Sentencing Guidelines:
A. Chapter Two - Offense Conduct
B. Chapter Three- Adjustments
C. Chapter Four - Criminal History
D. Miscellaneous Guidelines
Chapter Three- Adjustments
Sixth Circuit Decisions
• 3A1.1(b)(1) - Vulnerable VictimU.S. v. Madden, 04-5150 (4/4/05)
> Defendant was convicted of illegally buying three votes in an election. At sentencing, the district court applied a two-level enhancement under U.S.S.G. § 3A1.1(b)(1) because the persons from whom defendant bought the votes were mentally ill, and thus vulnerable. Defendant challenged the sentence on appeal.
* Holding: The court held that the district court erred in applying the vulnerable victim enhancement. The persons from whom defendant bought the votes could not properly be considered “victims.” The persons were vote sellers who were compensated $50.00 each for their votes, and thus were simply “individuals who value money more highly than their right to vote.” Accordingly, the case was reversed and remanded for resentencing in light of Booker.
• 3A1.1(b)(1) - Vulnerable Victims
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was a doctor who, in treating her cancer patients, provided partial doses of chemotherapy medicine but billed the federally funded health benefit program for full doses. Defendant was convicted of heath care fraud and at sentencing the district court applied the vulnerable victim enhancement. Defendant argued on appeal that her patients were not “victims” of the health care fraud, and that the enhancement was improperly applied.
* Holding: Pursuant to USSG § 3A1.1(b), a “vulnerable victim” is one who is harmed by the offense of conviction or any relevant conduct to the offense of conviction. In the case, the court found that defendant’s acts of depriving her patients of the opportunity to receive the full benefit of the treatment without any medical justification qualified as “harm” to the patients within the meaning of the enhancement, and that this “harm” occurred in the course of the scheme to defraud the health care program. Accordingly, application of the vulnerable victim enhancement was proper and defendant’s sentence was affirmed.
• 3A1.2 - Official Victim - Double Counting
U.S. v. Cousins, 05-3228 (11/30/06)
> Defendant was convicted of threatening the President of the U.S. and his family. At sentencing, the district court applied USSG § 2A6.1, which is the guideline for making threatening or harassing communications. Additionally, the district court applied a 3 level enhancement, pursuant to USSG § 3A1.1, because the President was an official victim. Defendant appealed and argued that application of § 3A1.1 constituted impermissible double counting.
* Holding: The court held that no double counting occurs where a court applies the official victim enhancement, and the guideline applicable to the offense – as opposed to the statute establishing criminal liability – does not take the victim’s status into account. Thus, the court ruled that, even though the criminal charge was threatening the President, because § 2A6.1 does not take the victim’s status into account, the district court did not err in also applying the official victim enhancement of § 3A1.1.
• 3A1.2 - Assaulting an Officer
U.S. v. Thompson, 06-6233 (2/11/08)
> Defendant and five codefendants were convicted of conspiracy to distribute cocaine and defendant was also convicted of carrying a firearm in relation to drug trafficking. During a controlled sale of cocaine to defendant by an informant and an undercover officer, defendant and his partner attempted to rob them. When police burst in, defendant’s partner shot at the officers multiple times in their attempt to escape. At sentencing, the district court applied a six-level enhancement under USSG § 3A1.2 for assaulting a law enforcement officer. Defendant argued on appeal that the enhancement was inapplicable and that it constituted impermissible double counting.
* Holding: A defendant is accountable under § 3A1.2 for assaulting an officer if the defendant, or a person for whose conduct defendant is accountable, creates a substantial risk of harm to an officer, knowing that the person is an officer. In the case, the court held that defendant knew that the officers who burst in during the robbery were law enforcement because they were wearing police vests. Further, the court found that defendant was responsible for his partner’s actions in shooting at the officers because they were in a conspiracy together and defendant was clearly directing his partner’s actions during the drug sale and the ensuing shoot out. Thus, the six-level enhancement was proper.
Further, the court held that the enhancement did not constitute impermissible double counting as the result of the conviction for the offense under 18 USC § 924(c). The assault on the law enforcement officer guideline enhancement and the statutory penalty for carrying a firearm in relation to a drug trafficking crime punished distinct aspects of defendant’s conduct. Accordingly, defendant’s sentence in this regard was affirmed.
• 3B1.1 - Leadership - Double Counting
U.S. v. Gibson, 03-6592 (5/24/05)
> Defendants were convicted under the Mine Safety and Health Act (MSHA) for violations of coal mine safety regulations. At sentencing, the government advocated for a four-level sentence enhancement based upon defendants’ leadership (U.S.S.G. § 3B1.1) in the mine activities. The district court refused to apply the enhancement because the MSHA punishes only mine operators and thus, the leadership is assumed in the offense. To apply the enhancement for leadership would be impermissible double counting. The government appealed.
* Holding: Double counting occurs where “precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways.” The court agreed that only mine operators can be charged under the MSHA. Therefore, the court concluded that defendants’ leadership roles at the mine were factored into the base offense level for the offense. Accordingly, applying the leadership role enhancement of § 3B1.1 would constitute impermissible double counting.
