1. Federal Sentencing Update Marjorie A. Meyers Federal Public Defender
October 13, 2017
Austin, Texas

2. Advisory Guidelines
The court shall impose a sentence, sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.
18 U.S.C. 3553(a)
Nature and circumstances of the offense and history and characteristics of the defender
Sentencing needs

3. U.S. v. Booker, 543 U.S. 220 (2005) Rita v. U.S., 551 U.S. 338 (2007)
Gall v. U.S., 552 U.S. 38 (2007)
Kimbrough v. U.S., 552 U.S. 85 (2007)
Pepper v. U.S., 562 U.S. 476 (2011)

4. Which Guideline
Peugh v. United States, 133 S.Ct (2013) (ex post facto applies to advisory Guidelines)
Time of sentencing barring ex post facto. USSG 1B1.11(b)(1)
One book rule, USSG 1B1.11(b)(2)
Beware straddle offenses. U.S. v. Shakbazyan, 841 F.3d 286 (5th Cir. 2016)

5. Burdens of proof Party who benefits by preponderance of evidence
Equal balance is not preponderance – U.S. v. Hagman, 740 F.3d 1044, 1052 (5th Cir. 2013)
Not unsworn assertions. U.S. v. Hearns, 845 F.3d 641, (5th Cir. 2017)
But must rebut, Olivares

6. Relevant Conduct USSG1B1.3
Acts caused by defendant; and
Act of others in “jointly undertaken criminal activity”, reasonably foreseeable and in furtherance of that activity
USSG 1B1.3(a)(1)

7. Revised Jointly Undertaken Activity, USSG 1B1.3(a)(1)(B)
3 steps
i. Within the scope of jointly undertaken activity
ii. in furtherance of that activity; and
iii. Reasonably foreseeable in connection with that activity
Is reasonable foreseeability too low a mens rea?

8. Joint Activity Has Limits
Conspiracy charge neither required nor sufficient (comment. N.2)
U.S. v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993)
Proof of knowledge insufficient, U.S. v. Evbyomwan, 992 F.2d 70, 74 (5th Cir. 1993)
Do not include activity preceding defendant’s joining conspiracy

9. Course of Conduct USSG 1B1.3(a)(2)
Groupable and part of “same course of conduct or common scheme or plan as offense of conviction”
Look at similarity, regularity and timing, comment. N.9
U.S. v. Hagman, 740 F.3d 1044 (5th Cir. 2014) (did defendant do it)
U.S. v. Benns, 740 F.3d 370 (5th Cir. 2014)
(different transaction and not criminal)

10. Criminal history traps
Timing: >13 mos, discharge in 15 years
Others imposed within 10 years
<18- < 13 mos. imposed within 5 years
Concurrent sentences, 4A1.2(a)(2)
Multiple revocations, 4A1.2(k)(1)
Minor offenses
Only 4 1-pointers
COV

11. USSG 4A1.1(a)
3 points for prior sentence of imprisonment EXCEEDING 1 year and 1 month
Sentence of imprisonment resulted in defendant being incarcerated within 15 years of commencement of instant offense
USSG 4A1.2(e)(1)

12. Sentence of imprisonment
U.S. v. Brooks, 166 F.3d 723 (5th Cir. 1999)
Physical confinement is the key distinction
Confinement sentence > 6 months distinguishes sentences “not requiring twenty-four hours a day physical confinement, such as ‘probation, fines, and residency in a halfway house”
USSG 4A1.1, background

13. Sentences of imprisonment
Boot camp, Brooks
Work release, U.S. v. Enrique-Ascencio, 857 F.3d 668 (5th Cir. 2017) (2L1.2)
Residential substance abuse facility, U.S. v. Chavez, 476 Fed.Appx. 786 (5th Cir. May 10, 2012)
Discharge to ICE? U.S. v. Rodriguez-Bernal, 783 F.3d 1002 (5th Cir. 2015) (Graves dissented)

14. Not imprisonment
Home detention, U.S. v. Gordon, 346 F.3d 135 (5th Cir. 2003)
Halfway house, U.S. v. Latimer, 991 F.3d 1509 (9th Cir. 1993) (referenced in Brooks)
State sentence concurrent to already served sentence, U.S. v. Butler, 229 F.3d 1077 (11th Cir. 2000)

