine because defendant gained 

at least $2 million and caused losses exceeding $5 million). 

U.S. v. Seale. No. 92-5686 (3d Cir, Apr. 7, 1994) 

(Lewis, J.). 

Outline at V.E.1, VI.B.1.a and h. and IX.B. 

U.S. v. Robinson. No. 92-10196 (9th Cir. Apr. 4. 1994) 

(Brunetti. J.) (Remanded: District court must determine 

defendant's ability to pay fine at the time of sentencing and 

cannot impose community service as an alternative sanction 

should defendant prove unable to pay fine after release from 

prison. "The Guidelines do not state explicitly that the district 

court must make the [ability to pay] determination at the time 

of sentencing, but they strongly imply such a requirement. ... 

[T]he structure of § 5E1.2 indicates that the district court, 

before imposing any fine, must determine whether the defendant has established [the] inability" to pay. As to the community service. 18 U.S .C. § 3572( e) states that "the court may not 

impose an alternative sentence to be carried out if the fine is 

not paid." The appellate court also noted that, under Guidelines § 5E1.2(f), an alternative sanction such as community 

service "must be imposed 'in lieu of all or a portion of [a] fine'; 

community service cannot be imposed as '! fallback punishment to be served if the defendant cannot later pay the fine. "). 

Outline at V .E.l. 

CONSECUTIVE OR CONCURRENT SENTENCES 

U.S. v. Kiefer, No. 93-2247(8thCir.Apr.l,1994)(Loken, 

J.) (Remanded: Defendant was convicted on a federal firearms charge and, under § 5G 1.3(b) and comment. (n.2), was to 

receive a sentence that was concurrent to his state sentence on 

related charges. with credit for the 14112 months served on the 

state sentence. However, he was also subject to a mandatory 

minimum fifteen-year sentence under 18 U.S.C. § 924(e), and 

the district court determined that it could not make the sentences completely concurrent by giving fun credit for time 

served because that would effecti vel y put the federal sentence 

below the mandatory minimum. The appel1ate court remanded, holding that "§ 924(e)(1) does not forbid concurrent sentencing for separate offenses that were part of the same course 

.0t:condl.lCt, In.. these circumstances,· although the issue is not 

free from doubt, we conclude that time previously served 

under concurrent sentences may be considered time 'imprisoned' under §924(e)(1) if the Guidelines so provide."). 

Outline generally at V.A.3. 

Sentencing Procedure 

EVIDENTIARY IssUES 

U.S. v. Beier. No. 92-3970 (7th Cir. Mar. 31, 1994) 

(Rovner, J.) (Remanded: Agreeing with U.S. v. Miele, 989 

F.2d659, 664 (3d Cir.I993), that "section 6AI.3(a)'s reliability standard must be rigorously applied" to evidence used in 

245 
Guideline Sentencing Update 

sentencing. Here, a witness made contradictory statements 

regarding cocaine amounts that were not in the offenses of 

conviction. The district court included as relevant conduct 

amounts from one of the witness's higher estimates, but did 

not "directly address the contradiction and explain why it 

credit[ed] one statement rather than the other .... Before the 

court relies on the higher estimate, it must provide some explanation for its failure to credit the inconsistent statement. 

... [Defendant] simply has too much at stake for us to be 

satisfied with a conclusory factual finding based on potentially unreliable evidence." The appellate court also agreed 

with other circuits that have held that addict-witness testimony should be closely scrutinized: "[T]he district court 

should have subjected any information provided by [that 

witness] to special scrutiny in light of his dual status as a 

cocaine addict and government informant."). 

Outline at IX.D .1. 

FED. R. CRIM. P.35(c) 

u.s. v. Portin, No. 93-10397 (9th Cir. Apr. I, 1994) (per 

curiam) (Remanded.: District court exceeded its authority by 

increasing defendants' fines when it granted their Rule 35(c) 

motion to reduce their prison sentences to conform to the Rule 

11(e)(1)(C) plea agreement. Rule 35(c) "authorizes the district court to correct obvious sentencing errors, but not to 

reconsider, to change its mind, or to reopen issues previously 

resolved under the Guidelines, where there is no error." Here, 

the original fines were properly imposed, and neither defendants nor the government challenged them on appeaL). 

Outline at IX.F. 

Adjustments 

OBSTRUCTION OF JUSTICE 

U.S. v. Fredette, 15 F.3d 272 (2d CiT. 1994) (Affirmed: 

Defendants, convicted of witness retaliation offenses and 

sentenced under the "Obstruction of Justice" guideline, 

§ 211.2, were properly given § 3C 1.1 enhancements for additional attempt to obstruct justice. "We conclude that Application Note 6 (to §3Cl.l) applies to cases in which a defendant 

attempts to further obstruct justice, provided that the obstructive conduct is significant and there is no risk of double 

counting. Regardless of whether the defendants in this case 

were successful in their efforts to obstruct justice, the fact 

remains that they used a false affidavit in an effort to derail 

the investigation and prosecution of their respective cases."). 

Outline at m.CA. 

Volume 6' Number 12 • May 12. 1994· Page 2 

imprisonment. Thus it was error to revoke defendant' s threeyear term of release and sentence him to eighteen months' 

imprisonment to be followed by a three-year term of supervised release.). 

Outline at vn.B.I. 

Offense Conduct 

CALCULATING WEIGHT OF DRUGS 

U.S. v. Vincent, No. 93-191O(6thCir.M~. 31, I 994)(Milbum, J.) (Affirmed: Because evidence showed that the stalks 

and seeds of marijuana plants contain "a detectable amount 

of the controlled substance," § 2DI.l(c)(n. *), "the stalks and 

seeds need not be separated before the controlled substance 

can be used. Accordingly, the stalks and seeds are to be used 

in calculating the weight of a controlled substance. "). 

Outline at ll.B.2. 

U.S. v. Tucker, No. 93-2806 (7th Cir. Mar. 23, 1994) 

(Wood, J.) (Affirmed.: District court correctly used weight of 

cocaine base at time of arrest for Guidelines and mandatory 

minimum sentence purposes, rather than the smaller weight 

when reweighed several months later. It was undisputed 

that the weight loss was due to the evaporation of water, and 

water is part of the drug "mixture," not an excludable carrier 

medium or waste product.). 

Outline at n.B.1. 

MORE THAN MINIMAL PLANNING 

U.S. v. Bridges, No. 93-3175 (lOth Cir. Mar. 17. 1994) 

(McKay, J.) (Remanded.: Defendant participated. in two burglaries and pled. guilty to theft of government property from 

the second burglary. The district court enhanced the sentence 

for more than minimal planning under § 2Bl.l(b)(5), solely 

on the ground that defendant's conduct "involv[ed] repeated 

acts over a period of time," § lBl.l. comment. (n. I(f». The 

appellate court remanded. finding that the examples given in 

Note I (f) "demonstrate that the Guidelines equate 'repeated· 

with 'several,'" meaning "more than two." Thus, when a 

district court "bases the two-point increase' solely on the 

'repeated acts' language of the Guidelines, ther~ must have 

been more than two instances of the behavior in question."). 

Outline at n.E. 

Departures 

SUBSTANTIAL AssISTANCE 

U.S. v. Chavarria-Herrara, 15F.3d 1033(lIthCir.I994) 

(Remanded: In reducing defendant's sentence under Fed. R. 

Violation of Supervised Release Crim. P. 35(b) for substantial assistance, the district court 

SENTENCING erred. in considering defendant's "status as a first time ofN · - 6 6 .' . 0" -1"9;f\"rr+.-- ··fender,-hislack-ofknowled.geoftheconspiracyuntiljustprior U.S. v. Sparks, 0:93-3 77( thCrr.Mar.22. '7 "'J\uuy. 

J.) (Remanded: District court erred in concluding that, under to arrest, his relative CUlpability, and his prison behavior .... 

§ 7Bl.3(f). revocation sentence must be consecutive to state The plain language of Rule 35(b) indicates that the reduction 

sentences imposed earlier for the conduct that caused revoca. shall reflect the assistance of the defendant; it does not 

tion. Appellate court reaffirmed its holding before Stinson mention any other factor that may be considered."). 

v. U.S., 113 S. Ct. 1913 (1993), that "the lower court must Outline at VIF.4. 

consider, but need not necessarily follow, the Sentencing Changes to previously reported cases: 

Commission's recommendations regarding post-revocation U.S. v. Forrester, 14 F.3d 34 (9th Cir. 1994), withdrawn and 

sentencing" in Chapter 7.). revised opinion filed Mar. 25, 1994. Holding is essentially 

Outline at vn and vn.B.l. the same as reported. in 6 GSU#lO. 

U.S. v. Malesic, 18 F.3d 205 (3d Cir. 1994) (Remanded.: U.S. v. Calverley, 11 F.3d 50S (5th Cir. 1993), reh'g en bane 

Supervised release may not be reimposed afterrevocation and granted Feb. 18, 1994. See 6 GSU #8 and Outline at IV .B.2. 

