News You Can Use: Tenth Circuit Rules It’s Plain Error to Impose Upward Variance Based on State/Federal Sentencing Disparity

In United States v. Beaver, No. 17-2151, the Tenth Circuit issued an unpublished decision holding the district court plainly erred by imposing an upward variance based, in part, on its view that a Guidelines sentence would have created disparities between the defendant’s sentence and the sentences imposed in state court for the same conduct.

The defendant drove drunk and had an accident resulting in the death of two passengers. The defendant was prosecuted in federal court because the accident occurred in Indian country and because Mr. Beaver is an enrolled member of the Navajo Nation. He pleaded guilty to two counts of involuntary manslaughter, and his Guidelines range was 41 to 51 months’ imprisonment.

The Government argued for an upward variance to a 120-month sentence. The defense argued that Mr. Beaver’s sentence should be capped at 48 months because the maximum sentence for involuntary manslaughter in New Mexico (the state where the crime occurred) is 48 months, and Mr. Beaver should not receive a longer sentence simply because he is a Native American. The Government’s reply, however, turned this argument back against the defense–pointing out that New Mexico has a specific statute for Homicide by Vehicle, which has a minimum sentence of 48 months and a maximum sentence of 456 months. Further, at the sentencing hearing, the Government argued that a Guidelines sentence would amount to disparate treatment in favor of the defendant.

The district court accepted the Government’s reasoning and varied upward to 120 months’ based, in part, on its perception that a Guidelines sentence would be significantly lower than Mr. Beaver would have received in state court.

The Tenth Circuit held that this was plainly erroneous. First, even though it was the defense that first raised state/federal disparity, the Court rejected the Government’s argument that the defense invited the error; the defense hadn’t asked for a longer sentence on the ground of state/federal disparity and, therefore, hadn’t invited this particular error. Second, even though the defense had argued for a lower sentence, it hadn’t preserved the particular argument it was making on appeal (that sentencing courts can’t consider state/federal disparity), so that argument could be reviewed only for plain error. Third, the district court’s sentencing decision was plainly erroneous because, under prior precedent, United States v. Wiseman, 749 F.3d 1191 (10th Cir. 2014), courts may only consider the need to avoid disparities among similarly situated federal defendants and may not consider disparities between state defendants and federal defendants.


 1) The sentencing judge isn’t allowed to increase or decrease a sentence to make it conform with sentences for similar offenses in state court.

 2) Double-check your sentencing disparity arguments to ensure that they can’t backfire, as the defense’s argument did in this case.

 3) On appeal, you may be able to defeat the Government’s claim of invited error by arguing that, though the defense invited the district court to commit the same type of error in arguing for a lower sentence, the defense didn’t argue for a higher sentence on those grounds.



News You Can Use: Tenth Circuit Rules It’s Plain Error to Fail to Group Bank Robbery and Felon in Possession Convictions under USSG §§ 3D1.1-1.5.

In United States v. Rafal, No. 17-4107, 2018 WL 4275865 (10th Cir. Sept. 7, 2018), the Tenth Circuit, on plain error, vacated a sentence where the district court failed to group bank robbery and felon in possession of a firearm convictions under U.S.S.G. §§ 3D1.1-1.5, the Guidelines for determining a single offense level that encompasses all the counts of conviction.

Facts:  Mr. Rafal robbed a bank and had a gun with him when he was arrested minutes later.  He pleaded guilty to one count of bank robbery and one count of being a felon in possession of a firearm.  The PSR did not group his two counts of conviction under U.S.S.G. §§ 3D1.1-1.5.

Instead, in calculating the offense level for the bank robbery, the probation officer applied a base level offense of 20 and then added five more levels because “a firearm was brandished or possessed” during the robbery.  See U.S.S.G. §2B3.1(a) and 2B3.1(b)(2)(C) respectively.

Then, in calculating a total, combined offense level for the two counts, the probation officer erroneously added 1 level for the felon in possession conviction as a “multiple-count adjustment,” pursuant to U.S.S.G. § 3D1.4.  Defense counsel didn’t object, and the district court judge didn’t catch the error either.  When sentencing Mr. Rafal, the district court adopted the probation department’s miscalculation.  The circuit vacated Mr. Rafal’s sentence and remanded his case for resentencing.

