Federal Sentencing Guidelines Amendments Part IV: Recency

November 29, 2010 by Kish & Lietz

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

We discussed this amendment in detail in this post in April. The amendment deleted 4A1.1(e), which addressed the recency of previous imprisonment in calculating the criminal history points that increase a defendant’s sentence. That provision added points if the defendant committed the offense less than two years after release from imprisonment or while in imprisonment or escape status.

The proponents of this amendment argued that the recency and status guidelines were redundant, unfairly adding to the cumulative impact of the criminal history calculation. Statistics showed that the recency of a prior record, when combined with the status provision in subsection (d), predicted recidivism in only 1 case out of 1000. In addition, not only did recency fail to reflect meaningful differences in past criminal conduct, it was actually more likely to increase punishment for less culpable defendants. The effect 4A1.1(e) and (d) had on deported immigrants who illegally reentered the country was particularly egregious, considering other cumulative guidelines and their usual reasons for re-entry.

In its explanation of the amendment, the Commission also noted that public comment and testimony had indicated that many defendants who recidivate soon after being released from prison do so due to the challenges to successful reentry after imprisonment, rather than increased culpability.

Childers: Eleventh Circuit Will Decide En Banc Whether Exclusion of Evidence on Cross-Examination Denied Defendant Sixth Amendment Rights

November 24, 2010 by Kish & Lietz

Last Wednesday, the Eleventh Circuit Court of Appeals, which hears appeals from Georgia, Alabama, and Florida federal cases, voted to rehear Childers v. Floyd en banc. The Court vacated a panel opinion holding that Childers’s Confrontation Clause rights had been violated when the trial court refused to allow certain credibility evidence regarding the prosecution’s star witness.

This June, an Eleventh Circuit panel majority granted Mr. Childers § 2254 habeas relief. In a previous case stemming from the same activities, in which another defendant was acquitted, the star witness gave confusing and inconsistent testimony. The trial court refused to allow the jury to hear evidence that the prosecution had unsuccessfully tried to revoke the witness’s plea deal due to those inconsistencies. The Eleventh Circuit held that this refusal was a violation of the defendant’s sixth amendment right to confront witnesses against him.

This case is an important reminder of the value of effective cross-examination and the necessity to continue litigating on behalf of clients. We will watch for the en banc decision in Childers. The vacated panel opinion is available here.

Federal Judge Admonishes Prosecutors for Inviting “Public Ridicule and Scorn” on the Justice System with “Mean-Spirited” Sentencing Memorandum

November 19, 2010 by Kish & Lietz

Bruce Karatz, former CEO of KB Homes, was sentenced last Wednesday for fraud and false statements in connection with underlying stock-options backdating charges (of which he was acquitted.) He received eight months of house arrest, five years probation, $1 million in fines, and 2,000 hours of community service, the sentence recommended in the probation office’s presentence investigation report (PSR). Judge Otis D. Wright II admonished the prosecutors for their “mean-spirited” sentencing memorandum.

This New York Times article explains the backdating scandal and its results, quoting one professor who analogized it to a “corporate crime lottery.” Although backdating was a widespread practice, relatively few corporate executives have been prosecuted, and then with mixed results. The longest prison sentence given to a backdating defendant has been 2 years.

In this case, the government requested 6 years incarceration and $7.5 million in fines. In their sentencing memorandum, prosecutors argued that sentencing Mr. Karatz to home detention in his “24-room Bel-Air mansion” would suggest “a two-tiered criminal justice system, one for the affluent … and a second for ordinary citizens.” “To promote respect for the law, the public must be assured that a wealthy, well-connected individual, regardless of his station, array of prominent friends and associates, history of private success or acts of public largess, will be subject to the same standard of criminal justice as those less fortunate,” prosecutors wrote.

Judge Wright said he was disturbed by “the inflammatory language in the government’s report that if this court did not impose a harsh sentence that it was evidence of a two-tiered justice system, one of the rich and one for everyone else.” He told the prosecutors, “To invite public ridicule and scorn on this institution, I think, is unspeakable.” “I don’t care, sir, whether or not you have a pot to piss in,” Judge Wright said to Mr. Karatz. “What you get here is fairness.”

Abbott: Supreme Court Unanimously Holds § 924(c) “Except” Clause Applies Only to Greater Minimum Sentences Otherwise Provided for the Same Conduct Prohibited by § 924(c)

November 17, 2010 by Kish & Lietz

This Monday the federal Supreme Court issued its opinion in Abbott v. United States, together with Gould v. United States. The Court held 8-0 (Justice Kagan took no part in the decision) that a defendant is subject to the highest mandatory minimum sentence specified in § 924(c) unless another provision of law directed to conduct proscribed by that subsection imposes an even greater minimum. We are disappointed that the Court disregarded the plain language of the statute.

As we discussed in this post when the Court granted certiorari, § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” We read that clause as plainly prohibiting the application of § 924(c) where “any other” greater minimum sentence applies. The government disagreed, arguing that the clause is triggered only when another provision commands a longer term for conduct that violates §924(c).

