Sentencing Guidelines:
A. Chapter Two - Offense Conduct
B. Chapter Three- Adjustments
C. Chapter Four - Criminal History
D. Miscellaneous Guidelines
Chapter Four- Criminal History
Sixth Circuit Decisions
• 4A1.1 - Criminal HistoryU.S. v. Duckro, 05-3379 (10/18/06)
> Defendant was convicted of firearm offenses and at sentencing, the district court increased defendant’s criminal history score based upon a prior, uncounseled misdemeanor conviction for drug abuse. Defendant appealed.
* Holding: Relying on the Supreme Court’s decision in Nichols v. U.S., the court held that a defendant’s criminal history category may be enhanced based upon prior uncounseled misdemeanor convictions.
• 4A1.1(a) - Criminal History
U.S. v. Lalonde, 06-4536 (12/12/07)
> Defendant was convicted of mail fraud and tax evasion and at sentencing the district court enhanced his criminal history category based upon a prior Kentucky theft conviction. Defendant challenged the validity of the prior conviction because the guilty plea was entered by defendant’s counsel, but defendant was not present. Defendant proved that the conviction was invalid under Kentucky law because a plea may not be entered in abstentia. The district court rejected defendant’s argument and he appealed.
* Holding: Relying on the Supreme Court’s decision in Curtis v. U.S., the court held that the only basis upon which a defendant may collaterally attack a prior state conviction is for the violation of the right to counsel. Thus, even though the prior conviction was clearly invalid under Kentucky law, defendant’s only remedy was to petition the Kentucky state court to invalidate the conviction prior to his federal sentencing. Accordingly, the sentence was affirmed.
• 4A1.1(d) - Criminal History
U.S. v. Trammel, 03-6652 (4/8/05)
> Defendant was convicted of drug and weapon charges, and at sentencing the district court imposed a three-point increase to defendant’s criminal history score because of a prior contempt conviction. Defendant received one point for the contempt conviction itself, and two additional points because he was on “conditional discharge” status for the contempt at the time he committed the federal offense. Defendant appealed and claimed that the contempt conviction was not authorized under the state law, and that the conditional discharge was not a criminal justice sentence under the guidelines.
* Holding: The court found that the three point increase was appropriate. First, the court held that a defendant may not collaterally attack a state conviction at sentencing on a federal charge except for a claim based upon the denial of counsel. Thus, the one point for the contempt conviction was proper. Second, the court held that a sentence including a conditional discharge is properly considered a term of probation, and accordingly, the two-point increase under U.S.S.G. § 4A1.1(d) was warranted.
• 4A1.1(d) - Offense While On Probation
U.S. v. Baker, 07-5412 (3/16/09)
> Defendant was convicted of participating in a drug conspiracy. At sentencing, the district court added two points to defendant’s criminal history score because he was on probation at the time of the offense. Defendant appealed.
* Holding: The court held that application of the two-point increase under USSG § 4A1.1(d) was appropriate because defendant had been on misdemeanor probation two times during the course of the four-year drug conspiracy. Accordingly, defendant’s sentence was affirmed.
• 4A1.1(e) - Within Two Years of Jail Term
U.S. v. Wheaton, 06-4080 (2/19/08)
> Defendant was convicted of a drug conspiracy. At sentencing, the district court determined that defendant should receive two criminal history points, pursuant to USSG § 4A1.1(e), because he participated in the conspiracy within two years of his release from prison. This conclusion was based solely upon the testimony of a codefendant who testified at trial that she transported drugs from California for defendant during the relevant time period. Defendant appealed.
* Holding: Although the codefendant’s testimony was somewhat ambiguous as to time period, the court concluded that the testimony was sufficient to satisfy the requirements for the two-point criminal history enhancement. The codefendant’s testimony established that, pursuant to an agreement with defendant, she probably transported drugs from California within two years of defendant’s incarceration. The court noted that the case presented an extremely close factual question, but relied on the clear error standard to affirm the district court ruling.
• 4A1.1(e) - Prior Juvenile Conviction
U.S. v. Thompson, 08-3760 (10/13/09)
> Defendant was convicted of distribution of crack. At sentencing, the district order imposed a two-level increase to defendant’s criminal history, pursuant to USSG § 4A1.1(e), because he had been released from incarceration for a juvenile conviction within two years of his commission of the instant offense. Defendant appealed.
* Holding: The court held that a juvenile court sentence to incarceration counted as “imprisonment” for purposes of § 4A1.1(e). Therefore, defendant’s sentence was properly enhanced by two levels and the district court’s ruling was affirmed.