• 3B1.1 - Leadership Role
U.S. v. Brika, 05-4537 (5/23/07)
> Defendant was convicted of demanding ransom money for a kidnap victim and at sentencing the district court imposed a four-level enhancement for defendant’s leadership role in an offense involving five or more people. The ruling was based on the fact that three women and four men in Morocco were involved with the kidnaping. Defendant specifically challenged the credibility of the evidence regarding the women’s involvement because neither they, nor the person who took their confessions, appeared as witnesses in the case. Defendant appealed.
* Holding: Because neither the rules of evidence nor the Confrontation Clause apply at sentencing, when challenging hearsay evidence on appeal, a defendant must show that the evidence is materially false or unreliable and that the false information actually served as the basis for the district court’s sentence. In the case, the court held that defendant had not established the falsity of the statements. To the contrary, several items pointed to the reliability of the women’s statements including (1) their confessions were statements against penal interest, which bear indicia of reliability, (2) the women were prosecuted in Morocco for their involvement, and (3) their involvement was corroborated by other evidence. Thus, the court found the hearsay to be reliable and affirmed the sentence.
• 3B1.1 - Leadership Role
U.S. v. Moncivais, 05-6689 (7/10/07)
> Defendant was convicted of participating in a drug conspiracy and at sentencing the district court enhanced his sentence by four levels for being a leader or organizer of a criminal activity involving five or more participants. Defendant appealed.
* Holding: In determining whether the four- level enhancement is appropriate, a court must consider “the exercise of decision making authority, the nature of participation in the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” Further, it is sufficient if defendant supervised only one person in an activity that involved five or more participants. A “participant” is someone who is criminally responsible for the offense. In the case, the court held that defendant (1) exhibited control over at least one person (as evidenced by a taped phone call), (2) supplied the drugs in an extremely large quantity, (3) demonstrated a significant degree of planning and participation, and (4) had a large stake in the profitability of the enterprise. Further, the court found that at least five other participants were involved in transporting the drugs. Thus, the four-level enhancement was affirmed.
• 3B1.1 - Leadership Enhancement
U.S. v. Robinson, 06-5787 (9/26/07)
> Defendant was convicted for being involved in a marijuana and cocaine conspiracy. At sentencing, the district court determined that defendant was a manager or leader in the conspiracy and that it involved five or more participants. The court accordingly imposed a four-level enhancement pursuant to USSG § 3B1.1. Defendant appealed.
* Holding: Under § 3B1.1, a defendant need not supervise five or more people in order to qualify for the four-level enhancement. The section requires only that defendant supervise one person in a criminal activity that involves five or more participants. In the case, the court held that the district court properly determined that defendant supervised one person, and that the drug conspiracy involved at least five participants. Accordingly, the four point enhancement was affirmed.
• 3B1.1 - Leadership Enhancement
U.S. v. Ward, 06-5136 (10/23/07)
> Defendant was convicted of drug trafficking and at sentencing the district court determined that defendant qualified for a two-level enhancement for being a leader or organizer. The enhancement was based upon the fact that defendant directed a codefendant to deliver crack cocaine for him on 20 separate occasions over the course of many years. Defendant appealed.
* Holding: The court held that defendant obviously exercised a degree of control over the codefendant due to the length of time and number of occasions during which he delivered cocaine for defendant. Further, the court held that, even if application of the enhancement was error, the error was harmless because the district court indicated that it would have imposed the same sentence even if it concluded that the leadership enhancement was not proper. Accordingly, defendant’s sentence was affirmed.
• 3B1.1(c) - Leadership Role
U.S. v. Lalonde, 06-4536 (12/12/07)
> Defendant was convicted of wire fraud and income tax evasion and at sentencing the district court determined that defendant qualified for a two-level enhancement for playing a leadership role. Specifically, defendant represented himself to be a financial planner and bilked several individuals and companies out of large sums of money. In so doing, defendant directed two coconspirators’ actions and kept for himself the largest share of the proceeds. Defendant appealed the application of the enhancement.
* Holding: Pursuant to USSG § 3B1.1(c), a defendant may receive a two-level enhancement if the defendant was an “organizer, leader, manager, or supervisor in any criminal activity.” A defendant must have exerted control over at least one individual for the enhancement to apply, and merely playing an essential role in the offense is not, in and of itself, sufficient. In the case, the court held that the fact that defendant directed two coconspirators and kept the largest share of the proceeds for himself was sufficient to support the leadership enhancement. Thus, the sentence was affirmed.
• 3B1.1 - Leadership Role
U.S. v. Thompson, 06-6233 (2/11/08)
> Defendant and five codefendants were convicted of conspiracy to distribute cocaine and defendant was also convicted of carrying a firearm in relation to drug trafficking. At sentencing, the district court applied a four-level enhancement under USSG § 3B1.1 for his leadership in the conspiracy. Defendant appealed the application of the enhancement.
* Holding: The court held that the following facts indicated defendant’s leadership in the conspiracy: (1) defendant originally negotiated the deal with the informant and was the negotiator during the transaction; (2) defendant was the man doing all the talking and wanted to see the cocaine; (3) defendant is the one who went out and brought back his partner with extra money to complete the deal; and (4) defendant gave directions to the partner during their flight from officers. The court noted that defendant’s partner may also have played a leadership role in the conspiracy, but that this fact did not preclude defendant from also receiving a leadership role enhancement. Thus, this aspect of defendant’s sentence was affirmed.
