Monday, August 04, 2008

Second Circuit Affirms Imposition of a Ten-Year Statutory Mandatory Minimum in Place at the Time of the Offense Despite Its Expiration Prior to the Sentencing Date

In United States v. Klump, available here, the Second Circuit held that the district court properly applied the ten-year statutory mandatory minimum sentence in place at the time the defendant committed the crime, despite the shorter statutory mandatory minimum in force at the time of sentencing. In February 2003, the defendant was charged with, inter alia, one count of possessing a semiautomatic assault weapon in furtherance of a drug-trafficking crime. At the time of Klump’s offense and at the time he was convicted, 18 U.S.C. § 924(c)(1)(B)(i) mandated a minimum sentence of ten years’ imprisonment. Fifteen months before the defendant was sentenced, however, this provision expired pursuant to a sunset provision. Klump argued that the district court should have imposed the five-year mandatory minimum in effect at the time he was sentenced. The sentencing court rejected Klump’s argument and imposed the ten-year sentence.  The Second Circuit affirmed, holding:

The older version of § 924(c)(1)(B)(i) applies to Klump even though it had expired before he was sentenced. Pursuant to 1 U.S.C. § 109, “[t]he expiration of a . . . statute shall not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the . . . statute shall so expressly provide.” Section 924(c)(1)(B)(i) contains no provision expressly prohibiting its application to defendants, like Klump, who were convicted of possessing a semiautomatic assault weapon before the statute expired. Thus, the district court properly sentenced him to the ten-year mandatory minimum sentence called for by the statute.

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Medellin’s Execution Set to Move Forward

As of this posting, the execution of José Ernesto Medellin, the Mexican national on Texas death row for the rape and murder of two teenage girls in 1993, is scheduled to occur as planned on Tuesday evening. Medellin’s case, which has been covered in-depth on this blog, continues to garner both domestic and international attention. 

The World Court (formally the International Court of Justice at The Hague, Netherlands)  has recognized that under the Vienna Convention, foreign nationals have the right to consult with their respective consulates after being charged with a crime and ordered that Medellin’s conviction be reviewed and reconsidered under the treaty’s provisions.  It has been reported that Medellin never asserted any rights under the Vienna Convention during either the guilt or penalty portions of his trial, however, and raised the issue for the first time in a state trial court seeking post-conviction relief. 

Medellin’s case has a complex history.  As discussed at SCOTUSblog here, the Supreme Court decided this past spring that although the United States is bound by the Vienna Convention, Congress did not provide for its actual enforcement.  The Court further ruled that the President did not have the authority to order Texas to comply with the World Court’s decision and to grant new hearings for the foreign nationals. 

Texas has continued to resist pressure in Medellin's case from President Bush and other U.S. officials urging it to comply with the World Court’s order. As also posted by SCOTUSblog here, Texas today filed papers with the Supreme Court urging the Court to allow tomorrow’s execution to proceed.

Previous posts on Medellin’s case on this blog include:

  ·  Texas shrugs in response to World Court call for execution stays

  ·  A lengthy argument in Medellin

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Western Australia Takes Steps to End Mandatory One-Third Reductions in Criminal Sentences

In SL&P's attempt to cover the world of sentencing, we take note of an interesting story on the other side of the Pacific.  The Western Australian government has taken steps to repeal the transitional provisions of the truth in sentencing laws it passed in 2003, which required a mandatory one-third reduction, presumably to reflect better the actual time served by defendants after their sentences were handed down.  The laws came under renewed attack last month, when the WA Supreme Court ruled that they applied to all statutory offenses, even those passed after the sentencing laws were enacted, whose maximum penalties were thereby diluted.  The Attorney General, Jim McGinty, said that repealing the laws means judges will finally be able to impose the maximum sentence available for serious crimes.  An article on the topic explains that the proposal would:      

            

Repeal the Sentencing Act transitional provisions to stop judges giving compulsory one-third reductions when sentencing serious criminals. For the first time, judges will have the ability to impose maximum sentences.

Direct judges to be consistent in dishing out sentences by looking at precedents imposed for similar cases.

Give the Director of Public Prosecutions powers to apply to the court to re-sentence any offender who received a reduced sentence either initially or on appeal from August 1, 2008 up until the laws come into force later this year.