15. 13 months or less
USSG 4A1.1(b): 60 days-13 months - 2 USSG 4A1.1(c): <60 days
Imposed with 10 years of commencement federal offense

16. Sentence < 13 months USSG 4A1.1(b), (c)
Sentence imposed within 10 years commencement federal offense, USSG 4A1.2(c)(2)
Original imposition date controls unless new sentence > 13 months
U.S. v. Arviso-Mata, 442 F.3d 382 (5th Cir. 2006)

17. = 4
USSG 4A1.1(c)

18. Revocations Count the revocations, 4A1.2(k)(1)
Was the defendant revoked?
U.S. v. Galvaviz, 645 F.3d 347 (6th Cir. 2011)

19. Multiple revocations Use the longest, USSG 4A1.2(a)(2), cmt. n.(11).
BUT 1 point for each other supervisory sentences if revocation based on same conduct
U.S. v. Streat, 22 F.3d 109, (6th Cir. 1994)
U.S. v. Flores, 93 F.3d 587, 592 (9th Cir. 1996)

20. Limits on counting misdemeanors
Sentence > 1 year probation or at least 30 days imprisonment, USSG 4A1.2(c)(1)
reckless driving, contempt of court, disorderly conduct, disturbing peace, DWLS, false info to police, gambling, hindering or failing to obey police, insufficient funds, leave accident, non-support, prostitution, resisting arrest, trespassing

21. Never count USSG 4A1.2(c)(2) fish and game hitchhiking
juvenile status and truancy
local ordinance (except also violate state law)
loitering, minor traffic, public intoxication, vagrancy

22. Similar offenses 4A1.2(c) also governs similar offenses
Application note 12: Common sense
Consider relevant factors including: compare punishment, perceived seriousness as evidenced by punishment, elements of offense, level culpability involved, degree commission of offense indicates likelihood recurring criminal conduct

23. Similar offenses
U.S. v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002)(criminal mischief like disorderly)
U.S. v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991)(don’t count no insurance)
U.S. v. Gadison, 8 F.3d 186, 193 (5th Cir. 1993)(theft by check like insufficient funds
U.S. v. Gonzalez-Manzilla, 2014 WL (5th Cir. 2014)(still disorderly though domestic abuse)

24. Not similar
U.S. v. Hernandez, 634 F.3d 317 (5th Cir. 2011)(obstruct highway not like loitering)
U.S. v Sanchez-Cortez, 530 F.3d 357 (5th Cir. 2008)(military AWOL not like truancy)
U.S. v. McDonald, 106 F.3d 1218 (5th Cir. 1997) (lying to police officer)

25. Under Criminal Justice Sentenc USSG 4A1.1(d)
Escape, U.S. v. Radziercz, 7 F.3d 1193 (5th Cir. 1993)
Failure to report for service sentence, USSG 4A1.2(n)
Warrant for probation violation
Was warrant issued before probation expired?

26. Single sentence rule Same charging instrument
Sentenced imposed same day
No intervening arrest
USSG 4A1.2(c)(2)

27. Intervening arrest Must precede commission of second offense
U.S. v. Espinoza, 677 F.3d 730 (5th Cir. 2012) (no intervening arrest)
U.S. v. Akins, 746 F.3d 590 (5th Cir. 2014)(intervening arrest)

28. Multiple COV sentences
Add 1 point, up to 3, for “each prior sentence resulting from a conviction of a crime of violence that did not receive any points…because such sentence was treated as a single sentence”
USSG 4A1.1(e).
Defined at USSG 4B1.2(a)

29. Committed when < 18 USSG 4A1.2(d)
Convicted as ADULT and received sentence > 13 months – 3 points under 4A1.1(a)
Adult or juvenile sentence
2 pts 4A1.1(b) sentence at least 60 days confinement RELEASED within 5 years commencement instant offense
1 point for 4A1.1(c) sentences IMPOSED within 5 years commenced of instant offense

