Federal Criminal Lawyer Blog

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

The document can be found here and for those of you that practice in other federal circuits, links to similar documents for those other circuits can be found here.

The Eleventh Circuit issued an opinion today on a fraud case out of Florida involving issues related to restitution. The appellate court reversed the restitution order, ruling that the government had not adequately proved the amount of restitution, nor had the district judge calculated restitution based on specific factual findings. The case is United States v. Singletary.

Like many of the federal fraud cases we handle, Singletary involved questions of how much "loss" was involved, along with how much "restitution" could be ordered. Many lawyers forget that these are two very distinct issues. "Loss" is a calculation under the United States Sentencing Guidelines, and this figure is one of the major factors that drives the calculation of the prison sentence in a fraud case. The Guidelines tell a judge to calculate "loss" as the "greater of actual or intended loss". Additionally, the Guidelines also instruct that loss can be "estimated" when the proof is difficult to establish.

Restitution is quite different than "loss." Restitution is based on the loss the victim actually suffered. In other words, "loss" can be much higher than restitution when the defendant tried to get money but was unsuccessful.

While "loss" and restitution are distinct concepts, each figure needs to be adequately proven by the prosecutor. Furthermore, when a defendant objects to either calculation, the sentencing judge must support the ultimate "loss" or restitution number with specific factual findings.

In Singletary, the Court of Appeals confronted a case where the prosecutor used a broad-brush approach to restitution, trying to come up with an estimated figure. The sentencing judge basically agreed with the prosecutor's approach, estimating a loss of $1 million. The Eleventh Circuit reversed because the trial court "failed to carry out the task" of rendering factual findings for each and every specific loss that supported the restitution order.

This case holds lessons for lawyers who handle federal fraud cases. Remember to make the government prove both the "loss" and restitution, and when they do not, appeal the issue. It might help the client in the long run.

I just returned from the Twentieth Annual National Seminar on the Federal Sentencing Guidelines. Kevin Napper, Laurel Moore Lee, and many others organized an outstanding seminar dealing with all aspects of federal criminal sentencing. It is always fun to get together with other federal practitioners and discuss how things are handled in federal jurisdictions throughout the United States.

Yesterday, we had an enjoyable panel discussion dealing with the "Presentence Report and the Sentencing Process" in federal court. We had a great group of individuals on our panel, including defense lawyers (Donna Elm and Adrienne Wisenberg), a federal prosecutor (Laurel Moore Lee), an Assistant Deputy Chief Federal Probation Officer (Ray Owens), and a sentencing mitigation specialist (Tess Lopez).

We covered a lot of ground in our discussion and part of that discussion reminded me that, in my humble opinion, at least one aspect of federal sentencing needs to change. In federal court, before most every sentencing hearing, a federal probation officer prepares a Presentence Report, also known as the PSR. Before the sentencing hearing, the PSR is disclosed to both parties. Very frequently, however, before the sentencing hearing, the federal probation officer that prepared the PSR meets with the federal judge that is conducting the sentencing hearing (in chambers) and makes a recommendation to the judge on what the ultimate sentence should be.

Importantly, unlike the PSR, the sentencing recommendation itself is not disclosed to the parties. I am not sure exactly how or why this process started, and I am not sure what purpose it really serves. In addition, during our talk yesterday, we discussed the fact that this process is not uniformly followed throughout the federal sentencing system.

For example, Tess Lopez described how the process works in the Northern District of California. There, the probation officer's recommendation is disclosed in the PSR, so everyone knows exactly what the recommendation is well before the sentencing hearing. According to Tess, complete disclosure of the probation officer's sentencing recommendation has existed in that federal district for quite sometime. To me, this system of transparency makes sense. I am hoping that federal judges in other jurisdictions reconsider how they handle this issue and adopt the procedure adopted by the federal judges in the Northern District of California and similar jurisdictions.