Issue:  Was it plain error to fail to group bank robbery and felon in possession convictions under U.S.S.G. §§ 3D1.1-1.5? 

Holding:  Yes, said the Tenth Circuit, “because the felon-in-possession-of-a-firearm count embodies conduct that was treated as a specific offense characteristic of the bank-robbery count.” Op. at 6. 

Takeaways:  This case is unpublished, but it serves as a good reminder: read the Guidelines! No one — not the probation officer, not defense counsel, and not the district court — noticed a plain Guidelines error that was clear and obvious based on the text of the Guidelines alone.  Application note 5 of § 3D1.2 specifically states “use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection.” 


News You Can Use: Tenth Circuit issues first published decision on USSG § 2D1.1(b)(12) — the enhancement for maintaining a premises for drug distribution

In United States v. Murphy, No. 17-5118 (10th Cir. Aug. 24, 2018) the Tenth Circuit issued its first-ever published opinion on U.S.S.G. § 2D1.1(b)(12), the guideline adjustment for maintaining a premises for purposes of drug distribution.  Although the circuit affirmed the application of the adjustment, it made some useful law on how the adjustment applies when the premises at issue is the defendant’s own residence.  

Section 2D1.1(b)(12) provides for a two-level increase if “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.”   The commentary adds that while drug activity need not be the “sole purpose” of the premises, it must be a one of the “primary or principal uses” of the premises and not an “incidental or collateral” use.  § 2D1.1 cmt. n.17. 

In many cases, like this one, the premises at issue is the defendant’s own home.  And that situation raises the question of what it means for drug activity to be a “primary” use of a premises that is constantly used for legitimate activities too?  Mr. Murphy argued that drug activity must be “pervasive and persistent” to qualify for the adjustment.  Op. at 8.  The court rejected that test but ultimately adopted a very similar one: drug activity “must not only be frequent but also substantial.”  Op. at 10.

The court also set out a number of factors to consider: “(1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture.”

Takeaway: Mr. Murphy lost under this test because the evidence suggested that he had used his home to sell drugs for a long time.  But in general, this test should be hard to meet, and in most cases you can challenge the enhancement.


News You Can Use: 10th Circuit Says Garnishment Allowed When Restitution Is “Due Immediately” – United States v. Williams

Check out United States v. Williams, where the Tenth Circuit recently held that a restitution order specifying that restitution is “due immediately” creates an immediately enforceable obligation to pay the full restitution amount, even though the Schedule of Payments also provides for smaller, periodic payments.

Background: The Internal Revenue Service investigated defendant Ricky Williams for tax fraud. The investigation resulted in USAA Savings Bank freezing an account in defendant’s name, which contained funds related to the fraud. Mr. Williams pleaded guilty to one count of tax fraud and was ordered to pay $240,361 in restitution to the IRS, with a $100 special assessment, for a total liability of $240,461. 

The Mandatory Victims Restitution Act (MVRA) provides that “[a] restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.”  18 U.S.C. § 3664(f)(3)(A).  Here, the Schedule of Payments required restitution as follows:

A. Lump sum payment of $240,461.00 ($240,361.00/restitution; $100.00/special assessment) due immediately, balance due . . . in accordance with . . . F below . . . .

F. Special instructions regarding the payment of criminal monetary penalties:

If restitution is not paid immediately, the defendant shall make payments of 10% of the defendant’s quarterly earnings during the term of imprisonment; and If restitution is not paid in full at the time of release from confinement, the defendant shall make payments the greater of $100.00 per month or not less than 10% of the defendant’s gross monthly income, as directed by the probation officer . . . .

Slip op. at 3.

A few months after Mr. Williams was sentenced, while he was in prison, the government applied for a post-judgment writ of garnishment against one of his bank accounts, in order to collect the restitution owed.  The district court held that the entire amount was immediately due, per Section A of the Schedule of Payments, and that Section F served as a back-up schedule for the payment of whatever amounts were not paid under Provision A.  After the trial court granted the application for a writ of garnishment, Mr. Williams appealed, representing himself pro se.

Issue: Was the government permitted to immediately collect the full restitution amount (as provided in section A), or was it limited to 10% of Mr. Williams’ quarterly earnings during his term of imprisonment (as provided in section F)?