• 4A1.2(a)(2) - Relatedness of Convictions
U.S. v. Alford, 04-6117 (2/10/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court increased defendant’s offense level based upon two prior violent offenses. The prior offenses occurred on the same day, one being for robbery, and one for assault. During the prior offenses, defendant had robbed individuals entering a drug house and then fled. During his flight, he encountered a drug user about 300 feet away and assaulted and robbed him. Defendant argued in the district court that the two offenses should be considered related under U.S.S.G. § 4A1.2(a)(2) and thus should only count as one prior offense. The district court disagreed and imposed the enhanced offense level. Defendant appealed.
* Holding: The court first held that a determination of whether prior offenses were related is a proper decision for the district court, and that Booker does not require the issue to be submitted to a jury. The court then found that defendant’s two prior offenses were not related. Offenses may be related under § 4A1.2(a)(2) if, among other reasons, they are “part of a common scheme or plan.” The court held that defendant had planned the robbery of the individuals outside the drug house, but that the assault of the drug user was unplanned, at a different location, and was not required as a result of the first offense. Accordingly, the guideline enhancement was affirmed.
• 4A1.2(a)(2) - Relatedness of Convictions
U.S. v Martin, 04-6428 (2/21/06)
> Defendant was convicted in a meth case and at sentencing the district court enhanced his criminal history category based upon four prior convictions for car thefts over a twenty-three-day time period in the year 2000. Defendant argued on appeal that the prior convictions should not have counted separately against his criminal history score because they were “related” under U.S.S.G. § 4A1.2(a)(2).
* Holding: Offenses may be related under § 4A1.2(a)(2) if, among other reasons, they are “part of a common scheme or plan.” In order to establish a common scheme or plan, a defendant must show that the offenses were either jointly planned or that the commission of one entailed the other. The court ruled that it is not enough to show that the crimes happened within close proximity of each other, that they used the same modus operandi, or that they are part of a single crime spree. A defendant must offer affirmative evidence that the crimes were planned together or that commission of one entailed the other. The court found such evidence lacking and affirmed the application of the guideline enhancement. Judge Martin noted, in a highly amusing concurrence, that the court was bound to follow prior precedent but that he personally disagreed with the very narrow construction of § 4A1.2(a)(2) adopted by the Sixth Circuit.
• 4A1.2 - Relatedness of Convictions
U.S. v. Gale, 05-4204 (11/20/06)
> Defendant was convicted of wire fraud and at sentencing the district court increased defendant’s criminal history score based upon four state criminal offenses. On appeal, defendant argued that the prior state offenses should not have counted separately because they were “related” under USSG § 4A1.2(a)(2).
* Holding: Prior offenses may not be considered related for purposes of § 4A1.2(a)(2) if they were separated by an intervening arrest. Because each of defendant’s prior offenses were separated by an intervening arrest, the court held that they were not related, and the sentence was affirmed.
• 4A1.2 - Relatedness of Convictions
U.S. v. Carson, 05-4015 (11/27/06)
> Defendant was convicted of possession of heroin with intent to distribute and at sentencing the district court concluded that he was a career offender. This conclusion was based upon the determination that defendant had two prior state convictions for drug trafficking. In relation to the prior offenses, defendant had committed a drug trafficking offense and was under investigation for it when he committed, and was arrested for, a second drug trafficking offense. Defendant was charged in state court under two separate docket numbers for the offenses, but the cases were heard together by the same judge on the same day and defendant received consecutive sentences for the two offenses. Defendant argued before the district court that the offenses should be considered “related” under USSG § 4A1.2, and accordingly should not count separately for career offender purposes. The district court ruled against defendant, and he appealed.
* Holding: Pursuant to § 4A1.2, prior convictions are “related” if, among other reasons, they were consolidated for trial or sentencing. Even where no formal order of consolidation has been entered, the court may consider convictions to be “functionally consolidated” where they are factually related and the trial court provided some “explicit indication” that it intended to consolidate the cases. In the case, the court found that defendant’s two prior drug trafficking convictions were not factually related because (1) defendant showed nothing more than that he was a drug user who sometimes sold drugs to support his habit and (2) the conduct underlying the first drug transaction occurred one year before the second drug transaction. Further, the court held that there was no evidence that the state court intended to consolidate the cases. Thus, the district court ruling was affirmed.
• 4A1.2(a)(2) - Relatedness of Prior Crimes
U.S. v. McFalls, 08-5839 (1/28/10)
> Defendant was convicted of bank robbery and at sentencing the district court determined that he was a career offender based, in part, on four prior burglary convictions. The four prior burglaries were not separated by an intervening arrest and defendant was sentenced on the same day for them. Defendant’s sentencing before the district court occurred on November 1, 2007 (the day the 2007 guidelines became effective) but the district court applied the prior version of the guidelines. Defendant did not object to application of the earlier guideline manual, but argued on appeal that the 2007 version of USSG § 4A1.2(a)(2) should apply and that, under such version, the prior burglaries were not separately countable.