246~=================================================== 
Guideline Sentencing Update FEDERAL JUDICIAL 

~ CENTER 

Guideline &nuncing Updau will be distributed periodically by the Center to infonnjudges and other judicial personnel of selected federal coun decisions on the sentencing 

reform leGislation of 1984 and 1987 and the Semencing Guidelines. Although the publication may refer to the Sentencing Guidelines and policy statements of the U.S, SentencinG 

Commission in the context of reponing case holdings. it is not intended to report Sentencing Commission policies or activities, Readers should refer to the Guidelines. policy 

statements. commentary. and other materials issued by the Sentencing Commission for such information, 

This Federal Judicial Center publication was undenaken in furtherance of the Center's Stahltory mission to conduct and stimulate research and development for the: improvement 

of judicial administration, The views expressed an: those of the author and DOl necessarily those of the Federal Judicial Center. 

VOLUME 6' NUMBER 13· MAY 27.1994 

Criminal History 

CHALLENGES TO PRIOR CONVICTIONS 

Supreme Court holds that defendant has no right to 

challenge prior conviction used to enhance sentence under 

18 U.s.C. § 924(e) unless right to counsel was denied. 

Defendant was convicted of possession of a firearm by a felon 

and subject to a mandatory minimum sentence of fifteen years 

under the Armed Career Criminal Act (ACCA), 18 U.S.C. 

§ 924(e), because he had three prior state convictions for 

violent felonies. He challenged two of the convictions, claiming ineffective assistance of counsel and that his gUilty pleas 

were not knowing and voluntary. The district coun held there 

was no statutory right to challenge the prior convictions and 

no constitutional right to challenge except for complete denial 

of counse\. The Founh Circuit affinned, adding that constitutional challenges may be allowed "when prejudice can be 

presumed from the alleged violation," but not, as here, when 

the violation "necessarily entails a fact-intensive inquiry." 

U.S. v. Custis, 988 F.2d 1355. 1363-64 (4th Cir. 1993). 

The Supreme Coun also affinned. finding first that nothing in § 924(e) authorizes collateral attacks. "The statute 

focuses on the fact of the conviction and nothing suggests that 

the prior final conviction may be subject to collateral attack 

for potential constitutional errors before it may be counted." 

The Coun also held that the Constitution requires that challenges be allowed only for a complete denial of counsel. not 

for claims such as defendant's. "Ease of administration" and 

an "interest in promoting the finality of judgments" were also 

cited by the Coun. The Coun recognized, however, "that 

Custis, who was still 'in custody' for purposes of his state 

convictions at the time of his federal sentencing under 

§ 924(e), may attack his state sentences in Maryland or 

through federal habeas review .... If Custis is successful in 

attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences." 

U.S. I'. Custis~ No. 93-5209 (U.S. May 23, 1994) 

(Rehnquist. C.J.) (three justices dissenting), 

Note: Although this case concerns § 924(e) rather than the 

Guidelines use of prior convictions, some circuits have not 

distinguished between the two. See, e.g .• U.S. v. Medlock. 12 

F.3d 185. 187-88 n.4(11 th Cir. I 994)("The rationale underlying our decision is equally applicable to both Sentencing 

Guidelines cases and those originating in ... § 924(e)"); U.S. 

I'. Byrd. 995 F.2d 536. 540 (4th Cir. 1993) (holding earlier 

decision in Custis "is controlling of our disposition" in challenge under Guidelines). But cf U.S. v. Paleo, 9 F.3d 988. 989 

(1st Cir, 1992) (in rejecting challenge under § 924(e). finding 

Guidelines cases inapposite because "Guideline provision 

arises in a different legal context and uses language critically 

different from" § 924(e». This decision will also affect application of the Guidelines Armed Career Criminal provision, 

§ 4B 1.4, which applies to defendants "subject to an enhanced 

sentence under the provisions of 18 U.S.c. § 924(e)." 

Outline at IV.A.3. 

JUVENILE CONVICTIONS AND SENTENCES 

U.S. v. Ashburn. No. 93-1067 (5th Cir. May 10. 1994) 

(Goldberg. J.) (Affinned: District coun properly held that 

prior conviction under Youth Corrections Act was not 

"expunged" for Guidelines purposes. The conviction had 

been "set aside" under the YCA, but "the 'set aside' provision should not be interpreted to be an expungement under 

§ 4A1.2G> in calculating a defendant's criminal history cat· 

egory. The Commentary to §4AI.2(j) explains that convictions which are set aside for 'reasons unrelated to innocence 

or errors of law. e.g .• in order to restore civil rights or to 

remove the stigma associated with a criminai conviction.' 

are not expunged for purposes of this Guideline and can 

be included in Criminal History Category detenninations. 

Because the YCA conviction here was set aside for 'reasons 

unrelated to innocence or errors of law: it was properly 

utilized in the criminal history calculation."). See also U.S. v. 

McDonald. 991 F.2d 866. 871-72 (D.C. Cir. 1993) ("set 

aside" in D.C. statute similar to YCA is not "expunged" 

under Guidelines). Contra U.S. v. Kammerdiener, 945 F.2d 

300.301 (9th Cir. 1991) (conviction "set aside" under YCA 

was "expunged" under §4AI.2(j»). Cf U.S. v. Doe. 980 

F.2d 876, 881-82 (3d Cir. 1992) (reversing denial of motion 

for expungement. holding "set aside" in YCA means "a 

complete expungement"). 

Outline at IV.A.4. 

Sentencing Procedure 

PLEA BARGAINING-DISMISSED COUNTS 

U.S. \'. Ashburn. No. 93-1067 (5th Cir. May 10, 1994) 

(Goldberg, J.) (Remanded: "Counts which have been dismissed pursuant to a plea bargain should not be considered in 

effecting an upward depanure .... To allow consideration of 

dismissed counts in an upward depanure eviscerates the 

plea bargain. Such consideration allows the prosecutor to 

drop charges against a defendant in return for a guilty plea 

and then turn around and seek a sentence enhancement 

against that defendant for the very same charges in the 

sentencing hearing .... We adopt the reasoning outlined by 

the Ninth Circuit that a sentencing coun should not be 

allowed to violate the bargain worked out between the defendant and the government. ... Consideration of dismissed 

counts as relevant conduct is explicitly allowed by the Guidelines. However. the bar to considering dismissed counts in 

making upward depanures remains an imponant limitation 

in the modified real-offense sentencing approach of our cur· 

rent sentencing program. Allowing consideration of dismissed offenses would bring us much c\Qser to the type of 

pure real-offense sentencing system explicitly rejected by 

the Guidelines.") (Davis, J .• dissenting). 

Outline at Vl.B.2.b and IX.A.I. 

247 
Guideline Sentencing Update 

Departures 

MITIGATING CIRCUMSTANCES 

Third Circuit approves departure based on 

defendant's anguish at involving his son in fraud offense. 

Defendant tried to solve his company's cash-flow problems 

through false progress reports to receive accelerated payments from the government, and later did not return unearned 

payments that had resulted from mistaken double billing. In 

the first instance he had his son prepare reports to aid the 

scheme, apparently without the son's knowledge of the fraud. 

Defendant's efforts-notwithstanding, the company eventually went bankrupt and the frauds were discovered. Defendant 

pled guilty to conspiracy to defraud the government, his son 

to aiding and abetting a false statement. The district court 

departed downward one level for defendant (allowing home 

confinement and probation instead of imprisonment), finding 

that the amount of loss calculated under § 2Fl.I overstated 

defendant's criminality and that the Guidelines did not 

account for the effect on defendant of having unintentionally caused his son to be convicted of a crime. 

The appellate court remanded because the district court 

clearly erred by not imposing a more than minimal planning 

enhancement and failed to adequately explain the departure, 

but affirmed the grounds of the departure. While the government did suffer a large loss, the loss overstated defendant's 

criminality because defendant intended not to steal money 

but rather to expedite payments that would have eventually 

been due the company. And, without the takeover of his 

company and subsequent bankruptcy, "it is quite possible 

that the loss to the United States would have been far less." 

"The other reason for the district court's departure was 

the mental anguish Monaco felt seeing his son, otherwise a 

law-abiding citizen with an excellent future, convicted of 

a crime because of. his father's fraudulent scheme ... [and 

thereby] stigmatized, not for deliberately committing acriminal act, but for dutifully and unquestioningly honoring his 

father's request. ... In at least some cases, such as the district 

court found here, a defendant who unwittingly makes a criminal of his chi Id might suffer greater moral anguish and remorse 

than is typical. .. -: {W]e think the Sentencing Commission did 

not consider this issue when it promulgated the Guidelines. 

"Moreover, we do not believe that by promulgating 

U.S.S.G. § 5H 1.6, the Sentencing Commission foreclosed the 

possibility of a downward departure in this extraordinary 

situation. That section specifically states that family ties and 

responsibilities are 'not ordinarily relevant' for departure 

purposes. 'Not ordinarily relevant' is not synonymous with 

'never relevant' or 'not relevant.' ... In the unusual facts and 

circumstances of this extraordinary case, ... it is entirely 

probable that Monaco never intended to criminalize his son 

and was deeply and legitimately shocked and remorsefuf 

when it happened. This is not something that is 1 i ke\y to occur 

frequently, and when it does, the interests of justice weigh 

more heavily against overpunishing the defendant than they 

do in favor of rigidly enforcing the Guidelines without regard 

for legitimate penological bases of sentencing." The court 

also noted that "the defendant is a productive, non-violent 

offender and a smalT downward departure would eliminate the 

need for incarceration entirely." 

