U.S.S.G. and Sentencing
Issues
Trial Issues
Prison Litigation
Issues
One of the many false promises of the Guidelines was the much-heralded pledge that sentencing disparity would be eliminated. Even today, the Introduction to the Guidelines reminds us that "Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders." Yet, suits challenging disparate sentences continue to abound, as these three cases show.
The Wong case is the least informative because, after a cursory four-sentence review of the facts and the law, the court simply concluded that "disparity between sentences imposed on co-defendants is not a proper basis for departure" (Wong, id., at 728). The Blackwell case went further - both in detail and in the scope of its ruling. In that case, the Tenth Circuit rejected a downward departure granted by the district court (Judge Brimmer) which gave the defendant the same sentence received by his more culpable co-conspirator who was sentenced by a different court in another district. The district court was particularly concerned because of (a) the "gross disparity" between the sentence of the defendant and his co-conspirator; and (b) its finding that the defendant was "less culpable" than his co-conspirator. Thus, it reasoned, to give the defendant 15 months in prison when the co-conspirator received only probation would violate "basic notions of fairness" and would produce "an unconscionable result." The Tenth Circuit rejected that reasoning with the extraordinarily lame excuse that the overriding objective of the Guidelines was "the elimination of nationwide disparities, rather than disparities in individual cases." (Id., at 952) (Emphasis in original.)
The most interesting and significant of this trio of cases was Meza. It is the first case we have seen that has held that unwarranted sentencing departures may indeed give rise to a valid basis for a sentencing departure (albeit in very limited circumstances). The Seventh Circuit commenced its analysis by paying heed to the advice of the Supreme Court, in Koon v. U.S., 135 L.Ed.2d 392 (1996), that departure analysis requires a court to consider whether a particular factor raised as a basis for a departure is "forbidden", "discouraged", "encouraged" or "unmentioned" in the Guidelines themselves - and, on the basis of Koon, it concluded that it had to "amend its approach to disparities between co-conspirators." (Id., at 550).
Both the defendant and the Government took the position that sentencing disparities between co- conspirators is a sentencing factor "unmentioned" in the Guidelines; and the Court accepted that position. [We feel that a strong argument can be made that departures designed to bring about sentencing uniformity are "encouraged factors" within the meaning of Koon, particularly in light of the Guidelines' open acknowledgment that sentencing uniformity was an overriding goal of Congress.] Nevertheless, using that position as its starting point, the Court then added a new dimension: were the sentencing disparities at issue "justified" or "unjustified?"
The Court continued: "A justified disparity is one that results from the proper application of the Guidelines to the particular circumstances of a case. This type of disparity can never be a basis for departure from the Guidelines' sentencing range because it is the application of the Guidelines that created the disparity in the first place. . . . An unjustified disparity, however, is potentially a sentencing factor to consider because ‘the goal of the Sentencing Guidelines is, or course, to reduce unjustified departures'. . . . An unjustified disparity is one that does not result from a proper application of the Guidelines. In other words, it is a disparity in sentences that cannot be explained by a comparison of each defendant against the Guidelines as a set of rules." (Id., at 549-50). Thus, the Court concluded: "Previously, it was sufficient to state that a disparity in sentences, by itself, is ‘not a valid basis for departure from the guideline sentence range.' . . . Now, we must determine whether the disparity is justified or not." (Id., at 550).
Ultimately, the Court ruled that the sentencing disparity in this case was not improper because it resulted from the willingness of the defendant's co-conspirators to provide substantial assistance to the Government, whereas the defendant himself was unwilling to provide such assistance. The Court emphasized that sentencing disparities based on cooperation with the Government is expressly permitted by § 5K1 of the Guidelines. However, the case is significant because it provides fertile grounds to argue that Koon now permits district courts to consider downward departures in cases where the sentencing disparities are not justified.
This is one of those shameful decisions that shows how an intemperate Court can create bad law - here the birth of a new, subjective standard by which the availability of the sentencing adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 will be determined - at least in some courts.
The defendant in this case was charged with running a check-kiting scheme in violation of 18 U.S.C. § 1344; and he pled guilty. The probation officer initially recommended that he receive a three level reduction for acceptance of responsibility; but, after the defendant objected to several paragraphs contained in his presentence report (PSR), the thin-skinned probation officer promptly withdrew her recommendation for any sentence reduction. At sentencing, the district court (Judge Freeman) went along with the probation officer and refused to grant any adjustment for acceptance of responsibility. It imposed a sentence of 18 months imprisonment.
