united states sentencing commission - robert … · on behalf of the united states sentencing...

UNITED STATES SENTENCING COMMISSION

Federal Sentencing Guidelines Training

July 11, 2013 Pittsburgh, Pennsylvania

COMMISSION FACULTY: Kealin Culbreath

Bobby Evans

UNITED STATES SENTENCING COMMISSION One Columbus Circle, NE Suite 2-500 South Lobby

Washington, DC 20002-8002

Office of Education and Sentencing Practice 202-502-4540

202-502-4599 (Fax)

MEMORANDUM

TO: All Seminar Participants

FROM: Pamela Montgomery, Director & Chief Counsel Office of Education & Sentencing Practice

RE: Federal Sentencing Guidelines Seminar

On behalf of the United States Sentencing Commission, I would like to welcome you to this seminar on the Federal Sentencing Guidelines. We appreciate you taking time out of your busy schedule to participate in this training session and to enhance your knowledge of federal sentencing issues.

Your ideas and opinions are important to us. Please feel free to contact the Commission concerning your interests or call 202-502-4545 and submit your inquiries to the Help-Line, a service that is provided to answer your questions on federal sentencing issues.

If I may be of any further assistance to you, please call me at 202-502-4540.

Thank you.

7/2/2013

Federal Sentencing

Western District of Pennsylvania Pittsburgh, PA

Thursday, July 11, 2013

Kcalin Culbreath, Esq. Senior Specialist, Office of Education and Sentencing Practice USSC

Bobby Evans Senior Specialist, Office ofEclucation and Sentencing Practice USSC

U.S. Sentencing Commission

U.S S.C.

Website www.usse.gov

HelpLine 202-502-4545

2

Discussion Outline

• Commission update — Commission activities

— Sentencing statistics

— Amendments

— Selected appellate cases

• Selected guideline topics — Categorical Approach

— Imposition and Revocation of Supervised Release

• Q&A 3

Commission Reports to Congress

• Report on the Continuing Impact of U.S. v. Booker on Federal Sentencing, submitted January 30, 2013

• Federal Child Pornography Offenses, submitted February 27, 2013

Visit www.ussc.gov to view a recorded webcast discussion on these reports:

"USSC Update: Recent Congressional Reports"

4

Planned Symposium and "Roundtable"

• Commission symposium on economic crimes — Fall 2013, New York

• Commission staff "Roundtable" on recidivism — Fall 2013

5

Highlights of Proposed Guideline Amendments Submitted to Congress

To Become Effective November 1, 2013 Unless Rejected by Legislation

For all the 2013 amendments go to the Commission website ("Legal" icon) to see the

"Reader-Friendly" Version of 2013 Amendments Submitted to Congress

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7/2/2013

§3E1.1(b) — Acceptance of Responsibility

Addressing "Circuit Splits"

• The government's discretion to withhold the motion for the third level of Acceptance

• The court's discretion to deny the third level of Acceptance when the government has made the motion

The Government's Discretion to Withhold the Motion for the Third Level of Acceptance

§3E1.1(b), App. Note 6

• The government should not withhold the motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his/her right to appeal

The Court's Discretion to Deny the Third Level of Acceptance When the

Government Has Made the Motion

§3E1.1(b) • The sentencing court will decide whether to grant

the government's motion by also determining that the defendant's notification to plead guilty was timely and thereby — permitted the government to avoid preparing for trial

and — permitted the government and the court to allocate

their resources efficiently 9

§2T1.1 — Tax Addressing "Circuit Split"

§2T1.1, New App. Note 3

• In determining tax loss the court should account for — Standard deductions and personal and dependent

exemptions to which the defendant was entitled

— Any unclaimed credit, deduction, or exemption needed to ensure a reasonable estimate of tax loss, but only within the limitations outlined in the new application note

10

Consecutive/Concurrent Sentences for State Sentences Not Yet Imposed

§5G1.3 Background Commentary Regarding Setser v. United States, 132 S. Ct. 1443 (2012)

• In addition to the discretion under 18 USC § 3584, federal courts generally have discretion under Setser to impose sentences to run concurrently or consecutively with state sentences that are anticipated but not yet imposed

Commission Sentencing Statistics

12

2

Primary Offense Types

National - FY 2012

Immigration 32.2%

SOURCE: U.S. to.oci g Com on, 2012 Data 61e USSCFY12; 84,133 coscs 13

Primary Offense Types

Western District of Pennsylvania - FY 2012

Child Porn 0.4%

mmigration 5.4%

Mita Collar TB%

SOURCE U.S. Sonlonting Commission, 2012 DatsSIo USSCFY17, 514.....

