Federal Sentencing Update Alan Dorhoffer Deputy Director, Office Of Education.

Federal Sentencing UpdateAlan Dorhoffer

Deputy Director, Office Of Education

2Discussion Topics

•Commission Update

•2015 Proposed Amendments

•Retroactivity of Drugs Minus 2

•Recent Supreme Court Cases

•Recent Appellate Cases

3

@theusscgov

www.ussc.gov helpline (202) 502-4545

[email protected]

Commission Resources

www.ussc.gov (202) 502-4545 @theusscgov [email protected]

4

Commission Update

5

Commission Activities

•2015 USSC Annual National Seminar: New Orleans, September 16-18, 2015

•2015-16 Priorities • Crime of Violence Amendment• Immigration•Mandatory Minimums• Animal Fighting


6

Sentencing Statistics

7Primary Offense Types

Drugs31.7%

Firearms10.5%

Child Porn2.5%Other

10.4%Larceny

1.9%

White Collar3.7%

Fraud10.0%

Immigration29.3%

National - FY 2014

SOURCE: 2014 Sourcebook of Federal Sentencing Statistics; 75,836 Cases Sentenced

8Primary Offense Types – FY 2014

District Drugs Immig Fraud Guns Child Porn

White Collar

Larceny Other

National (75,836)

31.7% 29.3% 10.0% 10.5% 2.5% 3.7% 1.9% 10.4%

1st Circuit 40.7% 9.6% 10.5% 19.6% 3.1% 3.9% 2.1% 10.4%

2nd Circuit 39.4% 10.7% 16.6% 9.1% 2.7% 6.5% 1.7% 13.4%

3rd Circuit 33.7% 8.4% 19.9% 12.4% 3.1% 7.7% 2.2% 12.6%

4th Circuit 31.9% 8.7% 11.8% 16.9% 3.2% 5.1% 2.7% 19.6%

5th Circuit 24.0% 55.1% 5.3% 5.6% 1.5% 2.2% 1.1% 5.2%

6th Circuit 39.0% 6.9% 11.4% 18.8% 4.2% 5.0% 2.3% 12.5%

9Primary Offense Types – FY 2014

District Drugs Immig Fraud Guns Child Porn

White Collar

Larceny Other

7th Circuit 34.6% 5.8% 17.4% 17.7% 4.9% 5.2% 2.7% 11.7%

8th Circuit 35.8% 11.3% 11.1% 15.5% 4.6% 3.6% 2.2% 16.0%

9th Circuit 38.4% 33.5% 7.9% 5.6% 1.8% 2.8% 1.5% 8.6%

10th Circuit 21.0% 54.1% 4.2% 7.8% 1.4% 2.1% 1.2% 8.1%

11th Circuit 25.6% 15.3% 18.7% 15.4% 3.3% 5.4% 3.5% 12.9%

DC Circuit 47.2% 4.4% 9.7% 9.4% 4.1% 4.1% 5.0% 15.9%

10

Position of Sentences in Relation to Guideline Range

National - FY 2014

WithinGuidelineRange46.0%

AboveGuidelineRange 2.2%

Total Govt BelowGuidelineRange30.3%

§5K1.1 12.8%

Non-GovtBelow21.4%

§5K3.1 & Other Govt17.6%

SOURCE: 2014 Sourcebook of Federal Sentencing Statistics; 75,836 Cases Sentenced

11

Position of Sentences in Relation to GL Range – FY 2014

District Within Above Govt. Below Other BelowNational 46.0% 2.2% 30.4% 21.4%1st Circuit 53.1% 4.5% 23.8% 18.7%2nd Circuit 30.1% 1.5% 28.7% 39.7%3rd Circuit 35.7% 1.5% 37.4% 25.4%4th Circuit 53.3% 2.4% 24.0% 20.3%5th Circuit 60.7% 2.2% 18.0% 19.1%6th Circuit 41.5% 1.7% 32.7% 24.1%