However, the Government immediately advised the court that it had used an incorrect offense level and that the correct sentence should have been in the 24-30 month range. The court admitted its mistake, but stated that it was "reluctant" to increase the sentence once it had already been imposed. Thus, it decided to grant a two-level acceptance of responsibility adjustment in order to keep the sentence at 18 months; but it still declined to utilize the third one-level reduction provided for in U.S.S.G. § 3E1.1(b). Although the Government did not appeal the partial grant of the acceptance of responsibility adjustment, the defendant did appeal - arguing that the district court had used an improper basis for denying him the third one-point reduction.
On the initial appeal, a panel from the Eleventh Circuit expressed concern that the district court's decision to deny the reduction had been based on the exercise of a legal right to object to the PSR. Thus it remanded the case back to the district court for a rehearing to determine whether the district court had improperly precluded the defendant from receiving the additional one-point reduction provided for in U.S.S.G. § 3E1.1(b) on the grounds that defense counsel had raised legal objections to the PSR. In its decision, that panel firmly held that "a defendant may not be denied a reduction under § 3E1.1 solely for exercising the right to challenge the legal propriety of his punishment under the criminal code and/or sentencing guidelines. . . . [I]t is impermissible to consider the challenge to the legal propriety of a sentence." U.S. v. Smith, 106 F.3d 350, 352 (11th Cir. 1996).
The Eleventh Circuit was plainly peeved by this case. In its mind, the defendant had already received a "windfall" which it stated "he did not deserve." To emphasize its point, it not only vacated the original panel's remand, it also wrote some sweeping language about the standards by which the acceptance of responsibility adjustment should be governed. First, it held that the quoted language from the earlier panel's decision "went too far." It then continued: "Our case law permits a district court to deny a defendant a reduction under § 3E1.1 based on conduct inconsistent with acceptance of responsibility, even when that conduct includes the assertion of a constitutional right. . . . Therefore, we hold that a district court may consider the nature of such challenges along with the other circumstances in the case when determining whether a defendant should receive a sentence reduction for acceptance of responsibility." (Id., at 989) (Emphasis added).
In fairness, the Court did conclude that
the defendant's objections in this case were factual - not legal - in nature;
and that they constituted a denial of fraudulent intent with respect to
both offense conduct and relevant conduct. On the other hand, the
sweeping scope of the Court's ruling went far beyond what was necessary.
Previously, a defendant was free to raise objections to his PSR, without
risk of penalty, so long as those objections were based on "the assertion
of a constitutional right." Now, at least in the Eleventh Circuit,
the test has become whether the objection is deemed proper based on a vague,
subjective and after-the-fact evaluation of the "nature of such challenges
along with the other circumstances of the case." Such a slippery
rule will certainly freeze many defendants into silence.
Another increasingly slippery rule is U.S.S.G. § 6A1.3(a). That Rule states that "when any factor important to the sentencing hearing is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." In the topsy-turvy world of sentencing, few can deny that sentencing is the most crucial aspect of all criminal proceedings; yet the formalities that apply to sentencing hearings are few and far between. The preponderance of evidence standard prevails. The Rules of Evidence applicable at trial don't apply, so there is no protection against the use of hearsay evidence or evidence that has been illegally seized. Defendants are sentenced not just on the basis of the crimes for which they have been convicted, but also on the basis of that nemesis known as relevant conduct, which means that crimes that are not charged and crimes for which the defendant has been acquitted count equally with the crimes of conviction. As if that were not enough, defendants are expected to believe that it is not necessary to resolve a disputed factor once the court announces that it will not rely on that factor.
Section 6A1.3(a) was designed to give an appearance of fairness to the sentencing hearing by providing that "the court shall resolve disputed factors at a sentencing hearing in accordance with Rule 32(c)(1) of the Fed.R.Crim.P"; and the Commentary to that section notes that "more formality is therefore unavoidable if the sentencing process is to be accurate and fair." Rule 32(c), in turn, states that the court "must rule on any unresolved objections to the presentence report." (Emphasis added).
As these two cases show, those rules are quickly becoming parodies of justice. More and more heavily burdened courts are beginning to shirk even the vestiges of formality by holding that neither Rule 32(c) nor § 6A1.3 create any "general right to an evidentiary hearing at sentencing." The Berndt case justified that finding in part on the basis of its conclusion that some of the disputed issues were "trivial" and "entirely inconsequential" (Berndt, id., at 258); whereas the Stein court's rationale was more simplistic: "Rule 32 is satisfied where the district court considered the defendant's objections ‘but resolved the disputed facts against him'." (Stein, id., at 781).
