The Federal Criminal Appeals Blog

Someone shot Eric Davis. He wasn't hurt badly, but he was mad.

The next day, someone told him that the man who shot him was near a high school. Mr. Davis went to the high school. He saw Octavious Wilkins, and took Mr. Wilkins as the man who shot him.

Mr. Davis, and friends, approached Mr. Wilkins. They had guns drawn.

Two things happened as a result. Mr. Wilkins was shot, and Mr. Davis wound up with Mr. Wilkins' cell phone.

What isn't clear is how Mr. Davis came to possess Mr. Wilkins' phone.

Maybe Mr. Davis threatened Mr. Wilkins with a gun, and demanded his phone, then shot him as he ran away later.

Maybe Mr. Davis threatened Mr. Wilkins, who ran and was shot, then dropped his phone as a result of being shot.

Regardless of which happened, Mr. Davis was charged in state court in North Carolina with common law robbery. He was charged in the United States District Court for the Eastern District of North Carolina with being a felon in possession of ammunition.

His state case moved faster than his federal case, as so often happens. He entered a no contest plea to the robbery charge - he didn't admit that he did it, just that he wouldn't contest it.

He was sentenced to between 14 and 17 months in prison on the state robbery charge.

He also entered a plea to the federal charge. Because possessing ammunition is clearly more than five times worse than robbing someone, Mr. Davis's sentence in federal court was more than five times longer - 108 months.

In sentencing him, the district court had to decide if his guidelines range would be raised because he used the gun in connection with a robbery.

If he used the gun in connection with a robbery, his range would be 120 months (or, more accurately, it should have been 121-151 months, but the statutory mandatory minimum of ten years means that it is effectively 120 months).

If he used the gun in connection with, say, assault - shooting someone else without necessarily intending to take their stuff - then his range would be 46 to 57 months.

So, if Mr. Davis pointed a gun at Mr. Wilkins, demanded his phone, and took it - then it looks like that's clearly robbery.

If Mr. Davis shot Mr. Williams then picked up his phone when he dropped it, that looks a little more like assault.

The district court tried to avoid this factual question. Instead, it focused on the fact that Mr. Davis was convicted of robbery in state court. The district court was uninterested in the detail that Mr. Davis's conviction was the result of a no contest plea.

The Fourth Circuit, in United States v. Davis, held that the district court should have been more interested in the basis for the plea in state court, saying

we hold that Davis's 'no contest' plea to common law robbery could not alone provide the necessary evidentiary basis to support application of the robbery cross-reference. What is necessary is factfinding regarding Davis's conduct. If Davis is to be sentenced as if he committed, not just the passive, status offense of unlawful possession of a single round of ammunition, but a robbery, the Sentencing Reform Act requires that the sentencing court make the findings necessary to justify such a result.

Ok, fair enough - the district court was wrong to rely on the fact of a conviction based on a no contest plea.

On remand, the district court will have to look at the evidence of what happened - when did Mr. Davis take Mr. Wilkins' phone?

It may be that whatever Mr. Davis did to get possession of Mr. Wilkins' phone is robbery in North Carolina. After canvassing some of the cases, the court of appeals noted that:

we discover that North Carolina law is predictably nuanced in situations where property is taken during or following a violent altercation that is motivated by reasons entirely unconnected to the purloined property itself.

However, resolving this question, the Fourth Circuit determined, was not its job. Rather, the court of appeals observed that

the parties seek to draw us into a nice dispute over the proper interpretation of the North Carolina law of common law robbery. But that is a dispute to be properly resolved by the district court in the first instance, which has not happened here. Even more fundamentally in our judgment, the correct application of the guidelines in this case hinges on factual determinations, which are also for the district court to make.

The case was, therefore, remanded for resentencing.

Funny, though, that the court that sentenced Mr. Davis for the conduct at issue - the North Carolina state court - gave him a sentence so much lower than whichever sentence he winds up with in federal court.

Sometimes, it seems that Congress and the courts are in a race to see who can show that they hate child pornography the most.

Congress imposes draconian mandatory minimums on child pornographers. Federal judges impose bizarre and unsupported conditions of supervised release after the people convicted of child pornography are released from prison.

But one district court judge in Michigan blew the roof off the race to hate child pornographers the most. He maxed out the man convicted of the child porn offenses and, to show he was really tough on these kinds of crimes, he sanctioned the guy's lawyer.

Of course, because you're reading about it here, the Sixth Circuit reversed in United States v. Aleo.

Do Not Cross A Border With Child Porn On Your Computer

Craig Aleo was under investigation because his paypal account had been used to buy access to child porn webpages. Mr. Aleo did not know he was under investigation.

He and his wife decided to vacation in Canada. They crossed the border and an alert that Mr. Aleo was under investigation for a child porn offense was triggered when Mr. Aleo's passport was scanned. Government agents searched Mr. Aleo.

When you cross a border, the government gets to search your stuff without a warrant (see, e.g., this case).

In his computer, they found child pornography - including one video file of him with his granddaughter.

Mr. Aleo was charged with three child porn offenses and entered a guilty plea.

The District Court's Sentence

At sentencing, Mr. Aleo's guidelines range was 262 months to 327 months. The government advocated for a sentence in the middle of the range - 300 months.

Mr. Aleo's lawyer asked for the statutory mandatory minimum of 180 months, or 15 years.

The district court judge had other ideas. His view was that:

The discretion of the sentencing is up to me. I believe [Aleo] has no remorse, but even if he had remorse, I would not change that sentence because of the despicable act that he did.

More fully, the court said that:

Number one, I think this is perhaps one of the most despicable cases that I have ever been involved in, in 28 years on the bench. I've been thinking about it, thinking about it and I can't think of another case. . . . I've listened to the defendant's attorney argue today and I've listened to the defendant. I've heard not a word of remorse. Not a word. . . .

The Court . . . believes that the sentencing guidelines are totally nonapplicable to this case. There is no human committee, and that's what the sentencing guideline commission is, it's a human committee that tries to equalize a fairness in terms of sentencing. I don't think they ever anticipated that a granddaughter would be involved in this kind of--a victim, in this kind of activity and certainly not a grandfather doing it. There's no way they would have been able to even foresee that. So the guidelines . . . certainly is not a guideline for this kind of case . . . . there's no way that the sentencing guidelines are adequate . . . to punish the defendant for what he has done to the victims and to make this thing right. . . .

The court sentenced him to the statutory maximum of 720 months - or 60 years. Mr. Aleo was in his 60s.

The district court also imposed 5 years of supervised release.

The Sixth Circuit Disagrees About What The Sentencing Commission Has Considered

The Sixth Circuit reversed. As it happens, the district court was wrong about what the sentencing commission has considered. As the court of appeals noted,

we question the district judge's belief that the sentencing guidelines could not have envisioned a crime such as Aleo's. In fact, the Sentencing Guidelines do envision a crime such as Aleo's--Aleo's guidelines calculation included several enhancements that specifically addressed the unique characteristics of his offense. Four levels were added because Aleo produced child pornography with a minor under the age of twelve. Two levels were added because the offense involved the commission of a sexual act or sexual contact. Two levels were added because Aleo was a relative of the minor and the minor was in his custody, care, or supervisory control. Therefore, the guidelines expressly take into account a defendant who creates child pornography using a relative, when the relative was under the age of twelve, under the individual's supervision, and who the defendant sexually touched during the creation of the pornography. The guidelines do not specifically differentiate the grandparent/grandchild relationship from other familial relationships, but neither do they differentiate the parent/child relationship, which, when involved in an offense, seems equally or more deserving of condemnation. The guidelines took into account the very factors that the sentencing judge said that they did not. Therefore, the belief that these factors were not envisioned by the creators of the guidelines is not a compelling justification for the judge's variance from the guidelines range.