In 2005, the United States Supreme issued its landmark decision in the federal criminal case of United States v. Booker. Among other things, the Court in Booker ruled that the federal sentencing Guidelines are no longer mandatory, but are instead advisory. Before Booker, it was undisputed that courts were required to apply the Guidelines that were in effect when the federal crime at issue was committed, if applying a later Guideline created Ex Post Facto concerns. In other words, if the Guideline in effect on the date of a sentencing established a harsher Guideline range, the sentencing court was required to apply the more lenient Guideline that was in effect when the crime was committed. An example that comes to mind arises in federal, white collar cases. For instance, under the Guideline that applied up until October 31, 2002, the base offense level in white collar cases was 6, rather than 7. For this reason, under the law as it existed before Booker, courts in white collar cases were required to use the Guideline with the base offense level of 6, as long as the crime was completed prior to the effective date of Guideline that changed the base offense from 6 to 7.

When Booker was decided, however, some people (mostly prosecutors) claimed that since the Guidelines were no longer mandatory, the Ex Post Facto principles discussed above no longer applied. According to these individuals, courts were now free to apply the Guideline in existence on the date of the sentencing, even when the Guideline in effect when the crime was committed provided for a more lenient sentencing range.

Recently, the Eleventh Circuit squarely addressed this issue for the first time, and in our view, reached the right result (for the most part). In Wetherwald, (a federal white collar case), the defendants were convicted of defrauding investors out of millions of dollars. On appeal, the defendants argued that the trial court erred by applying the federal sentencing Guidelines that were in effect on the day of sentencing, rather than the more lenient Guidelines that were in place when the crimes at issue were committed.

Importantly, although the Eleventh Circuit rejected the defendants' contention that their sentences should be reversed, in doing so, it reaffirmed the principle that requires sentencing courts to apply the Guideline that is in effect when the crime is committed. In its decision, the court recognized that other federal courts of appeal are currently split on this issue. For instance, the Seventh Circuit has concluded that the "the Ex Post Facto Clause no longer poses a problem, as it applies 'only to laws and regulations that bind rather than advise.'” The D.C. Circuit, however, has "squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem."

In the end, the Eleventh Circuit adopted the view of the D.C. Circuit, stating that this view "is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence . . . ." Although the court declined to reverse the defendant's sentences in Wetherwald, it recognized that all of the respective sentences were lower than the Guideline that was in place when the crime was committed. Moreover, the court recognized that in the future (and this is the part that gives us some concern), it would "only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment." The opinion in Wetherwald is found here.

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. We have been posting 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.

In this post in August, we summarized the impact of the Fair Sentencing Act of 2010, which reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. The Act also provides for higher sentencing guidelines for all drugs in some cases. This amendment brings about the changes made by the Act.

Specifically, the emergency amendment makes the following changes to the Sentencing Guidelines to implement the Fair Sentencing Act:

* The base offense levels for crack cocaine are set in the Drug Quantity Table so that the statutory minimum penalties correspond to levels 26 and 32. This change implements the Act's application of the five-year mandatory minimum sentence to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams, and the ten-year mandatory minimum sentence to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.

* The amendment establishes a marijuana equivalency for crack cocaine under which 1 gram of crack cocaine is equivalent to 3,571 grams of marijuana and, in the commentary to §2D1.1, deletes the special rules in Note 10(D) for cases involving crack cocaine and one or more other controlled substances.

* §2D1.1 is amended to add a sentence at the end of subsection (a)(5), which is often referred to as the "mitigating role cap". The new provision provides that if the offense level otherwise resulting from subsection (a)(5) is greater than level 32, and the defendant receives the 4-level "minimal participant" reduction in subsection (a) of §3B1.2, the base offense level will be decreased to level 32. Because a 4-level reduction is uncommon, this new provision will have limited impact.

* §2D1.1 is amended to create new specific offense characteristics providing an enhancement of 2 levels if the defendant:
o Used violence, made a credible threat to use violence,or directed the use of violence;
o Bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense;
o Maintained a premises for the purpose of manufacturing or distributing a controlled substance; or
o Receives an aggravating role adjustment and the offense involved any “super-aggravating” factors.