30. Unconstitutional convictions
Violation of right to counsel. U.S. v. Tucker, 404 U.S. 443 (1972); Burgett v. Texas, 389 U.S. 109 (1967)
Waiver – Iowa v. Tovar, 541 U.S. 987 (2004)
Defendant burden proving waiver invalid. U.S. v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009)

31. Drugs 2D1.1 Type and Quantity Prior convictions Crack 18:1 Firearms
Safety Valve
Role

32. Drug conspiracies
US v. Ortiz, 613 F.3d 550 (5th Cir. 2010) (cocaine in suitcase not part of marijuana conspiracy)
U.S. v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006)
U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994)

33. Course of conduct- drugs
U.S. v. Wall, 180 F.3d 641, 647 (5th Cir. 1999) (delivery by girlfriend 4 years earlier not counted)
U.S. v. Miller, 179 F.3d 961 (5th Cir. 1999)
(delivery 2 years earlier, different drug, gets safety valve)

34. Estimating Drug Quantity
U.S. v. Henderson, 254 F.3d 543 (5th Cir. 2001) (only if quantity does not reflect scale)
U.S. v. Castaneda de la Hoz , 204 Fed. Appx. 429, 430 (5th Cir. 2006)(unpublished)
U.S. v. Shonubi, 103 F.3d 1085, 1092 (2d Cir. 1997)

35. Firearms, 2D1.1(b)(1)
Possession of firearm in connection drug trafficking
If weapon present unless clearly improbable weapon connected to offense
Must possess during transaction, U.S. v. Romans, 823 F.3d 299 (5th Cir. 2016)
Must reasonably foreseeable, U.S. v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010)

36. Safety Valve 1) no > 1 criminal history point 2) no violence or gun
3) no death or bodily injury
4) no aggravating role
5) truthfully provides to government all info concerning offense or relevant conduct before sentencing
2012 applies to precursors

37. Possession of a gun
U.S. v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997)(eligible unless defendant possessed the gun)
But U.S. v. Matias, 465 F.3d 169 (5th Cir. 2006) (beware constructive possession)

38. Truthful debriefing
Only relevant conduct. U.S. v. Miller, 179 F.3d 961 (5th Cir. 1999)
Judicial determination. U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996)
Timing: before sentencing.U.S. V. Brenes, 250 F.3d 290 (5th Cir. 2001)
After trial? Compare U.S. v. Treft, 447 F.3d 421 (5th Cir. 2006), with U.S. v. Moreno-Gonzalez, 662 F.3d 369 (5th Cir. 2011)

39. Minor Role, USSG 3B1.2 2015 amendments
Factors:
1. understanding scope and structure
2. degree participate in planning and organizing
3. decision-making authority
4. Extent of defendant activity and exercise of discretion
5. degree stand to benefit

40. Minor role example
Defendant has no “proprietary interest” in the activity and is “simply being paid to perform certain tasks”
USSG 3B1.2, cmt. n.3(C)

41. Average participant
Compare to average participant in offense, not in general
USSG 3B1.2, cm.t n.3(A)
But U.S. v. Torres-Hernandez, 843 F.3d 203 (5th Cir. 2016) (all backpackers so all average)

42. Minor role
“May receive” reduction even if only responsible for conduct in which he is personally involved; USSG 3B1.2, cmt. n.2
Courtier may receive
U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir. 1999) (en banc)
Unfortunately Torres-Hernandez seems to make this a requirement

43. Essential Role
The fact that a defendant performs an “essential or indispensable role in the criminal activity is not determinative”
USSG 3B1.2, cmt. n.3(C)
U.S. v. Sanchez-Villarreal, 857 F.3d 714 (5th Cir. 2017)
But see U.S. v. Escobar, 2017 WL (5th Cir. Aug. 2, 2017)

44. U.S. v. Castro, 843 F.3d 608 (5th Cir. 2016)
Defendant bears the burden of proving minor role

45. Immigration # Aliens Financial gain Organization
Dangerousness and inhumanity
Firearms
U.S. V. Reyna-Esparza, 777 F.3d 291 (5th Cir. 2015) (brandishing)

46. Reckless Endangerment 2014
Guiding or abandoning people in a “dangerous or remote geographic area without adequate” supplies or protection from the elements
The Sarita amendment!
Recklessness is normally fact specific

