The 2018 Amendment to the Sentencing Guidelines go into effect on November 1, 2018. The National Sentencing Resource Counsel Project has prepared a helpful summary of the changes and also included relevant practice tips (noted as “Defender comments”). The SRC memo is available here: SRC Summary of 2018 Amendments to the Sentencing Guidelines.
Notable changes include amendments to:
(1) the drug guidelines for synthetic drugs, namely cathinones, cannabinoids, and fentanyl analogues;
(2) the illegal reentry guideline;
(3) the acceptance of responsibility guideline (now adding language to clarify that unsuccessful challenges to relevant conduct should not bar application of the acceptance reduction);
(4) the Commentary to §5C1.1 (now directing that courts “should consider imposing a sentence other than” imprisonment for nonviolent first offenders falling in Zones A and B);
(5) the Commentary to §4A1.3 (now providing a non-exhaustive list of factors a court may consider in determining whether and to what extent to depart upward based on tribal court convictions);
(6) the fraud guideline (now adding the 20th specific offense characteristic to §2B1.1 for defendants convicted of certain forms of social security fraud).
Please make sure to look at the actual language of the Amendments on the Commission’s website. And, recall that, for amendments that hurt defendants, ex post facto limitations apply, and the Guidelines Manual in effect on the date of the offense of conviction should apply if beneficial.
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.
If you think implicit bias in the courtroom may be at issue in your next federal trial, consider filing a motion, asking the court for permission to do the following:
(1) Use a case-specific juror questionnaire that includes questions geared towards uncovering racial prejudice and implicit bias;
(2) Play this Western District of Washington juror orientation video on implicit bias to potential jurors;
(3) Give a preliminary instruction to potential jurors about implicit bias (also based on the W.D. Wash. materials); and
(4) Permit 30 minutes of attorney-led voir dire, including questions based on the What Would You Do?
To learn more, check out these law review articles on implicit bias in the courts.
Unraveling Knot of Implicit Bias in Jury Selection (implicit bias)
Implicit Bias in the Courtroom (implicit bias)
215 Motion for case-specific jury questionnaire (implicit bias)
For our criminal clients with civil issues, check this out:
The Colorado Bar Association opened a federal civil pro se clinic at the end of June.
The clinic will provide assistance to litigants with federal civil cases involving civil rights, labor and employment law, contracts, personal injury, and other areas of federal and state law.
Examples of the clinic’s services include:
- Legal advice and counseling
- Assisting litigants with formulating claims prior to filing
- Interpreting and explaining rules and procedures
- Reviewing and explaining motions and court orders
- Assisting with pleadings and correspondence
One caveat: the clinic will not provide in court representation.
This clinic is located at the Alfred Arraj Courthouse (first floor) and appointments can be made here: http://www.cobar.org/cofederalproseclinic or at 303-380-8786. Walk-ins are also allowed.
The Tenth Circuit publishes a daily email summarizing the criminal decisions, both published and unpublished, in the Tenth Circuit each day. To receive a daily email with Tenth Circuit cases, just contact Gregory Townsend Research and Reference Librarian at the Tenth Circuit, U.S. Courts Library, Albuquerque Branch, and ask to subscribe.