* §2D1.1 is also amended to create a new specific offense characteristic providing a 2-level downward adjustment if the defendant receives the 4-level "minimal participant" reduction and the offense involved three specified factors:
o Motivation by an intimate or familial relationship or by threats or fear to commit the offense when the defendant was otherwise unlikely to commit such an offense;
o No monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and
o Minimal knowledge of the scope and structure of the enterprise.

A reader-friendly guide to the temporary amendment is available here.

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. We have been posting 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.

This amendment clarifies the remediation efforts required for effective compliance and ethics programs used by organizations. The Guidelines now suggest that defendant organizations should provide restitution and other forms of remediation, self-report, and cooperate with authorities. The organization should also ensure the program is effective, perhaps by including the use of an outside professional advisor.

The amendment also creates a limited exception to the general prohibition against applying a 3-level decrease for having a program when high-level personnel are involved in the offense. The organization may receive the decrease if:

1. The people responsible for the compliance and ethics program have direct reporting obligations to the board;

2. The program detected the offense early;

3. The organization promptly reported the offense to the authorities; and

4. No one with operational responsibility for the compliance and ethics program participated in, condoned, or was willfully ignorant of the offense.

Last week, the Eleventh Circuit Court of Appeals decided United States v. Williams. The Court held that the sentencing judge clearly erred in granting a reduction for acceptance of responsibility and denying an enhancement for obstruction of justice because Mr. Williams testified to his factual innocence at trial after withdrawing his guilty plea.

Following a car chase in Atlanta, Georgia that culminated with Mr. Williams receiving a gun shot to an eye, Williams was charged with assaulting three federal marshals. Williams entered a guilty plea, but withdrew it due to the potential sentence. He then testified at trial that he hadn't known his pursuers in unmarked vehicles were law enforcement officers.

The sentencing judge relied on a presentence report that recommended he receive three points off for acceptance of responsibility. She explained, “I think particularly in this case where he was shot, his ability to have his own trial and tell his story was important. I mean, I consider that an important part of my job, is to provide trials to people who have a story that legitimately needs telling.” Explaining that she would not punish Mr. Williams for exercising his constitutional right to trial, she awarded two points off for acceptance of responsibility. The Eleventh Circuit held that it was “erroneous to award a reduction for acceptance of responsibility when a defendant denies guilt in the face of evidence to the contrary” and Mr. Williams had done exactly that by “admitt[ing] he was guilty initially, but withdr[awing] his plea” and then testifying to his innocence “despite overwhelming evidence to the contrary.”

However, “[t]he district court found that Williams’s testimony did not contradict the testimony of the federal marshals.” In determining whether Mr. Williams had committed perjury, requiring the obstruction of justice enhancement, the sentencing judge “did not find Mr. Tywan Williams’ testimony to be materially different from any of [the three witnesses who were at the scene.]” She also explained: “in light of the fact that this whole incident resulted in him being shot in the head, he, I think, is entitled to some leeway regarding his memory of the sequence of events.” She was unable to make a finding that he committed perjury “based on the testimony that [she] heard in comparison with the other testimony at trial and what [she knew] about this.” Despite the district judge's greater contextual knowledge, the Eleventh Circuit held that “Williams’s testimony that he did not recognize his pursuers as federal marshals is irreconcilable with the record” and, as such, perjury requiring an enhancement for obstruction of justice.

The Eleventh Circuit's opinion is available here.

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. We are posting 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.

This amendment responds to the Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act. The Act created a new offense at 18 U.S.C. § 249 for injuring any person because of actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. That offense is now referred to §2H1.1 (Offenses Involving Individual Rights). It also broadened the definition of "hate crime" to include crimes motivated by actual or perceived "gender identity." §3A1.1 (Hate Crime Motivation or Vulnerable Victim) gained an application note to account for the expanded definition.

The Act created a second new offense at 18 U.S.C. § 1389, prohibiting attacks on members of the military, which is now referred to §§2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction, and Fraud).