Position of Sentences in Relation to Guideline Range National - FY 2012

Total Below Guideline Range 45.6%

I Within Guideline

i Range 152,4%

Above Guideline

Range 2.0% SOURCE U.S. Sentoncing Commission, 20120.00k USSCFY12: 82,674 of 84,173 casos

Position of Sentences in Relation to Guideline Range Western District of Pennsylvania - FY 2012

■ Total Below Guideline Range 45.3%

■

Above Guidelin

Range 1.1%

Within Guideline Range 53.7%

16

SOURCE U.S. Suite:icing Commission, 2012E1141e USSCFY174 514 cos.

7/2/2013

Supreme Court Cases

17

Ex Post Facto

U.S. v. Peugh, 2013 WL 2459523 (U.S. 2012)

• There is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.

18

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Mandatory Minimums

Alleyne v. US. 2013 WL 2922116 (U.S. 2013)

• Any fact that increases a mandatory minimum sentence for crime is an "element" of the crime, not a "sentencing factor," that must be submitted to a jury; overruling Harris v. US, 536 U.S. 545 (2002)

• Finding as to whether defendant brandished a gun is an element of the offense and must be submitted to the jury

19

ACCA and Modified Categorical Approach

Descamps v. US. 2013 WL 3064407 (U.S. 2013)

• Courts may not apply the modified categorical approach to sentencing under ACCA when the crime of which the defendant was convicted has a single, indivisible set of elements.

• Defendant's prior burglary conviction under California law was not for a violent felony within the meaning of ACCA.

20

Reasonableness Review

21

Procedural Reasonableness and Substantive Reasonableness

• Sentences are first reviewed for procedural reasonableness, e.g., — Correct guideline application

— Proper consideration of the § 3553(a) factors — The guidelines were not treated as mandatory

— All non-frivolous arguments by the parties were addressed

— No clearly erroneous facts were relied upon

— The chosen sentence was adequately explained

Procedural Reasonableness and Substantive Reasonableness (cont.)

• Ifprocedural reasonableness has been met, then sentences are reviewed for substantive reasonableness

— In reviewing for substantive reasonableness, "the appellate court will take into account the totality of the circumstances, including the extent of any variance from the Guidelines range"

- Gall 23

Appellate Cases Regarding Departures and Variances

24

4

712/2013

Examples of Below Guideline Sentences Remanded

3rd Circuit

• US. v. Fumo, 655 F.3d 288 (3d Cir. 2011) — Fraud

• US . v. Negroni, 638 F.3d 434 (3d Cir. 2011) — Fraud

• U.S. v. Hayes, 383 F. App'x 204 (3d Cir. 2010) — Possession of child porn

• US. v. Lychock, 578 F.3d 214 (3d Cir. 2009) — Possession of child porn

• US. v. Levinson, 543 F.3d 190 (3d Cir 2008) — Fraud case

• US. v. Olhovsky, 562 F.3d 530 (3d Cir. 2009)*** — Possession of child porn

• US. v. Merced, 603 F.3d 203 (3d Cir. 2010) 25 — Crack and career offender

Examples of Below Guideline Sentences Affirmed 3rd Circuit

• US. v. Tom/so, 562 F.3d 558 (3d Cir. 2009)(en bane) — Tax evasion

• US. v. Howe, 543 F.3d 128 (3d Cir. 2008) — Wire fraud

26

Examples of Above Guideline Sentences Affirmed 3rd Circuit

• U.S. v. Korbe, 2011 WL 5838969 (3d Cir. 2011)

— Drug and firearms

• U.S. v. Siddons, 660 F.3d 699 (3d Cir. 2011)

— Fraud

• U.S. v. Freeman, 435 F. App'x 99 (3d Cir. 2011)

— Drug trafficking

• US. v. Cuebas, 415 F. App'x 390 (3d Cir. 2011)

— Carjacking

27

Examples of Above Guideline Sentences Affirmed 3rd Circuit

• U.S. v. Larkin, 629 F.3d 177 (3d Cir. 2010)

— Production of child porn

• US. v. Villaman-Puerta, 413 F. App'x 546 (3d Cir. 2011)

— Illegal reentry

• U.S v. Hopson, 412 F. App'x 532 (3d Cir. 2011)


• U.S. v. Sweger, 413 F. App'x 451 (3d Cir. 2011)


20

Examples of Above Guideline Sentences Remanded 3rd Circuit

• US. v. Berry, 553 F.3d 273 (3d Cir. 2009)

— Robbery

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END

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The Categorical Approach

The Process for Determining If a Conviction Meets the Criteria of a Certain

Category of Offenses

6/20/13 31

Discussion Outline

• What are the categorical approach?

• Supreme Court cases on the categorical approach

• Statutes and guidelines most commonly requiring use of the categorical approach

• Step-by-step analysis in the categorical approach

• Scenario demonstrating the analysis in the categorical approach

32

The Categorical Approach

The process for determining if a prior conviction or the instant offense of

conviction meets the criteria of a certain category of offenses

Typically used for certain statutory enhancements or guideline applications

33

Key Supreme Court Cases Regarding the Categorical Approach

• Taylor v. United States, 495 U.S. 575 (1990)

• Shepard v. United States, 544 U.S. 13 (2005)

• James v. United States, 550 U.S. 192 (2007)

• Begay v. United States, 128 S. Ct. 1581 (2008) 34

Key Supreme Court Cases Regarding the Categorical Approach (cont.)