248 

U.S. v. Monaco. No. 93-5261 (3d Cir. May 10, 1994) 

(Nygaard, J.). 

Outline at VI.C l.a and 4.a, VI.B.I.k. 

Volume 6' Number 13· May 27. 1994. Page 2 

U.S. v. Murwz-Realpe, No. 92-4039 (II th Cir. May 5. 1994) 

(Anderson,J.) (Remanded: For defendant who otherwise did 

not qual ify for substantial assistance departure under § 5Kl.l , 

it was error to depart downward under § 5K2.13 on the basis 

that his diminished capacity rendered him incapable of providing substantial assistance to the government. "[T]he 

Guidelines consider diminished capacity, but limit its relevance to the effect on the defendant's commission of the 

offense. Guidelines § 5K2.13 does not authorize consideration of the effect of a defendant's diminished' capacity on 

his ability to provide substantial assistance." The case was 

remanded "for a determination whether Munoz-Realpe's 

mental incapacity contributed to the commission of his offense" sufficiently to warrant departure under § 5K1.13.). 

Outline at VI.C.1.b. generally at VI.F.l.b.i 

U.S. v. O'Brien, 18 F.3d 301 (5th Cir. 1994)(Remanded: 

Defendant's post-conviction community service, including 

musical performances and benefit shows, did not justify a 

downward departure. Defendant's activities reflect skills he 

developed as a professional musician, and educational and 

vocational skills and employment record do not support 

departure under §§ 5H1.2, 5H1.5, p.s.). 

Outline generally at VI.C.4.b. 

SUBSTANTIAL ASSISTANCE 

U.S. v. Gerber, No. 93·5057 (lOth May 9. 1994) (Ebel, J.) 

(Affirmed: It was not a violation of the Ex Post Facto Clause 

to apply stricter version of § 5K 1.1 that was in effect when 

defendant attempted to provide substantial assistance. after 

Nov. I, 1989, rather than the earlier version in effect when 

defendant committed her offenses. "Section 5K 1.1 speaks to 

the assistance a defendant provides to the government, rather 

than the criminal conduct for which the defendant was convicted. Thus, the retroactivity analysis turns on which version of 5K 1.1 was in effect when she participated in the 

numerous briefings with federal agents-not when she committed the unlawful conduct to which she pled guilt)."). 

Outline at I.E and VI.F.3. 

Offense Conduct 

CALCULATING WEIGHT OF DRUGS 

U.S. v. Munoz-Rea/pe, No. 92-4039 (11th CiT. May 5, 

1994) (Anderson. J.) (Remanded: Defendant guilty of importing six liquor bottles containing a liquid that tested positive for cocaine base must be sentenced under guideline for 

cocaine hydrochloride rather than that for cocaine base. The 

Nov. 1993 amendment to § 2DI.I (c)(n."') states: '''Cocaine 

base: for the purposes of this guideline, means 'crack.'" 

Thus, the appellate court held. "forms of cocaine base other 

than crack are treated as cocaine hydrochloride." The court 

also held that it would use the new Guidelines definition in 

. determining. whether to apply a mandatory minimum sentence under 21 U.S.c. § 960(b), contrary to an earlier decision 

that all forms of cocaine base were included in §960(b): 

"[W]e think it is proper for us to look to the Guidelines in 

the mandatory minimum statute. especially since both provisions seek to address the same problem .... There is no reason 

for us to assume that Congress meant for 'cocaine base' to 

have more than one definition." But cf. U.S. v. Palacio. 4 F.3d 

150,154 (2d Cir. 1993) (recognizing narmwenlefinition of 

cocaine base forGuidelines, but stating amendment would not 

affect broader definition used for mandatory minimum sentences under 21 U.S.c. § 841(b».). 

Outline at n.B.3. 
Guideline Sentencing Update FEDERAL JUIllOAl 

~ CEN'IU 

OIlUkIiM S~II'~1ICjllg Update will be dimibuted periodically by !be Center 10 inform judges and 0Ibc:r judicial pc:nonnel of l!eleca:d federal court decisions on !he sentencing 

reform legislation of 1984 and 1987 and !be Sentencing Guidelines. Allbaugh !he publication may refer 10 !he SenteDCing Guidelines and policy stalemel!lS of !be U.S. Sentencing 

Commission in !he context of reponing case holdings. it is IlOC intended to report Sentencing Commillion policies Of activities. Raden should refer 10 !he Guidelines. policy 

SUllements. commentary. and other nwerials iuued by !he SenteDCillg Commiasion fOf auc;h information. 

nus FedetalJudiciai Center publication was uodenaken in furtIIennoe of !be Center', SIaIIlIOI'Y million 10 conduct and stimulale researdI and development fOf!be improvement 

of judicial adminisll1ll.ion. The mws expressed are those of !he 1lIIIhor. and IlOC necasarily !bose of !be Federal Judicial Center. 

VOLUME 6· NUMBER 14· JUNE 29, 1994 

Criminal History 

OTHER SENTENCES OR CONVICI'lONS 

Supreme Court affirms use of prior uncounseled 

misdemeanorconvictioosln criminal bistoryscore. Defendant challenged the addition of one criminal history point for 

a prior state misdemeanor conviction-driving under the 

influence-for which he was fined $250 but not incarcerated. 

He was not represented by counsel and claimed that use of an 

uncounseled misdemeanor conviction to increase his guideline sentence violated his Sixth Amendment rights as construed in Baldtlsar v. Illinois. 446 U.S. 222 (1980). The 

appellate court affirmed, concluding that Baldtlsar limits the 

use of a prior uncounseled misdemeanor conviction only 

when it would convert a later misdemeanor into a felony, and 

thus its use in the criminal history score was proper. See U.S. 

v. Nichols, 979 F.2d 402,415-18 (6th Cir. 1992). 

The Supreme Court affirmed while overruling Baldtlsar. 

"[A]n uncounseled conviction valid under Scott Iv. Illinois. 

440 U.S. 367 (1979).] may be relied upon to enhance the 

sentence for a subsequent offense. even though that sentence 

entails imprisonment. Enhancement statutes. whether in the 

nature of criminal history provisions such as those contained 

in the Sentencing Guidelines, or recidivist statutes which are 

commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction .... Today we adhere 

to Scott v. Illinois, supra, and overrule Baldtlsar. Accordingly we hold, consistent with the Sixth and Fourteenth 

Amendments of the Constitution. that an uncounseled misdemeanor conviction, valid under Scott because no prison term 

was imposed, is also valid when used to enhance punishment 

at a subsequent eonviction." 

Nichols v. U.S., 114 S. Ct. 1921 (1994) (three justices 

dissented). 

Outline at IV.A.5. 

CAREER OFFENDER PROVISION 

Circuits continue to split on whether career offender 

guideline covers drug conspiracies. Two circuits recently 

agreed with U.s. v. Price, 990F.2d 1367 (D.C.Cir. 1993), that 

§ 4B 1.1 does not apply to drug conspiracy defendants despite 

the inclusion of conspiracy as a predicate offense in § 4B 1.2, 

comment. (n.1). The Sentencing Commission ~'mistakenly· 

interpreted [28 U.S.C. §] 994(h) to include convictions for 

drug conspiracies .... Because the Commission promUlgated 

section 4B 1.1 under the authority of 28 U .S.c. § 994(h), it is 

invalid to the extent that its scope exceeds the reach of that 

section of the statute. The guideline should not have been 

applied to the [drug conspiracy] defendants herein." U.S. v. 

Bellazerius. No. 93-3157 (5th Cir. June 17. 1994) (Politz. 

CJ.) (remanded). See also U.S. v. Mendoza-Figueroa, No. 

93·2867 (8th Cir.June 27, 1994) (Gibson, Sr. J.) (remanded: 

"There is no indication that the Commission intended to rely 

on its discretionary authority under section 994(a) to extend 

the section 994(h) mandate. Rather, it is"evident that the 

Commission simply exceeded the language of section 

994(h).") (Bartlett, DisL J., dissented). 

Conversely, three circuits recently disagreed with Price 

and agreed with U.S. v. Heim. 15 F.3d 830 (9th Cir. 1994), that 

the Commission had the authority to include conspiracy pursuant to its general authority under 28 U.S.C. § 994(a). See 

U.S. v. Damerville. No.93-3235 (7thCir.June 14, 1994) (pell, 

J.) (affirmed: "Commission properly exercised its authority 

in including conspiracy to violate [21 U.S.C.] § 841 among 

the [controlled substance] offenses that qualify a defendant I for career offender status"); U.S. v. Hightower. No. 93-5117 

(3dCir.May 31.1994)(Nygaard,J.){affirmed: "Reference in 

the commentary to § 994(h) as a specific source of authority 

does not preclude the authority of § 994(a) .... [T]he commentary's expansion of the definition of a controlled substance offense to include inchoate offenses is not 'inconsistent with. or a plainly erroneous reading of section 4B 1.2(2) 

... [and] it does not 'violate[ ] the Constitution or a federal 

statute"'); U.S. v. Allen. No. 92·1225 (lOth Cir. May 5,1994) 

(Seymour, J.) (affirmed: "Commission could rely on the 

broader language of section 994(a) ... to include conspiracyrelated offenses in the career offender guideline"). 

