Tuesday, July 29, 2008
Circuit split interpreting the term "victim" under USSG 2B1.1
Katie Gerber, a Summer Associate at Proskauer Rose, posts this summary of an interesting Fifth Circuit case decided recently:
The Fifth Circuit has issued an opinion interpreting the term “victim” under section 2B1.1(b)(2) of the Sentencing Guidelines in United States v. Conner (available here). This opinion appears to reinforce a split in the Circuits on the Guidelines’ requirement that a “victim” suffer “actual loss” resulting from the offense.
Conner was convicted of conspiracy and mail fraud in connection with a fraud scheme that utilized commercial credit accounts without authorization at various Home Depot, Lowe’s, and Sam’s Club stores. Conner’s base offense level was increased by 4 levels pursuant to the district court’s finding that his offense involved between 50 and 250 “victims.” The district court deemed each person whose account information was improperly used by the defendant to purchase goods to be a victim for purposes of § 2B1.1(b)(2)(B). On appeal, Conner argued, and the Fifth Circuit agreed, that the only victims of the scheme were the five credit companies involved, because the underlying account holders were fully reimbursed by those companies for all charges made to their accounts.
The majority opinion in the Fifth Circuit followed United States v. Icaza, 492 F.3d 967 (8th Cir. 2007), and United States v. Yagar, 404 F.3d 967 (6th Cir. 2005). In Icaza, the Eight Circuit case involved a cross-country shoplifting spree at various Walgreen’s stores, and the Circuit determined that the only “victim” for purposes of § 2B1.1(b)(2) was Walgreen’s corporation, because none of the individual Walgreen’s stores “ultimately bore the pecuniary harm.” Icaza, 404 F.3d at 970. In the Yagar case, the defendant used stolen checks to deposit funds into accounts of over fifty individuals at five banks using stolen bank information, and then withdrew portions of those funds, receiving over $20,000 in cash. The Sixth Circuit held that the underlying account holders were not “victims,” because “they were fully reimbursed for their temporary financial losses.” Yagar, 404 F.3d at 971.
The majority in Conner declined to follow the Eleventh Circuit’s decision in United States v. Lee, 427 F.3d 881, 884 (11th Cir. 2005). There, the court determined that businesses that had been able to offset losses caused by the defendants’ wrongdoing, through the recovery of collateral or the return of money or property, nevertheless suffered a loss under the Guidelines and should be deemed victims for purposes of § 2B1(b)(2)(B). Interestingly, the Lee court noted its disagreement with the Sixth Circuit, arguing that the court in Yagar overlooked the Application Notes in reading the “actual loss” provisions under the Guidelines. Id. at 895. The Eleventh Circuit pointed out that the Guidelines take into account an eventual recovery or return of lost money, property, or services to the victim by allowing the defendant to take credit against the total loss for the value of any recovery. The Court reasoned that the Guidelines, therefore, inherently acknowledge that there was an initial loss to such victims, even when that loss is subsequently remedied. Id.
In contrast with the majority’s view, Circuit Judge Garza sided with the Eleventh Circuit’s approach. He criticized the majority’s analysis, arguing that it “runs counter to the fundamental sentencing goal of tying the severity of a defendant’s sentence to the seriousness of the defendant’s crime.” Id. He offered the following illustration:
Compare a defendant who defrauds 1,000 individuals that, after the fact, have their losses reimbursed by a single insurer and a defendant who defrauds 10 uninsured individuals. Assuming an equal amount of loss, there can be no doubt that the first defendant’s crime is more serious and therefore deserving of a more serious sentence. The majority’s interpretation of victim enhancement leads to the incongruous result of the second defendant receiving the higher Guidelines range.
The significance of this debate among the Circuits over the meaning of the term “victim” in § 2B1.1 remains to be seen. But as the majority in the Fifth Circuit expressly acknowledged, the large number of individual account holders affected by Conner’s crime could be considered in any event under the factors in 18 U.S.C. § 3553(a) if the court decides to issue a non-Guidelines sentence on remand.
Government Responds To Heller Motion
A helpful reader alerted us that the government has responded to at least one motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment. As previously summarized here, a hearing on this very motion has been scheduled for later this week. Here is a snippet from the government's response:
The Heller Court held that the relevant provisions were unconstitutional as applied in the context of banning handguns that are possessed in the home for the purpose of self-defense, but did not wholly invalidate the registration and licensing scheme.