• 3B1.1 - Leadership Role
U.S. v. Jeross, 06-2257 (4/4/08)
> Defendant was convicted of conspiracy to distribute ecstacy. At sentencing, the district court determined that a three-level enhancement was applicable for defendant’s leadership role in the offense. This determination was based on a codefendant’s testimony that defendant was a mid-level distributer of ecstacy. Defendant appealed.
* Holding: The court held that defendant exercised control over four to five lower-level distributers of ecstacy. The court found that the pills arrived at defendant’s home from Canada, defendant oversaw them being broken down and packaged, and she managed the distributers in selling them. Accordingly, the three-level enhancement was appropriate.
• 3B1.1(a) - Leadership Role
U.S. v. Baker, 07-5412 (3/16/09)
> Defendant was convicted after trial for being the supplier of a drug conspiracy. At sentencing, the district court determined that defendant qualified for a four-level enhancement for being the leader of a conspiracy that involved five or more participants. Defendant appealed and argued that there was insufficient evidence that he supervised five or more participants.
* Holding: In order to apply a four-level leadership enhancement, the court must find that the criminal activity involved five or more persons who were criminally responsible, and that defendant supervised at least one person. In the case, the court held that defendant was the supplier of a drug organization that involved at least five participants. Defendant had failed to object to the factual findings in the PSR in this regard, and accordingly the court found no clear error in the district court’s ruling.
• 3B1.1 - Leadership Role
U.S. v. Vasquez, 07-1248 (3/23/09)
> Defendant was convicted of drug trafficking and at sentencing the district court determined that defendant qualified for a leadership role enhancement. Defendant objected to the enhancement and argued on appeal that it was inapplicable.
* Holding: The court held that a defendant may qualify as a leader in a drug enterprise where the defendant exercised decision-making authority, recruited accomplices, received a larger share of the profits, was instrumental in planning, or exercised control over at least one accomplice. In the case, the court found that defendant exercised control over his brother, negotiated drug prices, and provided drugs to other suppliers in the enterprise. Accordingly, the district court’s ruling was affirmed.
• 3B1.2 - Mitigating Role
U.S. v. Salas, 05-5547 (8/1/06)
> Defendant was convicted of possession with intent to distribute cocaine because he transported cocaine and cash from Kentucky to Florida on one occasion. At sentencing, defendant requested a two-level guideline reduction under USSG § 3B1.2 for playing a minor role. The district court refused to grant the reduction and defendant appealed.
* Holding: The court held that defendant played an indispensable role in transporting the cash and cocaine, that he knew that he was transporting drugs and drug proceeds, that he rented a car for the purpose of carrying out his role, and that he attempted to mask the smell of the cocaine in order to avoid detection. Accordingly, the court affirmed the district court’s decision denying the minor role reduction.
• 3B1.2 - Minor Role
U.S. v. Bailey, 05-6218 (6/15/07)
> Defendant was convicted of participating in a drug conspiracy and at sentencing he argued that he should receive a reduction for playing a minor role. The district court refused to award a minor role reduction and defendant appealed.
* Holding: A defendant in a drug conspiracy case is required to prove her entitlement to a minor role reduction by a preponderance of the evidence and she may not receive such a reduction where she is only held accountable for the quantities of drugs that are actually attributable to her. In the case, the court found that defendant had only been held attributable for the drugs pertaining to the transaction in which defendant was actually involved. Accordingly, the minor role reduction was not appropriate and the sentence was affirmed.
• 3B1.2 - Minor Role
U.S. v. Allen, 06-5077 (2/5/08)
> Defendant was convicted, along with three others, of conspiracy and various substantive offenses in relation to his robbery of rare books from a library. At sentencing, defendant requested a reduction for playing a minor or minimal role in the offense, pursuant to USSG § 3B1.2. The district court denied the request and defendant appealed.
* Holding: The court held that defendant’s role included the following: (1) visiting the library prior to the robbery to gather intelligence; (2) conducting a stake-out of the robbery to gather intelligence; (3) developing the escape route; (4) obtaining and driving the getaway vehicle; (5) arranging hotel accommodations in New York, where they intended to sell the stolen items; (6) helping to finance the operation; and (7) storing the stolen items and helping to transport the stolen items to and from New York. Based upon these facts, the court held that defendant had not played a minor or minimal role under § 3B1.2.
• 3B1.2(a) - Minimal Role
U.S. v. Anderson, 07-5037 (5/27/08)
> Defendant was convicted of money laundering the proceeds of her son’s drug trafficking conspiracy. At sentencing, the district court applied a four-level minimal role reduction to defendant’s sentence. The government appealed.
* Holding: A defendant may only receive a reduction for her role in the offense if she is “substantially less culpable than the average participant.” Because defendant was the only person who took steps to conceal her son’s drug proceeds, she could not receive a minimal role reduction for her money laundering conviction. Therefore, the sentence was vacated and the case remanded for resentencing.