The court of appeals was also worried that this sentence was way out of whack with other sentences for these kinds of crimes - folks who had done much worse (read the opinion to see how much worse it can get if you'd like) had received lower sentences. The district court's sentence creates massive disparities in sentencing that it didn't account for.

The sentencing was reversed and remanded.

The District Court Also Punished Mr. Aleo's Lawyer

Mr. Aleo's lawyer, before sentencing, asked the government if it was going to have any witnesses speak at sentencing. Apparently he wanted to be prepared.

The prosecutor said he didn't have to disclose that.

Mr. Aleo's lawyer - Mr. Freeman - filed a motion to compel disclosure, saying that it was necessary to protect his client's due process rights to challenge evidence against him at sentencing.

The district court didn't rule on the motion until sentencing, when he denied it and said that he would address it later in a written order.

And address it he did - the court issued an order directing the parties to brief whether Mr. Freeman should be sanctioned for filing a motion to learn who the witnesses against his client would be at sentencing.

The government opposed such a sanction. Mr. Freeman argued that he was required to file it as a zealous advocate and that it was supported by an article he read. Of the article, the Sixth Circuit noted that,

[T]his article does state that the [Crime Victims Rights Act] requires "[a] victim or alleged victim [to] 'assert' any 'right' [to speak at sentencing] by 'motion.'" Amy Baron-Evans, Rights and Procedures Under the Crime Victims' Rights Act and New Federal Rules of Criminal Procedure, April 30, 2009, at 58, available at http://www.fd.org/docs/select-topics---rules/rules-article-final.pdf?sfvrsn=2. The article also states that "the defendant must be given notice and a full and fair opportunity to respond to any motion asserting a victim's rights. This is necessary to effectuate the defendant's right to due process." Ibid. Baron-Evans is a resource counsel who has served as the National Sentencing Resource Counsel in the Office of Federal Public Defenders for Massachusetts, New Hampshire, and Rhode Island. She was ranked as a Massachusetts Super Lawyer in 2004, 2005, 2006, and 2008.

The district court was unmoved. It held that it had the inherent authority to sanction Mr. Freeman, that the motion was filed in bad faith to intimidate victims, and then the court sanctioned Mr. Freeman $2,000 for filing it.

The Sixth Circuit reversed this too. The court of appeals held that

Even if Freeman's motion was meritless, and even if Freeman should have known this, the court has not given any evidence to support its position that Freeman filed the motion to harass the victim's mother. We may uphold an order of sanctions even without an "express finding of willfulness, bad faith or recklessness," but only if the record sets forth evidence that the party acted in bad faith. Metz, 655 F.3d at 490. The court "must find something more than that a party knowingly pursued a meritless claim or action at any stage of the proceedings." Id. at 489 (internal quotation marks omitted).

The court of appeals then reversed the sanction.

Back to the Same Judge

Mr. Aleo asked to be resentenced by a different judge than the one who gave him the statutory maximum sentence and sanctioned his lawyer for doing his job.

The Sixth Circuit said no to this,

A decision to remand to a different judge is based on considerations of whether the judge on remand is capable of providing a fair and unbiased rehearing of the case, as well as with considerations of efficiency and the preservation of judicial resources. See, e.g., United States v. Faulks, 201 F.3d 208, 209 (3d Cir. 2000); United States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (considering whether there is "evidence in the record indicating that the district judge will have difficulty conducting de novo sentencing" proceedings.). We trust that Judge Friedman will revisit the matter with a completely open mind at the de novo resentencing that must now take place, Faulks, 201 F.3d at 209, and we thus do not accept Aleo's argument.

Wow, that's going to be some resentencing.

Update: There is a fascinating discussion in the concurrence about whether a federal district judge even has the authority to sanction a lawyer under the court's inherent power. It looks to me like the concurrence has the better position (the opinion of the court dodges the issue), but if you're an inherent-power groupie it's a must-read.

James and Theresa DeMuro owned an engineering company in New Jersey called TAD Associates.

Not unlike yesterday's tax case from the Eleventh Circuit, TAD Associates withheld money for taxes from its employees paychecks. TAD did not send that money along to the IRS.

The IRS approached the DeMuros about this. It was a civil matter at that point - the IRS required the DeMuros to set up a special trust account where they were to put their employees taxes.

The DeMuros set up the account. The purpose of the account was to hold money that would be paid to the IRS.

The DeMuros, though, took money out of the account to pay for personal expenses. And they closed the account early, and without the permission of the IRS. They also didn't put as much money into the account as the IRS thought they should, though they did spend a massive sum on items for themselves.

They were indicted for conspiracy to defraud the United States, 21 counts of failure to account for and pay employment taxes, and other tax charges.

They were convicted.

At sentencing, the district court applied a sentencing enhancement for abuse of a position of trust, because the DeMuros had signature authority on the trust account and did not handle it in the way that the IRS wanted them to.

Sentencing Guidelines § 3B1.3 says that:

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.

As the Third Circuit explained, in the appeal of the DeMuros sentence, United States v. DeMuro (and conviction - though that part of the appeal didn't go too well), when deciding whether the enhancement for abuse of position of trust is warranted:

we employ a two-step analysis: (1) whether the defendant occupied a position of public or private trust; and (2) whether the defendant abused this position of trust in a way that significantly facilitated the crime.

In turn, the Third Circuit looks at three things in deciding whether the person occupied a position of trust:

[I]n considering whether a position constitutes a position of trust for purposes of § 3B1.3, a court must consider: (1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests defendant vis-a-vis the object of the wrongful act; and (3) whether there has been a reliance on the integrity of the person occupying the position.

So - did the DeMuros have a position of trust with respect to the IRS that let them not pay their taxes.

The court of appeals said they didn't for three reasons. The bottom line, though, is that the DeMuro's position with the IRS wasn't a position of trust; if anything it was a position of lack of trust.

First, the whole point of the trust account was so the IRS could more easily monitor the DeMuros' tax payments. The enhancement is supposed to apply to people who hide behind an account to do a crime - here, the account made it easier, not harder, for their conduct to be detected by the IRS. That's just not a position of trust.

Second, the trust fund was set up to take away discretion by the DeMuros, not add to it.

Third, the IRS set up the trust account because they didn't want to rely on the integrity of the DeMuros.

Because the trust account was set up not to rely on the IRS's trust of the DeMuros but to hedge against the IRS's complete lack of trust, the guidelines enhancement did not apply.

And back to resentencing the case will go.

Stuart Register ran a business that conducted criminal background checks on people.

He had a number of employees. Employees, of course, have to be paid. To pay them, he used a payroll company - PrimePay. PrimePay withheld taxes from the employees' pay, and told Mr. Register how much he needed to send to the government for those taxes.

Mr. Register did not send money that was withheld to pay taxes.

As you might suspect, that is a federal crime.

Mr. Register also falsified his personal taxes from 2003 until 2006.

That is also a federal crime.