Significantly, the Court specifically noted that the right secured by the Second Amendment is "not unlimited." Heller, slip op. at 54. The Court acknowledged, for example, that prohibitions on carrying concealed weapons have been deemed lawful under the Second Amendment. Id. Of particular significance to the matter presently before this Honorable Court, the Heller Court also emphasized that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 54-55. And the Court specifically noted that those "presumptively lawful regulatory measures" were just examples, and that the list provided was not "exhaustive." Id. at 55 n.26. In addition, the Court limited the sorts of weapons protected by the Second Amendment to those "in common use," Id. at 55, and noted that the Second Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 53.
Some related posts on this case:
Former Newark, NJ Mayor Sentenced to 27 Months
As highlighted in this NY Times article, Former Newark, NJ mayor Sharpe James was sentenced today to 27 months in prison and ordered to pay a $100,000 fine for his April conviction on corruption charges. James was found guilty of fraud and conspiracy stemming from his failure to disclose his relationship with co-defendant, and former girlfriend, Tamika Riley, who obtained city council and mayoral approval on multiple purchase contracts for land in Newark. Over a four-year period Riley purchased nine city-owned tracts of land for $46,000 and resold them within short time periods for $665,000. Riley, who was earlier convicted on charges of fraud, conspiracy, tax evasion and lying about her income, was sentenced to 15 months in prison and ordered to pay $27,000 in restitution.
According to these reports, James faced a possible sentence of 12 to 15 years under the guidelines, but prosecutors sought up to a 20-year sentence. At the hearing today, defense attorneys asked the Judge to limit the sentence to probation. While District Judge William Martini refused the defense position, noting that it was a "sad day for the citizens of Newark who are disappointed in the conduct of the mayor," he was particularly critical of the prosecutors, calling their position "shocking" and "lacking any basis in fact." Judge Martini noted that the city of Newark did not lose anything of monetary value, but had lost James' "honest services." In response to the prosecutor's argument that James' administration had often operated in a corrupt manner, Judge Martini indicated, "Don’t talk about a history of corruption unless you can prove it. I don’t want to hear these allegations of a corrupt administration, he’s all-powerful, didn’t do any good. I’m supposed to throw out the history of a man’s life for misconduct he committed at age 69?”
Based on the article, it is not clear whether Judge Martini exercised some form of discretion to go so far below the guidelines, or whether he simply found that the factual predicates for such a sentence had not been met. The U.S. Attorney's Office, unsurprisingly, immediately announced its intention to appeal to the Third Circuit.
UPDATE: These publicly-available documents, which include the government’s sentencing memorandum as well as select responses from the defense, provide insight into the arguments advanced on the sentencing issues by both sides:
UPDATE: These publicly-available documents, which include the government’s sentencing memorandum as well as select responses from the defense, provide insight into the arguments advanced on the sentencing issues by both sides:
Eighth Circuit Affirms A Sentence of Probation For A Major Crack Dealer
The Eighth Circuit recently issued a decision (available here) holding that a significant downward variance was appropriate for a defendant who pleaded guilty to distributing 102 grams of crack cocaine. The defendant’s serious health conditions, along with extraordinary post-arrest rehabilitation, were apparently sufficient reasons to grant him a three-year term of probation in the form of home detention, rather than a sentence within a guidelines range of 60 months in accordance with the statutory maximum. Here is a snippet of the Court’s decision:
The district court sentenced the defendant on March 22, 2007 to a three year term of probation to be “served” at the City of Faith facility in Little Rock, Arkansas. The court ordered that the defendant could leave that facility for employment, to participate in church activities and to attend family events such as birthday parties. However, after his placement at the City of Faith commenced, that placement was terminated by City of Faith due to its inability to handle the defendant’s medical needs. On September 18, 2007, the district court modified the defendant’s probation conditions, pending the outcome of this appeal. The court placed him on home detention, allowing leave for medical care, mental health appointments, to meet with his attorney, and to attend church.