• 3B1.2 - Minimal/Minor Role
U.S. v. Groenendal, 07-2430 (2/26/09)
> Defendant was convicted of possession of child pornography based on his uploading of three images to a child porn website. At sentencing, the district court determined that defendant’s uploading activities constituted trafficking, however, the court also concluded that defendant was not a minor participant because he was the “only participant in the case.” As such, the court denied defendant’s request for a minimal or minor role downward adjustment. Defendant appealed.
* Holding: Under USSG § 3B1.2, a defendant may only receive a reduction if there is more than one “participant” in the offense. A “participant” need not be charged, but only must be involved in the relevant conduct to the offense. In the case, the court determined that the district court’s ruling regarding defendant’s request for a minor role reduction was inconsistent with its finding that defendant was involved in trafficking. The court ruled that trafficking necessarily involves more than one person, so the district court’s conclusion that defendant was the “only participant in the case” was inconsistent with its finding that defendant trafficked in child porn. Accordingly, the case was remanded for the district court to make a proper finding as to whether defendant’s role in the offense, including relevant conduct, was minor.
• 3B1.2 - Minor role
U.S. v. Gabbard, 08-5445 (11/25/09)
> Defendant was convicted of conspiracy to manufacture marijuana. Defendant played a small role in assisting a codefendant who manufactured and sold numerous marijuana plants. During one point in the conspiracy, defendant told an informant that he was a “partner” with the codefendant, and he tried to negotiate prices with the informant. At sentencing, the district court rejected defendant’s request for a minor role reduction, and defendant appealed.
* Holding: In order to qualify for a minor role reduction under USSG § 3B1.2, the defendant bears the burden of proving that he or she is substantially less culpable than the average participant. The court found that defendant’s acts of claiming to be a partner and trying to negotiate prices justified the district court’s finding. Further, the court noted that two other participants in the conspiracy played smaller roles than defendant. Thus, the court ruled that, although it may have found defendant’s role to be minor on “an independent review” of the record, the court found no error given the “substantial deference” owed to the district court’s fact finding.
• 3B1.3 - Abuse of Position of Trust
U.S. v. Hudson, 05-2656 (6/26/07)
> Defendant entered into contracts with the school district as an independent contractor to help a school develop a television station. As a result of defendant’s activities during the course of his performance of the contract, he was charged with defrauding a government entity that received federal funding under § 666. At sentencing, the district court determined that a two-level enhancement for abuse of position of trust was appropriate. Defendant appealed.
* Holding: A position of trust for purposes of USSG § 3B1.3 is one of professional or managerial discretion. The level of discretion enjoyed by the employee is the “decisive factor” in determining whether the enhancement applies. Further, the position of trust must contribute in a significant way to facilitating the commission of the offense. In the case, the court held that defendant’s employment with the school system amounted to a position of trust because he had authority to develop a television station, purchase expensive equipment, assist students and staff in using the studio, and advise the school district on matters involving the studio. Further, the court held that the abuse of position of trust enhancement was not “an aspect of and included in” the § 666 conviction. Thus, the two-level enhancement was affirmed.
• 3B1.3 - Abuse of a Position of Trust
U.S. v. Kaminski, 05-3823 (8/31/07)
> Defendant was convicted of introducing unapproved and misbranded drugs into interstate commerce, and holding adulterated drugs for sale. During the course of her criminal conduct, defendant sold egg yolks of hyperimmunized chickens to consumers and falsely represented to the consumers that she was a medical doctor. At sentencing, the district court imposed the enhancement under USSG § 3B1.3 for abuse of a position of trust. Defendant appealed and argued that the enhancement did not apply to strict liability offenses.
* Holding: Answering an open question, the court held that the § 3B1.3 enhancement may apply to qualifying conduct regardless of whether the underlying offense requires proof of mens rea. Further, the court found that the enhancement was appropriate under the facts of the case because defendant had, in fact, falsely told consumers she was a doctor and the consumers had relied on this representation. Thus, defendant’s sentence was affirmed.
• 3B1.3 - Abuse of Position of Trust
U.S. v. Sedore, 06-2259 (1/16/08)
> Defendant was convicted of identity theft and making false claims to IRS. At sentencing, the district court imposed a two-level enhancement for abuse of a position of trust. The enhancement was based upon the fact that defendant prepared a tax return for an individual, and then used the individual’s children’s social security numbers to make false claims to IRS. Defendant appealed.
* Holding: In the Sixth Circuit, a defendant’s sentence may be enhanced under USSG § 3B1.3 where the defendant abused a position of trust with the victim of the charged conduct. In the case, the court found that defendant clearly held a position of trust in relation to father, for whom he prepared the tax return. Further, the court ruled that defendant’s trust relationship between he and the father extended to the children. The court noted that it did not matter that the children suffered no pecuniary loss as a result of the offense, because such is not required for the abuse of position of trust enhancement. Accordingly, the sentence was affirmed.
• 3B1.3 - Abuse of Trust - Double Counting
U.S. v. Smith, 06-1218 (2/19/08)
> Defendant was convicted of fraud-related offenses in relation to her embezzlement of Red Cross donations while she was the director. At sentencing, the district court applied enhancements both for abusing a position of trust (USSG § 3B1.3) and for misrepresenting that her actions were on behalf of a charitable organization (USSG § 2B1.1(b)(8)(A)). Defendant contended on appeal that applying both enhancements constituted impermissible double counting.