Apart from the actual sentencing consequences, the major problem with the non-resolution of disputed factors is that both the BOP and the Probation Office will rely on precisely those same unresolved factors in many ways long after the sentencing hearing. Thus, if the prosecutor or the Probation Office alleges that a gun was used in the commission of a crime, or that the defendant was a drug-addict, and the court refuses to hold an evidentiary hearing on those allegations, the defendant will suffer severe consequences long after sentencing - without any remedy whatsoever. For example, a gun charge in the eyes of the BOP automatically means a crime of violence; and that not only affects the type to prison to which the defendant is sent, it also precludes his participation in any of the drug treatment programs that provide a means to reduce his sentence. A drug addiction charge in turn subjects the defendant to special drug care rules during the period of his supervised release, whether or not there was any validity to the assertions made in the presentence report. These are the factors that should be brought to the court's attention when it decides to forego an evidentiary hearing on disputed factors.
Both of these cases deal with the calculation of "loss" under U.S.S.G. § 2F1.1; and they prove what any seasoned defense counsel has long known: the determination of "loss" is a mercurial and mysterious monster that often seems to be governed by the court's view of the defendant rather than on any fixed rules in the Guidelines. Perhaps the only generalization that can be made is that "loss" for purposes of determining the amount of the increase called for by § 2F1.1 is the greater of intended loss or actual loss.
In Wells the defendant was convicted of conspiracy and making false statements for the purpose of influencing actions of federally insured institutions. His original appeal went all the way to the Supreme Court which vacated an earlier decision of the Eight Circuit (reported at 63 F.3d 745 (8th Cir. 1995)), holding that materiality is not an element of 18 U.S.C. § 1014. On remand, the Court principally addressed the Government's complaint that the district court (Judge Clark) had erred when it calculated the amount of loss attributable to the defendant. That court determined that the defendant did not intend to cause any loss to the banks and therefore found that the intended loss was zero. Because the court then found that the actual loss was $40,000, it used the greater actual loss figure to determine the extent of the base level increase under § 2F1.1.
The Government contended that "intended loss" as used in § 2F1.1 is measured by the potential loss or possible loss that could arise from the charged crime, but not by the amount of the loss that the defendant intended to cause. Thus, the Government argued that since the intended loss (under its use of that term) was greater than the actual loss, that intended loss should have been used to calculate the increase in the base offense level. In support of its position, the Government cited a number of cases, all of which are listed on page 746.
The Eighth Circuit rejected that argument, stating that the amount of the possible loss is just one element of proof to be considered on the issue of intended loss; and it flatly rejected the Government's position that the intended loss is always measured by the possible or potential loss. "Where the evidence is sufficient to support a sentencing court's determination that a defendant intended to cause less than the possible or potential loss that could result from the fraud, ‘loss' is properly measured by the defendant's intent." (Id., at 747).
In Banta the defendant purchased two vehicles, costing $49,987, on credit, which he obtained by submitting false loan applications. When he later failed to make timely payments, the vehicles were repossessed and resold at a loss of $17,962. The defendant was then indicted for bank fraud and he pled guilty. At sentencing, the court assessed a five level enhancement under § 2F1.1 on the basis of an intended loss of $49,987. The defendant argued that the court should have used the actual loss because it reflected the "economic reality" of the transaction and because collateral secured the fraudulently obtained bank loans. Thus, he argued that he could not have intended a loss for the face value of the loans because it would have been impossible for him to have inflicted such a loss.
The Tenth Circuit agreed that "if it was impossible for Defendant to inflict a loss in the full amount of the loans, then he cannot be punished for that amount. . . . In this case, however, Defendant could have inflicted a loss in the amount of the face value of the loans if he intended to permanently deprive the bank of the collateral by concealing the vehicles." (Id., at 984). On that basis, and even though the decision cites no evidence that the defendant had attempted to conceal the vehicles in question, it affirmed the decision of the lower court to assess the defendant for the full amount of the loans involved.
These cases are noted because they explore the often difficult to fathom differences between the defenses of factual impossibility versus legal impossibility. The Court in Sobrilski explained that: "Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out, would not constitute a crime. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective." (Sobrilski, id., at 674). As these cases show, factual impossibility is generally not recognized as a valid defense in criminal attempt crimes because success is not an essential element of attempt crimes.