• United States v. Chambers, 129 S. Ct. 687 (2009)

• Johnson v. United States, 130 S. Ct. 1265 (2010)

• Sykes v. United States, 131 S. Ct. 2267 (2011)

• Descamps v. United States, 2013 WL 3064407 (U.S. 2013)

35

Challenges of the Categorical Approach

US. v. Aguila-Montes de Oca

655 F.3d 915 (9th Cir. 2011)

"In the twenty years since Taylor, we have struggled to understand the contours of the

Supreme Court's framework. Indeed, over the past decade, perhaps no other area of the law

has demanded more of our resources."

36

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Examples of Statutes Where the Categorical Approach Is Used

• 18 USC § 924(e) (Armed Career Criminal Act: ACA)

• 18 USC § 924(c) (use, carry, possession of firearm in crime of violence or drug trafficking)

• 18 USC § 16 (used for "aggravated felony" determination for illegal entry) 37

Examples of Guidelines Where the Categorical Approach Is Used

• §2K2.1 (Firearms)

• §2L1.2 (Immigration - Illegal Entry)

• §§4B1.1 & 4131.2 (Career Offender)

38

Limited Considerations in the Categorical Approach

James v. US., 1278. Ct. 1586, 1593-94(2007)

"Under [the categorical approach], we look only to the fact of conviction and the statutory

definition of the prior offense, and do not generally consider the particular facts disclosed

by the record of conviction...."

Limited Considerations in the Categorical Approach (cont.)

James v. U.S., 127 S. Ct. 1586, 1593-94 (2007)

"....That is, we consider whether the elements of the offense are of the type that would justify

its inclusion within the [category at issue], without inquiring into the specific conduct of

this particular offender."

40

Analysis Used in the Categorical Approach

Step-by-Step

41

Step 1

Examine the Definition Under Consideration

42

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7/2/2013

Definitions Frequently Considered in the Categorical Approach

• "Violent felony" — Armed Career Criminal Act (ACCA)

(18 USC § 924(e))

• "Crime of violence" — Career Offender (§4B1.2)

• "Crime of violence" — Illegal Entry (2L1.2)

43

The Structure of a Definition of a Category of Offenses

Three Potential Sections Elements section

— List of the elements that will include an offense in the category

Enumerated section — List of offenses included in the category Residual clause section — "Otherwise involves conduct" section

— Describes conduct of an offense that will be included in the category 44

EXAMPLE: ACCA Definition for "Violent Felony"

18 USC § 924(e)(2)(B)

• ....has as an element the use, attempted use, or threatened use of physical force against the person of another, or

• is burglary, arson, or extortion, involves use of explosives, or

• otherwise involves conduct that presents a serious potential risk of physical injury to another....

45

EXAMPLE: Career Offender Guideline Definition for "Crime of Violence"

§4B1.2(a)

• has as an element the use, attempted use, or threatened use of physical force against the person of another, or

• is burglary of a dwelling, arson, or extortion, involves use of explosives, or

• otherwise involves conduct that presents a serious potential risk of physical injury to another

EXAMPLE: Career Offender Guideline Definition for "Crime of Violence" (cont.)

§4B1.2(a)(2), App. Note 1

• Note that the application note enumerates offenses in addition to those in §4B1.2(a)(2)

47

EXAMPLE: Illegal Entry Guideline Definition for "Crime of Violence"

§2L1.2

• means .... murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses..., statutory rape, sex abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or

• any other offense ....that has as an element the use, attempted use, or threatened use of physical force against the person of another

48

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Step 2

Determine the Statutory Offense of Conviction

49

Examine the Order of Conviction (Judgment)

• Determine if the offense of conviction is cited by

—A reference to the entire statute OR

—A reference to a specific subsection of a statute

50

Step 3

Examine the Statute of Conviction: The Categorical Approach

51

Examine the Statute of Conviction: The Categorical Approach

• When the judgment cites only the statute of conviction, examine only the statute of conviction

— Example: Defendant has prior conviction of State Statute § 301, Burglary: 1" Degree

— Determine if the elements of the statute meet the categorical definition

52

Example 1

State Statute § 301: Burglary —1st Degree

Burglary is the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a felony

53

Examine the Statute of Conviction: The Categorical Approach (cont.)

• When the judgment cites the subsection of the statute of conviction, examine only the subsection

— Example: Defendant has prior conviction of State Statute § 500(b): Burglary

— Determine if the elements of the subsection meet the categorical definition

54

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7/2/2013

Example 2

State Statute § 500: Burglary

Unlawful or unprivileged entry into, or remaining in, a dwelling house, building, structure or room, with intent to commit a felony

Unlawful or unprivileged entry into, or remaining in, a building or structure other than a dwelling, with intent to commit a felony

Unlawful or unprivileged entry into any automobile, truck, truck trailer, rail car, or vessel with intent to steal

Breaking into or forcibly opening any coin-operated or vending machine with intent to steal

55

Examine the Statute of Conviction: The Categorical Approach (cont.)