* Holding: Impermissible double counting occurs when the “precisely the same aspect of a defendant’s conduct factors into [her] sentence in two separate ways.” The court held that application of the two enhancements did not constitute double counting because the abuse of trust enhancement applied because of defendant’s exploitation of her role as director, and the misrepresentation about her actions as being charitable accounted for her deceptions in misleading contributors. Thus, the sentence was affirmed.
• 3B1.3 - Abuse of Position of Trust
U.S. v. Tatum, 07-5733 (3/5/08)
> Defendant was the office manager for a family run business and during her tenure she wrote company checks to herself and forged her boss’ name. Defendant subsequently pled guilty to bank fraud and at sentencing the district court applied a two-level enhancement, pursuant to USSG § 3B1.3. The court found that defendant abused a position of private trust, and that she utilized a special skill. Defendant appealed.
* Holding: The court held first that defendant did not hold a position of trust. The court ruled that a position of trust typically involves considerable discretion and authority, or those in a fiduciary-type relationship with the victim. The court found that defendant’s position as office manager, where she had no discretion to exercise “judgment or assert control over the finances,” did not place her in a position of trust. Second, the court held that the skills that defendant possessed as office manager were not “special skills” as anticipated by § 3B1.3. Accordingly, the court ruled that the district court erred in imposing the two-level enhancement, and the sentence was vacated.
• 3B1.3 - Abuse of a Position of Trust
U.S. v. May, 07-3465 (6/9/09)
> Defendant was convicted of tax evasion (26 USC § 7201) and failure to withhold and pay over employee payroll taxes to the IRS (§ 7202). At sentencing the district court determined that the defendant qualified for the abuse of a position of trust enhancement under USSG § 3B1.3. Defendant appealed.
* Holding: The court held that the only victim of defendant’s offense was the IRS, not the employees. Further, the court held that defendant did not hold a position of trust, pursuant to § 3B1.3, in relation to the IRS. Accordingly, the district court’ ruling was reversed.
• 3C1.1 - Obstruction of Justice
U.S. v. Gibson, 03-6592 (5/24/05)
> Defendant corporation was convicted of violating mine safety regulations and at sentencing, the government argued for a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The government claimed that defendant had warned its employees of the pending inspection, falsified its internal reports, and lied to the federal inspectors. The district court refused to apply the enhancement because it believed that such conduct did not occur during the investigation of the offense. The government appealed.
* Holding: The court found that the district court’s reasoning was flawed because obstruction of justice may apply where a defendant acts with intent to impede an investigation that eventually results in the defendant’s conviction. Nonetheless, the court found that the obstructive conduct was not sufficiently egregious to warrant the enhancement. The court noted that Application Note 5 to § 3C1.1 indicated that avoiding arrest, providing misleading information, or even making false statements to federal officers does not warrant application of the enhancement. The court found that defendant’s conduct was analogous to the conduct mentioned in the note, and accordingly affirmed the district court’s decision.
• 3C1.1 - Obstruction of Justice
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant was charged in an insurance fraud scheme. Prior to learning that an investigation had begun against him, defendant shredded numerous documents from his company investor files. At sentencing, the district court enhanced defendant’s offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Defendant appealed.
* Holding: A defendant’s sentence may be enhanced for obstruction of justice based upon shredding documents if an investigation has begun against him, or if he knew that an investigation was imminent. The enhancement is not applicable if a defendant destroyed documents in anticipation of a possible future investigation. The court found that the government’s evidence was equivocal as to the date defendant destroyed documents and thus, the government had not established the basis for the enhancement. Accordingly, the obstruction of justice enhancement was improper and the case was remanded for resentencing consistent with Booker.
• 3C1.1 - Obstruction of Justice
U.S. v. Paulette, 05-5549 (8/10/06)
> Defendant was charged with narcotics and firearm offenses and at trial he testified in his own behalf. Defendant testified about where he was living and, in an attempt to impeach defendant, the prosecutor introduced the testimony of defendant’s mother and tape recordings of defendant’s conversations. At sentencing, the district court applied a two- level enhancement to defendant’s sentence for obstruction of justice, pursuant to USSG § 3C1.1. The basis for enhancement was the district court’s belief that defendant had committed perjury in testifying about his residence, but it made no specific findings as to which parts of defendant’s testimony were actually false. Defendant appealed.
* Holding: The court held that, in order to enhance a defendant’s sentence under § 3C1.1 based upon perjury, the district court must (1) identify those portions of the testimony that it considers perjurious, and (2) either make a specific finding for each element of perjury or make a finding that encompasses all the factual predicates for a finding of perjury. The court ruled that the district court had not complied with either part of the test, and remanded for resentencing.
• 3C1.1 - Obstruction of Justice
U.S. v. Davist, 06-1224 (3/29/07)
> Defendant was convicted of conspiracy to defraud the U.S., eighteen counts of making false claims against the U.S., and two counts of making false statements to IRS agents. At sentencing, the district court applied a two-level enhancement for obstruction of justice, under USSG § 3C1.1, because defendant lied to IRS agents during the course of their investigation. Defendant appealed.