The record reveals that the defendant was 56 years old at the time of sentencing. He had undergone multiple heart surgeries in 2005 and 2006. In 2007 he received graft bypass surgery in his lower right leg. The defendant suffers from severe coronary artery disease, severe peripheral vascular disease, asthma, and other serious conditions. A letter submitted by his physician opines that defendant's life expectancy is from ten to twenty years less than the average African American male.
The sentencing record also shows that the defendant was taking eleven prescription drugs and multiple forms of eye drops. He has been diagnosed in the past with post-traumatic stress disorder, anxiety and depression. The defendant weighs 310 pounds. He suffers from sleep apnea, high blood pressure, gout, diabetes, a nerve root disease, asthma and bronchitis. His addiction to pain medication contributed to the criminal activity alleged in the indictment.
As highlighted in a post here and in a recent issue of the Federal Sentencing Reporter summarized here, the Supreme Court’s decision in Gall paved a similar way for former Wal-Mart executive Thomas Coughlin, who was sentenced to 5 years of probation and 27 months of home detention with an electronic monitoring device based in large part on his health. While some may find such extensive health departures to be controversial, the Eighth Circuit’s case is proof that departures on these grounds are available to all, regardless of the type of offense, as they should be.
President Bush OKs Military Execution
As detailed in this NY Times article, President Bush recently made history by approving the first execution by the military in nearly 50 years:
As commander in chief, the president has the final authority to approve capital punishment under the Uniform Code of Military Justice, and he did so on Monday morning in the case of Pvt. Ronald A. Gray, convicted by court-martial for two killings and an attempted murder at Fort Bragg, N.C., the White House said in a statement.
Although the Supreme Court upheld the constitutionality of the death penalty in the military in 1996, no one has been executed since President Ronald Reagan reinstated capital punishment in 1984 for military crimes.
The last military execution was ordered by President Dwight D. Eisenhower in 1957, although it was not carried out by hanging until 1961. President John F. Kennedy was the last president to face the question, in 1962, but commuted the sentence to life in prison.
* * *
Mr. Bush, a supporter of the death penalty, approved the sentence after Private Gray’s case wound its way through the Army’s legal bureaucracy and the military’s courts of appeal. The secretary of the Army sought Mr. Bush’s final approval.
There are six people on the military’s death row at Fort Leavenworth, Kan. but Private Gray was the first whose sentence went to the president. Unlike in the civilian courts, where the president can overturn or commute a sentence, in the military system, he is required effectively to approve it.
It can still be appealed, which the White House suggested was all but certain, meaning an execution is not expected to occur soon, possibly not during Mr. Bush’s remaining months in office.
The article does not explain why it has taken nearly 20 years for the case to work its way through the military justice system—even longer than the average civilian death penalty case—or how much additional process may still follow. Readers are invited to share their knowledge in this area.
Will the Supreme Court Rehear Kennedy v. Louisiana?
As discussed by SCOTUSblog here, the DOJ on Monday asked the Supreme Court to rehear the case of Kennedy v. Louisiana, in which the Court struck down Louisiana's law permitting the death penalty for child rape. As discussed in a prior post found here, the Court's ruling failed to take account of a federal law in the military justice system authorizing the death penalty in that instance. The DOJ's request comes one week after Louisiana also requested the Court to rehear the case.
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.
Monday, July 28, 2008
Defendants Receive A (Short-Lived?) Benefit From A "Judicial Gaffe"
After Francis Lawrence and his co-defendants successfully filed motions to reduce their sentences under the retroactive sentencing guideline reductions for crack cocaine offenses, the district court—apparently inadvertently—included language in the sentencing orders that converted each sentence into “time served.” Within a few weeks after realizing its error, the court modified the orders to correct the language. The defendants appealed, challenging the court’s authority to substantively modify their sentences outside of the seven-day window permitted by Federal Rule of Criminal Procedure 35.