* Holding: The court first held that the 2007 manual of the guidelines should have applied to defendant because it was the version officially in effect on the day of defendant’s sentencing. Second, the court held that, under the amended § 4A1.2(a)(2), defendant’s four prior burglaries should have counted as a “single sentence” because there was no intervening arrest between the offenses and the sentencing for all four occurred on the same day. Finally, the court ruled that the error was not harmless because defendant did not otherwise qualify as a career offender. (See infra). Accordingly, defendant’s sentence was vacated.
• 4A1.2(c) - Criminal History
U.S. v. Cole, 04-1702 (8/11/05)
> Defendant was convicted of conspiracy to distribute ecstacy, and at sentencing the district court enhanced his criminal history category based upon four prior state convictions for being a minor in possession of alcohol. Defendant appealed arguing that such convictions were not countable under U.S.S.G. § 4A1.2(c) against his criminal history category.
* Holding: Pursuant to § 4A1.2(c), misdemeanor and petty offenses are countable against a defendant’s criminal history unless the offense is, or is similar to, one of the listed offenses in the guideline. Deciding an open question in the Sixth Circuit, the court adopted the “essential characteristics” test to determine whether an offense is similar to one of the delineated offenses in § 4A1.2(c). Under such approach, the court considers whether the conduct underlying the prior offense is similar to the activities underlying one of the listed offenses in § 4A1.2(c). Applying the essential characteristics test, the court concluded that the offense of being a minor in possession of alcohol is similar to a “juvenile status offense,” which is a listed exception in § 4A1.2(c). Both a minor in possession of alcohol and a juvenile status offense prohibit a person from doing conduct that may otherwise be legal, but is unlawful only because of the person’s age. Thus, the court held that being a minor in possession of alcohol may not be counted against defendant’s criminal history, and defendant’s sentence was vacated.
• 4A1.2(c) - Criminal History
U.S. v. Duckro, 05-3379 (10/18/06)
> During defendant’s sentencing for firearms offenses, the district court increased defendant’s criminal history score based upon a prior Ohio misdemeanor conviction for obstruction of official business. Defendant appealed.
* Holding: Under USSG § 4A1.2(c), certain offenses, such as “false information to a police officer,” are not countable against the criminal history score unless the defendant received 30 days or more in jail or the prior offense was similar to the instant federal charge. The court found that defendant’s prior misdemeanor obstruction conviction was not the same as “false information to a police officer” under § 4A1.2(c) because Ohio courts had construed the obstruction of justice offense to require some act more than simply making a false statement to an officer. Accordingly, the court held that the obstruction offense was properly countable against defendant’s criminal history.
• 4A1.2(c)(1) - Criminal History
U.S. v. Hall, 07-1883 (6/24/08)
> Defendant was convicted of being a felon in possession of a firearm. Defendant had prior misdemeanor convictions for driving under a suspended license and for hindering a police officer, and in each case, defendant was given a sentence crediting him for time that he had already served on unrelated probation violations. At sentencing, the district court assessed one criminal history point for each of the prior misdemeanor convictions, pursuant to USSG § 4A1.2(c)(1), concluding that defendant had served more than 30 days in jail on each of the offenses. Defendant appealed.
* Holding: Answering an open question in the Sixth Circuit, the court held that, where a defendant “receives full credit for time served on an entirely separate conviction,” the defendant does not “actually serve any time for the offense in question.” Thus, because defendant’s sentence on the two misdemeanor convictions merely credited him for time he had already served on other cases, defendant did not “actually serve” any time for the misdemeanors, and they were not properly countable under § 4A1.2(c)(1). Accordingly, the sentence was vacated.
• 4A1.2(e) - Applicable Time Period
U.S. v. McGee, 06-1554 (7/11/07)
> Defendant was arrested by police in possession of cocaine and two firearms. At the time of his arrest, he admitted to the officers that he had owned one of the guns for five or six years. Defendant was subsequently convicted of cocaine trafficking, being a felon in possession of a firearm, and carrying a firearm in relation to a drug trafficking crime. At sentencing, the district court determined that defendant’s possession of the firearm began five or six years earlier, in 1999 or 2000. Because of this conclusion, defendant’s prior felony drug conviction in 1992 fell within the applicable ten-year time period of USSG § 4A1.2(e), thus making it countable against defendant’s criminal history category. Accordingly, defendant was sentenced in criminal history category II instead of I. Defendant appealed.
