News You Can Use: SCOTUS grants cert in Haymond — why that might matter to your clients facing revocation of supervised release in the Tenth Circuit

The Supreme Court has granted certiorari in United States v. Haymond, in which the Tenth Circuit struck down as unconstitutional 18 U.S.C. § 3583(k)’s provision requiring a mandatory minimum of five years of imprisonment following revocation of supervised release based on certain sex crimes.

Generally, a defendant faces a supervised release term of no more than 5 years, and upon revocation for a violation, a term of imprisonment of no more than 5 years. That’s where the underlying offense of conviction is a class A felony. The potential penalties are progressively less severe for less serious offenses.

However, 18 U.S.C. § 3583(k) carves out a special, and especially extreme, exception for certain sex offenses and revocations based on the commission of new sex offenses—a supervised release term of 5 years to life, and upon revocation, a term of imprisonment of 5 years to life. So, what is usually the ceiling (a 5-year max for class A felonies) becomes the floor (a mandatory minimum of 5 years for certain sex offenses).

In Haymond, the Tenth Circuit held that the mandatory minimum of five years of imprisonment is unconstitutional because it changes the mandatory sentencing range based on a court’s finding by a preponderance of the evidence, instead of a jury’s finding beyond a reasonable doubt.

In so holding, the Court primarily relied on a trio of Supreme Court cases: (1) Apprendi, which held that any fact that increases the stat max must be submitted to a jury and proven beyond a reasonable doubt; (2) Alleyne, which applied Apprendi to mandatory minimums; and (3) Booker, which extended the substance of these 6th Amendment principals to the sentencing context.

The government petitioned for certiorari, and the Supreme Court granted it, even though the Tenth Circuit is the only court to have even considered the issue (so, no circuit split; the government’s pitch was error correction on a “significant and recurring question of federal law”), and § 3583(k) does not appear to be a frequently invoked statute. That might not bode well for Haymond’s survival.

Takeaway: If you have a client facing revocation based on § 3583(k), or want to make an argument based on an extension of Haymond, move quickly. Do not let the government stay the proceedings pending resolution of Haymond in the Supreme Court. See Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court’s decision as binding authority . . . .”).

 

News You Can Use: 2018 Amendments to the Sentencing Guidelines, Effective 11/1/2018

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).

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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.

 

 

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.

 Takeaways:

 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.

Takeaways:

  • 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.