A Seventh Circuit panel now vacates the amended sentence, ruling that because the error was not “clerical” under Rule 36 (which would otherwise allow unlimited time to correct clerical errors), the Judge could not amend the order past the deadline. But while victory for the defense is sweet, it also may be temporary. The Court, in a thoughtful decision available below, practically invites the government to file an appeal from the original, mistaken sentence:
The government has 30 days after the entry of the order being appealed to file a notice of appeal with the district court. Fed. R. App. P. 4(b)(1)(B). Here, the government’s time to file a notice of appeal had not yet expired, when, on March 26, the district court sua sponte entered new orders. At that point, the government had no reason to appeal the original orders because the orders had been superseded by sentences that presumably no longer fit within the appealable conditions specified by § 3742(b). . . . Now that the sentences of Nos. 08-1856, 08-1857, 08-1858, and 08-1862 13 March 4, 6, and 13 are at issue again, it would not seem to run afoul of the cross-appeal rule or undermine the interests of fair notice and finality to permit the government to file notices of appeal within the remainders of the 30-day time periods that had not expired as of March 26. If the government chooses to appeal, the district court should consider whether the defendants should be detained pending the appeals pursuant to 18 U.S.C. § 3143(c). Any such appeals should be returned to this panel as successive appeals under Operating Procedure 6(b).
Is this judicial time well spent, or an example of being slave to good procedure?
Fifth Circuit Mostly Affirms in Controversial Border Agents Case
As previewed in this post, a Fifth Circuit panel today decided the appeals of U.S. Border Patrol agents Ignacio Ramos and Jose Alonso Compean, who were sentenced to prison terms of 11 and 12 years, respectively, for shooting an illegal alien drug smuggler. While the Court's ruling (found here) vacates the agents’ convictions on five counts relating to obstruction of justice, it leaves untouched their mandatory 10-year terms for using a gun in relation to the commission of a crime of violence. The Court's roadmap is excerpted here:
On appeal, we will address some of the errors, legal and evidentiary, alleged to have been committed by the trial court. Many arguments are made by the agents. We will address their primary arguments and we will find merit in some. Accordingly, we will reverse and vacate the convictions on some counts and vacate the sentences on those counts. However, this may not be of much moment to Ramos and Compean because we leave the major conviction with the major sentence—18 U.S.C. § 924(c)—untouched.
In this prefatory statement we should note that the rather lengthy sentences imposed on the defendants—eleven years and a day and twelve years respectively—result primarily from their convictions under § 924(c). Why? Because Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence. The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under this statute, the district court had no discretion but to impose at least a ten-year sentence. Thus, the sentences in this case reflect the mandatory ten years for violation of § 924(c), and one year and a day and two years, respectively, for the remaining several convictions.
The defendants were convicted for assault, discharge of a weapon in the commission of a crime of violence, tampering with an official proceeding, and deprivation of civil rights. We AFFIRM all convictions except those for tampering with an official proceeding, which we VACATE. We REMAND for resentencing.
With the Court unable to budge on these lengthy mandatory minimums, perhaps we can expect this case to join the backlog of pardon petitions now pending before President Bush. There is nothing quite like bipartisan support to spur much needed sentencing reform.
Great Britain Embarks On U.S.-Styled Reforms
Looks like some interesting developments in sentencing law are underway across the pond. Rumor has it that Harriet Harman, the Commons Leader in Great Britain, will propose striating the country's homicide laws to enable prosecutors to charge defendants with varying degrees of either murder or manslaughter. Here is an outline of the proposed reforms:
Instead of only being able to charge defendants with either murder or manslaughter, prosecuting authorities may be able to choose from a wider range of options.
These would include first-degree murder, where the offender intends to kill; second-degree murder, where the offender intends to cause serious harm but causes death; and manslaughter, for cases involving negligence or the intention to cause some but not serious harm, which result in death.
Scores of killers who are now charged with manslaughter would no longer be able to escape a murder charge. The new plans also signal the end of the mandatory life sentence for all murderers, a regime that dates back to the abolition of the death penalty more than 40 years ago.
Under the changes, while first-degree murder would carry a mandatory life sentence, judges in cases of second-degree murder would have the discretion to impose a fixed-term sentence.
"The aim is to be tougher but also give prosecutors more flexibility over charging and courts more flexibility over sentencing," a government source said.
The new category of second-degree murder would, for example, be likely to catch terrorists who planted a bomb or poisoned supermarket food but gave a warning in which they said they did not intend to kill. Currently they could only be convicted of manslaughter.
An Urban Bias in Massachusetts' Drug-Free Zone Law?