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August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation. Posts by individual authors are signed by each author. Posts that result from a collaborative effort are signed by "Guest bloggers." We may be contacted at this address until Doug returns.

August 4, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Friday, August 01, 2008

Ninth Circuit Holds Lenient Sentence Does Not Rise to Abuse of Discretion

After pleading guilty to several counts of healthcare fraud, theft and money laundering, the defendant in United States v. Ruff, available here, a case decided today by the Ninth Circuit, was originally sentenced to 12 months and a day in prison and three years supervised release, with the recommendation that his sentence be served at a community corrections center where he could work, pay restitution and visit with his son.  After learning that the corrections center could only house the defendant if his confinement was as a condition of supervised release, the district court modified the sentence to one day of imprisonment and three years supervised release, with the condition that 12 months and a day of his supervised release be served at the corrections center.  The guidelines had recommended 30-37 months’ imprisonment for the combined offenses. The government appealed the modified sentence, claiming the modification overstepped the bounds of the sentencing court’s authority. 

The majority of the panel held there was no abuse of discretion by the sentencing court.  The court first recognized that the original below-guidelines sentence was reasonable in light of the mitigating factors recognized by the sentencing court pursuant to § 3553(a), and that the same factors justified the amended sentence, “because the only difference between the two sentences is one of meaningless semantics.” Citing the dissent’s discussion of Gall, the Court went on to recognize that

[t]he clear message in Gall, however, is that we must defer ‘to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.’ …  [I]t is the reasoned decision itself, not the specific reasons that are cited, that triggers our duty to defer. Here, the district judge plainly satisfied this requirement, relying on factors such as treatment, cooperation and familial support to arrive at his chosen sentence.

Judge Gould firmly disagreed in dissent.

The abuse of discretion standard of review is not a rubber stamp of all sentencing decisions made by a district court. Instead, it requires us to vacate a sentence when it is substantively unreasonable. Where ‘we have a definite and firm conviction that the district court committed a clear error of judgment’ in imposing a particular sentence, it is our duty to vacate the sentence as unreasonable. See SEC v. Coldicutt, 258 F.3d 939, 914 (9th Cir. 2001). Here, the reasons given by the district court to support its sentence do not warrant a one-day prison term, even given the condition of supervised release that Ruff spend twelve months and a day in a residential confinement facility. This sentence is a substantively unreasonable punishment for Ruff’s theft of more than a half-million dollars in inventory supplies from his nonprofit employer.

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (2) | TrackBack

Judge Posner on the “Substantial Step” Requirement of Criminal Attempt

Although unrelated to sentencing, yesterday’s decision by Judge Richard Posner includes a noteworthy (and literary) discussion of what is required to convict an individual of criminal attempt.  In United States v. Gladish, the Seventh Circuit overturned the conviction of a 35-year-old man caught trying to solicit sexually a “14-year-old girl” (who was actually a government agent), but who never moved beyond speaking to the “minor” over the Internet.  In classic Posner prose:

You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. That something marks you as genuinely dangerous—a doer and not just one of the ‘hollow men’ of T. S. Eliot’s poem, incapacitated from action because

Between the conception

And the creation

Between the emotion

And the response

Falls the Shadow.

And later on in the opinion:

Treating speech (even obscene speech) as the ‘substantial step’ would abolish any requirement of a substantial step. It would imply that if X says to Y, ‘I’m planning to rob a bank,’ X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows.

Download UnitedStatesvGladish.pdf

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Eighth Circuit Upholds Constitutionality of the Sex Offender Registration and Notification Act

As discussed in this post on the Sex Crimes blog, the Eighth Circuit issued an opinion yesterday in United States v. May in which it upheld the constitutionality of the Sex Offender Registration and Notification Act (“SORNA”).  Although the defendant, who was charged with one count of failure to register as a sex offender in violation of SORNA, raised a host of constitutional challenges to SORNA, the Court rejected each. 

The district court found (1) SORNA applies to May, (2) SORNA’s retroactive application does not violate the ex post facto clause, (3) Congress did not improperly delegate legislative responsibility to the Attorney General in violation of the non-delegation doctrine, (4) application of SORNA to May did not violate May’s due process rights, and (5) Congress’s enactment of SORNA was a permissible exercise of its authority under the commerce clause. We affirm.