He was indicted and pled guilty without a plea agreement.

The tax loss - the amount of money the government lost because of the tax crime - for Mr. Register's withholding offense was a little more than $300,000.

The loss for his falsified tax returns was around $115,000.

The question is - should Mr. Register be punished more because he had two separate kinds of tax offenses.

A step back is helpful. Under the federal sentencing guidelines, sometimes, two different offenses "group." And sometimes they don't. Generally, a person being sentenced wants the charges to group.

Intuitively, you can see that if a person robs two banks, those are separate crimes with separate victims. The harm caused by the bank robbery is the fear instilled in the teller, as well as the money taken from the bank.

So, if a person robs a bank on Monday, then on Tuesday robs the same bank again - but with a different teller let's say - you would think there are two separate harms. As a result, you would want the person's sentence to increase based on the second scary thing that happened to the teller.

And the guidelines accommodate that intuition - when there are two separate harms like that the crimes do not group. When things do not group, then each serves to increase the sentence that the sentencing guidelines suggest.

Imagine, though, that the person is just embezzling from the bank. Suppose, let's say, that a teller is slipping money out when counting the receipts. And she does that on Monday and Tuesday. There, the harm is the money being stolen. So, the guidelines count all the money that's taken, and add it together, but do not treat each separate event as something that necessarily should increase the person's sentence - beyond the increase that comes just from more money being added.

For Mr. Register, the question was whether the two tax offenses should group.

The probation officer preparing the presentence report said that they do not group. Both Mr. Register and the government objected, and the probation officer stuck to his or her guns. In response to the joint objection, the probation officer said (with my emphasis added),

The guidelines direct under USSG § 3D1.2 that counts can be grouped together when they involve substantially the same harm. Under subsection (b), counts can be grouped together when they involve the same victim and two or more acts connected by a common criminal objective or common scheme or plan. Under subsection (d) counts can be grouped together when the offense level is determined largely on the basis of the total amount of harm or loss. The defendant has been convicted of 17 counts representing two offenses: Failure to Pay Over Taxes to the [IRS] and Filing Fraudulent Federal Income Tax Returns. During the years 2004 through 2007, the defendant failed to pay over employment taxes to the IRS for his employees. In addition, during the same period, he failed to pay income taxes on his own income and claimed inflated amounts of federal income tax withheld causing the IRS to pay him refunds that he was not entitled to. Although the IRS is the ultimate victim in both endeavors, the probation office views the defendant's criminal behavior as two separate criminal objectives with two separate harms. It does not appear that the defendant committed both acts to specifically defraud the IRS. It does appear that the acts occurred as a result of his lifestyle and/or his personal financial situation. His behavior was not part of a single course of conduct with a single criminal objective.

So, the probation officer concluded that because there was no single course of conduct, there could be no singular harm, even though the one singular entity - the IRS - was out money because of the conduct.

The district court agreed, and sentenced Mr. Register to the high-end of his non-grouped guidelines range - 27 months.

Mr. Register appealed, and the 11th Circuit, in United States v. Register, reversed.

The court of appeals decision tracks closely the language of section 3D1.2 - basically, when the sentencing guidelines range is driven by a loss amount, there is no requirement in the guidelines that the offenses at issue arise out of the same plan or scheme.

So, since there was one victim - the IRS - suffering one harm - the loss of tax revenue - the two different tax crimes group, and Mr. Register goes back for resentencing.

Michael Jackson - no, not that one - pled guilty to dealing crack.

He did so at a particularly odd time in our Nation's history when it comes to crack sentencing.

Mr. Jackson's plea hearing was in June of 2009. The district court judge, wanting to give Mr. Jackson the benefit of what the court was sure would be a new change in our crack sentencing laws - sure that change he could believe in was coming - let Mr. Jackson's sentencing hearing be delayed to see if Congress would change the crack sentencing laws.

The district court waited more than a year. Finally, it could wait no longer.

On July 16, 2010, the district court sentenced Mr. Jackson. In explanation, the judge - who seems like a very nice person - said,

[W]e waited and waited and waited to see if Congress would change the guidelines, or the statutes, with regard to crack versus powder cocaine. My information now indicates that it's a dead issue in Congress and that it's not going to change, at least in the foreseeable future. . . . . I was trying to give you the benefit of any change in the law that might occur, and it doesn't appear that it's going to. For that, I'm sorry . . . .

Less than three weeks later Congress passed the Fair Sentencing Act, changing the law as it applies to crack sentencing. Specifically, the Fair Sentencing Act required new guidelines be issued for crack sentencing. And they were.

Mr. Jackson's appeal was pending, and the issue he raised in the appeal was whether he should have received the benefit of the new change in the sentencing guidelines for crack cocaine.

The Sixth Circuit reversed and remanded for resentencing under the new crack guidelines in United States v. Jackson on the theory that, basically, it was easier to remand than to require him to file a motion for resentencing under 18 U.S.C. § 3582(c).

If you're familiar with federal sentencing, this makes sense so far. Here's the twilight zone moment - Mr. Jackson was a career offender.

Because Mr. Jackson had at least two prior convictions for violent crimes or drug distribution offenses, he was sentenced under the career offender guidelines in § 4B1.1, and not under the crack guidelines.

That's right - the judge was waiting for a change in the guidelines that didn't apply to Mr. Jackson.

And his lawyer asked for him to be resentenced because there was a change in the guidelines that didn't apply to him.

And the Sixth Circuit reversed and remanded because the guidelines that didn't apply to Mr. Jackson changed after his sentencing.

This may be the only time that a cryptic and underdeveloped record has helped a defendant in an appeal, but the Sixth Circuit noted that

The district court varied downward from the career offender guideline to a sentence it believed was more reasonable based on the crack versus powder disparity -- at least as far as we can tell from the transcript. The court mentioned no other reason that could account for the 38-month downward variance in the ultimate sentence. Jackson's sentence was "based on" the range produced by subtracting three levels from the career offender guideline. The district court rejected the career guideline range in favor of something else. The only "something else" he mentioned at the sentencing hearing was the "untenable" disparity in crack versus powder sentencing. Although we cannot know exactly how the court would have sentenced Jackson had the revised guidelines been in place in July 2010, the court expressed its desire to use the lower range in sentencing Jackson.

The court of appeals then asserted that

If a sentencing judge, having found a defendant to be a career offender, then decides to sentence defendant below the range for career offenders and notes his policy disagreement with the crack cocaine guidelines, ordinary review would say that the sentence was as much "based on" the crack cocaine guidelines as the career offender guidelines.

The Sixth Circuit also said that this result was required by the Supreme Court's recent decision in Freeman v. United States, where the Supreme Court requires that a section 3582(c) proceeding - to modify a sentence based on a retroactive guideline change -

should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

Because the district court appeared to consider the crack guidelines as a part of its analytical framework when sentencing Mr. Jackson and those guidelines changed, he'll be resentenced - even though those guidelines didn't apply to him.

Which makes me wonder how attenuated the "analytical framework" has to be. I think I've argued that loss in a fraud case should be calculated with reference to the calculation of drug quantity - is there now an argument that those cases should go back for resentencing when the crack guidelines change?

Maybe I should practice more in the Sixth Circuit.

See also:

Retroactivity In The Federal Sentencing Guidelines and The Parol Evidence Rule

It's easy to hate people who are found guilty of child pornography charges. Child pornography is really gross.