As detailed in this press release, FAMM reports that Massachusetts' drug-free zone law may be leading to increased punishment for minorities and the poor who reside in urban areas. The law in question currently imposes a two-year mandatory minimum sentence for offenders convicted of certain drug crimes within 1,000 feet of school property. FAMM suggests that in densely populated urban areas, where schools and people are packed closely together, the law effectively transforms the entire urban area into a drug-free zone, and punishes drug offenses occurring in urban areas more harshly than the same offenses occurring in suburban areas. Here is a relevant excerpt:
Families Against Mandatory Minimums (FAMM), a national, nonpartisan organization working for fair and proportional sentencing laws, says that Massachusetts is not alone in confronting problems caused by mandatory minimum drug and drug-free zone laws. "This report provides yet more evidence of the unintended -- yet very harmful -- consequences of well-meaning but counter-productive legislation. Massachusetts' joint Judiciary Committee understands the issue, as it recently filed House Bill 5004, which would reduce the size of school zones and eliminate the mandatory minimum sentence for first time offenders. We strongly support these Committee proposals, which would protect public safety while ensuring fair and proportionate sentences," said Barbara J. Dougan, director of the Massachusetts FAMM project. "Reform of drug and drug-free zone laws could save the state millions in corrections costs and reduce the human and fiscal waste of mandatory minimum drug sentences," said Dougan. "FAMM welcomes the opportunity to work with the Patrick Administration and legislators to this end."
Massachusetts' drug-free zone laws require a two-year mandatory minimum sentence for those convicted of distributing or possessing with intent to sell drugs within 1,000 feet of school property, or 100 feet of parks or playgrounds. The report shows that 1,000 foot zones are so large that most drug activity within them has nothing to do with children. When an entire urban area becomes a drug-free zone, the law has no deterrent effect. Instead, it punishes drug offenses occurring in urban areas more harshly than the same crimes committed in rural or suburban communities.
"The report illustrates the shameful racial disparities that result from drug-free zone laws. People of color are hit hardest. Urban residents are five times more likely to be subject to these laws. According to the Massachusetts Sentencing Commission, a staggering 81 percent of those convicted of zone violations were African-American or Latino," said Dougan.
We are thrilled to be guest blogging at Sentencing Law & Policy during Doug Berman's great two-week vacation and voyage out to sea. We are criminal defense attorneys at the firm of Proskauer Rose. We share a special interest in the world of sentencing, both as defense lawyers and as commentators. We are also great fans of the criminal law blogosphere, which unites academics, practitioners, politicians, jurists, and others interested in the field of criminal law and policy and encourages them to share their insight and experience.
Our hope as guest bloggers is to help narrow the gap between the law and policy of sentencing on the one hand, and the community of practicing attorneys on the other. In this role, we will continue to deliver the latest sentencing news, as well as provide some perspective into sentencing from the viewpoint of practitioners. As part of this effort, we plan to host a column dedicated to exploring the views from the field, with the hope of sparking meaningful debate among our fellow practitioners. This blog relies on your loyal readership and thoughtful comments. Please send any suggestions to Mark, Matt, Anna, or Jenn at the e-mail addresses listed below. We look forward to hearing your thoughts on the many important sentencing issues to come.
Mark D. Harris (firstname.lastname@example.org)
Matthew S. Queler (email@example.com)
Anna G. Kaminska (firstname.lastname@example.org)
Jennifer O'Brien (email@example.com)
The views expressed in this blog are those of the authors alone and do not necessarily reflect the views of Proskauer Rose LLP.
Sunday, July 27, 2008
2008 Holiday road....
I am about to make like Clark Griswold and head out on the road (and on the sea) for a few weeks. I expect (should I say fear?) that I will not have an ability to be consistently on-line and bloggy during my sojourn. Though I surely won't be able to stay away from the computer the whole time, I may just try to go cold-turkey on blogging in this space for my two weeks away.
Joyfully, I can report that a terrific group of lawyers from Proskauer Rose (with whom I worked pro bono on this amicus brief in the Sixth Circuit en banc case involving acquitted conduct) have agreed to keep this blog warm while I am away. Proskauer partner Mark Harris had the good sense to urge me to take a blogging hiatus while on the road, and he sensibly suggested that a group of sentencing practitioners could provide a valuable perspective on the usual sentencing subjects and suspects while I am away.
I believe the Proskauer team will start their guest blogging tomorrow, and I am already looking forward to seeing how they make use of this space.