12

Position of Sentences in Relation to GL Range – FY 2014

District Within Above Govt. Below Other Below7th Circuit 36.9% 2.2% 23.0% 37.9%8th Circuit 45.6% 2.8% 24.9% 26.7%9th Circuit 31.2% 3.0% 50.5% 15.3%10th Circuit 51.2% 0.9% 33.5% 14.4%11th Circuit 52.3% 1.6% 21.3% 24.8%DC Circuit 31.1% 1.2% 40.8% 26.9%


13

Proposed Amendments

Effective November 1, 2015, absent Congressional action to the contrary

14Proposed Amendments

•Economic Crimes (§2B1.1)

•Mitigating Role (§3B1.2)

•Hydrocodone Offenses (§2D1.1)

• Single Sentence Rule (§4A1.2)

• Jointly Undertaken Criminal Activity (§1B1.3)

• Inflationary Adjustments

Effective November 1, 2015

15

Inflationary Adjustments

•Adjusts monetary tables in the guidelines to account for inflation • §2B1.1 (Fraud/Theft)• §2B2.1 (Burglary)• §2B3.1(Robbery)• §2R1.1 (Bid-Rigging)• §2T4.1 (Tax Table)• §5E1.2 (Fines for Individual Defendants)****• §8C2.4 (Base Fine)

16Loss Table

(A) $5,000 $6,500 or less no increase(B) More than $5,000 $6,500 add 2(C) More than $10,000 $15,000 add 4(D) More than $30,000 $40,000 add 6(E) More than $70,000 $95,000 add 8(F) More than $120,000 $150,000 add 10(G) More than $200,000 $250,000 add 12(H) More than $400,000 $550,000 add 14

§2B1.1(b)(1)

17Loss Table (cont.)

(I) More than $1,000,000 $1,500,000 add 16

(J) More than $2,500,000 $3,500,000 add 18

(K) More than $7,000,000 $9,500,000 add 20

(L) More than $20,000,000$25,000,000 add 22

(M) More than $50,000,000 $65,000,000 add 24

(N) More than $100,000,000 $150,000,000 add 26

(O) More than $200,000,000 $250,000,00 add 28

(P) More than $400,000,000 $550,000,000 add 30

§2B1.1(b)(1)

18

Proposed Amendments to §2B1.1

•Definition of “intended loss”

•Victims table

• “Sophisticated means” SOC

• Special rule for determining loss in “fraud on the market” offenses

4-Part Amendment

19

Definition of Intended Loss

•Amends the definition to better reflect a defendant’s culpability

• “(I) means the pecuniary harm that was intended to result from the offense the defendant purposefully sought to inflict and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur”

Application Note 3

20

Victims Table

•Revises the table to incorporate substantial financial hardship to victims

•Less emphasis on the number of victims

§2B1.1(b)(2)

21

Victims Table•§2B1.1(b)(2)

a) 10 or more victims; mass-marketing; or resulted in substantial financial hardship to one or more victims +2

b) Resulted in substantial financial hardship to five or more victims +4

c) Resulted in substantial financial hardship to 25 or more victims +6

22

“Substantial Financial Hardship”

•The court shall consider whether the offense resulted in the victim:• Becoming insolvent• Filing for bankruptcy• Suffering substantial loss of a retirement, education, or

other savings or investment fund•Making substantial changes to employment•Making substantial changes to living arrangements• Suffering substantial harm to their ability to obtain credit

Application Note 4(F)

23Substantial Financial Hardship

• U.S. v. Brown, 771 F.3d 1149 (9th Cir. 2014)• Remand because court did not make finding at §2B1.1(b)

(15) regarding 100 victims whose financial security was endangered


• U.S. v. Brown, 771 F.3d 1149 (9th Cir. 2014)• “But § 2B1.1(b)(15)(B)(iii) requires at least some showing

by the government that the financial security or solvency of 100 individual victims was “substantially endangered” by the scheme. A $15,000 loss or even a $1,000 loss might well qualify, but we cannot conclude as a matter of law that this is the case for 100 victims. The government provided sufficient evidence of the victims' losses, but it has not provided sufficient evidence of the impact of those losses on 100 victims.”