The Eighth Circuit’s decision is the first by a federal appellate court to decide whether SORNA is constitutional. 

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Jessica’s Law Applied Following Conviction in Maine

In the first application of  Maine’s Jessica’s Law after a trial, a man convicted of sexually-assaulting a 4-year-old girl was sentenced to 22 years in prison.  An article detailing the case notes that:

Assistant District Attorney Eric Walker said the sentencing was the first time Jessica’s Law was used in Maine after a trial. Like the federal version of Jessica’s Law, the state sentencing guidelines apply to instances of sexual assault of a person under 12.

There have been other sentences given in Maine under the law, but those were the results of plea agreements, Walker said. The law instructs judges to begin their deliberations with no less than a 20-year sentence, although they have the option of raising or lowering the sentence depending on the defendant’s background and other factors.

The government had recommended a 25-year sentence, with the defense asking for six years.

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First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard

In United States v. Avilés-Colón, the First Circuit yesterday held that crimes for which a defendant is not convicted – including murder – may be taken into account during sentencing when proven by a preponderance of the evidence.

While the defendants in Avilés-Colón were convicted of conspiracy to distribute and possess controlled substances and possession of firearms in furtherance of the conspiracy, the sentencing court employed a base offense level of forty-three after determining, under a preponderance of the evidence standard, that three murders had been committed in furtherance of the conspiracy.  After considering § 3553, the court ultimately gave each defendant a sentence below the life imprisonment dictated by the guidelines, sentencing one defendant to 660 months in prison and the other to 420 months in prison.

On appeal, one defendant challenged the constitutionality of applying the guidelines’ murder cross-reference when the facts underlying the sentence were proven only by a preponderance of the evidence standard.  The First Circuit swiftly rejected this “often raised argument” in one sentence, noting only that “even the heightened sentence does not rise above the statutory maximum.”

While enhanced sentences based on conduct for which a defendant was neither charged nor convicted are not uncommon, and the law here is entirely settled, this case shows how dramatic the potential effect of this principle can be.

[Note: Although the First Circuit states that the defendants were found guilty only of the two charges discussed above, the district court’s opinion indicates that one of the defendants was in fact convicted of murder.  It is unclear why this is not discussed in the First Circuit’s opinion but is seemingly irrelevant in that the defendant who unquestionably was not convicted of murder was the one who brought the constitutional challenge.] 

Download Aviles-Colon.pdf

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (18) | TrackBack

U.S. Biodefense Research Apparently Commits Suicide in Wake of Impending Charges in Anthrax Investigation

As reported by this Associated Press article and numerous other media outlets, Bruce E. Ivins, a U.S. biodefense researcher, apparently committed suicide as the Justice Department was preparing to file an indictment against him stemming from the 2001 anthrax attacks that killed five and sickened numerous others.  It is being reported that the government had planned to seek the death penalty against Ivins, who was said to have been informed of the impending prosecution.

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August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (7) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation. Posts by individual authors are signed by each author. Posts that result from a collaborative effort are signed by "Guest bloggers." We may be contacted at this address until Doug returns.

August 1, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Thursday, July 31, 2008

Eleventh Circuit Holds That Procedural Sentencing Requirements Must Be Strictly Followed

    

              In an unpublished per curiam decision today (available here), the Eleventh Circuit made clear that judges must strictly adhere to the statutorily imposed procedural requirements of sentencing.  United States v. Narvaez involved a defendant who pled guilty and was sentenced to 210-month concurrent sentences for conspiracy to possess with intent to distribute and possession with intent to distribute five kilograms or more of cocaine while aboard a vessel subject to United States jurisdiction.  Although the Eleventh Circuit rejected both of the defendant’s substantive arguments on appeal (involving objections to the district court’s denial of a safety-valve reduction as well as its imposition of a two-level upward adjustment under § 2D1.1), it nonetheless remanded for resentencing because it found that the district court had not provided the reason for the sentence it imposed, as required by § 3553(c)(1).