This is the only amendment this year to expand on the sentencing guidelines. Unlike years past, most of the amendments this year reduce the severity of the sentencing guidelines and applicable sentencing ranges. Professor Doug Berman addressed the symbolic importance of this change in direction in this post at the Sentencing Law and Policy Blog. We hope that the future holds a continued focus on revising the guidelines for fairness.

Next Monday, the federal Supreme Court will hear arguments in Pepper v. United States. In this fascinating case, the Court will consider whether judges can take a prisoner’s efforts at rehabilitation into consideration when that prisoner is resentenced. This case is interesting both because the government has changed its stance and because of the uncommon circumstance that Mr. Pepper was resentenced to three additional years in prison after four years of freedom.

Mr. Pepper pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 24 months in prison, although the Sentencing Guidelines range was 97 to 127 months. The government successfully appealed that sentence, but the judge resentenced Mr. Pepper to the same amount of time, in part because of the prisoner’s efforts at rehabilitation following the first sentence. Prosecutors again appealed, arguing that such a consideration was an abuse of discretion. The Eighth Circuit agreed. Upon resentencing by a different judge, Mr. Pepper was ordered to return to prison to serve an additional 41 months.

After successfully appealing Mr. Pepper’s below-guidelines sentence twice, the Department of Justice has switched sides and is supporting Mr. Pepper’s contention on appeal to the Supreme Court that rehabilitation should be taken into account. As reported in this Des Moines Register article, when she was Solicitor General, Justice Kagan sided with Mr. Pepper, arguing that court rules do not prohibit “a court from considering at resentencing a defendant's efforts at rehabilitation undertaken after his initial sentencing.” Rather, a federal law “specifically instructs sentencing courts to consider ‘the history and characteristics of the defendant.’” Justice Kagan will not take part in the Supreme Court’s decision.

The Court appointed a private lawyer as amicus curie to defend the Eighth Circuit’s decision below. The appointment of amici to defend the appellate court’s decision is discussed in this Stanford Law Review note by Brian Goldman, which is summarized here at ScotusBlog.

Briefs and the Eighth Circuit’s decision below are available here.

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.

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.”

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.

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.”

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.

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.

As we discussed in this post last year, federal judges have increasingly spoken out against the unreasonable sentencing guidelines regarding child pornography. In the last week, the Third Circuit Court of Appeals issued its opinion in U.S. v. Grober, upholding a dramatic downward departure in a child pornography case, and a district judge in the Middle District of Florida issued an opinion in U.S. v. Irey reacting to the Eleventh Circuit’s reversal of his initial sentence in the case.

In Grober, the Court affirmed a 60-month sentence where the applicable guidelines range was 235 to 293 months. District Judge Katharine Hayden held hearings over 12 days to explore how the sentencing guidelines for child pornography offenses had gotten so harsh, eventually concluding that they are unworkable and unfair. This Tuesday, the Third Circuit held, 2-1, that the imposed sentence was not an abuse of discretion. That opinion is discussed extensively in this Legal Intelligencer article.

In recent years, the Eleventh Circuit affirmed below-guidelines sentences in child porn cases in both U.S. v. McBride and U.S. v. Gray. However, this July the Court decided Irey, an unfortunate case with incredibly disturbing underlying facts. We discussed Irey in this post, lamenting that hard facts often lead to bad law. In that case, the Eleventh Circuit reversed a 17 ½ year sentence, ordering that the defendant be sentenced to the guidelines range on remand, which was 30 years. This week, District Judge Gregory Presnell issued a lengthy opinion with his postponement of resentencing pending Supreme Court review, questioning the circuit court’s usurpation of his discretion. As Professor Berman of the Sentencing Law & Policy Blog notes here, this opinion seems to serve as a de facto amicus brief in support of an as-yet-unfiled petition for certiorari.

The Third Circuit’s opinion in Grober is available here.
The Eleventh Circuit’s opinion in Irey is available here.
Judge Presnell’s postponement opinion in Irey is available here.

Last week the Eleventh Circuit Court of Appeals issued its decision in United States v. Mateos, a Medicare fraud case in which the Court held that exclusion of an exculpatory videotape was harmless error. This case is an important reminder to all trial lawyers to remain as well-versed as possible in the law of evidence to best represent our clients.