See Outline at IV.B.2 and summary of Heim in 6 GSU #11. 

ARMED CAREER CRIMINAL 

U.S. v. Oliver. 20 F.3d 415 (11th Cir. 1994)(Remanded: 

"[P]ossession of a firearm by a convicted felon does not 

constitute a 'violent felony' within the meaning of [18 U .S.C.] 

§ 924(e), and thus cannot be considered a predicate prior 

conviction for purposes of sentence enhancement under 

§ 4B 1.4." Although, as § 4B 1.4, comment. (n.l) states. the 

definition of "violent felony" in § 924(e) is "not identical to 

the definition of 'crime of violence'" in § 4B 1.1. "we conI 

clude that the two expressions are not conceptually distinguishable for purposes of the narrow question raised in this 

appeal." Under § 4B 1.2, comment. (n.2), "crime of violence" 

does not include possession of a firearm by a felon. and "[i]t 

is reasonable to suggest that conduct which does not pose a 

'serious potential risk of physical injury to another' for purposes of §§ 4B 1.1 and 4B 1.2 similarly cannot pose such a risk 

with respect to § 924( e) and § 4B 1.4."). 

Outline at IV.D. 

Offense Conduct 

MANDATORY MINIMUM SENTENCES 

U.S. v. Rodriguez-Sanchez. No. 93-50198 (9th Cir. May 

3, 1994) (Reed, Sr. Dist. J.) (Remanded: IR-determining drug 

amounts for mandatory minimum sentence under 21 U.S.C. 

§ 841 (b)(1)(A) for defendant convicted of possessing methamphetamine with intent to distribute, § 841 (a)(1), district 

249 
Guideline Sentencing Update 

court may not include amounts possessed for personal use, 

only the amount defendant intended to distribute. In U.S. v. 

Kipp. 10 F.3d 1463, 1465-66 (9th Cir. 1993), the court held 

that, under the Guidelines, "[d]rugs possessed for mere personal use are not relevant to the crime of possession with intent to distribute because they are not 'part of the same 

course of conduct' or 'common scheme' as drugs intended 

for distribution." The court here stated that, "[a]lthough the 

specific holding of Kipp is not technically binding upon us, 

the principle behind that decision guides our decision. We 

are dealing with the same crime, possession with intent to distribute. The legislative intent behind the mandatory minimum 

sentencing provisions of § 841 (b) are not necessarily identical 

with those behind the Sentencing Guidelines but they are 

similar .... [Section] 841(a)(1) does not criminalize mere 

possession of drugs, only possession with intent to distribute. 

. . . Other statutes deal with the crime of possession .... Thus, 

the crime of possession with intent to distribute focuses on 

the intent to distribute, not the simple possession."). 

See Outline at n.A.I and 3. 

Departures 

SUBSTANTIAL ASSISTANCE 

Volume 6· Number 14' June 29. 1994. Page 2 

for departure "are adequate and the extent of departure is 

reasonable and not an abuse of discretion."). 

Outline at VI.A.4. 

MITIGATING CIRCUMSTANCES 

U.S. v. Pacheco-Osuna, No. 93-50199 (9th Cir. May 2. 

1994) (Remanded: It was error to depart downward for immigration defendant because his arrest might have been invalid. Although defendant did not challengehi~ arrest, the 

district court found "he may have been stopped because he 

was Mexican looking, rather than [for] good cause." The appellate court held that whether defendant's arrest was illegal 

was "a factor entirely unrelated to [his] crime (entry after 

deportation) orto his criminal history .... Even if the stop ... 

had not been proper. that was not related to his culpability or 

to the severity of his offense. Sentencing is not designed to 

punish, deter or educate errant government officials.") . 

Outline at VI.CA.b. 

U.S. v. Haversat, 22 F.3d 790 (8th Cir. 1994)(Remanded: I Downward departure for antitrust defendant was proper for 

''truly exceptional family circumstances." Defendant's wife 

"suffered severe psychiatric problems. which have been 

potentially life threatening," his presence was crucial to her 

treatment, and there was testimony that even a short separation could threaten her health. Accord U.S. v. Gaskill, 991 

F.2d 82,84-86 (3d Cir. 1993). However. the court abused its 

discretion by departing five levels and declining to impose 

any kind of confinement or even probation, imposing only a 

fine. The court should "craft a sentence that imposes some 

form of confinement to meet the expressed goal of § 2R 1.1 

and that still takes into consideration [defendant's] need to 

be available to render care to his wife," such as intermittent 

confinement or home detention.). 

Outline at VI.C.l.a. 

U.S. v. Martin, No. 93-6477 (4th Cir. May 25, 1994) 

(Hamilton, J.) (Remanded: "[I]f at the time of sentencing. the 

government deems the defendant's assistance substantial, 

the government cannot defer its decision to make a U.S.S.G. 

§ 5K 1.1 motion on the ground that it will make a Fed. R. Crim. 

P. 35(b) motion after sentencing. Instead. the government at 

that time must determine-yes or no-whether it will make a 

U .S.S.G. § 5K 1.1 motion. If the government defers making a 

U.S.S.G. § 5KU motion on the premise that it will make a 

[Rule] 35(b) motion after sentencing. the sentence that follows deprives a defendant of due process. and is therefore 'in 

violation oflaw. '" Accord U.S. v. Drown, 942 F.2d 55,58-60 

(1st Cir. 1991). The remedy for such a violation is normally General Application Principles a remand to gi ve the government "the opportunity to consider RELEV ANT CONDUCT--OTHER issUES 

afresh the substantiality of the defendant's assistance at the U.S. v. Rosogie, 21 F.3d 632 (5th Cir. 1994) (Affirmed: 

time of sentencing." Here. however, during the sentencing "Appellant argues that the district court erred in including a 

hearing the government agreed defendant had rendered sub- stolen U.S. Treasury check ... as relevant conduct under 

stantial assistance and effectively promised to make a sub- § I B 1.3(a)(1 )(A) and (8) .... Appellant argues that because 

stantial assistance motion "within the next year," which was the check is the basis of a pending state prosecution against 

"tantamount to !nd the equivalent of a modification of the I him, it should not be i~cluded as. relevant conduct in the 

plea agreement. On remand, then, defendant "is entitled to current federal proceed mg. We dIsagree .... The Second 

specific performance of the government's promise to reward Circuit has considered the issue ... and has ruled that inforhim for his presentence substantial assistance." Note that the mation from a pending state prosecution on a related offense 

government did make a Rule 35(b) motion within a year, but may be used as relevant conduct. U.S. v. Cauda. 990 F.2d 

the district court ruled that under the terms of Rule 35(b) it 707,709 (2d Cir. 1993). We agree."). 

had no power to grant the motion because defendant did not Outline at lA.4. 

actually provide any post-sentencing assistance.). 

Outline at Vn.F.l.bji, 3. and 4. 

CRIMINAL HISTORY 

u.s. v. Rosogie. 21 F.3d 632 (5th Cir. 1994) (Affirmed; 

Extent of upward departure for defendant in criminal history 

category VI was proper. The court departed from defendant's 

offense level 12 and 23 criminal history points, a guideline 

range of 30-37 months. "by adding one offense level for each 

criminal history point above the thirteen points required to 

reach category VI, and assessing four additional levels for 

[other] reasons." The appellate court found that the reasons 

250 

Adjustments 

ACCEPTANCE OF REsPONSIBILITY 

U.S. v. Co/uss;, 22 F.3d 218 (9th Cir. 1994) (Remanded: 

Agreeing with U.S. v. Tello, 9 F.3d 1119 (5th Cir. 1993). that 

if a defendant meets the test for the extra one-level reduction 

under § 3E 1.1 (b), it must be granted: "The language mandates 

a one point reduction where the requirement5.0f § 3E 1.1(b) are 

met." Here. defendant satisfied the first two parts of the test, 

but the district court apparently "believed it had discretion 

whether to consider th[e] third step. This was error."). 

Outline at m.E.5. 
Guideline Sentencing Update FEDERAL JUDICIAL 

~ CENTER 

Guidttlme S~III~"C",g Updau will be distributed periodically by the Center to inform judges and other judicial personnel of selecled federal coun decisions on the sentencing 

.donn legislation of 1984 and 1981 and the Sentencine Guidelines. Although the publication may refer to the Sentencing Guidelines and policy statement., of the U.S. Sentencing 

Commission in the context of reporting case holdings, it is not intended \0 repan Sentencing Commission policies or activities. Readers should refer 10 the Guidelines, policy 

swements, commentary, and adler materials issued by the Sentencing Commission for sud! information. 

This Federal Judicial Center publication was undertaken in furtbera.nce of the Center's statutory mission to conduct and stimulate research and development for the improvement 

of judicial adminisualion. The views expressed are those of the author and not necessarily those of the Federal Judicial Center. 