In Sobrilski, the defendants were charged with conspiring to distribute "crank" (the street name for methamphetamine) in violation of 21 U.S.C. § 846. The actual substance sold to the undercover agents, however, was not crank; and when the Government ultimately tested the substance that the defendants did sell, it turned out to be phenylacetic acid, a substance that has the same odor, appearance and ingredients as methamphetamine, but which is not a controlled substance. The defendants' principal defense was that, because the substance they sold to undercover agents was not a controlled substance, it was impossible for them to have committed the crime of attempted distribution of an illegal substance. The Court rejected that defense and held that "a person may be found guilty of attempting to distribute such a substance even though, had the attempt succeeded, there would have been no crime" (Id., at 675).
Hankins applied that same principal to an obstruction of justice charge under U.S.S.G. § 3C1.1. In that case, the defendant was charged with obstructing justice when he told his sister to remove some cash from a storage locker which, unbeknownst to him, the FBI had already seized. He argued that the two- level enhancement was improper because it was factually impossible for his sister to have retrieved the cash since the FBI already had possession of it. The Court rejected that defense, holding that "where intent and conduct evidence an attempt, one should not escape responsibility merely because he could not effectuate the intended result, due to some fortuitous circumstance not apparent to him when he acted." (Id., at 935).
This is one of those huge money laundering cases involving the Cali cartel in which numerous defendants were convicted of the usual assortment of drug, gun and money laundering crimes. One issue that stands out was the reversal of one of the many convictions obtained because the district court (Judge Taylor) refused to instruct the jury on the defense of duress.
The defendant in question presented evidence that he had "lost" $300,000 of the Cali cartel's money to the police, but the cartel did not believe him and assumed that he had stolen the money. The cartel then kidnaped the defendant's father in Columbia and threatened him unless the son worked for the cartel in the United States. He argued that those facts entitled him to allow the jury to determine whether he had been coerced into committing his crimes. The Court noted that a defendant is entitled to a duress instruction if he presented evidence of (1) immediate threat of death or serious bodily injury, (2) well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm. (Id., at 835). The Government protested that a duress instruction would have been improper because there was no "immediacy" to the threat and because the defendant could have "escaped" by cooperating with the American authorities.
In a curt, three sentence ruling, the Court rejected the Government's arguments. Citing U.S. v. Contento- Pachon, 723 F.2d 691, 694 (9th Cir. 1984), the Court simply ruled: "We do not see how protection would have protected [the defendant's] father in Columbia. . . . Accordingly, [the defendant] should have received a duress instruction. We vacate his convictions and remand his case for retrial." (Id.)
Among the many cases this week that discussed claims that court-imposed limits on cross-examination violated the defendant's Sixth Amendment rights of confrontation, these three present a broad array of the various arguments and court responses on the growing - but contentious - practice of placing significant limits on the ability of defense counsel to cross-examine Government witnesses on certain issues.
In Davis the Court upheld a lower court's decision to limit cross-examination of the arresting officer by agreeing with the Government that the proposed line of questioning was "only marginally relevant." Citing Delaware v. Van Arsdale, 475 U.S. 673, 680 (1986), the Court noted that the test for a violation is whether "a reasonable jury might have received a significantly different impression of [the witness'] credibility had [defense] counsel been permitted to pursue his proposed line of cross-examination."
In Cropp, the district court directed defense counsel not to ask government witnesses questions about the specific penalties they would have received absent their cooperation or about the specific penalties they hoped to receive as a result of their cooperation. One of the reasons cited by the lower court for its ruling was its vague and inchoate concern that the jury might "nullify" its verdict if it knew the extreme penalties faced by the defendants. After acknowledging that it had never previously considered whether such limitations on cross-examination were a proper remedy to prevent the jury from considering the dreaded concept of jury nullification, the Fourth Circuit upheld the limitation as proper. It adopted in large part the rationale of the First Circuit in U.S. v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) where that court upheld a trial court's decision to disallow all inquiry into the prison terms faced by witnesses on the grounds that any probative value from the jury's knowledge of the actual number of years faced was slight compared with the certain prejudicial impact of "havingry learn what penalties the defendants were facing."
In Cruz the trial court advised the parties that she wanted to avoid having all three defense attorneys conducting the same cross-examination for each witness. Accordingly, she asked defense counsel to designate one attorney to conduct the "main" cross examination, but explained that each of the attorneys would be given the opportunity to cross-examine as to issues affecting their particular clients. The Ninth Circuit rejected claims that the trial court's procedures had violated the Confrontation Clause, principally because the appellants had failed to show how the requirement had limited any relevant testimony or caused them prejudice.