* Holding: The offense of being a felon in possession of a firearm is a continuing crime as long as the defendant remains in possession of the gun. Thus, based on defendant’s admission to the officers that he owned the gun for five or six years, it was proper for the district court to conclude that defendant’s prior drug conviction fell within the applicable ten year time period (§ 4A1.2(e)). Further, the court held that the rule of lenity did not require a lower sentence. The only evidence in the record was defendant’s statement to the officers. Defendant offered no evidence during the sentencing process to rebut the length of his possession of the gun, but instead relied on the argument of his counsel. Since his attorney’s statements were not “evidence,” there was no ambiguity in the proof regarding possession and the rule of lenity did not require imposition of a lower sentence. Thus, defendant’s sentence was affirmed.
• 4A1.2(e)(2) - Applicable Time Period
U.S. v. Brogdon, 06-5548 (9/27/07)
> Defendant was convicted of being a felon in possession of a firearm in 2005. During the presentence process, defendant admitted to possession the firearm in question since childhood, and that he possessed the gun at the time of his prior felony conviction in 1989. Based upon these admissions, the district court concluded that defendant began commission of the instant offense in 1989 when he possessed the gun after his felony conviction. Accordingly, the court determined, pursuant to USSG § 4A1.2(e)(2), that defendant’s convictions from before 1989 should count against his criminal history score. Defendant appealed.
* Holding: Under § 4A1.2(e)(2), prior offenses committed within ten years of the instant federal offense are countable against a defendant’s criminal history. In determining when the instant federal offense began, the application notes indicate that relevant conduct, under § 1B1.3(a)(1), is to be considered. In the case, the court held that the district court properly determined that defendant’s offense of being a felon in possession of a firearm began when he possessed the gun after his felony conviction in 1989. This conduct was relevant conduct to defendant’s possession of the gun in 2005. Utilizing 1989 as the date the offense began, the court ruled that defendant’s convictions from the 1980's were within the ten year applicable time period. Accordingly, the district court’s guideline calculation was affirmed.
• 4A1.2(f) - Diversionary Dispositions
U.S. v. Shor, 07-2334 (12/16/08)
> Defendant was convicted of participating in a narcotics conspiracy. At sentencing, the district court assessed one criminal history point based on defendant’s prior conviction for assault, for which he received a two-year probationary sentence under the Michigan’s Youthful Trainee Act. As a consequence, defendant’s guideline sentencing range was increased. Defendant argued on appeal that the prior offense was not countable under the guidelines.
* Holding: USSG § 4A1.2(f) makes diversionary dispositions in criminal cases countable against a defendant’s criminal history score if a finding of guilt was entered against the defendant. Once the finding of guilt is entered, the conviction is countable unless it is later expunged, as described in USSG § 4A1.2(j). Because a finding of guilt was entered against defendant, and no expungement was obtained, the Michigan assault conviction was countable. Accordingly, defendant’s sentence was affirmed.
• 4A1.2(k)(1) - Criminal History
U.S. v. Galvan, 04-1741 (7/13/06)
> Defendant was convicted of a drug conspiracy and at sentencing the district court attributed three criminal history points for a prior state conviction. Defendant originally received probation for the state conviction, but then twice violated the probation, receiving a 65 day and a then one year sentence. At his federal sentencing, the district court concluded that, under USSG § 4A1.2(k)(1), the two separate sentences imposed on the probation violations should be aggregated in order to calculate the criminal history points. Because the total aggregated sentence was over 13 months, 3 points were attributable to the prior state conviction. Defendant appealed.
* Holding: The court held that, under § 4A1.2(k)(1), the district court properly aggregated the prior probation violations for purposes of calculating criminal history points. The court found no consequence to the fact that the state court had not called the first probation violation a “revocation” because, for guideline purposes, the state court had in effect revoked defendant’s probation. Thus, the criminal history calculation was affirmed, but the case remanded for resentencing consistent with Booker.
• 4B1.1 - Career Offender
U.S. v. Galloway, 04-5981 (2/27/06)
> Defendant was convicted of possession of crack cocaine with intent to distribute. Defendant had two prior convictions on his record, one for drug trafficking, and the other for “attempt to commit a felony” under Tennessee law. The attempt offense was originally indicted as drug trafficking, but pursuant to a plea agreement, it was reduced to attempt. During the plea colloquy for the attempt charge in state court, defendant and his attorney admitted that defendant had possessed narcotics with intent to distribute. In the district court, the probation officer recommended that defendant be sentenced as a career offender under U.S.S.G. § 4B1.1 because both of defendant’s prior convictions counted as drug trafficking offenses. The district court refused to apply the career offender guideline. The government appealed.