VOLUME6'NuMBER IS'JULY20, 1994 

Offense Conduct 

CALCULATING WEIGHT OF DRUGs-MIXTURES 

U,S. v. Boot, No. 93-2317 (Ist Cir. June 7. 1994) (Cyr. J.) 

(Affinned: Nov. 1993 amendment to § 2D 1.1 (c) that changed 

method of calculating weight of LSD controls for guideline 

calculations. but for mandatory minimum sentences the calculation is still controlled by the holding in Chapman v. U.S .• 

500 U.S. 453. 468 (1991). that the weight of the carrier 

medium is included. Therefore. defendant resentenced under 

§ I B I.l 0( a) could not have his sentence reduced below the 

applicable five-year mandatory minimum, based on the 

weight of the LSD plus the carrier medium. even though his 

guideline range was reduced from 121-151 months to 27-33 

months.). Cf U.S. v. Mueller, No. 93-1481 (lOth Cir. June 22. 

1994 )(Moore. J,) (Affinned: Defendant. origi nally sentenced 

to fi ve-year mandatory minimum that was later reduced to 39 

months after Fed. R. Crim. P. 35(b) departure. was not entitled to resentencing under amended LSD calculation in 

§ 2D 1.1 (c). Under § 1 B 1.1 O(b). the district court "should 

consider the sentence that it would have originally imposed 

had the guidelines. as amended, been in effect at that time." 

Here. even though amended § 2D I.J (c) would result in a 

range of 18-24 months, defendant was still subject to fiveyear minimum tenn. and the "subsequent reduction upon the 

government's Rule 35 motion. which occurred at a later date, 

has no concomitant retrospective applicability."). 

Outline at I1.A.3 and n.B.l. 

U,S. v. Telman, No. 93-3324 (10th Cir. June 30. 1994) 

(Baldock. J.) (Affinned: Defendant pled guilty to an LSD 

offense and, following a § 5K 1.1 motion by the government. 

had his offense level reduced from 29 to 15 and was sentenced below the five-year statutory minimum to 18 months. 

Following § lB 1.1O(a), he later sought resentencing under 

the Nov. 1993 amendment on calculating weight of LSD in 

§ 2D 1.1 (c). claiming that his offense level would be 15 following the amended guideline. that the district court would 

have departed downward from level 15 instead of ending 

there. and that his sentence would therefore be lower. The 

district court denied the motion and was affinned. "[I]t is 

apparent from the language of IB 1.1O(a)-i.e .. 'may consider' -that a reduction is not mandatory but is instead 

committed to the sound discretion of the trial court .... [TJhe 

district court considered a number of [the factors in 18 U.S.C. 

§ 3582(c)). including Defendant's post-amendment guideline range. and decided that due to Defendant's personal and 

offense characteristics. Defendant did not merit a sentence 

reduction. After reviewing the record, we cannot say the 

district court abused its discretion."). 

Outline at I.E and II.B.) . 

Adjustments 

ACCEPTANCE OF RESPONSIBILITY (§ 3El.l(b)) 

U.S. v. Kimple. No. 92-10735 (9th Cir. June 24. 1994) 

(Nelson, J.) (Remanded: It was error to deny reduction under 

§ 3Et.1(b)(2) on the grounds that over a year passed before 

defendant's guilty plea and he filed a pretrial motion to suppress evidence. "Because constitutionally protected conduct 

should not be considered against the defendant for purposes 

of an acceptance of responsibility reduction •... a defendant' s 

exercise of those rights at the pretrial stage should not in and 

of itself preclude a reduction for timely acceptance .... If the 

Government establishes that it prepared for trial in conjunction with responding to pretrial motions, denial of the reduction may be justified. However, where the record reflects only 

the Government's efforts in responding to such motions. as 

[here]. then the trial court may not deny the additional reduction for timely acceptance simply because a defendant vigorously defended a motion to suppress or simply because a 

given length of time has elapsed prior to the defendant noticing his intent to plead guilty .... [W]e do not consider the 

length of time that has passed in isolation." and here, in what 

the trial court called a complex case, t~ere were several 

continuances. the government filed two superseding indictments. defendant's pretrial motions were not frivolous or 

filed for purposes of delay. and no trial date had been set.). 

U.S. v. Stoops. No. 93-10244 (9thCir.June I. 1994) (Beezer, J.) (Remanded: Defendant's multiple confessions on day 

of robbery and leading police to evidence qualified him for 

the extra reduction under § 3E 1.1 (b)( 1). despite the government's claim that these actions did not "assist[] authorities in 

the investigation or prosecution" of his offense because the 

infonnation was readily available to police. "[S]ubsection (b) 

does not require that the defendant timely provide infonnation that authorities would not otherwise discover or would 

discover only with difficulty; it requires merely that the 

defendant 'assist' the authorities by timely providing complete infonnation or by timely notifying them of his intent to 

plead guilty .... Multiple consistent confessions on the day 

of arrest ordinarily serve such a purpose." 

"The government also argues that Stoops does not qualify 

for ... § 3EI.I(b) because Stoops challenged the admissibility 

of his confessions in pretrial motions to suppress[, reasoning] 

that a confession does not qualify a defendant for the reduction unless its admissibility goes unchallenged. This theory 

conflates subsections (b)( I) and (b)(2). These subsections are 

separated by the connective 'or: not 'and.' A defendant 

qualifies under subsection (b)(l) if he timely provides complete infonnation. whether or not he moves to suppress or 

timely notifies the government of his intent to plead guilty. 

251 
Guideline Sentencing Update 

... Although the motions may have delayed his notice of 

intent to plead guilty, they could not have delayed his confessions. which had already occurred."). 

U.S. v. McConaghy. 23 F.3d 351 (lIth Cir. 1994) (per 

curiam) (Remanded: "Section 3El.l(b)(2) is not facially 

unconstitutional." However, to avoid an unconstitutional 

application of § 3ELI (b)(2), the district court must determine whether defendant's notification was timely in light of 

the circumstances, not simply whether the government had 

already engaged in trial preparation: "A voiding trial preparation and the efficient allocation of the court's resources are 

descriptions of the desirable consequences and objectives of 

the guideline. They are not of themselves precise lines in 

the sand that solely determine whether notification was 

timely .... Application must bear in mind the extent of trial 

preparation, the burden on the court's ability to allocate its 

resources efficiently, and reasonable opportunity to defense 

counsel to properly investigate."). 

Outline at III.E.5. 

Departures 

MITIGATING CIRCUMSTANCES 

U.S. v. Min/cone. No. 93-1594 (2d Cir. June 8, 1994) 

(Miner, C.J.) (Remanded: "[Wle hold that where independent 

factors have been adequately considered by the Sentencing 

Commission and each factor considered individually fails to 

warrant a downward departure, the sentencing court may not 

aggregate the factors in an effort to justify a downward 

departure" under a "totality of circumstances" test.). 

Outline at Vl.C.3. 

CRIMINAL HISTORY 

U.S. v. Rodriguez-Maninez. No. 91-10220 (9th Cir. June I, 

1994) (O'Scannlain, J.) (Remanded: In departing upward to 

136 months for defendant subject to 120-month statutory 

minimum, the district court did not indicate how it calculated 

the departure above defendant's guideline range of 63-78 

months and therfabove the mandatory minimum, The "existence of a mandatory minimum sentence does not alter the 

manner in which a district court determines the appropriate 

extent of a departure: a court must determine a defendant's 

offense level and appropriate criminal history category, including departures from the recommended criminal history 

category, just as it would in an ordinary case. If the resulting 

sentencing range is under the statutory minimum, the district 

court must give the mandatory minimum sentence; if the 

sentencing range includes the statutory minimum, the district 

court may impose a sentence above the mandatory minimum."). But cf. U.S. v. Carpenter, 963 F.2d 736. 745-46 (5th 

Cir. 1992) (affirming as reasonable under the circumstances 

departure to 230 months where district court used ISO-month 

mandatory minimum sentence as starting point for departure 

calculation. rather than guideline range of 33-41 months). 

Outline at VI.A.3.a. 

U.S. v. Thomas. No. 93-5514 (6th Cir. May 23, 1994) 

(Menitt, C.J.) (Affirmed: Upward departure based on "inordinately high criminal history score of 43" was proper. 

"Thomas's score of 43, one of the highest we could find in 

252 reported cases, is clearly sufficiently unusual to warrant 

Volume 6· Number IS· July 20, 1994· Page 2 

departure from the guidelines." The extent of departure was 

also proper even though the district court did not "consider 

and reject each of the six intermediate grid blocks between 

the original guideline range ... and the range in which the 

actual sentence fell ...• " as defendant argued it must do for 

departures above CHC VI. "Neither the Guidelines nor the 

law of this circuit require the district court to provide a mechanistic recitation of its rejection of the intervening, lower 

guideline ranges. Section 4A 1.3 ... indicates quite clearly 

that the court should continue to consider ranges 'until it 

finds' an appropriate sentence for the defendant before it. but 

nothing in § 4A 1.3 calls for a more detailed. gridblock-bygridblock approach advocated by the defendant. ... The 

approach required of the sentencing court when departing 

beyond Criminal History Category VI, as we see it, is to consider carefully all of the facts and circumstances surrounding 

the case which affect the departure, and from them determine 

an appropriate sentence for the particular defendant."). 