• If the statute has subsections, but the judgment only cites the statute and not the specific subsection of conviction, determine if ALL the subsections meet the categorical definition or if NONE of the subsections meet the categorical definition

56

Example 3

State Statute § 500: Burglary

Unlawful or unprivileged entry into, or remaining in, a dwelling house, building, structure or room, with intent to commit a felony

Unlawful or unprivileged entry into, or remaining in, a building or structure other than a dwelling, with intent to commit a felony Unlawful or unprivileged entry into any automobile, truck, truck trailer, rail car, or vessel with intent to steal

Breaking into or forcibly opening any coin-operated or vending machine with intent to steal

57

Pointer

• Do not rely solely on the title of the statute in deciding whether the offense meets the definition of a category of offenses

58

Step 4

The Use of Documents Beyond the Statute of Conviction:

The "Modified" Categorical Approach

59

The Modified Categorical Approach (cont.)

• If the judgment cites only to the statute of conviction and that statute can be violated in multiple ways, some of which satisfy the categorical definition and some do not, use the modified categorical approach to determine if the additional documents clarify the defendant's specific offense of conviction

65

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7/2/20 13

The Use of Documents Beyond the Statute of Conviction

• Documents can be used only if the statute for the offense of conviction alone does not establish whether the offense of conviction falls within the category in question

• When documents are used, only limited documents are allowed

61

Examples of Documents Allowed in the Modified Categorical Approach

• Charging document (e.g., indictment)

• Plea agreement

• Plea colloquy in which the defendant confirmed the factual basis for the plea

• Jury instructions

• Comparable judicial record

• Judicially-ruled documents 62

Examples of Documents Generally NOT Allowed

in the Modified Categorical Approach

• Police reports

• Presentence reports

• Rap sheets

• Complaints

63

Documents Not Allowed in the Modified Categorical Approach

• NOTE: The fact a document may not be allowed in the modified categorical approach does not necessarily preclude the use of that document in other aspects of guideline application or sentencing

• Example: The court can use a "rap sheet" to detennine the length of a prior sentence for purposes of determining criminal history points

60

Step 5

Analyze the Offense of Conviction to Determine If It Meets the Definition of

the Category of Offense

65

Analysis: Whether a Conviction Meets

the Elements Section of a Categorical Definition

66

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18 USC § 924(e)(2)(B)




67

Supreme Court Case Involving Elements Section of "Violent Felony"

Johnson v. Us., 130 S. Ct. 1265 (2010)

• Florida's battery conviction is not a violent felony under the "force" component because the statute did not require physical force of a violent nature

• "The term violent...connotes a substantial degree of force."

• Need force capable of causing physical pain or injury to another 66

Analysis: Whether a Conviction Meets

the Enumerated Section of a Categorical Definition

69


18 USC § 924(e)(2)(B)




70

Analysis: Enumerated Section (cont.)

• Requires a determination of whether the elements of the offense of conviction meet the definition for the enumerated offense

— The elements of the offense of conviction must meet the elements of the enumerated offense in its generic, contemporary definition

— It is not sufficient that the offense of conviction has the same title as an enumerated offense

71


• Generic form of burglary (based on Taylor): — Unlawful or unprivileged entry into, or remaining

in, a building or structure, with intent to commit a crime

• Illinois burglary: — Knowingly enters or without authority remains

within a building, house-trailer, watercraft, aircraft, motor vehicle, railroad car with intent to commit a felony or theft

72

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• Generic form of robbery:

— Property to be taken from a person or person's presence by means of force or putting in fear

• DC robbery:

— Whoever by force or violence, whether against resistance, or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value

73

Analysis: Whether a Conviction Meets the Residual Clause Section of a Categorical Definition

74


18 USC § 924(e)(2)(B)




75

Pointer Regarding the Residual Clause Section

• Requires a determination of whether the elements of the offense of conviction meet the conduct requirement

16

Recent Supreme Court Cases Involving the Residual Clause Section of the

Armed Career Criminal Act (ACCA) Definition of "Violent Felony"

Begay v. U.S.,128 S. Ct. 1581 (2008) Sykes v. U.S. 131 S. Ct. 2267 (2011)

77

Conducting an Analysis Under the Residual Clause

76

13

Reckless, Negligent, or Strict Liability Crimes

• If the offense has a mens rea requirement of reckless, negligent, or strict liability conduct, the court must determine both

1. Whether, based on the elements of the offense of conviction, the offense involves a serious potential risk of physical injury to another

AND 2. Whether the conduct was purposeful, violent, and

aggressive conduct (per Begay) 83

Reckless, Negligent, or Strict Liability Crimes (cont.)