* Holding: The court held that the categorical approach applied by the Supreme Court in Shepard v. U.S. in the context of the A.C.C.A. should also be applied to the career offender provisions of § 4B1.1. Thus, in assessing whether a prior conviction qualifies a defendant for the career offender enhancement, the court may consider not only the statute and the indictment, but the plea agreement and plea colloquy in the prior proceeding. Because defendant admitted in his state court plea hearing that he had possessed narcotics with intent to distribute, the court held that the prior offense was properly categorized as a drug trafficking offense, and thus qualified defendant for the career offender enhancement. Accordingly, the district court ruling was vacated and the case remanded for resentencing.
• 4B1.1 - Career Offender
U.S. v. Montanez, 04-4543 (3/23/06)
> Defendant was convicted of a drug offense and at sentencing the district court determined that defendant was a career offender. The district court based its determination, in part, upon defendant’s prior conviction for “drug trafficking,” under ORC § 2925.03(A)(6) and (9). The Ohio law at the time prohibited possessing a bulk amount of a narcotic, but did not contain any distribution, or intended distribution, element. Defendant appealed the district court’s determination that he was a career offender.
* Holding: Resolving disagreement among prior unpublished decisions in the Sixth Circuit, the court held that possession of bulk amounts of drugs under ORC § 2925.03(A)(6) and (9), where the statute contains no distribution or intended distribution element, does not constitute a “controlled substance offense” for career offender purposes. Accordingly, the court vacated defendant’s sentence and remanded for resentencing in accordance with Booker.
• 4B1.1 - Career Offender
U.S. v. Veach, 05-6268 (8/1/06)
> Defendant was convicted of threatening a federal official and at sentencing the district court concluded that he qualified as a career offender under USSG § 4B1.1. One of defendant’s qualifying convictions for career criminal status was a felony Kentucky DUI conviction. On appeal, defendant argued that the DUI conviction did not constitute a crime of violence under § 4B1.1.
* Holding: A prior conviction may be a crime of violence under § 4B1.1 if, among other reasons, the conduct underlying the conviction presented a serious potential risk of physical injury to another. The court found that driving under the influence presents the kind of serious potential risk of physical injury anticipated by § 4B1.1 and held that defendant’s prior felony DUI was a crime of violence that qualified him as a career offender.
• 4B1.1 - Career Offender - Relatedness
U.S. v. Esteppe, 05-6610 (4/23/07)
> Defendant was convicted of bank robbery and at sentencing the district court concluded that he was a career offender. This determination was based on a prior escape conviction, and two burglary convictions in two different states that all occurred within a one-week time period. Defendant argued that the escape and burglaries should count as one offense because they were “related.” The district court disagreed, and defendant appealed.
* Holding: Offenses are considered “related” under the guidelines if they are part of a “common scheme or plan.” In order to satisfy this requirement, the defendant must show either that the commission of one offense entailed the other, or that the offenses were jointly planned. In the case, the court held that the only evidence of joint planning between the escape and the burglaries was defendant’s own testimony. The district court found that defendant’s testimony was not credible and that there was no evidence to corroborate defendant’s joint planning argument. Further, by defendant’s own admission, although he had generally planned to escape, steal cars, and obtain a new identity, the burglaries of the homes came about because of unforeseen circumstances. Defendant stated in his testimony that he had not specifically planned the burglaries in advance. Accordingly, the court found no joint planning, and thus, that the prior escape and burglary convictions were not related.
• 4B1.1 - Career Offender
U.S. v. Ward, 06-5136 (10/23/07)
> Defendant was convicted of drug trafficking and at sentencing the district court determined that he was a career offender. This conclusion was based, in part, upon defendant’s prior conviction for selling crack cocaine in 2002. Defendant argued that the prior conviction should not count as a qualifying offense for the career offender provision because it was “related” to the instant drug trafficking offense, pursuant to USSG § 4A1.2(a)(2). The district court rejected defendant’s argument, and he appealed.
* Holding: First, the court held that defendant’s argument was a “common misconception” about the phrase “related cases.” The court held that “related cases” in § 4A1.2(a)(2) refers only to the relationship between prior offenses, not the relationship between a prior offense and the instant offense. Second, the court held that, to the extent that defendant’s argument could be construed to mean that his prior conviction for selling crack from 2002 was not countable because it was a part of the instant offense under § 4A1.2(a)(1), the argument still failed. The court found that the prior crack sale occurred years before any of the overt acts listed in the indictment, and involved people that were not charged as co-conspirators in the indictment. Thus, the prior crack offense was a severable instance of unlawful conduct, and was properly considered a qualifying offense for the career offender provision.