• U.S. v. Brown, 771 F.3d 1149 (9th Cir. 2014)• “This burden would not be difficult to discharge. We do

not suggest that the government must provide financial statements from individual victims or other detailed proof. The impact statements referred to by the district court apparently contained ample information that the Ponzi scheme had imposed the requisite damage on at least 27 victims. A probation officer might well be able to provide the required information from a review of victim impact statements or from other materials.”

26

Sophisticated Means

•Narrows the scope of the SOC to be more defendant-specific

• “(C) the offense otherwise involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophisticated means”

§2B1.1(b)(10)

27

Sophisticated Means

• U.S. v. Jennings, 711 F.3d 1144 (9th Cir. 2013)• Defendants' effort to disguise funds taken for their own

personal use as money paid to a third-party vendor for business expenses through use of a bank account with a deceptive name constituted a sufficiently complex method of concealment to warrant application of the sophisticated means enhancement.

28

Sophisticated Means

• U.S. v. Pacheco-Martinez, 791 F.3d 171 (1st Cir. 2015)• Sophisticated means SOC applied• “Pacheco set up multiple corporate entities in order to

facilitate his fraudulent schemes and hide his ill-gotten gains from creditors during the bankruptcy proceeding. He convinced investors to participate in a scheme by having them sign a contract in English that differed from the Spanish-language document they had been given, and he made “lulling” payments to them at the outset so they would think that their investment would in fact make a return.”

29

Fraud on the Market

•Revises special rule for determining loss in “fraud on the market” offenses

•Removes the rebuttable presumption requirement from the method listed in the application note

•Provides that the court may use any method that is appropriate and practicable under the circumstances

Application Note 3(F)(ix)

30

Mitigating Role

•Provides additional guidance to assist the courts in the determination of whether a mitigating role adjustment applies

§3B1.2

31

Mitigating Role

•Resolves circuit conflict regarding the determination of “average participant”• Compare U.S. v. Cantrell, 433 F.3d 1269 (9th Cir. 2006) with

U.S. v. Melendez-Rivera, 782 F.3d 26 (1st Cir. 2015)

• Specifies that the court should compare defendant to the average participant in the criminal activity at issue, not to the typical offender who commits similar crimes

Application Note 3(A)

32

Mitigating Role

•Provides that certain individuals who perform limited functions in the criminal activity “may receive” a role adjustment

•Previously stated “is not precluded from”

Application Note 3(A)

33

Mitigating Role

•Adds a non-exhaustive list of factors for the court to consider:

i. The degree to which the defendant understood the scope and structure of the criminal activity

ii. The degree to which the defendant participated in the planning/organization of the activity

Application Note 3(C)

34

Factors (continued)

iii. The degree to which the defendant exercised decision-making authority

iv. The nature and extent of the defendant’s participation in the commission of the criminal activity

v. The degree to which the defendant stood to benefit from the criminal activity

Application Note 3(C)

35

“Single Sentence” Rule

•Addresses a circuit conflict involving the meaning of the single sentence rule and its implications regarding predicate offenses• King v. U.S., 595 F.3d 844 (8th Cir. 2010) vs. U.S. v. Williams,

753 F.3d 626 (9th Cir. 2014)

§4A1.2

36

“Single Sentence” Rule Example

•Example 1:• Eight years ago, on the same day, the defendant received

concurrent sentences for the following convictions, which were not separated by an intervening arrest:• Robbery 1 year jail• Theft 2 years jail

• The robbery would qualify as a predicate for Career Offender

Application Note 3

37

“Single Sentence” Rule

•For the purpose of determining predicate offenses (e.g., Career Offender), a prior sentence included in the single sentence should be treated as if it received criminal history points if it would have independently received criminal history points

§4A1.2

38Hydrocodone Offenses

•Addresses the rescheduling of hydrocodone products from Schedule III to Schedule II

•Calculation of the BOL is based upon the amount of actual hydrocodone, not the entire weight of the pill

•1 gram hydrocodone = 6700 grams marijuana

•Removes reference to Schedule III hydrocodone

§2D1.1

39

Relevant Conduct

•Revises the guideline to set out more clearly the 3-part analysis the court applies in determining whether a defendant is accountable for the acts of others in a “jointly undertaken criminal activity”