• Under the requirement of purposeful, violent, and aggressive conduct — It is unlikely that a strict liability crime or a

negligent crime will meet the "purposeful" requirement

— It is questionable whether a reckless crime will meet the "purposeful" requirement

84

7/2/2013

Threshold Question: Mens Rea Requirement

The Statute's Requirement as to the Mental State of the Defendant in Committing the Offense

• Must first determine if the statute is one that is strict liability, negligent, reckless, or intentional conduct, because there are different tests based on whether the statute requires intentional conduct

79

Threshold Question: Mrens Rea Requirement (cont.)

The Statute's Requirement as to the Mental State of the Defendant in Committing the Offense

• If a statute has various sections, some for intentional conduct, some for non-intentional (such as negligent), the categorical approach must be used to determine which section of a statute the defendant was convicted of

RD

Intentional Crimes

• If the offense the offense of conviction has a mens rea requirement of intentional conduct, the court must determine only

— Whether, based on the elements of the offense of conviction, the offense involves a serious potential risk of physical injury to another

8 1

Intentional Crimes (cont.)

• To decide if the crime has a serious potential risk of physical injury to another, the court must determine if in the typical case the crime is roughly similar in kind and similar in degree of risk to the enumerated offenses (e.g., the ACCA lists burglary, arson, extortion, or use of explosives)

• Statistical information might be helpful (Chambers and Sykes) 82

14

7/2/2013

Examples Involving the Residual Clause Section of

"Violent Felony"

• Indiana felony vehicle flight which involved intentional fleeing is a "violent felony" (Sykes)

• New Mexico DUI, which is not intentional, and is not purposeful, violent and aggressive is not a "violent felony" (Begay)

as

Pointers Regarding the Analysis Used for the Residual Clause Section

(Pursuant to Sykes and Begay)

• The analysis in the determination of a violent offense under the residual clause section — Does NOT apply if the violent offense falls under the

elements section (the 'use of physical force" part of the definition)

— Does NOT apply if the violent offense falls under the enumerated section

86

Scenario

Demonstrating the Analysis in the Categorical Approach

Modified Categorical Approach

87

Reminder of Steps Used in the Analysis

1. Examine the definition under consideration

2. Determine the statutory offense of conviction

3. Examine the statute of conviction: The Categorical Approach

4. Use of documents beyond the statute of conviction: The Modified Categorical Approach

5. Analyze the offense of conviction to determine if it meets the category of offens%

Scenario

• Defendant is awaiting sentencing in federal court upon conviction for armed bank robbery (18 USC § 2113 (a)&(d))

• The determination is being made as to whether Defendant is a Career Offender (§§4B1.1 & 4B1.2)

• There are prior state convictions for: — Assault on a law enforcement officer; Violation § 999

— Causing injury to a child; Violation § 204

— Failure to stop for blue light; Violation § 714

89

Scenarios (cont.)

• Determine if each of the prior convictions meets the "crime of violence" definition for Career Offender (§§4B1.1 & 4B1.2)

90

15

Assault on a Law Enforcement Officer (cont.)

• The indictment and the written plea agreement both state that the defendant discharged a firearm, shooting the victim and causing bodily injury, when the victim identified himself as a law enforcement officer

94

Causing Injury to a Child

State Statute § 204

• Whoever

a. uses physical force against a child with intent to cause bodily injury, or

b. negligently places a child in an unsafe environment which results in the child suffering bodily injury

• is guilty of a felony third degree. 95

Causing Injury to a Child (cont.)

The indictment only cites the language of the statutory code, which includes both ways in which the statute can be violated, the date and location of the offense, and that the defendant's three year old child suffered bodily injury in a fall down an open stairwell

• Neither the plea agreement nor the plea colloquy confirm that the plea was to the offense of using physical force against the child

7/2/2013

Career Offender Guideline Definition for "Crime of Violence"

• §4B1.2(a)

• has as an element the use, attempted use, or threatened use of physical force against the person of another, or

• is burglary of a dwelling, arson, or extortion, involves use of explosives, or

• otherwise involves conduct that presents a serious potential risk of physical injury to another 91

Judgments

• The judgment for each of the three convictions only provides the name and code section of the statute of conviction:

— Assault on a law enforcement officer; Violation § 999

— Causing injury to a child; Violation § 204

— Failure to stop for blue light; Violation § 714 92

Assault on a Law Enforcement Officer


• Whoever uses physical force in a manner that causes bodily injury to an individual known to be a law enforcement officer is guilty of a felony third degree.

93

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7/2/2013

Causing Injury to a Child (cont.)

• The police report in the case states that the defendant's wife called the police when her husband in a fit of rage kicked the child down the open stairwell

97

Failure to Stop for Blue Light


• A driver of a motor vehicle who willfully fails to stop the vehicle upon notification by a blue light operated by an authorized law enforcement officer is guilty of a felony fourth degree.