But, as the Sixth Circuit held in United States v. Inman,, a district court still has to give reasons to be mean to them.

Mr. Inman pled guilty to possession of child pornography. He was sentenced to 57 months in prison.

Like anyone else who goes to federal prison, after he is released, he'll be on supervised release - a federal probation officer will supervise him to make sure he's not drifting into further lawlessness.

As a part of his supervised release, he'll have to follow certain conditions. Those conditions, as well as how long he'll be on supervised release, are set by a judge at his sentencing hearing.

In Mr. Inman's case, the government and Mr. Inman's lawyer recommended that he be on supervised release for ten years.

Instead of ten years, the district court, apparently motivated by how gross Mr. Inman's conduct is, sentenced him to a lifetime of supervised release. It didn't explain why.

And, the district court set a number of conditions that no one asked for, or talked about at Mr. Inman's sentencing hearing - he had to submit to mandatory drug testing; to notify the probation office if he is prescribed any medicine; to provide the probation office with all of his financial information; and he can never drink alcohol again, possess or use a device capable of creating pictures or video, or rent a storage facility or post office box.

What's worse, the district court didn't explain why it was imposing these conditions - it just imposed them.

As the Sixth Circuit explained, these conditions are going to seriously mess him up.

The district court . . . precluded him from using any device capable of creating pictures or video. This special condition effectively prohibits Inman for his lifetime from possessing a cell phone with photo or video capability, a video camera, or any other device capable of creating pictures or videos, even if such devices might be used appropriately in connection with employment or family activities.

So much for getting the new iPhone.

Mr. Inman can never drink alcohol again, according to the district court, even though he doesn't have a problem with alcohol. The Sixth Circuit was troubled by this condition too.

Nothing in the record suggests that Inman has any problem with alcohol or drug dependence; yet, he is now barred from consuming alcohol for life, required to submit to periodic drug testing, and required to keep the probation office informed of any prescription medications in his possession. Supervised release conditions must be tailored to the specific case before the court. Where appropriate, the mandatory condition of drug testing "may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant." 18 U.S.C. § 3563(a)(5). Moreover, the pertinent statute on discretionary conditions does not permit a total ban on alcohol, but allows a court to order the defendant to "refrain from excessive use of alcohol." 18 U.S.C. § 3563(b)(7) (emphasis added). Because Inman appears to present a low risk of future substance abuse, the district court should explain why these conditions of supervised release are warranted.

Finally, the Sixth Circuit thought the requirement that Mr. Inman allow his finances to be inspected by a probation officer was not supported by the record.

Inman also challenges the special condition requiring him to provide the probation office with any requested personal financial information. Inman's crime was not financial in nature. We realize that Inman's finances may give a probation officer insight into whether Inman is involved in illegal conduct, but we cannot approve a requirement that Inman disclose any and all financial information to the probation officer without first reviewing the district court's explanation as to why such a condition is necessary in light of the pertinent sentencing factors.

Based on all of that, the case went back to the district court for resentencing. If a district court is going to take away someone's ability to have an iPhone for life, that court has to do a little bit more explaining.

See also:
Sex Offenders, Supervised Release, and The Eighth Circuit

Like many Americans, Leslie Onyesoh had a credit card problem. His problem, however, wasn't maxing out her cards or making the minimum payment.

His problem was that when postal inspectors raided his home, they found a spreadsheet containing 500 expired credit card numbers.

One can assume that they were someone else's expired credit card numbers.

Mr. Onyesoh pled guilty to the knowing possession of more than 15 unauthorized access devices, in violation of 18 U.S.C. 1029(a)(3).

An unauthorized access device is "any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud."

The statute further defines "access device" - it includes credit cards - to require that the device must be capable of obtaining "money, goods, services, or any other thing of value." See section 1029(e)(1).

Under the federal sentencing guidelines, if a person is guilty of an economic crime like fraud, or possession of someone else's credit card information, their sentence becomes more severe as the amount of money at stake increases.

How much money is at stake, though, when you're talking about an expired credit card?

At sentencing, the government urged the court to sentence Mr. Onyesoh using a sentencing guidelines calculation that included a loss amount for each credit card on the spreadsheet at $500.

Under a note to the relevant part of the sentencing guidelines, the presumed minimum loss for someone else's credit card is $500 (though presumably it could be higher). It's note 3(F)(i) to guideline 2B1.1.

The question is, do expired credit cards count?

The district court, following the government, said that they do.

The Ninth Circuit, in United States v. Onyesoh, said not so fast.

The court of appeals focused on the requirement in section 1029 that for something to be an access device, it has to be capable of obtaining "money, goods, services, or any other thing of value."

Based on that, the court of appeals held that an expired credit card has to be useable for it to count as an access device. A working credit card, the court said, is clearly useable, and the government doesn't have to put on much evidence to show that a working credit card is an access device. (Though how would the government show it's working? Do they have to run a test charge?)

As the Ninth Circuit explained it,

Here, Defendant's credit card numbers had been expired for some three years, yet the Government argued these numbers required no further proof of usability because the evidence was "overwhelming" Defendant used, or could have used, these numbers. We have care- fully reviewed the record in this case and found no evidence of usability, let alone "overwhelming" evidence. There was no crossover between Defendant's victims and the list of expired numbers, and there was no showing Defendant ever took steps or attempted to use the expired numbers, or that Defendant possessed them before their expiration.

So, with "no evidence" that these credit cards were usable, the Ninth Circuit remanded for resentencing.

Though, if there's no evidence that these expired credit cards were "unauthorized access devices", what did Mr. Onyesoh plead guilty to?

Finally, gentle reader, you may wonder whether Mr. Onyesoh is a man or a woman - Leslie, as you know, can go both ways. According to the BOP, Leslie Onyesoh is a guy. That's the kind of rigorous fact-checking you can rely on here at the Federal Criminal Appeals Blog.

See also:
The Tenth Circuit On Credit Cards, Loss, and the Sentencing Guidelines

Jesus Rodriguez took a long time coming to the truth. But in his appeal in United States v. Rodriguez, the D.C. Circuit held that, sometimes, coming to the truth late is coming soon enough.

Mr. Rodriguez was indicted for cocaine distribution. He faced a five-year mandatory minimum.

There Are Two Ways To Get Under A Mandatory Minimum Sentence

There are two ways under a mandatory minimum. One is to cooperate with the government and receive a government motion for a sentence under the minimum under 18 U.S.C. § 3553(e). To do that, means to cooperate with the government in its efforts to put others in prison.

The other option is to meet the requirements for the "safety valve" under section 3553(f). The biggest one - the one that is most often the problem - is the requirement that a person truthfully talk about their role in the offense and disclose to the government everything they know about their own conduct.

As the statute says on this requirement,

not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

If a person qualifies for safety valve in a drug case, the person also receives a two-level reduction in her offense level under the sentencing guidelines.

Mr. Rodriguez Walks Half Way To The Truth

Mr. Rodriguez wanted to take advantage of the safety valve statute. He pled guilty and met with agents for the government and talked about his role in the offense. He talked about his drug dealing.

He told them that the guy who drove him to a drug deal was his boss, who was just giving him a ride.

The government didn't believe him about that.

The Safety Valve Hearing

The case went to a hearing on whether Mr. Rodriguez had been honest in his statements to the government. Mr. Rodriguez testified at the hearing that the man who drove him to the drug deal didn't know it was a drug deal.