The defendants were employees of a clinic that purported to treat HIV patients. The clinic’s two doctors saw 70 patients per week, each of which was paid to complain about bleeding disorders. Every patient received either saline or a diluted dose of an expensive and medically unnecessary drug, and then the clinic billed Medicare for full treatments. The clinic received more than $8 million from Medicare during the five months that it was open.

Doctor Alvarez’s defense at trial was that she had not known about the fraud. She tried to introduce a video in which a member of the conspiracy assured her that the clinic was not involved in fraud to show that she had not been aware, but the video was excluded as inadmissible hearsay. The Eleventh Circuit held that the video was not hearsay because it was offered for a purpose other than the truth of the matter asserted. However, the Court held that the error was harmless because the defense had elicited the exculpatory content of the video through testimony.

The Court also upheld an upward departure in sentencing, noting that, under the new healthcare laws, the sentence would have been within the guidelines range had the fraud been committed today. Because sentences within the guidelines are presumptively reasonable and because the sentencing judge named numerous reasons for its upward departure, the Court held that a 30-year sentence was not an abuse of discretion, despite sentencing disparities.

The full opinion is available here.

Today President Obama signed the Fair Sentencing Act of 2010 into law. This federal law reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. While this is a step in the right direction, a significant disparity remains and the law has not been made retroactive.

The major features of the law include the following:
• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.
• The ten-year mandatory minimum sentence now applies to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.
• The Act eliminates a five-year mandatory minimum for simple possession of crack cocaine.
• The Act increases financial penalties for major drug traffickers.
• Within 90 days, the United States Sentencing Commission (USSC) must increase the sentences under the advisory Sentencing Guidelines for defendants using violence in drug trafficking crimes and emphasize certain aggravating and mitigating factors.
• The Comptroller General must report to Congress on the effectiveness of drug court programs.
• In five years, the USSC must report to Congress on the impact of the law’s changes to cocaine sentencing law.

The full text of the Act is available here.

In late May, the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Florida, Georgia, and Alabama, decided U.S. v. Cunningham. The Court held that the federal statute that provides for revocation of supervised release is constitutional under the Fifth and Sixth Amendments, despite its provision for reimprisonment of a criminal defendant based upon conduct that is not proven to a jury beyond a reasonable doubt.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.

The Eleventh Circuit distinguished the revocation of supervised release from Apprendi and Blakely. The Court reasoned that the defendant was already convicted of the underlying offenses and was granted only conditional liberty, depending upon his obeying the limits of his supervised release. In holding that a violation of supervised release need only be proven to a judge by a preponderance of the evidence, the Court joined six other circuits.

The Cunningham opinion is available here.

Earlier this month, the Supreme Court announced its decision in Dolan v. United States, resolving a circuit court split. This decision abrogates U.S. v. Maung, a 2001 Eleventh Circuit case that held that a federal court imposing a criminal sentence lacks the authority to enter a restitution order after the 90-day deadline has expired. The Supreme Court held that, at least where the sentencing court clearly advised before the deadline that it would order restitution, that court may order the specific amount after the deadline has expired.

The majority opinion by Justice Breyer is available here, along with a dissenting opinion by Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy.

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

The Original Sentence and Appeals
In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008
In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit
Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here.
The Supreme Court's opinion in Begay is available here.
The Eleventh Circuit's opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:
Chambers (Supreme Court: failure to report to a penal institution is not violent felony)
Lee (Eleventh Circuit: walkaway escape is not violent felony)
Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)
Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

For more information on the details of this case, Judge Martin’s decision below, and the Eleventh Circuit opinion, this Daily Report article discusses the case at length.

The Eleventh Circuit’s 112-page opinion in U.S. v. Farley is available here. We should caution that the opinion contains a fair amount of graphic detail.