47. Smuggling minors USSG 2L1.2(b)(4)
4 levels (was 2)
If offense involved smuggling, transporting or harboring of minor unaccompanied by parent, adult relative or legal guardian
“Minor” is < 18 (was 16)
Defendant need not personally smuggle minor or know the person is a minor

48. USSG 2L1.2 (Nov. 1, 2016) Major rewrite
3 dimensions- prior immigration offenses, pre-deportation offenses, post-deportation offenses
Almost eliminates categorical approach
BOL still 8, USSG 2L1.2(a)

49. Prior illegal reentry offenses 2L1.2(b)(1)
4 levels for prior felony illegal reentry conviction (1325, 1326)
2 levels for 2 or more prior misdemeanor convictions under 8 U.S.C. 1325(a) (EWI)
This is a single enhancement

50. Pre-Deportation Non-Reentry convictions, 2L1.2(b)(2)
Before FIRST deportation or order of removal:
10- felony, 5 year sentence imposed
8- felony, 2 years imposed
6-felony, at least 13 mos imposed
4- other felony
2- 3 misdemeanor crimes of violence or drug trafficking (categorical)

51. Post-Deportation Non-reentry convictions, 2L1.2(b)(3)
AFTER 1st deportation/removal, engage criminal conduct result in conviction:
10- felony at least 5 years imposed
8- felony at least 2 years imposed
6-felony at least 13 mos imposed
4- other felony
2- 3 misdemeanor crimes of violence or drug trafficking

52. Firearms 18 U.S.C. 924(c)
Dean v. U.S., 137 S.Ct (2017) (can vary underlying sentence because 924(c) sentence is so high)
Guideline is the statutory minimum
USSG 2K2.4(b)
U.S. v. Juarez, 812 F.3d 432 (5th Cir. 2016)

53. Firearms, USSG 2K2.1 Multiple firearms, must illegal Ahmad (2d Cir.)
Traffickers, must know unlawful, 2K2.1(b)(5)
In connection with felony, 2K2.1(b)(6)
Must nexus, U.S. v. Villegas, 404 F.3d 355 (5th Cir. 2005) (no nexus between firearm and immigration fraud)

54. Firearms and drugs
Must facilitate except close proximity is sufficient in burglary and drug trafficking
U.S. v. Jeffries, 587 F.3d 690 (5th Cir. 2009)

55. Straw purchasers
4 levels if use or possess in connection with another felony or know or reason to believe use or possess in connection with another felony. USSG 2K2.1(b)(6)(B)
Does not apply if other felony was the firearm conviction. U.S. v. Velasquez, 825 F.3d 257 (5th Cir. June 8, 2016)
Cf. U.S. v. Juarez, 626 F.3d 246, (5th Cir. 2010)(other firearm not offense of conviction)

56. Economic crimes
Guidelines measure culpability according to the “pecuniary impact on the victims.”
U.S. v. Olis, 429 F.3d 540, 545 (5th Cir. 2006)
Actual or intended loss, whichever is greater
Gain
“Reasonable estimate”
Distinguish loss and restitution

57. Actual loss
Reasonably foreseeable pecuniary harm resulted from offense, 2B1.1, cmt. n.2(A)(i)
Measurable as money
Attributable factually and legally to crime
Subtract value –collateral, services

58. Intended loss 2015
Intended loss is limited to pecuniary harm “that the defendant purposely sought to inflict.”
Subjective not objective
Should change CA5 law, e.g. U.S. v. Harris (amount defendant put at risk)
Must rebut calculations, Danlach

59. Victims USSG 2B1.1(b) (2015)
Only +2 for 10 victims (others eliminated)
BUT new enhancements for “substantial financial hardship”
Undelivered mail

60. Sophisticated means USSG 2B1.1(b)(10)(C)
Narrowed to “defendant intentionally engaged in or caused the conduct constituting sophisticated means”

61. Child Porn, USSG 2G2.1 & .2 BOL 18-possession, 32 production
Age of minor
Distribution and whether for gain or to a minor
Use of computer or fake ID
Number images
Sado-masochism