§1B1.3


40

Retroactivity of Drugs Minus 2

41

New §1B1.10(e)(1) & App. Note 6Special Instruction

•The court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later

Amendment 788 to §1B1.10 (Policy Statement)

42

Retroactive Application of Drugs Minus Two

Total Granted Denied Avg. National 17,446 13,187 (76%) 4,259 (24%) 23 mos.1st Circuit 582 443 (76%) 139 (29%) 20 mos.2nd Circuit 616 455 (74%) 161 (26%) 22 mos.3rd Circuit 570 459 (80%) 111 (20%) 21 mos.4th Circuit 2,579 1,945 (75%) 634 (25%) 23 mos.5th Circuit 3,313 2,439 (74%) 874 (26%) 21 mos.6th Circuit 1,344 867 (65%) 477 (35%) 21 mos.

43

Position of Retroactive Application of Drugs Minus Two

Total Granted Denied Avg. 7th Circuit 1,175 1,009 (86%) 166 (14%) 30 mos.8th Circuit 2,742 1,882 (69%) 860 (31%) 25 mos.9th Circuit 1,466 1,301 (89%) 165 (11%) 21 mos.10th Circuit 926 772 (83%) 154 (17%) 24 mos.11th Circuit 2,088 1,570 (75%) 518 (25%) 26 mos.DC Circuit 45 45 (100%) 0 (0%) 11 mos.

44

Recent Retroactivity Cases

• U.S. v. Davis, 776 F.3d 1088 (9th Cir. 2015)• 11(c)(1)(c) agreement was not based on sentencing

range, so under Freeman defendant is not eligible for a reduction under § 3582

• U.S. v. Waters, 771 F.3d 679 (9th Cir. 2014)• “…he is ineligible for a reduction of sentence because ‘[the

Amendment had] no effect on his applicable guideline range’ ” due to his career offender status.”


45

Supreme Court Cases

46

ACCA

• The Armed Career Criminal Act’s “residual clause” is unconstitutionally vague. • “Our contrary holdings in James and Sykes are overruled.

Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.”

Johnson v. U.S., 135 S. Ct. 2551 (2015)

47EXAMPLE: ACCA Definition for “Violent Felony”

• ....has as an element the use, attempted use, or threatened use of physical force against the person of another, or

• is burglary, arson, or extortion, involves use of explosives, or

• otherwise involves conduct that presents a serious potential risk of physical injury to another….

18 USC § 924(e)(2)(B)

X X X X X

48

Violent Felony

• U.S. v. Martinez, 771 F.3d 672 (9th Cir. 2014), vacated by 2015 WL 1307812 (U.S. June 30, 2015)• CA vehicle flight from a pursing peace officer is a VF

• U.S. v. Prince, 772 F.3d 1173 (9th Cir. 2014), vacated by 2015 WL 784010 (U.S. June 30, 2015)• CA attempted robbery is a VF under residual clause

49

Violent Felony

• U.S. v. Cisneros, 763 F.3d 1236 (9th Cir. 2014), vacated by 2015 WL 403882 (U.S. June 2015)• OR flight or eluding a police officer is divisible and

indictment showed his conviction was a VF• OR first degree burglary is a VF

50

“Johnson Language”

• However, Johnson “does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Id. at 2563. As explained by the previous opinion, Langston's terrorism conviction is a violent felony under the ACCA's first clause. Langston thus has three qualifying convictions. The district court properly sentenced him as an armed career criminal. See § 924(e)(1) (requiring “three previous convictions ... for a violent felony or a serious drug offense”).