This morning, the United States Supreme Court issued its opinion in Barber v. Thomas. In a 6-3 decision, the Court held that the calculation method used by the Bureau of Prisons (BOP) to determine the amount of “good time” earned on federal criminal sentences is lawful. The Court rejected two other methods for calculating good time, one proposed by federal prisoners and one suggested by the dissenting justices. As a result of this holding, the taxpayers will be forced to continue paying for prisoners longer than Congress may have wanted.

This case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. … [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

Two federal prisoners argued that the BOP has been interpreting the good time provision incorrectly, resulting in prisoners serving longer sentences than intended by Congress. The Court, using an example 10-year sentence with maximum good time credits earned, evaluated three distinct methods of calculating good time: the method currently used by the BOP, the method proposed by the prisoner petitioners, and a third method supported by the dissent.

The BOP’s method, which the Court upheld, interprets “term of imprisonment” in the statute to mean “entire imposed sentence” in some places, but “time actually served” when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner’s release date. In the Court’s 10-year example, the prisoner receives 470 days of good time credit under this method.

The petitioners’ method is the most simple, interpreting “term of imprisonment” as “entire imposed sentence” throughout the statute. The petitioners would have BOP add 54 days of good time credit for each year in the imposed sentence. For a sentence of 10 years, the prisoner would receive 540 days of good time credit. Both the majority and dissenting justices rejected this method as irreconcilable with the statute.

The dissent’s method interprets “term of imprisonment” consistently as “the span of time that a prisoner must account for to obtain release.” This method would count each year’s good time credit toward the next year, so some “years” of a prisoner’s term may be completed in less than 365 days. In the 10-year example, this approach gives a prisoner a maximum of 533 days of good time credit.

Although the dissent’s approach is the most consistent use of the statutory text, makes the most logical sense, and would save taxpayers “untold millions of dollars,” the majority “conclude[d] that the Bureau’s method reflects the most natural reading of the statute.”

Justice Breyer delivered the opinion and Justice Kennedy issued the dissenting opinion, joined by Justices Stevens and Ginsburg. The opinion and dissent in Barber v. Thomas are available here.

This past Friday the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ghertler, a federal criminal case. The Court held that Ghertler, who had impersonated corporate officials to obtain urgent cash transfers from large corporations, did not abuse a position of trust in perpetrating his frauds because he had no relationship of trust to abuse. For that reason, the abuse of trust sentencing enhancement at U.S.S.G. § 3B1.3 should not have applied.

In 2006 and 2007, Mr. Ghertler researched the names of corporate officers, then called the company and identified himself as an officer, usually the general counsel. He claimed that some urgent matter, such as settlement of a lawsuit, required an immediate cash transfer and provided instructions for distribution of the funds. He pleaded guilty to eight counts of wire fraud in 2008, admitting to defrauding the seven companies named in the indictment. He was sentenced to concurrent 185-month sentences.

One of Ghertler’s arguments on appeal was that the District Court should not have applied U.S.S.G. § 3B1.3, a two-level sentencing enhancement for abuse of a position of trust. The District Court recognized that Ghertler did not actually hold a position of trust, but based its decision on Application Note 3, which provides for application of the enhancement where “the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.”

The Court held that “[a] relationship of trust between the defendant and the victim is the sine qua non of the abuse-of-trust enhancement.” In this case, there was no relationship of trust between Ghertler and the victims to abuse. The Court looked to the history to Application Note 3, pointing out that the Commission adopted the Note to ensure that the enhancement would apply to defendants who entered into relationships of trust with victims based upon misrepresentations. The relationship of trust remains the touchstone of the abuse-of-trust analysis. Without such a relationship, the enhancement cannot be applied.

The opinion in Ghertler is available here.

As we reported last week, the United States Sentencing Commission (USSC) has been voting on proposed amendments to the Federal Sentencing Guidelines. Today the USSC issued a press release explaining additional amendments, including:

• Expanding the availability of alternatives to incarceration;
• Amending policy statements regarding age, mental and emotional conditions, physical condition, and military service to recognize their potential relevance;
• Criminal history calculation changes we discussed in this post last week;
• Expanding the guideline for offenses involving individual rights to include new hate crime offenses; and
• Changing the guidelines regarding sentencing organizations by clarifying required remediation efforts and reporting obligations for effective compliance and ethics programs.