Outline at VI.A.4. 

Determining the Sentence 

RESTITtmON 

u.s. v. Meacham. No. 93-1692 (6th Cir. June 15. 1993) 

(Martin. J.) (Remanded: The Victim Witness and Protection 

Act "does not authorize a district court to order restitution 

for the government's costs of purchasing contraband while 

investigating a crime, even if the defendant explicitly agreed 

to such an order in a plea agreement .... While the Act provides that a 'court may also order restitution in any criminal 

case to the extent agreed to by the parties in a plea agreement,' 18 U.S.c. § 3663(a)(3). this Court has held that the 

repayment of the cost of investigation i~ not 'restitution' 

within the meaning of the Act." See Gall v. U.S .. 21 F.3d 107, 

111-12 (6th Cir. 1994) ("such investigative costs are not 

losses, but voluntary expenditures by the government for the 

procurement of evidence"; also holding that restitution imposed as a condition of supervised release is.still subject to 

VWPA». But cf U.S. v. DaJdato. 996 F.2d 903,904-06 

(7th Cir. 1993) (affirming "a condition in the nature of restitution on a sentence of supervised release" that defendant 

repay government's cost of purchasing drugs from defendant. including drugs from charges that were dismissed or 

never charged, reasoning that this payment is valid under 

supervised release statute's "catch-all provision," 18 U.S.c. 

§ 3583(d), and not subject to VWPA). 

Outline at V.D.2. 

Violation of Supervised Release 

REVOCA nON FOR DRUG POSSESSION 

U.S. v. Meeks. No. 93-1708 (2d Cir. June 2, 1994) (Kearse, 

1.) (Remanded: Defendant whose supervised release was 

revoked for drug possession should not have been sentenced 

under the mandatory provision of 18 U .S.C. § 3583(g) when 

his original offense occurred before that section's effective 

date (Dec. 31, 1988): U[A]ny provision fw:.punishment for a 

violation of supervised release is an increased punishment for 

the underlying offense, Thus, where the underlying offense 

was committed prior to the effective date of § 3583(g). application of that section violates the Ex Post Facto Clause."). 

Outline at VII.B.2. 
Guideline Sentencing Update 

VOLUME 6 • NUMBER 16· AUGUST 4, 1994 

General Application Principles 

RELEVANT CONDUCT-DOUBLE JEOPARDY 

Fifth Circuit bolds defendant may be tried for offense 

that was used as relevant conduct in prior sentendng. 

Defendant was part of a conspiracy that attempted to import 

591 kilograms of cocaine in Aug. 1990. He was not arrested 

then, but was arrested later for the conspiracy's Feb. 1991 

possession of 375 pounds of marijuana with intent to distribute. When defendant was sentenced for the marijuana offense 

the cocaine was included as relevant conduct. increasing his 

guideline range from 63-78 months to 292-365 months. but 

he was sentenced to 144 months after a § 5KU departure. 

Defendant was then indicted for the cocaine offense. but the 

district court dismissed the indictment. holding that punishment for that offense would violate the mUltiple punishments 

prong of the Double Jeopardy Clause of the Fifth Amendment. 

See also U.S. v. Koonce. 945 F.2d 1145. 1149-54 (lOth Cir. 

1991) (double jeopardy violated by punishing same conduct 

that was previously included as relevant conduct); U.S. v. 

McCormick, 992 F.2d 437,439-41 (2dCir.1993)(following 

--------------------- is convicted, the court noted, "the. base offense level will 

necessarily be the same as that for the marijuana offense because relevant conduct is the same for both the marijuana and 

cocaine offenses," and he may be subject to a concurrent 

sentence of 292-365 months, depending on adjustments. 

U.S. v. Wittie, 25 F.3d 250 (5th Cir. 1994). See also U.S. v. 

Cruce, 21 F.3d 70, 73-77 (5th Cir. 1994) (affirmed: not a 

double jeopardy violation to indict defendants in Texas on 

bank fraud conspiracy charges that include loan transaction 

that was used as relevant conduct when defendants were 

sentenced in Kansas on other bank fraud charges; Kansas and 

Texas conspiracies are separate offenses, and "we hold that 

Congress has not (in the Sentencing Guidelines) evinced the 

clear intent necessary to preclude punishment for a separate 

and distinct offense, even though the underlying conduct has 

been used previously to enhance another sentence .... [I]t 

chose only to limit punishments in the second proceeding 

[through §5G1.3(b)]-not to preclude that proceeding and 

the consequent punishment altogether"). 

Outline at I.A.4 .. 

Koonce. affirmed dismissal of charges). Offense Conduct 

The appellate court remanded. finding that Congress had Loss 

authorized multiple punishments through the Guidelines. U.S. v. Goodchild, 25 F.3d 55 (1st Cir. 1994) (Affirmed: 

Section 5G 1.3(b) (added after the Koonce decision). requires Inclusion of late fees and finance charges i~ credit card fraud 

concurrent sentences when a prior offense has "been fully loss is not prohibited by §2Fl.l. comment. (n.7). "We hold 

taken into account in the determination of the offense level that in a case involving the fraudulent use of unauthorized 

for the instant offense." and thus "clearly provides that the credit cards. finance charges and late fees do not come within 

government may convict a defendant of one offense and the meaning of the Commentary phrase 'interest the victim 

punish him for all relevant conduct; then indict and convict could have earned on such funds had the offense not ochim for a different offense that was part of the same course of curred.· This phrase, we think, refers to opportunity cost in-' 

conduct as the fiTst offense-and sentence him again for all terest. In a credit card case there is an agreement between the 

relevant conduct. ... [W]e are satisfied that § 5G 1.3 reflects company and the cardholder to the effect that when payments 

Congress's intent to prevent punishment from being larger if are made late. or not at all. the cardholder is subject to late fees 

the government chooses to proceed with two different pro- and finance charges. This is part of the price of using credit 

ceedings-and that Congress accomplishes this intent-not cards. The credit card company has a right to expect that such 

by foreclosing a second prosecution but by directing that fees and charges will be paid. This is not 'interest that the 

the length of the resulting term ofimprisonment be no greater victim could have earned on such funds had the offense not 

than that which would have resulted from prosecution and occurred."'). See also U.S. v. Henderson, 19 F.3d 917, 928-

conviction in a single proceeding. Section 5G 1.3(b). there- 29 (5th Cir. 1994) (Interest on fraudulently obtained loans was 

fore, accomplishes in successive proceedings what grouping properly included: "Interest should be included if, as here, the 

of counts pursuant to §3D 1.2 accomplishes in a single. pro-. . victim had a reasonable expectation of receiving interest from 

ceeding." The court held there is "no basis for distinguishing the transaction." Note 7 "sweeps too broadly and, if applied in 

the situation described by §5G1.3(b)"-in which an earlier thiscasewouldbeinconsistentwiththepurposeof§2Fl.I."). 

offense is fully taken into account in sentencing for the in- Outline at n.D. 

stant offense-from the reverse situation presented here. 

The court also rejected defendant's claim that. because FsrlMATING DRUG QUANTITY 

the §5Kl.1 motion from the first case will not apply to the U.S. v. Hendrickson, No. 92-1386 (2d Cir. June 13. 1994) 

second. it is unfair to allow the government to seek what will (Sotomayor, Dist. J.) (Remanded: Where defendll!lt produced 

actually be a longer (although concurrent) sentence than if only 77 grams of heroin over a two-year period, his initial 

both offenses had been tried together and sentenced under expression of intent to import 50-60 kilograms of heroin was 

§3D1.2(d). See § IBl.I(d) & (i) (indicating §5Kdepartures notsufficienttoshowheintendedandwasabletoproducethat 

are considered after offenses have been grouped). If defendant amount. Under former § 2D 1.4, comment. (n.l), "where the 

253 
Guideline Sentencing Update 

Government asserts that a defendant negotiated to produce a 

contested amount. we hold that the Government bears the 

burden of proving the defendant's intent to produce such an 

amount. a task necessarily informed, although not determined. by the defendant's ability to produce the amount 

alleged to have been agreed upon .... [W]e do not. at least in 

a conspiracy case, require sentencing courts to exclude from 

consideration only those drug amounts which the defendant 

neither intended to produce nor was reasonably capable of 

producing. Instead" we shift the sentencing guideline § 2D 1.4 

analysis back to its proper focus-the ·object of the conspiracy.' In other words. courts must consider the amount of 

drugs the conspirators agreed to produce .... [D ]efendant' s 

ability, which includes that of his coconspirators, to produce 

specific amounts of narcotics, is highly relevant in determining whether the conspirators agreed to produce these 

amounts." The court added that this analysis would apply to 

§2Dl.l, comment. (n.12).) (Winter, J., dissented.). 