98

Failure to Stop for Blue Light (cont.)

• The indictment only cites the language of the statutory code, and the date, highway and duration of the defendant failing to stop

• The plea agreement and the plea colloquy provide no more than the indictment

99

Failure to Stop for Blue Light (cont.)

• The police report in the case states that law enforcement officer with blue light in operation pursued the car driven by the defendant for 15 miles, at speeds up to 100 miles per hour, and that the defendant swerved his car into the law enforcement officer's car in an attempt to force the officer's car into a bridge abutment

100

Violent Felony (VF) in Armed Career Criminal Act (ACCA) Cases

Crime of Violence (COY) in §4B1.1 - Career Offender Cases

2/26/13 101

3rd Circuit VF & COV Cases

• U.S. v. Marrero, 677 F.3d 155 (3d Cir. 2012) — PA 3r 1 degree murder is a COV — PA simple assault which was intentional is a COV

• US. v. Mahone, 662 F.3d 651 (3d Cir. 2012) — PA making terroristic threats is a VF under modified

• U.S. v. Thomas, 435 F. App'x 117 (3d Cir. 2011) — PA resisting arrest is a COV

• US. v. Heilman, 377 F. App'x 157 (3d Cir 2010) — PA simple assault not a COV

• US. v. Forehand, 386 F. App'x 174 (3d Cir. 2010) — NJ terroristic threats is a VF — NJ aggravated assault is a VF

102

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3rd Circuit V1? & COY Cases (cont.)

• U.S. v. Johnson, 376 F. App'x 205 (3d Cir. 2010) — PA terroristic threats is not automatically a COY

• U.S. v. Johnson, 587 F.3d 203 (3d. Cir. 2009) — PA assault not automatic COY because reckless here

• U.S. v. Shatzer, 370 F. App'x 350 (3d Cir. 2010) — PA reckless endangering another person is not a COY

• U.S. v. Stinson, 592 F.3d 460 (3d Cir. 2010) — PA resisting arrest is a COV

• US. v. Polk, 577 F.3d 515 (3d Cir. 2009) — Fed possession of weapon in prison is not a COV

• US. v. McMiller, 376 F. App'x 199 (3d Cir. 2010) — GA false imprisonment is a COY

103

END

100

Violations & Revocations of Probation & Supervised Release

U.S. Code — Various Sections Fed. R. Crim. P. — Rule 32.1

Guidelines Manual — Chapter Seven Case Law

March 1,2013 105

Ex Post Facto and Supervision & Violations

• Controlling date for violation issues: the date of the original offense of conviction — Johnson v. United States, 529 U.S. 694 (2000),

resolved circuit split

• Date of the original offense of conviction also controls for other aspects of supervision, e.g.,

mandatory conditions and mandatory revocation 106

Mandatory Conditions of Supervision and Mandatory Revocation

§§ 3563(a), 3565(b), 3583(d) & (g), and Other Statutes for Specific Offenses

• Certain conditions statutorily required for probation and supervised release

— E.g., related to drug possession, drug testing, firearm possession

• Certain violations require mandatory revocation

• Note that some exemptions exist

— E.g., § 3583(d) regarding failed drug tests at § 3583(g)

Statutory Penalties for Probation and Supervised Release

• 18 U.S.C. § 3559(a) — Classification of offenses — In rare cases the statute of conviction will provide

the classification, and 18 USC § 3581(b) is used

• 18 U.S.C. §§ 3561 & 3565

— Probation penalties

• 18 U.S.C. § 3583 — Supervised release penalties

101

18

Probation

Class of Offense * A or B Felony

C, D, or E Felony

Class A Misdemeanor

Authorized Term of Probation **

Not authorized

5 years but not less than 1 year

5 years

Max. Imprisonment Upon Revocation ***

The maximum statutory penalty for the offense



* 18 U.S.C. § 3559(a) ** 18 U.S.C. §3561(b) no *** 18 U.S.C. § 3565(a)(2)— subsequent to Crime Bill 9/13/94

Supervised Release

Class of Offense *

A Felony

B Felony

C or D Felony

E Felony or Class A Misdem.

Authorized Term of Supervised Release**

5 Years

5 Years

3 Years

1 Year

Max. Imprisonment Upon Revocation ***

5 Years

3 Years

2 Years

1 Year

* 18 U.S.C. § 3559(a) ** 18 U.S.C. § 3583(6) *** 18 U.S.C. § 3583(0)(3) — subsequent to Crime Bill 9/13/94

Look to statutes for specific exceptions to these general rules

Chapter Seven of the Guidelines Manual

• Applicable to both probation and supervised release violations

• Policy statements

• Must be considered, but not binding

• Sanctions the "breach of trust" 114

7/2/2013

Classification of Offenses 18 U.S.C. § 3559(a)