Two police officers testified that the man who drove Mr. Rodriguez to the drug deal paced behind the car while the deal was happening, and brought $4,000 in cash and a gun to the deal. They also said that the guy Mr. Rodriguez was selling drugs to was told, by Mr. Rodriguez, that his supplier would drive him to the deal.

The district court concluded that Mr. Rodriguez was lying. It continued the sentencing hearing to figure out what to do with that.

Bad Things Happen When You Lie In Federal Court

The government asked for a number of increases in Mr. Rodriguez's offense level because of his false testimony. He was given a two-level increase for obstructing justice. He lost his acceptance of responsibility credit - the reduction in his guidelines based on pleading guilty.

These changes moved his guidelines from 46-57 months to 78-97 months.

Mr. Rodriguez then decided to change his approach. He met with the government again. This time, he told them what everyone agreed was the truth.

He apologized for his prior statement, and said he was sorry he lied.

The Sentencing Hearing

At sentencing, Mr. Rodriguez apologized to the district court for lying.

The district judge sentenced him to 72 months - his guidelines were increased because of his obstruction, and he lost acceptance of responsibility.

What About Safety Valve?

On appeal, Mr. Rodriguez had new counsel. His new lawyers argued that his trial counsel should have asked for a safety valve reduction under the sentencing guidelines, and that he was constitutionally ineffective for not doing so.[FN1]

The D.C. Circuit agreed.

The court of appeals noted that the government conceded at sentencing that Mr. Rodriguez had, eventually, belatedly, been fully truthful with them by the time the sentencing hearing happened.

The court of appeals held that

The fact that Rodriguez waited until the last minute to provide the information or that he was tardy in doing so does not preclude him from obtaining safety-valve relief. The provision does not distinguish between defendants who provide the authorities only with truthful information and those who provide false information before finally telling the truth. (internal quotations omitted)

Moreover,

Familiarity with the Guidelines is a necessity for counsel who seek to give effective representation. When a lawyer fails to raise an applicable provision of the Guidelines, he fails to provide effective assistance. (internal quotations omitted)

Because Mr. Rodriguez was entitled to a two-level reduction for safety valve the case was remanded for resentencing.

[FN1] - Readers from outside of the D.C. area may be surprised to learn that the D.C. Circuit allows a person to raise an ineffective assistance claim on direct appeal if the record establishes the ineffective assistance sufficiently.

See also:

• Safety Valve, Government Power, and Marijuana in the Woods of Arkansas


• The Ninth Circuit on Mandatory Minimums, Safety Valve, and Timetravel

Nancy Bell had serious health problems. Because of those health problems, she was prescribed pain medicine - OxyContin.

When a person is prescribed oxycodone, which is the generic version of OxyContin, she is required to be tested through pill counts and urine screens to make sure she's actually using it. Ms. Bell was tested, her treatment center said that she had an "outstanding record" of compliance.

The Market For Oxycodone

The reason people taking oxycodone are tested is because there is a tremendous illicit market for the drug.

Ms. Bell was no stranger to that market, unfortunately. She, and her daughter, Iris Gibson, were discovered by law enforcement to be selling oxycodone to others. The "others" decided they liked the government enough to help them prosecute Ms. Bell and Ms. Gibson.

Ms. Bell and Ms. Gibson were charged with conspiracy to distribute oxycodone. They pled guilty without a plea agreement. They went to a sentencing hearing.

The Quantity of Oxycodone

The biggest issue in the sentencing of Ms. Bell and Ms. Gibson was the quantity of oxycodone that was sold illegally.

The sentencing guidelines - specifically section 2D1.1 - suggest longer sentences for people who are involved in a greater quantity of drugs being distributed. Similarly, in a fraud case, the guidelines - specifically section 2B1.1 - suggest a longer sentence for people who are involved in a greater amount of money being taken.

Here, the government introduced the records of the quantity of pills that Ms. Bell was prescribed. They wanted to use that as the basis for the drug quantity.

The government also introduced lengthy testimony from the others who were involved in the drug distribution scheme with Ms. Bell.

Ms. Bell introduced her records from the pain management center to establish that she actually took a lot of these pills. As a result, she argued that the quantity that should be attributed to her should be reduced by the reasonable amount of medicine that she took, under her legitimate prescription for the medicine.

The district court, after listening to what appears to have been a lot of testimony, punted. The sentencing court decided that about 104.5 grams of oxycodone. The court didn't explain how much Ms. Bell consumed herself, or how much was sold to the others, or anything else. The court just asserted that 104.5 was the right number.

The district court then sentenced Ms. Bell and Ms. Gibson based on guidelines ranges based on that number.

The Fourth Circuit Appeal

Ms. Bell and Ms. Gibson appealed. They argued that the judge has to do more to explain how he arrived at the drug quantity.

In United States v. Bell, the Fourth Circuit agreed. Writing for the panel, Judge Andre Davis wrote that, "the district court's explanation for how it calculated that quantity is insufficient to allow for meaningful appellate review."

The court of appeals remanded the case for resentencing for the district court to explain how it arrived at the amount that it used to impose sentencing.

Footnote 8

All of this is relatively uncontroversial, as for as appellate decisions go. Except for the very odd disagreement between the panel about footnote 8 of the opinion.

In the main text, the opinion lists a number of questions that were unanswered by the district court - things like how much oxycodone each witness testified to, how much Ms. Bell used personally and legally, and the time period over which the illegal pill distributing spanned.

After listing these factors, Judge Davis dropped a footnote - footnote 8 - which started,

I hasten to make two observations. First, I do not suggest that any one or more of the specific queries listed above is or should be either a necessary or a sufficient basis for a permissible finding of drug quantity in any particular case. Like relevant conduct in any case, the district court approaches its task based on the facts and circumstances presented. Second, I recognize that some of these queries, such as the quantity Bell herself consumed, may be more difficult for the government to prove than others. But that does not relieve the government of proving such facts by a preponderance of the evidence at sentencing.

The rest of the panel - Judges Hamilton and Floyd - refused to join this footnote. The rest of the (lengthy) footnote takes these judges to task for failing to sign on to these relatively benign legal propositions.

Really - it's controversial that proving things at sentencing is a "task based on the facts and circumstances presented"? Or that some facts are harder to prove than others?
After reading the footnote and the concurrence by Judge Hamilton, I really don't see the issue, except, perhaps, that Judge Hamilton seems less likely to accept an invitation to a cocktail party for criminal defense lawyers.

Ms. Gibson's Challenge

Ms. Gibson raised a separate challenge. She argued that the government failed to prove that the drugs were attributable to her. Judge Davis was sympathetic, and provided guidance on remand,

the district court will have the opportunity in any event to revisit the evidence of the extent and timing of Gibson's involvement in the conspiracy. We note, however, that the district court's rejection of Gibson's argument turned on its finding that Gibson "had full knowledge of the scope of the conspiracy and quantity of drugs involved." J.A. 427. Gibson's "knowledge" of the scope of Bell's drug sales, however, is only part of the analysis; under the Guidelines the full amount of oxycodone sold or transferred by Bell is only attributable to Gibson for drug weight purposes if that full amount was reasonably foreseeable to Gibson and within the scope of the criminal activity that she jointly undertook with Bell. See U.S.S.G. § 1B1.3 cmt. n.2. Moreover, if Gibson did not join the conspiracy until May 2008, oxycodone distributed by Bell or other conspiracy members before that date could not be considered "relevant conduct," even if Gibson knew of that conduct. Id.