• 4B1.1 - Career Offender
U.S. v. Bailey, 06-5576 (1/9/08)
> Defendant was convicted of drug trafficking and possessing a firearm in furtherance of drug trafficking. At sentencing, the district court determined that defendant was a career offender based, in part, on a prior Kentucky conviction for second degree escape. Defendant argued on appeal that the escape conviction was not a qualifying offense for purposes of USSG § 4B1.1.
* Holding: Relying on the categorical approach applied by the Supreme Court in Taylor, the court held that second degree escape under Kentucky law qualifies as a “crime of violence,” and thus, is a predicate offense for the career offender guideline. The court emphasized that it had already held that escape under Kentucky law was a “violent felony” under the Armed Career Criminal Act, and it found that the “operative language” of the ACCA is identical to the career offender guideline. Thus, defendant’s sentence was affirmed. Two judges opined in concurrence that the thirty year sentence imposed by the district court may have been unreasonable based upon the facts of the case, but that defendant’s appellate counsel did not raise the issue of reasonableness in his brief.
• 4B1.1(a) - Career Offender
U.S. v. Alexander, 07-1758 (10/7/08)
> Defendant was convicted of drug trafficking and at sentencing the district court determined that defendant was a career offender. This determination was based, in part, on a prior conviction under Michigan law for assault. To prove the fact of the conviction, the government relied on Michigan’s Department of Correction’s website and the Michigan State Police’s website. Defendant did not dispute the career offender finding in the district court, but challenged the issue on appeal.
* Holding: The court found no plain error in the determination that defendant was a career offender. Although the presentence report was slightly ambiguous as to the offense for which defendant was convicted, the information on the two websites provided that defendant was convicted of assault under Michigan law, which required proof that defendant’s actions “caused a bodily injury requiring medical attention.” Accordingly, the sentence was affirmed.
• 4B1.1(a) - Career Offender
U.S. v. Pruitt, 06-6002 (10/21/08)
> Defendant was convicted of manufacturing marijuana and being a felon in possession of firearms. At sentencing, the district court determined that defendant was a career offender based on two prior drug trafficking offenses from North Carolina. Under North Carolina sentencing law, the maximum sentence that a defendant faced for a drug trafficking offense was contingent upon defendant’s “prior record level.” For purposes of defendant’s sentencing, the district court assumed that defendant’s “prior record level” was the maximum under North Carolina law, which would mean that each of defendant’s drug trafficking offenses carried a maximum of 15 months in prison. Defendant appealed and argued that the career offender enhancement was inapplicable. Further, defendant argued that he did not receive sufficient notice of the applicability of the career offender provision.
* Holding: Relying on the Supreme Court’s recent decision in Rodriguez (See P.V., Issue #20), the court held that the district court erred in assuming that defendant would be the maximum “prior record level” under North Carolina law. The court noted that, if defendant’s “prior record level” was lower than what was attributed, the maximum possible penalty for the prior drug trafficking offenses would be one year or less. Under these circumstances, the prior offenses would not count as felonies under USSG § 4B1.1(a), and defendant would not be a career offender. Thus, the court remanded the case for a determination by the district court as to defendant’s “prior record level” at the time of the drug trafficking offenses pursuant to North Carolina law.
Regarding the notice requirement, the court held that the government was not required to provide pre-plea notice of the career offender provision to a defendant. Additionally, the court noted that the plea agreement notified defendant that his sentence would be determined based on his criminal history and the factors under 18 USC § 3553(a). Further, the career offender enhancement was detailed in the presentence report. Defendant had, and would have again on remand, the opportunity to contest the enhancement at sentencing.
• 4B1.1 - Career Offender - Prior Offenses
U.S. v. Smith, 07-5377 (12/2/08)
> Defendant was convicted of possession of crack with intent to distribute. At sentencing, the district court determined that defendant was a career offender based on two prior drug trafficking offenses on his record. The offenses were separated by an intervening arrest, but the cases were consolidated for sentencing on the same day. The district court sentenced defendant to 20 years imprisonment and he appealed.
* Holding: The court held that prior offenses count separately for purposes of USSG § 4A1.2(a), and accordingly the career offender provision, if they are separated by an intervening arrest. This is true regardless of whether the sentencing for the offenses occurred on the same day. The case arose under the prior version of § 4A1.2(a), which was later amended on 11/1/07, but the court opined that the result would be the same under either version of the guideline. Accordingly, the sentence was affirmed.
• 4B1.1 - Career Offender
U.S. v. Skipper, 07-3758 (1/13/09)
> Defendant was convicted of a drug offense and at sentencing the district court determined that he was a career offender. This determination was based, in part, on an Ohio fourth degree burglary offense for which defendant had pled guilty but not yet been sentenced. Defendant appealed and argued that the fourth degree burglary should not count as a predicate for the career offender enhancement because he had not yet been sentenced and because it was not a crime of violence.