Here, although the district court listened to the parties’ arguments relating toseveral of the § 3553(a) sentencing factors, it did not refer to § 3553(a) or any§ 3553(a) factor at all during the hearing. The district court did not even state that, after considering the § 3553(a) factors, a 210-month sentence was appropriate. Indeed, the district court gave absolutely no reason for imposing the 210-monthsentence. Instead, the district court ruled on Narvaez’s guidelines objections, calculated the advisory guideline range, stated it planned to impose a sentence within that range and then imposed a 210-month sentence. Accordingly, we vacate Narvaez’s sentence and remand the case to the district court for the sole purpose to permit the district court to comply with § 3553(c)(1) and provide an explanation in open court for the 210-month sentence. See United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (concluding that a district court that offered no reason for sentence did not satisfy its statutory duty imposed by § 3553(c)(1)).

            Although unpublished, the Eleventh Circuit’s decision sends a reminder to sentencing judges that the procedural requirements of § 3553(c)(1) must be followed, and that judges must do so explicitly, even if there is no reason to question whether they considered the § 3553(a) factors.

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Federal Defenders Paper on Acquitted and Uncharged Crimes

Amy Baron-Evans, who is the National Sentencing Resource Counsel at the Federal Defenders, has alerted us to a revised paper on "Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing," which she wrote along with Jennifer Niles Coffin, available on the Federal Defender website hereThis paper updates and expands the Federal Defenders' terrific work in this area, which Doug covered in this prior post:

    ·  Deconstructing the federal relevant conduct guidelines 

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Arizona Finds Success with Innovative Prison Program

This article from the Christian Science Monitor discusses the "Get Ready" program being used in Arizona's prison system.  The program seeks to prepare inmates for reentry into society beginning at the very outset of their incarceration by assessing their work and education needs and developing an individualized corrections plan within one week of entry into prison. Inmates receive additional privileges as they complete goals outlined in their assessment.  Education, workshops, and treatment programs are made available to inmates as part of the program.  The "Get Ready" program, which Arizona officials cite as significant reason for decreased violence inside state prisons, is a finalist for a Harvard Kennedy School innovations award.

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Seventh Circuit Rules Appellate Counsel "Deficient" For Failure to Raise Booker Claim

Just before Booker was decided by the Supreme Court (but several months after the Seventh Circuit had held that the mandatory guidelines were unconstitutional in the same case and the Supreme Court had granted certiorari), Brett Stallings was sentenced to 188 months’ imprisonment after being convicted of possession of a firearm by a felon.  At the sentencing hearing, the Judge appeared to follow the guidelines as if they were mandatory, stating “under the law, I believe I am required to impose a certain, at least minimum sentence.” Trial counsel did not object to the mandatory application of the sentencing guidelines.  Furthermore, the Judge rejected defense counsel’s suggestion to impose an alternative sentence, as Blakely was then under review by the Supreme Court.

On Stallings’ appeal (after the Supreme Court had issued Booker), his newly appointed attorney claimed ineffective assistance of trial counsel, but he did not make a separate claim under Booker that the sentence may have been different had the Judge viewed the guidelines as advisory. Stallings’ original sentence was affirmed.  Stallings thereafter filed a habeas petition, claiming that his appellate counsel was ineffective for failing to make the Booker argument and asking for a reconsideration of his sentence.

In a decision issued yesterday in Stallings v. United States, the Seventh Circuit agreed, holding that Stallings’ appellate counsel was ineffective for failing to request a limited remand “to determine whether the sentencing court would have imposed the same sentence under an advisory guidelines regime.”  The Seventh Circuit, however, ultimately remanded the habeas petition to the district court to determine if the failure to raise a Booker claim was prejudicial and would have actually resulted in a different sentence, since the district court failed to consider that issue in denying Stallings’ petition.

While there are unlikely to be many more cases involving Stallings' precise set of facts, the Seventh Circuit’s ruling underscores the critical importance of defense attorneys taking advantage of the new found flexibility under Booker and its progeny.

Download Stallings.pdf

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July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (0) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation. Posts by individual authors are signed by each author. Posts that result from a collaborative effort are signed by "Guest bloggers." We may be contacted at this address until Doug returns.