Ms. Gibson, it appears, will have a better time at resentencing as well.

Related Links:

• Immigration Fraud and the Sentencing Guidelines Numbers Game


• Judge Posner On Narcotics Wholesalers and Drug Quantity

The Armed Career Criminal Act creates more absurd law than any part of the American legal system outside of the tax code.

The Sixth Circuit's recent, and short, opinion in United States v. Oaks illustrates the point. It asks the question we've never needed answering before - is running out of a courtroom a violent act?

It turns out that it isn't.

Background on the Armed Career Criminal Act

If you are caught with a gun and you have a prior felony conviction, the most amount of time you can be sentenced to spend in prison is 10 years and, odds are, your sentencing guidelines range would be much lower.

If, however, you have been previously convicted of a felony crime of violence or a drug distribution offense three times in your past, then your mandatory minimum sentence is 15 years. And your statutory maximum sentence is life.

Mr. Oaks

Mr. Oaks pled guilty to possessing a firearm after a felony conviction. [FN1] He had two prior convictions for either drug distribution offenses or crimes of violence. He also had a prior conviction for felony escape.

Mr. Oaks felony escape conviction arose out of his escape from a courtroom where he was awaiting a hearing on robbery and burglary charges.

The district court determined that this escape conviction was a crime of violence.

Mr. Oaks appealed.

The Sixth Circuit affirmed.

Mr. Oaks filed a petition for certiorari to the Supreme Court.

The Supreme Court and Mr. Oaks

The Supreme Court GVR'd - it granted cert, vacated the Sixth Circuit's judgment, and remanded to the Sixth Circuit in light of Chambers v. United States. (see SCOTUSBlog coverage here)

Chambers dealt with whether escape which arises out of a failure to report is a violent felony.

It's a little astounding that this is even a question - the actual thing that a defendant does can be as passive as sitting on his couch watching TV and eating potato chips while he's supposed to be elsewhere. Aside from the violence to his own cholesterol level, this does not seem to be a violent act.

Happily, a unanimous Supreme Court held that failure to report is not a crime of violence for Armed Career Criminal Act purposes. In reaching that conclusion, the Court looked at a United States Sentencing Commission report on failure to report crimes, and noted that in 160 cases, not once did a failure to report lead to a fight with law enforcement.

And they say watching TV is bad for you.

After The Supreme Court's Remand

In light of the Supreme Court's remand in Mr. Oaks's case, the Sixth Circuit remanded to the district court for more fact-finding about what the details of the felony escape were to determine if it was really a crime of violence.

The district court found that,

first, it appears from the uncontroverted facts that at the time of the felony escape, Oaks was being held in law enforcement custody in the county jail on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary, but had been taken to a courtroom for a court appearance at the time he ran from the courtroom; secondly, while the county jail was a secure facility, the courtroom from which Oaks ran was not.

Based on this, the Sixth Circuit determined that escape from a courthouse is not a crime of violence.

Looking at the same Sentencing Commission report, the Sixth Circuit noted that in 171 cases of escape from "nonsecure custody" only 1.7% resulted in some kind of injury. That percentage, the Sixth Circuit found, is simply too low to call this a violent offense.

Interestingly, there's a dissent, which questions whether a courtroom is really an escape from nonsecure custody, or, rather, is an escape from the custody of law enforcement personnel. If so, the percentages are a little violenter.[FN2] I would suspect that the United States Marshals Service would also question the majority's determination that escape from a courtroom is not escape from law enforcement custody.

That said, it's a happy result for Mr. Oaks.

[FN1] - Actually, what the opinion says, quoting a prior Sixth Circuit opinion in this case, is that he "pleaded" guilty. Gentle readers, I find that word awkward. In my legal writing, I am too often called upon to use the past tense of plead in connection with a determination of a person's guilt. I prefer to use "pled" rather than "pleaded." The Sixth Circuit disagrees. Am I wrong? Has Bryan Garner opined on this?

[FN2] Please don't tell Bryan Garner I made up the word "violenter."

Justice Scalia recently made headlines by taking a cheap shot at the ranks of federal district court judges.

As the Associated Press reported (hat tip to Sentencing Law and Policy):

Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

"Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

For what it's worth, I go half way with Justice Scalia on this. There are too many federal drug prosecutions, but, from my perspective, the quality of the federal district court bench is still excellent - especially the judges I appear in front of (and who may be (but probably aren't) reading this).

One danger of having too many cases is that it gets hard to look at each case with fresh eyes.

Sentence too many folks on drug crimes, and every person convicted of drug dealing starts to look the same. It's a rare, and good, judge who can treat the 500th drug defendant as an individual in the same way that she did with the first.

Once a judge does, say, 100 sentencing hearings, she can be forgiven, perhaps, for not focusing on the details of each one.

This kind of volume leads to the regrettable sloppiness in the Seventh Circuit's opinion in United States v. Hassebrock.

Mr. Hassebrock earned substantial income from an oil business in 2004. Among other income, he received a taxable settlement of $2.5 million. He neglected, however, to file income tax returns. He was indicted, and, at trial, convicted, of tax evasion and willfully failing to file a tax return.

Tax evasion and failure to file a tax return are odd offenses. While most federal crimes appear in Title 18 of the United States Code, tax offenses are codified in Title 26. Tax evasion is a violation of 26 U.S.C. § 7201 and willful failure to file a tax return is a violation of section 7203.

The difference in which title is the source of the crime changes things in small and subtle ways at sentencing.

In Mr. Hassebrock's case, it changed whether the sentencing court had the power to order Mr. Hassebrock to pay restitution.

To back up, a court can order, as a part of a sentence, a person to pay funds to make his victims whole as restitution. If a person defrauded money, he can be ordered to pay the amount defrauded. If he shot someone, he can be ordered to pay the costs of medical bills, lost wages, and therapy to recover from the injury.

The general restitution statutes, 18 U.S.C. §§ 3663 and 3663A, apply to violations of crimes that appear in Title 18 and drug crimes in Title 21. They do not apply to offenses in Title 26 - that is, they don't apply to tax evasion.

Judges imposing sentence really want to impose restitution. As a practical matter, it makes collecting the taxes that were evaded monumentally easier for the government.

Yet restitution in tax cases is only available in two ways. First, if the person charged with a tax offense pleads guilty, as a condition of a plea agreement he can agree (or be forced to agree) to pay restitution as a part of his sentence. This is authorized by 18 U.S.C. § 3663(a)(3).

Second, if the district court orders that the person be on supervised release, the court can make restitution a condition of that supervised release.

Importantly, a district court cannot make restitution a part of a sentence in federal court.

Given that this blog only addresses cases and issues where the defendant wins, you will not be shocked to learn that the district court in Mr. Hassebrock imposed a restitution order as a part of his sentence.

The government tried to let the sentencing court know it couldn't do it, but the judge, ignoring the government's statement that the court could only impose restitution as a condition of Mr. Hassebrock's post-prison supervised release, imposed restitution as a part of the sentence.

The court directed Mr. Hassebrock to start paying the restitution immediately - while he was serving his 36 month sentence. However, the court doesn't have the power to order him to pay restitution until his prison sentence is over and he is being supervised by the United States Probation Office.