62. 2016 Amendments
4 level enhancement for toddler as alternative to sado-masochism, USSG 2G2.1(b)(4)(B) BUT NOT vulnerable victim
Distribution requires KNOWING distribution (not just existence peer to peer)
5 levels requires defendant distribute in exchange for valuable consideration

63. Sexual abuse of minor 2A3.1 and 2A3.2, 2G1.3
-Care, custody and control
-computer, misrepresent ID
-Undue influence
-Sex with minor under 12 (8 levels)

64. Pattern sexual abuse
Child porn offenses pattern 5 levels, sexual abuse or exploitation of minor 2G2.2(b)(5)

65. Repeat and Dangerous Sex Offender against Minors
4B1.5
Convicted of covered sex offense (generally sex abuse not porn cases)
Like career offender (CHV) if prior conviction for covered sex offense, 4B1.5(a)
5 levels if pattern prohibited sexual conduct, 4B1.5(b)
PPS 18 USC 2426(b)(1)(A) or (B)

66. Victims Vulnerable, USSG 3A1.1(b) Hate crime, 3A1.1(a)
Official victim, 3A1.2
Restraint, 3A1.3
Terrorism, 3A1.4
Human rights, 3A1.5

67. Aggravating role 3B1.1 Decision making authority nature participation
recruitment
share of proceeds
degree planning and organization
scope of activity
degree of control over others

68. Aggravating role 5 guilty participants or otherwise extensive
Leadership in offense of conviction
U.S. v. Lewis, 476 F.3d 369 (5th Cir. 2007)(AB leader not leader of offense)
U.S. v. Rodriguez-Lopez, 756 F.3d 422 (5th Cir. 2014)

69. Abuse of trust or skill 3B1.3
Must be special
Must used to commit the offense
Beware double counting

70. Use of minors 3B1.4
Not “mere presence” U.S. v. Molina, 469 F.3d 408, 415 (5th Cir. 2006)
Must “affirmative action to involve minor in offense
U.S. v. Mata, 624 F.3d 170 (5th Cir. 2010)

71. Obstruction of justice 3C1.1
Willfully impeded or obstructed. . .the administration of justice during the investigation or prosecution of the instant offense.”
Is there an investigation?
Just part of the offense?
Willful
Material

72. Grouping 3D1.1 Same harm: Same victim and acts or transactions
Common objective, inchoate
Specific offense characteristic
Total harm – drugs, aliens, money

73. Don’t group Violence against individuals, e.g. robbery, sexual assault
Mandatory consecutive sentences
Grouping – incremental punishment

74. Acceptance of responsibility
Admits elements of offense and does not falsely deny relevant conduct. USSG 3E1.1(a)
Sincere remorse
Extra reduction, BOL 16 and timely gives complete reduction or advise plea to save time and resources of govt. 3E1.1(b)

75. USSG 3E1.1, n.6 (2013)
The government “should not withhold such a motion based on interests not identified in 3E1.1 such as whether the defendant agrees to waive his or her right to appeal.”
Once government files the motion, court “should” grant it.
U.S. v. Palacios, 726 F.3d 325 (5th Cir. 2014)

76. Remorse reductions
Acceptance of offense of conviction and no deny relevant conduct, normally pretrial, USSG 3E1.1
Safety valve, 18 USC 3553(f), USSG 2D1.1(b)(16), before sentencing
Substantial assistance, 18 USC 3553(e), USSG 5K1.1, any time

77. Cooperation variances
U.S. v. Robinson, 741 F.3d 588, (5th Cir. 2014)
A court can grant a downward variance under 18 USC 3553(a) for cooperation without a government motion

78. Release conditions 18 U.S.C. 3583(d)(1)
Reasonably related:
1)Nature/circumstances of offense, characteristics of defendant
2) deterrence
3) protect public
4) treatment and training
Beware delegation

79. Resources
fd.org
Sentencing Resource Counsel Project,
Fpdsdot.org
Sentencing Law and Policy blog sentencing.typepad.com
Circuit5.blogspot.com
171 Departures, Michael Levine ,

80. USSC.gov Mandatory Minimum Report Child Pornography Report Quick facts
Recidivism studies