July 31, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Wednesday, July 30, 2008

More Circuit Activity About The Meaning Of “Victim” In § 2B1.1

            As previously discussed here, the Fifth Circuit held on Tuesday that the reimbursed credit card holders in a fraud conspiracy were not “victims” within the meaning of § 2B1.1 because the district court did not point to any evidence establishing their pecuniary loss.  Today, the Second Circuit ruled in United States v. Emmanuel Abiodun, et al. (available here) that individuals who are reimbursed by banks or credit card companies in the aftermath of a fraud scheme may qualify as “victims” for purposes of § 2B1.1 if there is evidence that they incurred a measurable monetary harm:

“We agree with the Sixth Circuit and Eleventh Circuit that individuals who are ultimately reimbursed by their banks or credit card companies can be considered ‘victims’ of a theft or fraud offense for purposes of U.S.S.G. § 2B1.1(b)(2) if—as a practical matter—they suffered (1) an adverse effect (2) as a result of the defendant’s conduct that (3) can be measured in monetary terms.”

            The wrinkle here is that the loss must be able to be measured in “monetary terms.”  In Abiodun, the Second Circuit agreed that “loss of time” in terms of “securing reimbursement from their banks or credit card companies” could be measured in monetary terms.  However, since the district court counted those who had lost time as victims for purposes of the enhancement without calculating the monetary value of this lost time, the court remanded so that the district court could “(1) recalculate the loss amount associated with each of the defendants’ crimes to include the time lost by these potential victims or (2) determine whether, if these individuals are excluded from the count, it is still ‘more likely than not’ that Abiodun’s crimes affected ‘250-plus victims.’”

            

            But just how easy is it to convert lost time into monetary terms under these circumstances? Must the court consider each affected individual’s respective salary, calculate his or her functional hourly wage, and then determine how much time he or she spent trying to get reimbursed? What is the monetary loss, if any, to an unemployed person?  What if the individual calls the credit card company on a weekend when he or she is not working?  How exactly do you value the monetary cost to a victim from lost “leisure time” spent dealing with a bank or creditor? Surely these questions will be the subject of future litigation.

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Former NBA Referee Sentenced to 15 Months

As reported by The New York Times here, former NBA referee Tim Donaghy was sentenced on Tuesday to 15 months in prison by U.S. District Judge Carol B. Amon following his guilty plea to charges related to his role in a gambling ring that involved NBA games.  The article suggests that Donaghy, who faced a sentence of 27 to 33 months based on the federal guidelines, received a lenient sentence based on his agreement to cooperate with the investigation.  Donaghy was the last of the three defendants charged in the ring to be sentenced.  His co-defendants, James Battista and Thomas Martino, were sentenced last week to 15 months and 12 months plus 1 day, respectively. 

Tuesday's sentencing of Donaghy was the culmination of some interesting back-and-forth between prosecutors and defense attorneys in recent months over the extent of Donaghy's cooperation, as discussed in these prior blog posts by Doug Berman:

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Senator Ted Stevens Indicted

As noted at the White-Collar Crime Prof Blog here and covered by numerous major media outlets, Senator Ted Stevens (R-Alaska) is in hot water.  According to the indictment and the DOJ press release Senator Stevens is facing seven felony counts of making false statements.  The charges relate to false statements that Stevens is alleged to have made on his mandatory financial disclosure forms filed for calendar years 1999 through 2006.  During the press conference, Acting Assistant Attorney General Matthew Friedrich refused to discuss Stevens' sentencing exposure, even to the point of not answering a reporter's question about the total statutory maximum sentence Stevens faced.  Another questioner asked whether Stevens' age would be a factor at sentencing.  Of course, under the guidelines, age is considered “not ordinarily relevant,” but after Booker some judges may take it into account, especially when combined with health issues (which the guidelines also consider “not ordinarily relevant”).

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July 30, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack

Guest Blogging

Dear Readers:

Proskauer Rose is guest blogging while Doug is on vacation.  Posts by individual authors are signed by each author.  Posts that result from a collaborative effort are signed by "Guest bloggers."  Please direct all questions and comments to us at this address until Doug returns.

July 30, 2008 in Guest blogging by Proskauer Rose | Permalink | Comments (1) | TrackBack