U.S. v. Langston, 2015 WL 4646854 (8th Cir. 2015)

51


• “We note that Tinker has never disputed that his prior Florida convictions—1999 convictions for robbery while using a deadly weapon and aggravated assault with a firearm, a 2010 conviction for resisting an officer with violence, and a 2013 conviction for aggravated battery—constitute “violent felonies” under the ACCA. Moreover, Tinker's predicate offenses appear to qualify as violent felonies under the “elements” clause in § 924(e)(2)(B)(1), rather than the “residual” clause in § 924(e)(2)(B)(ii),

U.S. v. Tinker, 2015 WL 4430678 (11th Cir. 2015)

52


• “The United States met that burden here because Bailey's prior convictions for aggravated burglary in 1994, for robbery in 1994, and for aggravated robbery in 1996 categorically are violent felonies that do not implicate the ACCA's unconstitutional residual clause. Binding precedent from this Court holds that Bailey's aggravated burglary conviction constitutes a violent felony under the enumerated-offense prong and that his robbery and aggravated robbery convictions constitute violent felonies under the use-of-force clause.”

U.S. v. Bailey, 2015 WL 4257103 (6th Cir. 2015)

53


• “To summarize, Emeary was sentenced to fifteen years of incarceration because the district court erroneously classified his prior Texas Penal Code § 30.02(a)(3) conviction as a “violent felony” conviction under the ACCA. Emeary should not have been sentenced to more than ten years of incarceration, the correct statutory maximum. His attorney should have appealed the erroneous sentence.”

U.S. v. Emeary, 2015 WL 4524299 (5th Cir. 2015)

54

Career Offender Guideline Definition for “Crime of Violence”

• has as an element the use, attempted use, or threatened use of physical force against the person of another, or

• is burglary of a dwelling, arson, or extortion, involves use of explosives, or

• otherwise involves conduct that presents a serious potential risk of physical injury to another

§4B1.2(a)

55


• U.S. v. Willis, 2015 WL 4547542 (9th Cir. 2015)• “Like “violent felony” in ACCA, “crime of violence” in§ 4B1.2(a)(2) of the Sentencing Guidelines is defined asincluding an offense that “otherwise involves conduct thatpresents a serious potential risk of physical injury to another.” We make no distinction between “violent felony” in ACCA and “crime of violence” in § 4B1.2(a)(2) for purposes of interpreting the residual clauses. See United States v. Spencer, 724 F.3d 1133 (9th Cir. 2013). But we have not yet considered whether the due process concerns that led Johnson to invalidate the ACCA residual clause as void for vagueness are equally applicable to the Sentencing Guidelines.”

56


• U.S. v. Wilson, 2015 WL 4760494 (5th Cir. 2015)• “The Supreme Court recently struck down the ACCA's

residual clause in Johnson v. United States, 192 L.Ed.2d 569 (U.S.2015), holding that “imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process.” The court struck down the ACCA's residual clause for unconstitutional vagueness. Our case law indicates that a defendant cannot bring a vagueness challenge against a Sentencing Guideline because a defendant is not entitled to notice of where within the statutory range the guideline sentence will fall. United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990) (citing United States v. Jones, 905 F.2d 867 (5th Cir.1990)).”

57


• U.S. v. Willis, 2015 WL 4547542 (9th Cir. 2015)• “Even if a defendant could bring a vagueness challenge to

the career offender guideline's residual clause, this Court's precedent and our decision today, concluding that the guideline enhancement does not apply because Texas Penal Code § 30.02(a)(3) is not a crime of violence, is consistent with the Supreme Court's decision in Johnson. The penalty enhancement does not apply.”

58


• “However, because the district court correctly concluded defendant's prior convictions for aggravated burglary were “crimes of violence” as defined by U.S.S.G. § 4B1.2 and thus warrants application of the “career offender” enhancement, we have no occasion to decide what import, if any, Johnson has on the Sentencing Guidelines' residual clause.”