Maximum Sentence Authorized Class Life or Death Class A Felony 25 years + Class B Felony 10 years + Class C Felony 5 years + Class D Felony 1 year & 1 day + Class E Felony 6 months + to 1 year Class A Misdemeanor 6 months or less Class B & C

Misdemeanors & Infractions 109

Statutory Responses to Violations of Probation & Supervised Release

• §§ 3563(c), 3564, 3565 & § 3583

• Continue supervision — May modify or enlarge the conditions

— May extend term (if not at maximum)

• Terminate supervision — After expiration of one year (or at any time for

misdemeanor probation)

• Revocation 112

Statutory Responses to Violations of Probation & Supervised Release

18 USC § 3553(a)(1)-(7)

• Probation — Consider the factors at § 3553(a) "to the extend

they are applicable"

• Supervised release — Consider the factors at § 3553 except (a)(2)(A)

("punishment") is not a factor • Neither is (a)(3) ("the kinds of sentences available")

113

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Revocation Table - §7111.4

Criminal History Category Grade of Violation I II III IV V VI

3-9 4-10 5-11 6-12 7-13 8-14 4-10 6-12 8-14 12-18 18-24 21-27

A(1)* 12-18 15-21 18-24 24-30 30-37 33-41 A(2)** 24-30 27-33 30-37 37-46 46-57 51-63

Except as provided in (2) below. Where the defendant was on probation or supervised release as a result of a sentence for a Class A felony.

116

7/2/2013

Chapter Seven

• §7B1.1 - Classification of Violations

• §7B1.2 - Reporting of Violations

• §7B1.3 - Revocation

• §7B1.4 - Term of Imprisonment

• §7B1.5 - No Credit for Supervision Time n,

Application of Chapter Seven

• Criminal history category is that available at the original sentencing — Involves no recalculation of criminal history

(§7B1.4(a))

• Three grades of violations based on actual conduct — Grades A, B, & C (§7B1.1(a)) — If snore than one grade, use the greatest (§7B1.1(b))

117

"Actual Conduct"

§7B1.1(a) & App. Note 1

• Established by the preponderance of evidence

• Does not require a separate criminal charge or conviction to have resulted from the conduct

• Actual conduct may be distinct from any charges or convictions that have resulted — A conviction which has resulted would provide

prima facie evidence of the corresponding grade of violation, however

118

Grade A Violations

• Conduct constituting a federal, state, or local offense

EITHER • Punishable by imprisonment exceeding one

year, if — Crime of violence — Controlled substance offense

• Trafficking, not simple possession

— Possession of § 5845(a) firearm or device

OR • Any other offense punishable by

imprisonment exceeding 20 years 119

Grade B Violations

• Conduct constituting any other federal, state, or local offense punishable by imprisonment exceeding one year

120

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Revocation Table - §7B1.4 Criminal History Category

Grade of Violation I II DI IV V VI

3-9 4-10 5-11 6-12' 7-13 8-142 4-10 6-12 18-141 12-18 18-24 I 21-27

A(1)* 12-18 15-21 18-24 24-30 30-37 33-41 A(2)** 24-30 27-33 30-37 37-46 46-57 51-63

Except as provided in (2) below. Where the defendant was on probation or supervised release as a result of a sentence for a Class A felony.

1 See 7B1.3(c)(1) 173

2 See 7B1.3(c)(2)

3-9 4-10 4-10 6-12

5-11 6-12'

Sentencing Options Available Under §7B1.3(c)(1)

(In months of imprisonment) Criminal History Category

Grade of Violation I H III IV V VI

• Imprisonment • Imprisonment plus supervised release with a condition

that substitutes community confinement or home iv ' detention for any portion of the minimum term

Sentencing Options Available Under §7B1.3(c)(2)

(In months of imprisonment) Criminal History Category

Grade of Violation I II III IV V VI

7-13 8-14 8-14

• Imprisonment • Imprisonment of at least one half the minimum term

plus supervised release with a condition of community confinement or home detention for the balance

7/2/2013

Grade C Violations

• Conduct constituting a federal, state, or local offense punishable by imprisonment of one year or less

OR

• A violation of any other condition of supervision (e.g., "technical violations")

121

Disposition of Violations

§7B1.3

• Grade A or B violations —Revoke supervision

• Grade C violations — Revoke supervision

— Extend the term of supervision

— Modify conditions of supervision

122

Sentencing "Add-Ons"

§7B1.3(d): Unsatisfied Sentences

If the sentence being revoked has unpaid fines or restitution, or unserved conditions of community confinement, home detention, intermittent confinement, those are to be ordered in addition to the sanction determined under §7B1.4 — Community confinement, home detention,

intermittent confinement may be converted to an equivalent period of imprisonment

— Uncompleted supervision is not an add-on 126

21

Imposing a Term of Supervised Release to Follow the Imprisonment Upon Revocation

131

7/2/2013

Sentencing "Add-Ons"

§7B1.3(e): Official Detention Credit

• Time that will be credited by the Bureau of Prisons for official detention resulting from the violation warrant or proceeding will not be used to increase the revocation imprisonment sentence