* Holding: The court held that application of the two-level obstruction of justice enhancement was appropriate. Specifically, the court relied upon the application notes to § 3C1.1 which indicate that the enhancement is appropriate where a defendant commits obstructive conduct during the course of the investigation of the offense and the defendant receives a separate count of conviction for such conduct. Accordingly, the sentence was affirmed.
• 3C1.1 - Obstruction of Justice
U.S. v. Kaminski, 05-3823 (8/31/07)
> Defendant was convicted of introducing unapproved and misbranded drugs into interstate commerce, and holding adulterated drugs for sale. At sentencing, the district court applied a two-level enhancement for obstruction of justice based upon (1) defendant’s participation in petitions that were sent to the FDA, the Secretary of Health and Human Services, and a congresswoman in an attempt to derail the FDA investigation, and (2) a letter defendant sent to the Office of Internal Affairs (OIA) of the FDA, indicating that the FDA agent investigating him was corrupt. Defendant appealed the application of the enhancement.
* Holding: First, the court held that no evidence existed in the record to support the conclusion that defendant had participated in the petitions sent to the FDA, Secretary, and congresswoman. Second, the court held that the letter defendant sent to the OIA did not constitute obstruction of justice. Under § 3C1.1, an unsworn statement to a law enforcement officer can only constitute an obstruction of justice if it “significantly obstructs or impedes the investigation or prosecution of the offense.” At the sentencing hearing, the investigating FDA agent testified that defendant’s letter to the OIA had absolutely no impact on the investigation of defendant. Accordingly, the obstruction-of-justice enhancement was not appropriate, and the case was remanded for resentencing.
• 3C1.1 - Obstruction of Justice
U.S. v. Carter, 07-5551 (12/17/07)
> Defendant was convicted of filing false tax returns. At sentencing, the district court applied a two-level enhancement, pursuant to USSG § 3C1.1, for obstruction of justice. The obstructive conduct entailed defendant’s lies to investigators regarding whether he filed the returns, and defendant’s failure to appear pursuant to a summons to provide fingerprints and handwriting exemplars. Defendant appealed the application of the obstruction of justice enhancement.
* Holding: The court ruled that the defendant’s false statements, combined with the failure to appear for the summons, provided a sufficient basis for the enhancement. Specifically, the court held that defendant’s lies and his failure to appear for the summons caused delay in the government’s investigation, which ultimately allowed the statute of limitations to run on some of defendant’s criminal conduct. Further, the court found unavailing defendant’s argument that the conduct was not obstructive because the government was able to obtain the fingerprints and handwriting from another source. In this regard, the court ruled that defendant’s attempt to obstruct was sufficient for the enhancement. Accordingly, the sentence was affirmed.
• 3C1.1 - Obstruction - Double Counting
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was convicted on three counts of health care fraud and one count of making false statements to government agents. At sentencing, the district court applied a two-level enhancement for obstruction of justice based upon defendant’s false statements to the agents. Defendant argued on appeal that application of the obstruction of justice enhancement was impermissible double counting because he was also convicted of false statements.
* Holding: Impermissible double counting occurs when “precisely the same aspect of defendant’s conduct factors into his sentence in two separate ways.” In the case, the court held that no impermissible double counting occurred because the obstruction of justice enhancement was applied to the sentencing guideline calculation for the health care fraud counts, not the false statement count. The obstruction of justice conduct was not duplicative of the factual allegations regarding the health care counts, and thus did not constitute impermissible double counting. Accordingly, defendant’s sentence was affirmed.
• 3C1.1 - Obstruction of Justice
U.S. v. Gilpatrick, 07-5653 (11/26/08)
> Defendant was a jailer who was convicted of violating an inmate’s civil rights by encouraging two other inmates to assault the victim inmate. At sentencing, the district court determined that defendant obstructed justice by obtaining a letter from the offending inmates indicating that they assaulted the victim because he provoked them. Defendant argued on appeal that the enhancement could not be applied unless the district court determined that he acted wilfully.
* Holding: The court held that the “wilfulness” requirement only applied to cases where the enhancement was based on defendant’s commission of perjury. The court found that the district court properly weighed the evidence and determined that defendant had solicited the inmates to write the letter, that the letter was false, and that defendant submitted the letter to the court. As such, the obstruction of justice enhancement was appropriate.
• 3C1.1 - Obstruction of Justice
U.S. v. Paull, 07-3482 (1/9/09)
> Defendant was charged with possession of child pornography. He moved to suppress his confession, and testified during the suppression hearing that he requested counsel prior to questioning. Defendant’s statements were contradicted by the testimony of the agents involved in defendant’s questioning. The district court found that defendant lied during his testimony, and accordingly applied an obstruction of justice enhancement at sentencing. Defendant appealed.
* Holding: In order to apply an obstruction of justice enhancement based on perjured testimony, the court must find that (1) the record was sufficiently clear to determine which statements the district court found perjurious, and (2) each element of the crime of perjury is satisfied. The court held that the district court made sufficient findings that defendant’s statements were perjurious, and accordingly the application of the enhancement was affirmed.
• 3C1.1 - Obstruction of Justice
U.S. v. Boring, 07-4363 (2/27/09)
> Defendant was convicted of worker’s compensation fraud. At trial, defendant’s testimony regarding a conversation with his supervisor directly contradicted the supervisor’s trial testimony. Defendant was convicted, and at sentencing the district court imposed a two-level enhancement for obstruction of justice based on defendant’s perjured testimony. Defendant appealed.