Mr. Hassebrock, to his credit, has apparently starting paying his restitution from prison.

His case was remanded for a new restitution order that starts once he is out of prison.

People are social animals. We teach each other. We learn from each other. We judge each other.

Perhaps dozens of times a day we make evaluations about other people based on how they look at us and what they say to us. We make determinations about other people based on race and class and whether we think another person is "one of us" - in all the ways that a person can be one of us. Maybe pheromones play a role in how we evaluate each other. But these small judgments we make in our interactions with others shape how we treat each other in ways large and small.

None of this goes away when a judge puts on a robe and imposes a sentence on a person who has been convicted of a crime.

A federal district judge will know generally about the crime - the judge either sat through a trial and heard the testimony, or read a statement of offense in a plea agreement - and will know from the presentence report about the person being sentenced.

But these background facts don't give the judge the same human knowledge about the person that a face-to-face interaction does. Which is why whether the person speaks at his sentencing - and how he acts if he does speak - can be very important.

Rule 32 of the Federal Rules of Criminal Procedure give a person being sentenced a right to talk to the judge about what sentence the court should impose.

The right to talk to the judge before the sentence is imposed was given a very muscular reading by the Eleventh Circuit in United States v. Perez.

Mr. Perez, along with a number of others, was convicted of conspiring to rob a check cashing store, as well as a drug stash house that did not, in fact, exist. The federal government, in an apparent effort to bring counter-terrorism tactics to the street, has started finding people who may be interested in committing a crime, then arranging with a confidential informant to have them find some fake entity to conspire to rob. It's easier to catch fake crime than real crime, I suppose. (For more on these kinds of cases, please see this post at the Ninth Circuit blog).

At sentencing, the sentencing court said to Mr. Perez's counsel "will the defendant be allocating?" Mr. Perez's lawyer conferred with his client then told the court, "No, Your Honor. He doesn't wish to address the Court." Mr. Perez did not, then, address the court.

The Eleventh Circuit found that this violated Mr. Perez's right to present information to the court. The court of appeals noted that:

On a number of occasions, "[w]e have explicitly held that the requirement of Rule 32[(i)(4)(A)(ii)] is not satisfied when the court does not address the defendant personally concerning the defendant's desire to allocute but instead addresses defendant's counsel only."

In light of that, the court held that it was not convinced that Mr. Perez knew that he had a right to speak to the sentencing judge.

Because the right to allocute is fundamental, the Eleventh Circuit reversed, even though no one objected at the time.

Waxing poetic about the importance of allocution, the court of appeals said

The right of allocution provides a defendant "an opportunity to plead personally to the court for leniency in his sentence by stating mitigating factors and to have that plea considered by the court in determining the appropriate sentence." United States v.Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1996). "As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal." Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670 (1961) (Frankfurter, J., plurality opinion). Although criminal procedures have progressed significantly since the seventeenth century, "[n]one of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation." Id. Allocution continues to "ensure that sentencing reflects individualized circumstances," United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (citing United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991), while maximizing the "perceived equity of the process." Id. (quoting Barnes, 948 F.2d at 328). Consequently, a defendant's right of allocution, which is codified in Federal Rule of Criminal Procedure 32, remains firmly entrenched in our criminal jurisprudence.

And so, back for resentencing Mr. Perez will go.

The federal government has powerful tools to keep a person from exercising his constitutional right to go to trial - like crushingly long mandatory minimum sentences.

An aside to illustrate the point

The government's use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.

The judge asked my client "Has anyone threatened you to get you to plead guilty?"

My client said yes.

The judge, clearly taken aback, and, frankly, looking at me, said "Who threatened you? How?"

My client pointed at the prosecutor and said "They said I'll get mandatory life if I don't take a plea."

The judge, relieved, said "Oh, ok, but no one threatened you with any violence or anything, right?"

My client said right, and the hearing moved on.

I think my client's honesty may have faded at the end of the exchange. What the government was saying, in essence, is that he was being threatened with living in a cage until he dies. If he tries to escape, people will force him back into that cage.

What threat of violence to him could be more severe than that, shy of a threat of death? Yet the judge determined that the plea wasn't coerced.

How to Avoid A Mandatory Minimum

There are, generally, two ways to avoid a mandatory minimum sentence. The first is by helping the government put someone in prison. The other is called the "safety valve."

The "safety valve" is set out in 18 U.S.C. § 3553(f). It says, in essence, that if a person has little prior involvement with the criminal justice system, didn't lead the criminal enterprise that he's being sentenced for, didn't use a gun, and no one got hurt, that person can be sentenced as though the mandatory minimum didn't exist. With one additional catch.

The person has to truthfully tell the government everything that he did in connection with the crime he's being sentenced for.

If a person tries to help the government, the government will require that he gives up his right to a trial. Safety valve works a little differently.

Safety Valve and Trial

By its terms, the safety valve provision can kick in to help someone who was convicted at trial, rather than pleading guilty.

The Eighth Circuit's case of United States v. Honea shows exactly when and why safety valve should be used after a trial.

Never Let Your Kids Use Your Water

Mr. Honea had some land in Arkansas. It was next to some land that was untended, but owned by Deltic Timber.

Mr. Honea's daughter, Paula, was using Mr. Honea's land to get access to the untended Deltic Timber land. On that land, she was running a marijuana growth operation. Two guys slept on the land in tents, tending the plants. Paula ran water hoses from Mr. Honea's house to the marijuana operation, using massive amounts of water. Paula's husband, Mr. Honea's son-in-law, also helped with the operation.

Everyone except for Mr. Honea flipped and testified against him. He was charged with conspiracy to grow more than 1,000 marijuana plants, aiding and abetting in the possession with intent to distribute between 100 and 1,000 marijuana plants, and aiding and abetting the manufacture of more than 1,000 marijuana plants.

These charges carry a mandatory minimum sentence of ten years.

Before trial, when everyone was cooperating with the government, Mr. Honea's son-in-law wrote to Mr. Honea. He wrote:

Don't go to trial, just take a plea. You're a smart man, I know you'll make the right decision.

Mr. Honea's Trial

At trial, Mr. Honea took the stand. He said he knew nothing about the marijuana operation. He knew his son-in-law was harvesting rocks to resell to construction companies - which made sense to him since his son-in-law was a contractor - but he knew nothing about marijuana on the property.

Mr. Honea was convicted of aiding and abetting in the manufacture of more than 1,000 marijuana plants. He was acquitted of the other two counts.

Mr. Honea faced a mandatory minimum sentence of ten years.

The Judge Gets Concerned

After trial, and before sentencing, the trial judge was worried. He sent a letter to counsel for Mr. Honea and the government. As the court of appeals described it:

the district court sent the parties a letter order "to express [its] concern about the application of the statutory mandatory minimum sentence in this case and to ask whether Mr. Honea might qualify for the 'safety valve.'" The district court noted that Honea was "acquitted . . . on 2 of the 3 counts," including "the most serious charge--conspiracy to manufacture marijuana (Count 1)[,] as well as the charge of aiding and abetting the possession with intent to distribute marijuana (Count 3)." The court surmised that Honea's conviction for "aiding and abetting the manufacture of marijuana (Count 2)" was "based principally on the jury's finding that he permitted the other Defendants to cross his property to access the adjoining land where the grow operation was located and also provided them access to his water supply." According to the court, "no competent evidence" existed that "Honea profited in any way from the manufacture or distribution of the marijuana." The court also cited Honea's lack of a "criminal record.