Holding: In an opinion by Judge McKay, joined by Judges Phillips and O’Brien, the Tenth Circuit affirmed.  Its decision was driven by the doctrine requiring “deference to the district court’s interpretation of its own order,” so long as it is reasonable.  Slip op. at 5 (quoting Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 863, 872 (10th Cir. 2018)).  Concluding that the district court’s “interpretation of its own prior [restitution] order in this case [was] reasonable,” the Tenth Circuit held that the full amount of restitution was due immediately.


  • Remember that the MVRA allows restitution to be paid in a lump-sum amount, according to a specified schedule, through in-kind payments, or a combination of scheduled and in-kind payments.  See 18 U.S.C. § 3664(f)(3)(A).  If restitution is on the table, consider whether you want to advance arguments about the appropriate manner of payment.
  • If the Schedule of Payments says that X amount of restitution is “due immediately,” then your client may be on the hook for that entire amount as soon as he is sentenced—even if the Schedule of Payments also seems to provide for smaller, periodic payments.
  • To avoid any confusion, make sure that you, the government, and the judge are all on the same page with what restitution is due when.  If the order is ambiguous, the judge’s interpretation (if reasonable) will probably control.



News You Can Use: NACDL Releases “Trial Penalty” Report

After two years of research and study, the National Association of Criminal Defense Lawyers (NACDL) has released an important new report– The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It.

The “trial penalty” refers to the significant delta between the sentence offered prior to trial versus the sentence a defendant receives after trial. There are some staggering, but not surprising, statistics in this Report: “in recent years fewer than 3% of federal criminal defendants chose to take advantage of one of the most crucial constitutional rights.” The Report identifies and exposes the underlying causes of the decline of the federal criminal trial. 

Here’s an excerpt:

“Criminal defense lawyers have long known that trials are vanishing. This is an unacceptable development, and not just because the art of trying a case is atrophying. The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present. And on a human level, for the defense attorney there is no more heartwrenching task that explaining to client who very likely may be innocent that they must seriously consider pleading guilty or risk the utter devastation of the remainder of their life with incalculable impacts on family. This Report documents the corrosive effect of the trial penalty on the system of criminal justice. It examines the relationship between the trial penalty and numerous characteristics of modern criminal justice including virtually unfettered prosecutorial charging discretion, mandatory minimum sentencing statutes, and the federal Sentencing Guidelines. The Report highlights specific cases to demonstrate that individuals are being punished simply for holding the government to its burden of proof and, in some cases, that the trial penalty has coerced innocent individuals, later exonerated, to plead guilty for fear of devastating long posttrial sentences.”

Check out the whole thing here: NACDL Trial Penalty Report FINAL


News You Can Use: Currier v. Virginia – the latest from SCOTUS on Double Jeopardy

If you agree to severance of charges, you can’t invoke Double Jeopardy to stop the second trial from happening.

Facts: After an empty gun safe was found in a river, Michael Currier was charged with burglary, grand larceny, and felon-in-possession. To avoid prejudice from evidence of his felony coming in, Mr. Currier agreed to sever the counts: the burglary and grand larceny charges would be tried first, followed by a trial on the felon-in-possession charge. After Mr. Currier was acquitted at the first trial, he argued that holding the second trial would amount to Double Jeopardy because any felon-in-possession conviction would necessarily depend on issues found in his favor in the first trial: If he hadn’t stolen the guns from the safe, how could he have possessed them?

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of acquittal.

Holding: By consenting to severance of charges, Mr. Currier consented to the second trial and waived any right to invoke Double Jeopardy against it. As the majority reasoned, “the ‘prosecutorial or judicial overreaching’ forbidden by the Constitution” is not a concern “when a second trial follows” thanks to the defendant’s voluntary act. Slip op. at 7 (quoting United States v. Scott, 437 U.S. 82, 96, 99 (1978)).

Of Note: Justice Gorsuch’s majority opinion casts shade at the idea that the relitigation of a particular issue (e.g., whether Mr. Currier took guns from the safe) can ever support a claim of double jeopardy. That rule comes from a 1970 decision called Ashe v. Swenson, 397 U.S. 436 (1970), which held that the government violated the Double Jeopardy Clause by prosecuting the robbery of six poker players one victim at a time. As the Currier majority observes, “[s]ome have argued that [Ashe] sits uneasily with this Court’s double jeopardy precedent and the Constitution’s original meaning.” Slip op. at 4. With Kennedy off the Court, Ashe’s days may be numbered.