Gould argued the plain language of the clause: that it applied whenever any count of conviction at sentencing required a greater minimum sentence. Abbott proposed two potential happy mediums: that the minimum sentence “otherwise provided” must be one imposed for the §924(c) predicate crime or, in the alternative, for a firearm offense involving the same firearm that triggered §924(c). The Court rejected all three arguments.

The Court relied on the legislative history of § 924(c), reasoning that when enacting the “except” clause, Congress intended to treat gun possession more harshly.

The opinion in Abbott is available here.

Federal Sentencing Guidelines Amendments Part III: Cultural Assimilation

November 12, 2010 by Kish & Lietz

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The third amendment to the Sentencing Guidelines addresses judges’ discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.

The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:
• Resided continuously in the United States from childhood;
• Illegally re-entered or stayed in the U.S. because of cultural ties from that childhood; and
• A departure is not likely to increase the risk to the public from further crimes of the defendant.

The sentencing court is directed to consider the following factors:
“(1) the age in childhood at which the defendant began residing continuously in the United States,
(2) whether and for how long the defendant attended school in the United States,
(3) the duration of the defendant's continued residence in the United States,
(4) the duration of the defendant's presence outside the United States,
(5) the nature and extent of the defendant's familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States,
(6) the seriousness of the defendant's criminal history, and
(7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.”

Federal Sentencing Guidelines Amendments Part II: Relevance of Specific Offender Characteristics

November 10, 2010 by Kish & Lietz

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, "may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines." It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service "may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines".

The new authorization to consider age in some cases will help white-collar defendants, who often are older than those convicted of other federal crimes. Judges may consider youth as well, which will be most helpful in drug cases. While the amendments direct judges not to give these specific offender characteristics excessive weight, we are pleased that the Commission has finally recognized that they are relevant.

Federal Sentencing Guidelines Amendments Part I: Alternatives to Incarceration

November 5, 2010 by Kish & Lietz

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

As we noted in this post in April, the U.S. Sentencing Commission has amended the Guidelines to expand the availability of alternatives to incarceration, such as residential treatment programs, home detention, and intermittent confinement. This amendment expands Zones B and C of the Sentencing Table by one level each. It also amends Application Note 6 of § 5C1.1 (Imposition of a Term of Imprisonment) to say that a departure from the options allowed for Zone C to those of Zone B for a specific treatment purpose should be considered only when the court finds that the defendant is an addict, alcoholic, or mentally ill and his or her criminality is related to the treatment problem to be addressed.

Under Zone B, the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment. Under Zone C, at least half of the sentence must be served in prison. Defendants falling under Zone D must serve their entire sentences in prison.

Zone B now contains all guideline ranges having a minimum between one and nine months and Zone C now contains all guideline ranges having a minimum of between ten and twelve months. In other words, with minimal criminal history, an offense level of 11 is now in Zone B and level 13 is now in Zone C.

The new language of § 5C1.1 Application Note 6 is:

There may be cases in which a departure from the sentencing options authorized for Zone C of the Sentencing Table (under which at least half the minimum term must be satisfied by imprisonment) to the sentencing options authorized for Zone B of the Sentencing Table (under which all or most of the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment) is appropriate to accomplish a specific treatment purpose. Such a departure should be considered only in cases where the court finds that (A) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental illness, and (B) the defendant's criminality is related to the treatment problem to be addressed.

In determining whether such a departure is appropriate, the court should consider, among other considerations, (1) the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant, and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant.

Examples: The following examples both assume the applicable guideline range is 12-18 months and the court departs in accordance with this application note. Under Zone C rules, the defendant must be sentenced to at least six months imprisonment. (1) The defendant is a nonviolent drug offender in Criminal History Category I and probation is not prohibited by statute. The court departs downward to impose a sentence of probation, with twelve months of intermittent confinement, community confinement, or home detention and participation in a substance abuse treatment program as conditions of probation. (2) The defendant is convicted of a Class A or B felony, so probation is prohibited by statute (see § 5B1.1(b)). The court departs downward to impose a sentence of one month imprisonment, with eleven months in community confinement or home detention and participation in a substance abuse treatment program as conditions of supervised release

.

This amendment would have applied to 6% of the federal defendants sentenced in 2009. While the impact of the amendment is limited to such a small percentage, it will have a huge impact on those defendants who are now eligible for alternatives to incarceration, as well as their families and even their community. Alternative sentencing allows employment, which helps the defendant to continue to support his or her family and pay back any restitution to victims. It also allows for treatment, which reduces recidivism rates.

Davis: United States Supreme Court Will Hear Case Arising Out of the Eleventh Circuit Regarding the Good Faith Exception to the Exclusionary Rule in Criminal Cases

November 3, 2010 by Kish & Lietz

Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held in Davis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.
The petition for certiorari is available here.
The brief in opposition is available here.