Outline at n.B.4.a. 

u.s. v. Pion, 25 F.3d 18 (lstCir. 1994) (Affirmed: Despite 

district court's finding that defendant was not "reasonably 

capable of producing" additional three kilograms he negotiated, that amount was properly included as relevant conduct 

under §2Dl.l, comment. (n.12), because "he was a member 

of a conspiracy whose object was to distribute more than six 

kilograms and ... he specifically intended to further the conspiratorial objective .... [NJeither conjunctive clause in note 

12 can be ignored." Also, defendant's "inability to produce 

the additional three kilograms was no impediment to its 

imposition of the ten-year minimum sentence mandated by 

statute .... Absent a statutory alternative, ... we think application note 12 provides the threshold drug-Guantity calculus 

upon which depends the statutory minimum sentence fixed 

under21 U.S.C. § 841(b)(l)(A)(ii)."). Butef. U.S. v. Legarda, 

17 F.3d 4%, 500 (1 st Cir. 1994) ("Our case law has followed 

the language of this Commentary Note in a rather faithful 

fashion, requiring a showing of both intent and ability to 

deliver in order to allow the inclusion of negotiated amounts 

to be delivered at-a future time."). 

Outline at n.B.4.a. 

Determining the Sentence 

REsTmmON 

U.s. v. Gibbens, 25 F.3d 28 (lst Cir. 1994) (Remanded: It 

was error to order restitution to cover loss to government 

involved in defendant's illegal purchase offood stamps from 

undercover agent at one quarter their face val ue. Although the 

government can be a "victim" under the Victim and Witness 

Protection Act, its application in this situation is unclear and 

"nothing in the legisla~ve history of either the organic Act 

or it amendments indicates that losses incurred in government sting operations should be subject to recoupment under 

the VWPA." Thus the appellate court invoked the rule of 

lenity to hold that "a government agency that has lost money 

as a consequence of a crime that it actively provoked in the 

course of carrying out an investigation may not recoup that 

money through a restitution order imposed under the VWP A. 

... [However,] other methods of recovery remain open to the 

government, notably fines or voluntary agreements for restitution incident to plea bargains."). 

SeeOutlineatV.D.2andsummaryofMeaehamin6GSU#15. 

254 

Volume 6· Number 16· Augusl4. 1994· Page 2 

Adjustments 

OBSTRucnoN-RECKLESS ENDANGERMENT 

U.S. v. Young. No. 93-50I86 (9th Cir. June 7, 1994)(Hug, 

J.) (Remanded: Reckless endangerment enhancements for 

defendants who did not drive during high-speed chase were 

improper without specific findings that. pursuant to § 3CI.2, 

comment. (n.5), defendants "aided or abetted, counseled, 

commanded, induced, procured, or willfully ~aused" the 

driver's reckless conduct. "[T]he government must establish 

that the defendants did more than just willfully participate in 

the getaway chase. It must prove that each defendant was 

responsible for or brought about the driver's conduct in some 

way. Such conduct may be inferred from the circumstances 

of the getaway •... and the enhancement may be based on 

conduct occurring before. during, or after the high-speed 

chase .... Thus, enhancement under section 3C1.2 requires 

the district court to engage in a fact-specific inquiry ."). 

Outline at m.C.3. 

ROLE IN THE OFFENSE 

U.S. v. Smaw, 22 F.3d 330 (D.C. Cir. 1994) (Remanded: A 

uGS-7 time and attendance clerk" did not occupy a position of 

trust within the meaning of § 3B 1.3' s amended commentary. 

Although defendant clearly abused her position, it was not "a 

position of public or private trust characterized by professional or managerial discretion" and she was not "subject to 

significantly less supervision than emplo~ees whose responsibilities are primarily nondiscretionary in nature," as is now 

required under Application Note I. Although defendant was 

sentenced Pefore Nov. 1, 1993, the amended Note should be 

applied because it is clarifying, rather than SUbstantive.). 

Outline at m.B.8.a. 

Criminal History 

CONSOLIDATED OR RELATED CASES 

U.S. v. Hallman, 23 F.3d 821 (3d Cir. 1994) (Remanded: 

Defendant's prior sentence for forgery should not have been 

counted in the criminal history score for the instant conviction 

for possession of stolen mail because the two offenses were 

related as "part of a single common scheme or plan," 

§4A1.2(a)(2), comment. (n.3). "[A]ll of the stolen mail ... 

was in the form of checks or credit cards and [the check in the 

prior forgery offense] was from a sequence of blank checks 

found within the stolen mail. Therefore, it is reasonable to 

infer that the mail was stolen to find checks or other instruments that could be converted to use through forgery." Noting 

that "intent of the defendant is a crucial part of the analysis," 

the court distinguished U.S. v. Ali. 9S I F.2d 827, 828 (7th Cir. 

1992), because there the defendant had no prior intent to forge 

a money order he obtained in the robbery of a supermarket.). 

Outline at IV .A.I.b. 

Sentencing Procedure 

UNLAWFULLY SEIZED EVIDENCE 

u.s. v. Kim, 25F.3d 1426(9thCir.1994)(Affirmed:Drugs 

seized during an illegal search may be included as relevant 

conduct where the search was not carried out for the purpose 

of increasing defendant's offense level. 'I'he appellate court 

left open the question whether suppression "would be necessary and proper" if evidence was illegally obtained for the 

purpose of increasing a defendant's guideline sentence.). 

Outline at IX.D.4. 
Guideline Sentencing Update @ FEDERAL JU[)IOAL CEmER 

Guid</in-t Senuncing UpdaU will be di.tribuled periodically by Ibe CenlCf to inform judges and olber judicial ~nnel.of &elecled federal court decision. on Ibe senl/:nc~ng 

"form legislation of 1984 and 1987 and Ibe Sencencing Guidelines Allhoogb Ibe publicalioo may refe: ~ Ibe Se.nleDClng Gw~lines and policy ,uu".,..,nl< of Ibe U.S . Senleocmg 

Commission in Ibe conl/:xt of reporting = holdings, it is IlOl in!l:nded to repoct Senlencing ColTll1l'.sslon poliCIes or acttYlOes. Readas should refer to Ibe Gwdehnes, polley 

stale.,..,nl<, commentary, and oIber materials issued by !be Senl<:llciog Commiwon fO( such inf~on.. . 

nus Feder1Il Judicial CenlU publicalion was undertaken in furtherance of Ibe CenlCf', statutory nuSSIOD to conduct ~d rumula/C research and development for Ibe Improvement 

of judicial administration. 1be views expressed .." those of Ibe author and IlOl necessarily those of the Fedeta.l JudiCIal Center. 

VOLUME 6 • NUMBER 17· AUGUST 19, 1994 

Departures 

CRIMINALIbsTORY 

u.s. v. Hines, No. 92-30441 (9th Cir. June 20, 1994) (Trott, 

J.) (Remanded: It was proper to depart upward under 

§ § SK2.0 and 4A 1.3 for defendant's "extremely dangerous 

mental state"-evidenced by serious and repeated threats of 

future violence-and the resulting "significant likelihood 

that he will commit additional serious crimes." The case is 

distinguishable from U.S. v. Doering. 909 F.2d 392 (9th Cir. 

1990), because the court did not base the departure on defendant's need for psychiatric treatment but on the "extraordinary danger to the community" he represented. And, because it 

was an extraordinary circumstance under § SK2.0, the prohibition in § SH1.3 did not preclude departure. However, although the district court may depart by offense levels since 

the departure was based on both § § SK2.0 and 4A 1.3, it must 

explain why it chose three levels instead of one or two.). 

Outline generally at VI.A.3.a and VI.B.Li. 

MmGATING CIRCUMSTANCES 

U.S. v. Walker, No. 93-S0621 (9thCir.June2I,1994)(Farns. J.) (Affumed: Agreeing with reasoning of US. v. Harpst, 

949 F.2d 860, 863 (6th Cir.I991) (Guidelines do not authorize downward departure on basis of suicidal tendencies). and 

hoJding that "post-arrest emotional trauma, or, what [defendant] refers to as 'self-inflicted punishment,' does not constitute a valid basis for departure."). 

Outline at VI.C.l.b and i. 

U.S. v. Amar, 24 F.3d 432 (2d Cir. 1994) (Affirmed: 

Downward depa.rtt:ire for duress. § SK2.12. was permissible 

for defendant convicted of three counts related to an illegal 

weapon and one count of retaliating against a witness. Defendant obtained the weapon after damage to his car and threats 

related to a labor dispute. The retaliation count arose from 

his repeated threats against a coworker who had informed 

police that defendant had the illegal weapon. The retaliation 

count had the highest offense level and thus controlled the 

guideline range under § 3D 1.2' s grouping rules. The government argued "(a) that 'offense' as used in § SK2.12should be 

interpreted as referring only to the offense that controlled a 

defendant's offense level for his entire group of offenses, (b) 

that Amor's controlling offense was the retaliation offense, 

and (c) that such duress as existed related only to the firearm 

offenses. not to the retaliation offense," thus making departure improper. The appellate court held that this was "too 

narrow a view of what it means for an offense to be committed 'because of' duress for the purposes of § SK2.12 .... The 

evidence was sufficient to support the (inding that Amor had 

received a clear threat of physical injury and substantial 

property damage from the unlawful actions of unidentified 

parties .... [T]he relationship between the gun acquisition and 

the threats was close enough that it was fair for the court to 

conclude that there was a causal nexus between the original 

duress and the eventual threats of retaliation."). 