U.S. v. Ozier, 2015 WL 4636669 (6th Cir. 2015)

59


• “Following Johnson, the Supreme Court has vacated the sentences of offenders who were sentenced under the residual clause of the Sentencing Guidelines. See United States v. Maldonado, 581 F. App'x 19, 22–23 (2d Cir.2014), vacated, No. 14–7445, 2015 WL 2473524, at *1 (U.S. June 30, 2015); Beckles v. United States, 579 F. App'x 833, 833–34 (11th Cir.2014), vacated, No. 14–7390, 2015 WL 2473527, at *1 (U.S. June 30, 2015. 6, 2015) (per curiam)

U.S. v. Harbin, 2015 WL 4393889 (6th Cir. 2015)

60


• “see also Wynn v. United States, No 14–9634, 2015 WL 2095652, at *1 (U.S. June 30, 2015) (vacating a Sixth Circuit order, which denied habeas relief based on a predicate offense qualifying under the residual clause of the career offender enhancement). Accordingly, Harbin is entitled to the same relief as offenders sentenced under the residual clause of the ACCA. See United States v. Darden, No. 14–5537 (6th Cir. Jul. 6, 2015) (per curiam).”

U.S. v. Harbin, 2015 WL 4393889 (6th Cir. 2015)

61

“Habeas Split”

• Price v. U.S., 2015 WL 4621024 (7th Cir. 2015)• The court held that the Supreme Court’s invalidation of

the residual clause of the Armed Career Criminal Act in Johnson v. United States was a new substantive rule of constitutional law, and was thus retroactive for purposes of collateral review under 28 U.S.C. § 2255

• In re: Gilberto Rivero, 2015 WL 4747749 (11th Cir 2015)• Johnson did not establish a new rule of constitutional law

made retroactive to cases on collateral review by the Supreme Court. Thus, the circuit denied the prisoner’s request to file a successive 28 U.S.C. § 2255 petition

62

Categorical Approach

• U.S. v. Henandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015)• The least culpable means of committing aggravated

battery under LA law involves conduct beyond the scope of the generic contemporary meaning of aggravated assault • There were no Shepard documents to pare down the

statute

63

Generic Definition of Murder

• U.S. v. Kosmes, 2015 WL 4097125 (8th Cir. 2015)• “Manslaughter as enumerated in the Guidelines means a

criminal homicide that is committed (a) recklessly or (b) intentionally if committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse”

64

Use of Force

• U.S. v. Parral-Dominguez, 2015 WL 4479530 (4th Cir. 2015)• NC discharging a firearm into occupied building was not a

crime of violence under §2L1.2• See Wilkinson dissent : • “The majority contends that a central concern of the

North Carolina statute at issue here is the protection of property. Wrong! The statute explicitly requires that the attacked property be occupied. Who does the majority think occupies the property? Pigs and chickens? No, the statute self-evidently has in mind actual people, a.k.a. human beings.”

65

Restitution in Child Porn Offenses

“Restitution is proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses.

Applying the statute’s causation requirements in this case, victims should be compensated and defendants should be

held to account for their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others.”

Paroline v. U.S., 134 S Ct. 1710 (2014)

66

Restitution in Child Porn Offenses (cont.)

“There are a variety of factors, district courts might consider in determining a proper amount of restitution, and it is

neither necessary nor appropriate to prescribe a precise algorithm for determining restitution. But district courts

might, as a starting point, determine the amount of the victim’s images, then set an award of restitution in

consideration of factors that bear on the relative causal significance of the defendant conduct in producing those

losses.”

Paroline v. U.S., 134 S Ct. 1710 (2014)

67


1. The number of past criminal defendants found to have contributed to the victim’s general losses;

2. Reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses;

3. Any available and reasonably reliable estimate of the broader number of offenders involved;

Paroline v. U.S., 134 S Ct. 1710 (2014)

68


4. Whether the defendant reproduced or distributed images of the victim;

5. Whether the defendant had any connection to the initial production of the images;

Paroline v. U.S., 134 S Ct. 1710 (2014)

69


6. How many images of the victim the defendant possessed and other facts relevant to the defendant’s relative causal role.”