• Otherwise, time that will be credited by the BOP for official detention will be used to increase the revocation imprisonment sentence

127

Consecutive Sentence of Imprisonment

§7B 1 .3(f) & App. Note 4

• Imprisonment imposed upon revocation is to be consecutive to any imprisonment already being served

— Whether or not the sentence already being served is for conduct that is the basis of the revocation

— If the revocation occurs first, the policy is for any subsequent sentence to run consecutively (see §5G1.3, App. Note 3(C)) 121

Application of Tapia to Revocations

Tapia v. U.S., 131 S. Ct. 2382(2011)

• A district court may not impose or lengthen a term of imprisonment in order to promote the defendant's rehabilitation

129

Tapia Applies to a Revocation Sentence

• US. v. Molignaro, 649 F.3d 1 (lst Cir. 2011) • U.S. v. Bennett, 698 F.3d 194 (4th Cir. 2012) • U.S. v. Garza, 2013 WL 398760 (5th dr. 2013) • US. v. Deen, 2013 WL 452492 (6Th Cir. 2013)

• US. v. Taylor, 679 F.3d 1005 (8Th dir. 2012) • U.S. v. Grant, 664 F.3d 276 (9Th dir. 2011) • US. v. Mendiola, 696 F.3d 1033 (10Th dir. 2012)

130

Decision to Order Supervised Release to Follow the Imprisonment

§§ 3583(c) & 3553(a)(1)-(7)

• In deciding generally whether to include a term of supervised release, its length and conditions, consider the § 3553(a) factors

• Except (a)(2)(A) ("punishment") is not a factor • Neither is (a)(3) ("the kinds of sentences available")

132

22

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Policy Statements Regarding Supervised Release to Follow Imprisonment Upon

Revocation of Probation

§7B1.3(g)(1)

• Apply §§5D1.1-1.3 regarding imposition, length, and conditions

—In general, supervised release is to be imposed if the revocation imprisonment is over one year and the defendant is not likely to be deported

133

Policy Statements Regarding Supervised Release to Follow Imprisonment Upon

Revocation of Supervised Release

§7B1.3(g)(2)

• "Reimposition" of supervised release is not required, but may be imposed, subject to statutory limitations — Not required by statute at § 3583(h)

134

Worksheets for Determining the Supervised Release Statutorily Available to Follow Revocation

of Supervised Release

18 U.S.C. § 3583(h)

Johnson v. Us., 529 U.S. 694 (2000)

Revised 2/15/13

J35

Original Offense for Which the Defendant Was Convicted Occurred

On or After April 30, 2003

18 U.S.C. § 3583(h)

136

Determining the Term of Supervised Release Available Upon Revocation

Original offense on/after 4/30/03

1. Determine the statutorily authorized maximum term of supervised release for the original offense

2. Subtract the amount of imprisonment to be imposed upon revocation (in addition to any term(s) of imprisonment imposed on prior revocation(s) of the supervised release*)

3. The difference is the maximum term of supervised release that can be imposed upon revocation of supervised release


Original offense on/after 4130/03

*As to Step 2, the only two circuits to address this issue have determined that the aggregate of the imprisonment terms imposed for the current revocation and for any prior revocations must be subtracted from the maximum supervised release term statutorily authorized for the original offense.

-U.S. v. Vera, 542 F3d 457 (5th Cir. 2008) -U.S. v. Knight, 580 F3d 933 (9th Cir. 2009)

138

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I. Upon Revocation of Supervised Release Can a New Term Be Imposed?

Original offense between 9/13/94 and 4/29/03, inclusive

I. Determine the statutorily authorized maximum imprisonment available upon revocation (§ 3583(e)(3))

2. Subtract the amount of imprisonment to be imposed (in addition to any term(s) of imprisonment imposed on prior revocation(s) of the supervised release) upon revocation

3. If the difference is greater than zero an additional term of supervised release can be imposed

7/2/2013


Between September 13, 1994 and April 29, 2003, Inclusive

18 U.S.C. § 3583(h)

139

II. Determining the Term of Supervised Release Available Upon Revocation

Original offense between 9/13/94 and 4/29/03, inclusive

I. Determine the statutorily authorized maximum term of supervised release for the original offense

2. Subtract the amount of imprisonment to be imposed upon revocation (in addition to any term(s) of imprisonment imposed on prior revocation(s) of the supervised release)



Prior to September 13, 1994 (Prior to 18 U.S.C. § 3583(h))

Pursuant to Johnson v. US. 529 U.S. 694 (2000)

142


Original offense prior to 9/13/94

1. Detennine the length of the current supervised release term being revoked (NOTE: Court may first extend term to statutory maximum (§3583(e)(2))

2. Subtract the amount of imprisonment to be imposed upon revocation (in addition to any term(s) of imprisonment imposed on prior revocation(s) of the supervised release)


END

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