Outline at VI.C.I.g. 

NOTICE REQUIRED BEFORE DEPARTIJRE 

U.S. v. Valentine, 21 F.3d 39S (11th Cir. 1994) (Remanded: Basing upward departure on ground raised for first time 

at sentencing hearing violated reasonable notice requirement 

ofBumsv. U.S., 1115.0.2182(1991). "Contemporaneousas opposed to advance--notice of a departure, at least in this 

case, is 'more a formality than a substantive benefit,' ... and 

therefore is inherently unreasonable." Notice is required "to 

warn the defendant to marshal facts by which he may contest 

the evidence that ostensibly supports the proposed upward 

departure." Here. for example, the departure was "premised 

on several unsupported factual assumptions" that defendant 

was unaware of until the sentencing hearing. "If Valentine had 

been given notice that the district court was contemplating a 

departure on these 'facts,' he would have had notice and opportunity to argue against the court's mistaken factual conclusions; without such notice, this opportunity was lost"). 

Outline at VI.G. 

Offense Conduct 

DRUG QUANTITY 

U.S. v. de Velasquez. No. 93-1674 (2d Cir. June 22, 1994) 

(McLaughlin. J.) (Affirmed: For defendant who imported 

heroin by carrying it internally, it was proper to also include 

heroin hidden in her shoes that she claimed she did not know 

was there. "[I]n a possession case the sentence should be based 

on the total amount of drugs in the defendant's possession, 

without regard to foreseeability ...• [A] defendant who knows 

she is carrying some quantity of illegal drugs should be 

sentenced for the full amount on her person."), See also U.S. 

v.lmariagbe, 999 F.2d 706, 707-08 (2d Cir. 1993) (defendant 

responsible for 8S0 grams of heroin imported in suitcase 

rather than 400 grams he claimed he believed he carried; and, 

while "one might hypothesize an unusual situation in which 

the gap between belief and actuality was so great as to 

[warrant] downward departure," that is not the case here); 

U.S.S.G. § IB 1.3, comment (n.2) ("defendant is accountable 

for all quantities of contraband with which he was directly 

involved," and reasonable foreseeability "does not apply to 

conduct that the defendant personally undertakes"). 

Outline at n.A.l. 

CALCULATING WEIGHT OF DRUGs-MARUUANA 

U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994) (Remanded: 

It was error to calculate marijuana distributer's offense level 

by using the number of plants his supplier grew rather than the 

weight of the marijuana distributed. The "equivalency provision" in §2Dl.1(c) at n.*, which treats each plant as the 

equivalent of one kilogram of marijuana when more than 

255 
2 

Guideline Sentencing Update 

one hundred plants are involved, should be applied "only to 

live marijuana plants found. Additional amounts for dry 

leaf marijuana that a defendant possesses--or marijuana 

sales that constitute 'relevant conduct' that has occurred in 

the past-are to be added based upon the actual weight of 

the marijuana and not based upon the number of plants from 

which the marijuana was derived."). 

Outline at II.B.2. 

MORE ,THAN MINIMAL PLANNING 

U.S. v. Kim, 23 F.3d 513 (D.c. Cir. 1994) (Affirmed: 

Section 2Bl.l(b)(5) enhancement could not be applied to 

defendant's two acts of obtaining blank power of attorney 

forms-'''repeated acts' in the description of more than minimal planning contemplates at least three acts." Accord 

U.S. v. Bridges, -F.3d-(lOthCir.Mar.17,l994)(''repeated'' 

means "more than two") [6 GSUH16]; U.S. v. Maciaga, 965 

F.2d 404, 407 (7th Cir. 1992) (dicta indicating same). However, the enhancement was proper here because defendant 

twice obtained falsely notarized documentation, which may 

be considered as "significant affmnati ve steps •.. taken to 

conceal" his false bank loan applications.). 

Outline at ll.E. 

Determining the Sentence 

CONSECUTIVE OR CoNCURRENT SENTENCES 

U.S. v. Quinones, 26 F.3d 213 (1st Cir. 1994) (Remanded: 

«[W]e hold that a sentencing court possesses the power to 

impose either concurrent or consecutive sentences in a multiple-count case. We also hold, however, that. .. a sentencing 

court's decision to abjure the standard concurrent sentence 

paradigm should be classified as, and must therefore meet the 

requirements of, a departure. It follows that a district court 

only possesses the power to deviate from the concurrent sentencing regime prescribed by section 5G 1.2 if, and to the 

extent that. circumstances exist that warrant a departure."). 

Outline at V.A.I. 

FINES 

U.S. v. Gomer.r 24 F.3d 924 (7th Cir. 1994) (Affirmed: 

Although defendants "appeared to be penniless at the time of 

sentencing," fines could be imposed based on defendants' 

likely future wages in prison. Bureau of Prisons regulations 

"permit prisoners to keep half of their wages no matter what 

their obligations; the other half, however, is available for 

alimony, civil debts-and fines. 28 C.F.R. sec. 545.11(a)(3). 

Neither the text of the regulations nor any of defendants' 

arguments suggests that funds available to pay civil debts 

should be unavailable to pay criminal debts."). Accord U.S. v. 

Tosca, 18F.3d 1352,1355 (6thCir.I994)(indigentdefendant 

"can make installment payments from prisoner pay earned 

under the Inmate Financial Responsibility Program"). 

Outline at V.E.I. 

Adjustments 

OBSfRUcnON OF JUSTICE 

U.S. v.lohns,No.92-1775(2dCir.June 13,1994)(Jacobs, 

J.) (Remanded: During his presentence interview defendant 

denied in vol vement in any drug transactions other than those 

charged in his indictment. The district court held the denials 

were false and imposed a § 3C 1.1 enhancement. "The government contends that these are not denials of but 

Volume 6 • Number l7 • August 19. I 'N4 • Page 2 

affirmative statements of materially false information. We 

conclude. however, that they do constitute 'denials of guilt' 

and therefore may not be deemed obstruction of justice .... 

There is no principled basis for distinguishing between laconic noes and the same lies expressed in fuJI sentences. It is 

indisputable that [Application] Note 1 limits retribution for 

denials of guilt that are false; therefore. there can be no moral 

dimension to the matter of how that false denial may be 

framed .... Within the context of § 3C1.l. every denial of guilt 

will be materially false. Note 1 removes this sort of false 

statement from the ambit of the Guidelines provision .... The 

language of Note 1 is clear-absent perjury, a defendant may 

not suffer an increase in his sentence solely for refusing to 

implicate himself in illegal activity. irrespective of whether 

that refusal takes the form of silence or some affirmative 

statement denying his guilt.") (Altimari. J., dissented). 

Outline at m.C.2.c and 5. 

U.S. v. Vegas, No. 93-1375 (2dCir.June 13. 1994) (Leval. 

J.) (Affirmed: Where jury apparently rejected defendant's 

"innocent explanation" by finding him guilty. the government 

argued that U.S. v. Dunnigan. 113 S.Ct. 1111 (1993), required 

the district court to make a finding as to whether defendant 

committed petjury and thereby merited a § 3C1.l enhancement TIle appellate court disagreed: "Dunnigan does not 

say that every time a defendant is found guilty despite his 

exculpatory testimony, the court must hold a hearing to 

determine whether or not the defendant committed petjury. 

On the contrary, that opinion clearly states that when the court 

wishes to impose the enhancement over the defendant's objection, the court 'must review the evidence and make independent findings necessary to establish a willful impediment 

to or obstruction of justice, or an attempt to do the same, 

under the perjury definition we have set out:' ... Dunnigan 

does not suggest that the court make findings to support its 

decision against the enhancement. to). 

Outline at m.C.2.a and 5. 

U.S. v. Woods, 24 F.3d 514 (3d Cir. 1994) (Remanded: 

Because § 3C 1.1 "applies only when the defendant has made 

efforts to obstruct the investigation. prosecution. or sentencing of the offense of conviction," it may not be given to 

defendant who lied to FBI and grand jury about whether two 

friends participated in robbery that he was not convicted of. 

There was evidence defendant participated in that robbery. 

but he was not indicted for it and pled guilty to two other 

robberies. Departure is not proper either, because the Sentencing Commission "appears to have considered false statements like those involved here, and elected not to punish them 

as part of the conviction for the instant offense." The court 

added: 'The result we reach is regrettable ... [b]ut we are 

bound by the language of § 3CI.l and its application notes."). 

Outline at m.C.4. 

ROLE IN THE OFFENSE 

U.S. v. OkoU, 20F.3d615 (5thCir. I 994)(Affirmed: Nov. 

1993 amendment clarifies that defendant need not personally 

lead five or more participants to receive § 3B 1.1 (a) enhancement; leading at least oneof the five is sufficient. S.ee § 3B 1.1. 

comment (n.2) ("To qualify for an adjustment under this 

section, the defendant must have been the organizer, leader. 

manager, or supervisor of one or more other participants."). 

Outline at m.B.2.c.