7. Other facts relevant to defendant’s causal role

Paroline v. U.S., 134 S Ct. 1710 (2014)

70

Appellate Cases Discussing Paroline Factors

• U.S. v. Beckmann, 786 F.3d 672 (8th Cir. 2015)• Court did not err in ordering restitution of $9,000 ($3,000

per victim)

• U.S. v. Dunn, 777 F.3d 1171 (10th Cir. 2015)• Remanding $583,9555 award to “Vicky”

• U.S. v. Rogers, 758 F.3d 37 (1st Cir. 2014)• Affirming $3,150 restitution order for “Vicky”

71

District Cases Discussing Paroline Factors

• U.S. v. Monge, 2015 WL 787099 (C.D. CA 2015)• District court ordered $21,000 to 7 victims ($3,000 each)

• U.S. v. Randjelovich, 2015 WL 4095655 (E.D. CA 20154)• Court ordered $4,000 to “Angela” & $1,000 to “Andy” and

$6,000 to “Sarah”

• U.S. v. Hite, 2015 WL 3941513 (D. DC 2015)• District court ordered $16,750 to 5 victims

72


• U.S. v. Crisostomi, 31 F. Supp.3d 361 (D. RI 2014)• Court ordered $713.68 to “Vicky” & $638.41 to “Cindy”

• U.S. v. Galan, 2014 WL 3474901 (D. OR 2014)• District court ordered $3,433 in restitution to “Cindy”

• U.S. v. Hernandez, 2014 WL 2987665 (E.D. CA 2014)• District court ordered $2,282.86 to “Vicky”

73


• U.S. v. Reynolds, 2014 WL 4187936 (E.D. MI 2014)• District court ordered $11,000 “Cindy” and $15,500 to

“Vicky”

• U.S. v. Miner, 2014 WL 4816230 (N.D.N.Y 2014)• Court ordered $2000 to “Jblonde” & $3,065 to “Andy”

• U.S. v. Watkins, 2014 WL 3966381 (E.D. CA 2014)• District court ordered $2,191.74 to “Vicky”


74

Cert. Granted

75

• Section 2252(b)(2) of title 18, U.S. C., requires a district court to impose a prison term of at least ten years on a defendant convicted of possessing child pornography if he "has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.“

• The question presented is whether § 2252(b)(2)'s mandatory minimum sentence is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Lockhart v. U.S., 749 F.3d 148 (2d Cir. 2014), cert. granted by 135 S. Ct. 2350 (2015)


76

Recent Appellate Cases

77

Acceptance of Responsibility

• U.S. v. Castillo, 779 F.3d 318 (5th Cir. 2015)• If the defendant has a good faith dispute as to the

accuracy of the factual findings in the PSR, it is impermissible for the government to refuse to move for a reduction under § 3E1.1(b) simply because the defendant requests a hearing to litigate the dispute.

• U.S. v. Torres-Perez, 770 F.3d 764 (5th Cir. 2015) • §3E1.1 third level cannot be denied only on waiver of

appeal

78

Child Pornography• U.S. v. Hernandez, 2015 WL 4604337 (9th Cir. 2015)• “We agree with the district court and hold that § 2G2.2(b)

(3)(B) applies to a child pornography distributor who anticipates receiving something of value in return for his distribution, even in the absence of a specific agreement providing for reciprocity. On the facts of this case, there is sufficient evidence that Hernandez expected that he would receive child pornography in return for sharing his videos and images on Gigatribe”• “Sharing child pornography files on a peer-to-peer

network does not in and of itself demonstrate that the distributor expects he will get something of value in return.”

79

Fraud: Standard of Proof

• U.S. v. Hymas, 780 F.3d 1285 (9th Cir. 2015)• Preponderance standard applied to loss amount for loan

that was the subject of the indictment• Losses attributed to other loans which were not identical

to the indictment loans had to be proved by clear and convincing standard

80

Intended Loss

• U.S. v. Lemons, 2015 WL 4080091 (8th Cir. 2015)• “We have recognized that “a district court may reasonably

conclude that the defendant intended continued receipt of illegal benefits until retirement without additional mens rea evidence.” Killen, 761 F.3d at 950. In this case, there was additional evidence. Lemons sought to convince the Administration that her disability was permanent and to discourage further review.”

81

Fraud• U.S. v. Martin, 2015 WL 4664855 (9th Cir. 2015)• Procedures for determining loss in a “DBE” case • On remand, the government may attempt to prove any

actual or intended losses resulting from Martin's fraud, including whether there was any pecuniary harm to the government from paying a premium on top of the normal contract price for services comparable to those MarCon provided.• If it is not feasible to determine the actual or intended

loss, district courts may use the defendant's gain as another way to measure the loss.