Although the Commission has not made the specific language of its proposed amendments public, we are especially anxious to see what the Commission has to say about the availability of alternatives to incarceration. In the press release the Commission mentioned that it has already agreed to amend the guidelines by extending Zone B of the sentencing table by an additional offense level. In other words, under the Commission’s proposed amendment, an individual with a final offense level of 11 will no longer be required to go to prison if a Judge exercises her discretion to allow home confinement in lieu of institutional confinement.

Read the press release here.

This Tuesday, the United States Sentencing Commission (USSC) voted to delete 4A1.1(e) from the Federal Sentencing Guidelines Manual. This Guideline addresses the recency of previous imprisonment in calculating the criminal history points that increase a defendant’s sentence.

4A1.1(e) currently reads:

Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) [more than 60 days] or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d) [which adds points where the crime was committed while under a sentence, including probation, etc.], add only 1 point for this item.

On May 10th, this amendment, along with any others passed, will be sent to Congress, as set forth in 28 U.S.C. § 994(p). Congress may pass legislation rejecting the amendments within 180 days. If no action is taken, the amendments will become effective by November 1, 2010. In the meantime, criminal defense lawyers should argue that sentencing courts should not apply 4A1.1(e) for the same reasons the USSC voted to eliminate it.

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

The testimony and written statement of Margy Meyers, of the Federal Defender Sentencing Guidelines Committee, and Marianne Mariano, a Federal Public Defender in the Western District of New York, is particularly important reading for practitioners who would argue against application of 4A1.1(e) prior to its taking effect. All of the public comments on the proposed amendments to the Guidelines are available here.

Thank you to L. Burton Finlayson for the heads up on this notable development.

Last week, the Eleventh Circuit federal appeals court decided U.S. v. Sneed. In this Armed Career Criminal Act (ACCA) case, the Court decided that U.S. v. Shepard, decided by the Supreme Court in 2005, abrogated the Eleventh Circuit’s 2000 decision in U.S. v. Richardson. The Court held that sentencing courts may look only to Shepard-approved material and facts to which the defendant has assented (such as undisputed facts in the PSI) in determining whether ACCA prior offenses were committed on different occasions.

As we explained in this post, the ACCA provides for a mandatory minimum sentence of 15 years for federal criminal defendants who have three previous convictions for violent felonies or serious drug offenses. Those offenses must have been committed on temporally distinct occasions. In Sneed, the defendant had three previous drug convictions that were charged in a single indictment in Alabama. The state indictment did not provide dates or times for the offenses, so the district court looked to police reports attached to the government’s sentencing memorandum to determine that the offenses were committed on different occasions.

In 2000, the Eleventh Circuit held in Richardson that “determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions.” In that case, police reports showed that the prior crimes had been temporally distinct and their accuracy was not contested. The Eleventh Circuit relied on the police reports and concluded that the crimes were distinct.

The Supreme Court decided Shepard in 2005, holding that sentencing courts may only consult certain materials in determining the nature of a defendant’s prior convictions for purposes of ACCA. The Court expressly rejected police reports and stressed developments in the law, Jones and Apprendi in particular, addressing the constitutional concerns requiring a jury’s finding of a disputed fact about prior convictions where that fact is essential to increase a potential sentence. Shepard-approved materials include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from bench trials, and jury instructions and verdict forms.

The Eleventh Circuit stated that Richardson’s conclusion that courts may look to certain facts underlying prior convictions for the different occasions inquiry is still correct, but held that Shepard abrogated its approval of the use of police reports. Although Shepard addressed a different ACCA determination, the two statutory predicates (type of offense and different occasions) are contained in the same sentence. The Eleventh Circuit held that “there is simply no distinction left” between type of offense and different occasions inquiries for the scope of permissible evidence to be different in determining each statutory predicate.

The bottom line is that the defendant’s mandatory minimum 15-year sentence is tossed, although he still faces a potential max of 10 years for being a felon in possession.

The opinion in this case is available here.