* Holding: In order to impose an obstruction of justice enhancement based on false testimony, the district court must (1) identify the portions of the testimony that are perjurious, and (2) make a finding that encompasses the factual predicates for a finding of perjury. The court held that the elements of perjury are that the defendant gave false testimony to a material matter, with intent to provide false testimony. The court found that the district court made sufficient findings to support the obstruction enhancement. Further, the court ruled that the jury obviously chose to credit the supervisor’s testimony over defendant’s, and thus, the jury’s verdict supported the ruling. Accordingly, the court affirmed the enhancement.
• 3C1.1 - Obstruction of Justice
U.S. v. Vasquez, 07-1248 (3/23/09)
> Defendant was arrested for drug trafficking but was released, pre-indictment, for the purpose of allowing him to cooperate with law enforcement. Defendant fled the jurisdiction and remained at large for four years. After his rearrest, he was convicted and the district court applied a two-level enhancement at sentencing for obstruction of justice. Defendant appealed.
* Holding: The court held that defendant’s act of fleeing the jurisdiction for four years, with no other explanation than to avoid prosecution, constituted obstruction of justice under the guidelines. Accordingly, defendant’s sentence was affirmed.
• 3C1.2 - Reckless Endangerment
U.S. v. Dial, 06-5519 (4/9/08)
> Officers were investigating defendant for drug trafficking and received information from a confidential informant that defendant was returning home with a substantial amount of meth. An officer set up his undercover car in a location so that defendant could see the police lights flashing, and the officer stood outside his car, with a police vest on, and attempted to stop defendant’s car as he approached. Instead of stopping, defendant went up an embankment and tried to get around the car. Defendant hit the officer’s car and caused the officer to believe that his own car may run into him. Defendant then fled. A month later defendant was arrested and charged with drug and firearm offenses. Defendant pled guilty, and at his sentencing the district court imposed an enhancement under USSG § 3C1.2 for reckless endangerment during flight. Defendant appealed.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the government must prove a nexus between the offense conduct and the reckless endangerment in order for the enhancement to apply. In making this assessment, the court will consider evidence of the defendant’s state of mind including the “temporal and geographic proximity” of the reckless endangerment to the offense of conviction. In the case, the court found that defendant clearly tried to evade the officer in order to avoid being arrested for drug trafficking. Further, the flight occurred during the time period of the conspiracy and on a day when an informant indicated that defendant was transporting meth. Accordingly, the application of the enhancement was affirmed.
• 3D1.2/3D1.3 - Grouping of Counts
U.S. v. Gardiner, 05-1247 (9/12/06)
> Defendant was convicted of a RICO conspiracy and a conspiracy to commit bribery. The presentence report recommended that the two offenses should group, pursuant to USSG § 3D1.2. Because the bribery guideline specified a higher offense level, § 3D1.3 required that it be used to determine defendant’s offense level. Thus, the report recommended a sentencing range of 57-71 months. At sentencing, Booker had just been decided, and the district court misinterpreted Booker to stand for the proposition that no enhancements could be imposed unless proven to a jury beyond a reasonable doubt. Thus, the district court refused to apply the enhancements calculated by the probation department in the bribery guideline. Instead, the court found that the RICO guideline should apply and sentenced defendant in a range of 37-46 months. In so doing, however, the court improperly calculated the RICO guideline by applying a two-level enhancement that was clearly not appropriate. Defendant appealed.
* Holding: The court agreed with the defendant that the district court improperly applied a two-level enhancement in calculating the RICO guideline. However, the court also found that the district court misunderstood Booker in refusing to apply enhancements to the bribery guideline. Thus, the court held that the bribery guideline range of 57-71 months, based upon the grouping rules, was proper. Accordingly, the court remanded the case to the district court for resentencing.
• 3D1.2(c) - Grouping of Counts
U.S. v. Woods, 07-4108 (2/4/09)
> Defendant was convicted of one count of conspiracy to commit money laundering and four counts of willful failure to file tax returns. Defendant’s money laundering pertained to proceeds from a mortgage fraud scheme. At sentencing, defendant argued that the money laundering and tax counts should be grouped into a single count under USSG § 3D1.2(c). The district court disagreed and defendant appealed.
* Holding: The court found that the conduct relating to the money laundering count was “completely different” from the conduct relating to the tax counts. As such, the court ruled that grouping under § 3D1.2(c) was improper. The court noted that, to hold otherwise, would be to give the same punishment to someone who committed money laundering and someone who committed money laundering and failed to pay taxes. Thus, defendant’s sentence was affirmed.
• 3E1.1 - Acceptance of Responsibility
U.S. v. Forrest, 03-5672 (3/30/05)
> Defendant went to trial and was convicted of a Hobbs Act robbery and of brandishing a firearm in relation to a crime of violence. At trial, defendant challenged his factual guilt. For the first time during the presentence investigation process, defendant admitted his guilt to the probation officer, who then recommended that defendant receive a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court agreed with the probation officer, and the government appealed.