Takeaway: If you are thinking about requesting or consenting to severance of charges, consider the potential impact on any Double Jeopardy claims you may have down the line.

Further reading: To get further in the weeds of Double Jeopardy doctrine (it’s complicated!), check out the opinion analysis from SCOTUSblog

Currier v. Virginia


News You Can Use: Carpenter v. United States – the latest from SCOTUS on 4th Amendment Protections for Cellphone Data

Carpenter v. US

When you use a cell phone you leave a footprint of your location. To send and receive information, cell phones connect to the cell tower that is geographically closest. The connection leaves an approximate map of where you are and where you were. This information is collected and stored by private cell phone carriers and often sold to private parties for market research. In Carpenter, the Supreme Court held that police will generally need a warrant to obtain this cell-site location information (CSLI).


Timothy Carpenter was sentenced to nearly 116 years’ imprisonment for several armed robberies of Radio Shack and T-Mobile stores. The government’s case hinged on the cell phone records which placed Mr. Carpenter in the vicinity of the robberies at the time of the crimes. The government obtained these records after receiving an order from a magistrate judge compelling disclosure. In order to receive the order from the magistrate judge, the government had to provide “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This standard falls far short of the probable-cause standard demanded for the issuance of a warrant.

Before trial, Mr. Carpenter move to suppress the CSLI records arguing that they were obtained without a warrant. The district court denied the motion and the Sixth Circuit Court of Appeals affirmed.


Writing for the majority, Justice Robert observed that the issue fell in the middle of two seemingly incompatible lines of caselaw. The first line involves the “reasonable expectation of privacy” standard. The Court has held that “when an individual seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable . . . that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.”

The second line of cases concerns what has been deemed the “third-party doctrine.” “A person has no legitimate expectation of privacy in information if he voluntarily turns it over to third parties.” In Carpenter, the question was whether such private data gleamed from cells phone could be subject to Fourth Amendment protections despite it being collected by a third-party. The Court held that it could.

The Court premised its holding on the fact that cell-site record are “qualitatively different” from the type of records historically subject to the third-party doctrine. CSLI offers “a detailed and comprehensive record of the person’s movement” and “hold[s] for many Americans the ‘privacies of life.’” CLSI provides “a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.” Thus, “the fact that the information it is held by a third party does not by itself overcomes the user’s claim to Fourth Amendment protection.”

Thus any access of the record “invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.” In other words, there can still be a Fourth amendment violation even if the information was handed over to a third party. “Whether the Government employs its own surveillance technology . . . or leverages the technology of a wireless carrier. . . an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”

The Court also downplayed the notion that the information was voluntarily provided to the third-party. “Cell phone location information is not truly ‘shared’ as one normally understands the term. In the first place, cell phones and the services they provide are such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.” Accordingly, “in no meaningful sense does the user voluntarily assume the risk of turning over a comprehensive dossier of his physical movements.”


Justice Thomas dissented because he believes the Court should do away with the reasonable- expectation-of-privacy test.

Justice Alito dissented on the grounds that the Fourth Amendment does not apply to documents such as bank records or, in this case, cell phone data.

Finally, and most interestingly, Justice Gorsuch dissented because he would do away with both the third-party doctrine and the reasonable-expectation-of-privacy test and instead adhere to a test that determined whether someone had a “property interest” in the record. But Gorsuch noted that such an argument was not made in Carpenter and could not be decided on the record as it existed.


Carpenter is a narrow decision.  It expressly leaves open whether police would need a warrant to obtain “real-time CSLI” (same-time tracking) or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).”


  • Carpenter overrules United States v. Thompson, 866 F.3d 1149 (10th Cir. 2017) (holding that the third-party doctrine prevented a finding that the cell phone records were protected by the Fourth Amendment).
  • Carpenter chips away at the third-party doctrine in that it makes clear that “[o]ne does not surrender all Fourth Amendment protection by venturing into the public sphere.”
  • Always object to the introduction of CSLI obtained without a warrant