The government responded that Mr. Honea was not safety valve eligible, because he had not met with them to disclose his involvement with the operation.

That was remedied - Mr. Honea met with the government and said that he didn't ask questions, but should have, and didn't know about any marijuana operation.

This was good enough for the court, but not for the government. The government argued that Mr. Honea's statement was inconsistent with the jury's verdict. As a result, the government thought Mr. Honea should not be eligible for a safety valve reduction.

The district court disagreed, sentencing Mr. Honea to the time he had originally spent in jail - 20 days.

The government appealed.

The Eighth Circuit affirmed, finding that there was no conflict between the jury's verdict and the safety valve proffer.

For a person convicted of a crime, winning in the Supreme Court of the United States can be a mixed bag.

Sometimes it works out well. Clarence Gideon was acquitted when he was retried, this time with the aid of a defense lawyer. He was also, of course, lovingly portrayed by Henry Fonda in film, and is now perhaps the most often-invoked indigent of the Twentieth Century.

On the other hand, Ernesto Miranda, the man who gave us Miranda warnings, was convicted on retrial after his statement was suppressed. He served 11 years in prison for rape.

Freddie Booker's case turned federal criminal sentencing on its head. Mr. Booker was resentenced after his case rendered the federal sentencing guidelines advisory - he was given exactly the same sentence with the advisory guidelines as with the mandatory ones.

Perhaps that was a harbinger.

Alejandra Tapia won her case in the United States Supreme Court last term. And, happily, yesterday, she found that she'll get some relief from that win.

She was convicted at trial of bringing two undocumented people into the country for financial gain, and of bail jumping - apparently Ms. Tapia did not make it to court for one of the hearings in her case.

She was sentenced to 51 months, the high-end of the applicable guidelines range. The sentencing court said that she had a drug problem and needed treatment while in prison. The sentence he imposed was to help her get that treatment.

Ms. Tapia appealed the sentencing judge's reliance on her need for drug treatment, but the Ninth Circuit affirmed. Ms. Tapia took her case all the way to the Supreme Court. In the Supreme Court, she won.

There, in Tapia v. United States, the Court held that a district judge cannot increase a sentence on a person in order to provide more time in prison to rehabilitate the person.

(Judge Posner has already provided district court judges with a roadmap for how to circumvent Tapia.)

The Supreme Court remanded to the Ninth Circuit to determine whether Ms. Tapia is entitled to relief based on its holding.

On remand from the Supreme Court Ninth Circuit held that Ms. Tapia is entitled to resentencing in United States v Tapia. The district court's consideration of her drug history and need for drug treatment was plain error.

As the Ninth Circuit said, in determining that Ms. Tapia was negatively effected by the sentencing judge's findings:

There is little reason to think that the district judge did not mean what he said in sentencing Tapia. He stated that "the need to provide treatment" was one of the considerations that "affect[ed]" the length of the sentence he imposed. We take him at his word, and hold that Tapia has shown that there is a "reasonable probability that [she] would have received a different sentence" but for the district judge's impermissible consideration of this factor.

So, back to the district court for resentencing for Ms. Tapia. Here's to hoping she avoids Mr. Miranda and Mr. Booker's fates and receives less than her prior 51 months.

Sometimes being a defense lawyer in federal court is a matter of playing for dropped balls. In some cases, if everything goes the way it looks like it should for the government, there's not much chance of a good result. But, mistakes are often made. If the right mistakes happen, things can look different quickly.

The appeal in the First Circuit's recent opinion in United States v. Ortiz shows the importance of playing for a dropped ball.

A Night in May

According to a statement of facts that Mr. Ortiz signed, in May of 2007, he and his friends decided to try to steal a car. The car was occupied. The men in the car got out, and had a fistfight with Mr. Ortiz and his friends. When the fight was over, the men in the car got back in the car and tried to drive away.

One of Mr. Ortiz's friends blocked the way of the car. People yelled. Mr. Ortiz shot into the car, killing the driver.

Mr. Ortiz was charged with four crimes: (1) conspiracy to commit carjacking; (2) car jacking; (3) use of a firearm in connection with a crime of violence; and (4) causing the death of a person through the use of a firearm. [FN1]

Mr. Ortiz Pleads Guilty

Mr. Ortiz worked out a plea to Count Three - use of a firearm in connection with a crime of violence under 18 U.S.C. 924(c). Because a gun was discharged, Count Three carries a mandatory minimum term of ten years.

As a part of the plea agreement, Mr. Ortiz and the government agreed that they would both ask for the ten year sentence be imposed. At the plea hearing, the judge told Mr. Ortiz that Count Three carried a mandatory minimum ten year sentence.

In his plea, Mr. Ortiz also waived his right to appeal.

A charge under 924(c) does not have a maximum penalty established by statute - rather, courts have construed it as having a maximum sentence of life. [FN2] This fact, however, was not mentioned in Mr. Ortiz's plea agreement paperwork. It was also not addressed at his plea hearing - which violates Rule 11 of the Federal Rules of Criminal Procedure.

Mr. Ortiz Has a Presentence Report

Mr. Ortiz, like every other person who is convicted in federal court, was the subject of a presentence report. The presentence report accurately stated that the maximum penalty for his count of conviction was life in prison.

At his sentencing hearing, though, the district judge neglected to ask whether Mr. Ortiz had read the presentence report.

Mr. Ortiz is sentenced

Expecting to receive a sentence of ten years in prison, Mr. Ortiz was surprised when the court imposed a sentence of 30 years.

He was further surprised when one of his friends from the night of the shooting, beat two counts at trial and received a sentence of only 15 years.

Mr. Ortiz tried to withdraw his plea after he was sentenced because his sentence was three times the amount of he expected to receive. The district court denied the motion. Mr. Ortiz appealed.

The Appeal

The government argued that Mr. Ortiz could not bring an appeal, because he waived that right in his plea agreement. The government also argued that the original plea should stand.

The court of appeals, though, thought differently. It remanded, since Mr. Ortiz was not aware that by pleading guilty he could be sentenced to life in prison.

The court remanded, with instructions to vacate the conviction.

As an interesting postscript, the court noted that Mr. Ortiz, if re-convicted, could, of course, receive up to life in prison. Mr. Ortiz's counsel presented, during the course of the appeal, a statement that Mr. Ortiz was aware of that risk, and wanted to proceed with the appeal anyway.

Here's to hoping Mr. Ortiz doesn't do worse on remand.

[FN1] The opinion describes these each as aiding and abetting charges to the substantive counts, then, bizarrely, in footnote one, takes the government to task for charging these as, e.g., a violation of "18 U.S.C. § 2119(3) and 2." (emphasis in original). The footnote then continues "Because it is unclear what statutory provision "and 2" refers to in each instance, we have omitted that language here."

I hate to, in essence, say "duh" to a court of appeals, but, I think it's pretty obvious that "and 2" refers to 18 U.S.C. § 2, the statutory provision that sets out aiding and abetting liability.

I'm no fan of defending the government, but this is an odd attack based on a blindingly obvious misunderstanding by the opinion's author.

[FN2] This quirk leads to a delightfully paradoxical turn of phrase - the statutory maximum for a violation of 18 U.S.C. § 924(c) is not set by statute.