The principal message from these cases is that it is becoming increasingly difficult for defense counsel to delve into the potential bias of Government witnesses, particularly in cases where huge incentives are granted or paid to cooperating witnesses for their testimony. Van Arsdale confirmed that a defendant's right to cross-examine cooperating witnesses about sources of potential bias is guaranteed by the Confrontation Clause; yet more and more recent cases appear to be departing from that rule under various pretexts. If the courts begin to use the vague and inchoate concern that certain testimony may raise the specter of jury nullification in the minds of the jury, and that excuse receives judicial approval, there will soon be no limits on the type testimony that a court may exclude from permissible cross- examination.
In September, 1996, Judge Longstaff issued an important decision, in Lyon v. Vande Krol, 940 F.Supp. 1433 (S.D.Iowa 1996), in which he ruled that part of the in forma pauperis statute contained in the recently enacted Prison Litigation Reform Act (PLRA), namely 28 U.S.S. § 1915, was unconstitutional under the equal protection component of the Fifth Amendment. Congress enacted the PLRA to require all prisoners to pay court filing fees for civil cases, in the interest of deterring frivolous prisoner litigation. The statute, however differentiates among prisoners on the method of payment. Prisoners who have not had three prior cases dismissed as frivolous need only pay a percentage of the fee at the outset and the remainder over time, and those litigants are not barred from pursuing a claim by reason of their inability to make the initial partial payment.
In contrast, § 1915(g), commonly known as the "three strikes" provision, directs that prisoners who have had three previous civil suits or appeals dismissed as malicious, frivolous or for failure to state a claim, are barred from filing further civil suits unless they prepay the entire filing fee. The district court ruled that the indigency classification contained in § 1915(g) was neither "necessary [nor] narrowly tailored to achieve a compelling government interest."
On appeal, the Eighth Circuit reversed on narrow grounds. Proving that prisoners remain "members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity" (O'Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987)(Brennan, J., dissenting.)), the Court ruled that, to raise a constitutional challenge, the plaintiff must show that he has "standing." It continued: "The core component of standing is that the plaintiff ‘must allege personal injury fairly traceable' to the challenged action. . . . In the context of alleging an unconstitutional burden on the right of access to court, it is not sufficient for standing to show that court access could be impeded. Rather, a prisoner must show that it actually has been." (Id., at 765). The Court then reasoned that because the plaintiff was still free to pursue his claims if he paid the required fees, he had not shown any "actual injury" and thus did not have standing to pursue his claim that § 1915(g) violated the Equal Protection Clause.
Judge Heaney dissented. He objected to the "lack of complete impoverishment standard" created by the majority. He argued that the majority's decision "fails to explain the necessity in classifying prisoners like Lyon differently for the purpose of qualifying for in forma pauperis status"; (id., at 767) and that prisoners should not have to spend their last nickel to establish standing "where nonprisoners face a less onerous requirement. "An inmate should not be denied in forma pauperis status simply because he may be able to pay for some small physical and material comforts . . . within the prison." (Id., 767).
"I recognize that this court has rejected
a variety of constitutional challenges to the 100:1 [crack/cocaine] ratio,
but I still believe that we as judges should ‘no longer remain wedded to
that which experience shows is neither rational nor fair.' . . . . [A]s
proof of the racial unfairness of the present law continues to mount, the
apparent ease by which policy makers, and even the judicial system, are
able to disregard the racial discrimination perpetuated by this law and
now recognized by the Sentencing Commission, the Attorney General and the
President, is indeed disturbing. In 1996, for example, African-Americans
made up 85.8% of crack cocaine offenders, while a mere 4.8% of white federal
offenders were prosecuted for crack cocaine. . . . [A]s the Sentencing
Guidelines currently exist, the sentences handed down by courts of ‘justice'
are not just. ‘Blind adherence to rules that have proven ineffective,
meaningless and unjust, serves no useful purpose'." Judge Jones,
dissenting in U.S.
v. Washington, 127 F.3d 510, 518-19 (6th Cir. 1997) (Internal
citations omitted.)
We are pleased to announce that we have
received from Carmen Hernandez, Esq., an Assistant
Federal Public Defender from the District of Columbia, a detailed and scholarly
compendium entitled "Downward Departures After
Koon - A Fact Based Inquiry." This 40 page review
of Guidelines' cases following the Supreme Court's decision in Koon v.
U.S., 135 L.Ed.2d 392 (1996) has been posted on this Website on the opening
page of our Guidelines Section. This document is available
in both a PDF format and in a format that can be downloaded directly to
your computer; and it can be accessed by clicking here.
Cases in the Federal
Reporter:
This week: 59
Year to date: 2221
Cases in the Federal
Supplement: This
week: 16 Year
to date: 1153