* Holding: The court found error in the district court’s award of acceptance of responsibility. The court noted that it is extremely rare that a defendant who goes to trial may get a reduction for acceptance of responsibility. Where a defendant challenges her factual guilt at trial, such an award is not proper. Accordingly, the case was reversed and remanded for resentencing in light of Booker.
• 3E1.1(b) - Super Acceptance
U.S. v. Smith, 04-5669 (11/23/05)
> Defendant decided to plead guilty to weapons offenses two days before a trial date. As a result, the government refused to file the motion for the third point of reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b)(“super acceptance”). The district court rejected defendant’s request to award the third point, and defendant appealed.
* Holding: The court held that, even after Booker, the district court had no discretion to award the third “acceptance of responsibility” point unless the government files a motion under § 3E1.1(b). The only exception to this requirement is where the government fails to file the motion based upon some unconstitutional motive such as race or religion. Accordingly, denial of the third point was proper. The case was nonetheless remanded for reconsideration under Booker.
• 3E1.1 - Acceptance of Responsibility
U.S. v. Bolden, 05-5407 (3/15/07)
> Defendant was convicted of a Hobbs Acts robbery and at sentencing the district court refused to award defendant the two-level reduction for acceptance of responsibility, pursuant to USSG § 3E1.1. The court based this determination on the fact that defendant waited until the last minute to plead and because he refused to tell the authorities where the stolen money was hidden. Defendant appealed.
* Holding: The court ruled that the district court’s consideration of the timeliness of the plea and the failure to turn over the loot were proper. Specifically, both the timeliness of defendant’s acceptance of responsibility and whether defendant voluntarily assisted authorities in recovering fruits and instrumentalities are outlined in the application notes to § 3E1.1 as appropriate considerations in determining whether the reduction is appropriate. Further, the court found that the district court’s ruling did not implicate defendant’s Fifth Amendment rights because disclosing the location of the loot would not subject defendant to increased penalty or additional charges. Thus, the sentence was affirmed.
• 3E1.1 - Acceptance of Responsibility
U.S. v. Kathman, 06-5669 (6/20/07)
> Defendant was driving drunk in a national park and wrecked his car, killing his two passengers. Due to defendant’s injuries, he suffered from amnesia regarding the incident. Defendant was subsequently charged with involuntary manslaugher, and entered into an Alford plea. At sentencing, the district court awarded a two-level reduction for acceptance of responsibility. The government appealed this determination.
* Holding: The court held that the entry of an Alford plea is not necessarily inconsistent with acceptance of responsibility under USSG § 3E1.1. The court found that the district court properly determined that defendant had amnesia regarding the incident, but accepted responsibility as best he could under the circumstances. Accordingly, the district court’s award of a two-level reduction for acceptance of responsibility was affirmed.
• 3E1.1 - Acceptance of Responsibility
U.S. v. Jeross, 06-2257 (4/4/08)
> Defendant was convicted of conspiracy to distribute ecstacy. At sentencing, the district court determined that defendant obstructed justice by making several threats to a codefendant who agreed to be a government witness. As a result, the district court refused to award defendant any reduction for acceptance of responsibility. Defendant appealed.
* Holding: Pursuant to USSG § 3E1.1, where a defendant obstructs justice, ordinarily the defendant will not receive a reduction for acceptance of responsibility. The court found that the following considerations demonstrated that defendant’s case was not extraordinary, such that he should receive the reduction under § 3E1.1: (1) some of defendant’s obstructive conduct occurred after he pled guilty; (2) all of his obstructive conduct occurred post indictment; (3) he denied his responsibility for the offense for four months after indictment; (4) he challenged the drug amount and his role in the offense; and (5) he did not cooperate with the government until after his offense level in the PSR was increased based upon his obstructive conduct. Thus, the application of the enhancement was affirmed.
• 3E1.1(b) - Acceptance of Responsibility
U.S. v. Lapsins, 07-4387 (7/7/09)
> Defendant pled guilty to three counts of possession and transportation of child pornography. During the sentencing proceedings, defendant objected to factual determinations in the PSR, and made assertions that contradicted what he agreed to under oath in the statement of facts read at the plea hearing. As a result, the government refused to move for the third-point reduction for acceptance of responsibility, under USSG § 3E1.1(b). The district court accordingly refused to award the third point, and defendant appealed.
* Holding: The court held that the government’s refusal to move for a reduction under § 3E1.1 is non-reviewable unless the decision was based on a “constitutionally impermissible factor,” or was “arbitrary.” The court found that no constitutionally impermissible consideration was raised, and ruled that the government’s decision was not arbitrary because the government properly relied on the fact that defendant took a position that was inconsistent with his prior sworn statements. Accordingly, defendant’s sentence was affirmed.
• 3E1.1 - Acceptance of Responsibility
U.S. v. Lay, 07-4062 (10/13/09)
> Defendant was convicted of traveling with intent to engage in sexual conduct with a minor. At sentencing, the district court denied a reduction for acceptance of responsibility because defendant testified at his sentencing and denied certain aspects of his relevant conduct. Defendant appealed.
* Holding: The court held that the district court’s ruling was proper given that it found that defendant testified untruthfully at his sentencing hearing, and because defendant frivolously contested relevant conduct to which he admitted during the plea hearing. Accordingly, the court found no clear error and affirmed defendant’s sentence.