* Holding: First, the court held that USSG § 4B1.2(c) requires that a guilty plea counts as a conviction as soon as it is entered. Thus, the fact that defendant had not been sentenced for the burglary was of no consequence. Second, the court held that Ohio’s fourth degree burglary was a crime of violence under § 4B1.1 because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Ohio statute required that a defendant trespass in a habitation when an innocent person was present or likely to be present. Relying on the Supreme Court’s decision in James (see P.V., Issue #13), the court held that the burglary offense presented a serious risk of a face-to-face confrontation, and thus was a crime of violence under the “otherwise” clause of § 4B1.1. Accordingly, the sentence was affirmed.
• 4B1.1 - Career Offender
U.S. v. Hawkins, 08-5138 (2/4/09)
> Defendant was convicted of conspiracy to distribute crack and at sentencing the district court determined that he was a career offender under USSG § 4B1.1. One of defendant’s predicate offenses was a prior conviction for possession of an unregistered sawed-off shotgun. Defendant appealed and argued that the prior firearm conviction was not a crime of violence under the guidelines.
* Holding: The court ruled that Application Note 1 to § 4B1.2 specifically defines the phrase “crime of violence” to include the possession of a sawed-off shotgun. The court held that the application note was not a “plainly erroneous” interpretation of the Sentencing Commission’s guideline, and thus, the court upheld application of the career offender enhancement.
• 4B1.1 - Career Offender
U.S. v. Baker, 07-5412 (3/16/09)
> Defendant was convicted of being involved in a drug conspiracy and at sentencing the district court determined that he was a career offender. One of the predicate offenses for the career offender enhancement was a prior Tennessee conviction for reckless endangerment. Defendant did not object to the inclusion of the conviction for career offender purposes, but raised the issue for the first time on appeal.
* Holding: Applying the Supreme Court’s recent decision in Begay (See P.V. Issue #19), the court held that the Tennessee reckless endangerment conviction did not qualify as a crime of violence under the career offender provision. Although the court ruled that the offense presented a serious risk of physical injury to others, it did not involve conduct that was “roughly similar, in kind as well as in degree of risk posed,” to the listed offenses in the guideline – namely burglary of a dwelling, arson, extortion and crimes involving explosives. Thus, the court found plain error in the district court’s ruling. However, the court ordered a remand for resentencing wherein the government would be permitted to establish, through documents permissible under Shepard, that the offense did fit within Begay’s definition of a crime of violence.
• 4B1.1 - Career Offender
U.S. v. Ford, 08-5091 (3/18/09)
> Defendant was convicted of bank robbery. At sentencing, the district court determined that defendant was a career offender based, in part, on a prior Kentucky conviction of second-degree escape for a “walkaway escape.” Defendant appealed.
* Holding: Relying on the Supreme Court’s recent decision in Chambers (See P.V. Issue #24), the court overruled prior circuit precedent and held that a “walkaway escape” is not a crime of violence under the career offender provision. Accordingly, defendant’s sentence was vacated.
• 4B1.1 - Career Offender
U.S. v. Wynn, 07-4307 (9/2/09)
> Defendant was convicted of possession of crack with intent to distribute and at sentencing the district court determined that defendant was a career offender. This determination was based, in part, on defendant’s prior Ohio conviction for sexual battery, pursuant to ORC § 2907.03. In making this assessment, the district court relied on the facts stated in the PSR, and defendant did not object to the facts. On appeal, defendant argued that the sexual battery conviction was not a “crime of violence,” and that the career offender enhancement was improper.
* Holding: Applying the categorical approach of Taylor, Shepard, and Begay, the court held that the Ohio sexual battery offense was not categorically a “crime of violence.” The court ruled that several subdivisions of ORC § 2907.03 described offenses that were not “purposeful, violent, and aggressive” crimes that were “similar in both kind and in degree of risk” to the enumerated offenses in the career offender provision, as required by Begay. Because the record did not specify which provision of § 2907.03 defendant’s conviction fell under, the court held that the sexual battery offense could not be considered categorically violent. Further, the court held that it was improper under Taylor/Shepard for the district court to consider the facts stated in the PSR, even though defendant did not object to the facts at sentencing. Accordingly, the court remanded the case for resentencing and instructed the district court to consider only those documents permitted by Shepard in assessing whether the sexual battery offense was a crime of violence.
• 4B1.1 - Career Offender
U.S. v. McFalls, 08-5839 (1/28/10)
> Defendant was convicted of bank robbery and at sentencing the district court determined that he was a career offender. This determination was based on the district court’s conclusion that defendant’s prior South Carolina convictions for second degree burglary of a dwelling and aggravated assault were crimes of violence for career offender purposes. Defendant appealed.