82

Restitution

• U.S. v. Adejumo, 777 F.3d 1017 (8th Cir. 2015)• Restitution remand because of lack of notice and failure to

comply with § 3664 procedures regarding fashioning a restitution order

83

Restitution

• U.S. v. Garcia-Ortiz, 2015 WL 4071900 (1st Cir. 2015)• Restitution remand • “While a “detailed explication of the court's reasoning” in

imposing a restitution order is not necessary, id., the court here provided none. Particularly, the court did not at all address whether a payment schedule would be appropriate. (citing 18 U.S.C. § 3664(f)(2)) (“The [Mandatory Victims Restitution Act] requires a court, in setting out a payment schedule, to consider a defendant's financial circumstances and prospects.”).

84

Restitution

• U.S. v. Lozano, 2015 F.3d 3874495 (5th Cir. 2015)• Court incorrectly calculated restitution as the amount

included restitution based on losses that occurred outside the proper temporal scope• Court accounted for losses sustained prior to the factual

basis in the plea which limited the date in the indictment

85

Supervised Release Condition

• U.S. v. Brown, 2015 WL 3797634 (8th Cir. 2015)• Court abused its discretion in imposing condition of

defendant’s supervised release prohibiting him from consuming alcohol and entering establishments that derived their primary source of income from alcohol sales as the record evidence of defendant’s drug use did not support condition.• See also U.S. v. Woodall, 782 F.3d 383 (8th Cir. 2015)

86


• U.S. v. Woodall, 782 F.3d 383 (8th Cir. 2015)• Condition prohibiting contact with minors without

probation officer approval affirmed based on his past sexual offenses (including abusing his 15 year old stepsister) and that he has never completed a sex-offender treatment program

87


• U.S. v. Duke, 788 F.3d 392 (5th Cir. 2015)• Condition prohibiting accessing computer for rest of his

life was unreasonable • Lifetime ban on association with minors for life was

overbroad

88


• U.S. v. Fields, 777 F.3d 799 (5th Cir. 2015)• Supervised release condition prohibiting defendant from

residing at or going to places where a minor is known to frequent without prior approval of probation officer was not plain error

• U.S. v. Ferndandez, 776 F.3d 344 (5th Cir. 2015)• Supervised release condition requiring software

installation improper because it was not related to defendant’s Failure to Register conviction when his only prior sex offense conviction was for sexual assault of 14 year old which did not involve a computer

89

Supervised Release Procedures

• U.S. v. Willis, 2015 WL 4547542 (9th Cir. 2015)• “In a supervised release revocation case, a district court

must determine by a preponderance of evidence that the defendant’s conduct constituted a federal, state, or local offense. After identifying the statutory offense, the court should use the Taylor categorical approach …”

90

Categorical Approach

• U.S. v. Henandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015)• The least culpable means of committing aggravated

battery under LA law involves conduct beyond the scope of the generic contemporary meaning of aggravated assault • There were no Shepard documents to pare down the

statute

91

Generic Definition of Murder

• U.S. v. Kosmes, 2015 WL 4097125 (8th Cir. 2015)• “Manslaughter as enumerated in the Guidelines means a

criminal homicide that is committed (a) recklessly or (b) intentionally if committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse”

92

Use of Force

• U.S. v. Parral-Dominguez, 2015 WL 4479530 (4th Cir. 2015)• NC discharging a firearm into occupied building was not a

crime of violence under §2L1.2• See Wilkinson dissent : • “The majority contends that a central concern of the

North Carolina statute at issue here is the protection of property. Wrong! The statute explicitly requires that the attacked property be occupied. Who does the majority think occupies the property? Pigs and chickens? No, the statute self-evidently has in mind actual people, a.k.a. human beings.”

Thank You!

Federal Sentencing Update Alan Dorhoffer Deputy Director, Office Of Education.

Documents

Transcript of Federal Sentencing Update Alan Dorhoffer Deputy Director, Office Of Education.