* Holding: First, the court held that the second degree burglary of a dwelling conviction was not a crime of violence under the guidelines. South Carolina defined the term “dwelling” to including a structure within two hundred feet of a dwelling. The court ruled that this definition did not meet the generic definition of a burglary of a dwelling. Further, the court found that it did not qualify as a crime of violence under the “otherwise” clause of § 4B1.1 because it did not pose a similar degree of risk of harm as the burglary of an actual home. Finally, the court ruled that the indictment from the burglary case did not clarify the matter because it relied on boilerplate language charging burglary of a dwelling, without specifying the kind of “dwelling” under South Carolina law. Accordingly, the burglary conviction was not a crime of violence.
Second, the court held that the aggravated assault conviction was not a crime of violence. Under South Carolina law, the offense applied not only to intentional conduct, but to reckless conduct as well. Applying the Supreme Court’s holding in Begay (See P.V. Issue #19), the court ruled that an assault must be “purposeful” and “intentional” in order to qualify as a crime of violence under § 4B1.1. Accordingly, neither of defendant’s prior convictions were for crimes of violence and defendant’s sentence was vacated.
• 4B1.4(b)(3)(A) - Armed Career Criminal
U.S. v. Hadley, 03-5838 (12/6/05)
> Defendant was convicted as an armed career criminal. At sentencing, the district court increased defendant’s offense level, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), from 33 to 34 based upon a finding that defendant had possessed the gun in relation to a crime of violence. The police officers had obtained an oral and written statement from defendant’s girlfriend, and she had testified before the grand jury, that defendant held the gun to her head and threatened to kill her. At sentencing, however, the girlfriend testified that defendant had not held the gun to her head. The district court chose to believe the girlfriend’s earlier statements, and held that the enhancement was appropriate because defendant had possessed the gun in relation to committing an aggravated assault upon his girlfriend. Defendant appealed.
* Holding: The government must prove sentencing enhancements by a preponderance of the evidence at sentencing, and the district court may rely on hearsay information if it bears some minimal indicia of reliability. The court found no abuse of discretion in the district court’s decision to credit the girlfriend’s earlier statements, as opposed to her testimony at the sentencing hearing, and accordingly affirmed the sentence.
• 4B1.4(b)(3)(A) - ACCA
U.S. v. Goodman, 06-5513 (3/17/08)
> Defendant pled guilty to being a felon in possession of a firearm. The gun was a firearm that was carried by a murder victim, and defendant picked the gun up after the victim was killed and brought it inside the house, hiding it in a couch. The statement of facts read at defendant’s plea hearing indicated that a witness would have testified that defendant and the victim went out to sell crack cocaine in the park, and that one of them was carrying the gun in question. Defendant did not agree that he possessed the gun during the crack sale. At sentencing, the district court determined that defendant was an armed career criminal, and imposed an additional one-level enhancement based upon its finding that defendant possessed the firearm in connection with a controlled substance offense, pursuant to USSG § 4B1.4(b)(3)(A). Defendant appealed.
* Holding: In order to apply the one-level enhancement, the government must establish a “clear connection” between the gun and the controlled substance offense. In the case, the court held that the government had not introduced sufficient evidence to make the connection that defendant possessed the gun during the drug sale in the park. In this regard, the court found significant “factual gaps” in the evidence, and accordingly ruled that the enhancement was not supported by the evidence. Additionally, the court held that, even though the guideline ranges overlapped, and the sentence imposed by the district court fell within both the higher and lower range, the case nonetheless had to be remanded. Relying on the Supreme Court’s decision in Gall v. U.S., the court concluded that failing to properly calculate the guideline range was a procedural error requiring remand. Thus, the case was remanded for resentencing.
• 4B1.5(b) - Pattern of Sex Abuse
U.S. v. Brattain, 07-1594 (8/25/08)
> Defendant was convicted of aggravated sexual abuse of a minor and the presentence report recommended a five-level enhancement because the defendant engaged in a “pattern of activity involving prohibited sexual conduct.” The district court found that, although defendant sexually abused his daughter over a period of seven years, the enhancement was meant to apply only to defendants who abuse more than one victim. Thus, the court declined to apply the enhancement. The government appealed.
* Holding: The court held that the five-level enhancement under USSG § 4B1.5(b) applies where a defendant abused only one minor. The court relied on Application Note 4 to § 4B1.5(b) which provides that a “pattern of activity” includes abuse of “a minor” on at least two separate occasions. Emphasizing that Note 4 refers to a minor in the singular, the court concluded that defendant’s conduct fell with the enhancement. The court also noted that this construction of the guideline was consistent with the legislative history. Accordingly, the sentence was vacated.