Sentencing Guidelines:
A. Chapter Two - Offense Conduct
B. Chapter Three- Adjustments
C. Chapter Four - Criminal History
D. Miscellaneous Guidelines
Miscellaneous Guidelines
Sixth Circuit Decisions
• 1B1.2(d) - Conspiracy - Separate OffensesU.S. v. Bates, 06-2458 (1/12/09)
> Defendant was convicted of a single count of conspiracy which involved multiple bank robberies that were committed by a codefendant. At sentencing, the district court applied USSG § 1B1.2(d), and counted five separate bank robberies against defendant. Accordingly, the court applied the grouping rules of § 3D1.4, and increased defendant’s offense level by 4 levels. Defendant appealed and argued that the district court did not make the necessary factual findings before imposing the increased sentence.
* Holding: Section 1B1.2(d) provides: “A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” If the jury verdict for a single-count conspiracy does not make clear which offenses were committed, the district court must make a finding beyond a reasonable doubt at sentencing as to which offenses charged in the conspiracy were actually committed. In the case, the court held that the district court’s factual finding need not be explicit in the record, but may instead be implicit in its ruling. The court ruled that the district court implicitly found, beyond a reasonable doubt, that defendant was involved in the five bank robberies for which the codefendant was convicted. Accordingly, application of the enhancement was appropriate.
• 4A1.3(a) - Departure - Criminal History
U.S. v. Griffin, 07-3109 (7/7/08)
> Defendant pled guilty to uttering forged securities and identity theft. As part of his plea agreement, defendant agreed to testify against a codefendant. Defendant testified, but minimized the codefendant’s responsibility to the extent that she was acquitted of the counts about which defendant testified. At defendant’s sentencing, the district court declined to award defendant a reduction for acceptance of responsibility, and imposed an upward departure in defendant’s offense level from 14 to 20, based on the fact that defendant had 29 criminal history points. Defendant appealed the reasonableness of the upward departure.
* Holding: Pursuant to USSG § 4A1.3(a), an upward departure from the applicable guideline range may be warranted where the defendant’s criminal history category substantially underrepresents the seriousness of the defendant’s criminal history or the likelihood of recidivism. The court held that the extent of an upward departure from the guideline range is reviewed for reasonableness. The court found that the six-level upward departure from the applicable guideline range was reasonable given the fact that defendant had a lengthy criminal history, scored 29 criminal history points, and defendant committed perjury during his testimony at the codefendant’s trial. Accordingly, defendant’s sentence was affirmed.
• 4A1.3(a) - Departure - Criminal History
U.S. v. O’Georgia, 05-2598 (6/24/09)
> Defendant was convicted of failure to appear for sentencing, making false claims of citizenship, obstruction of justice for lying to probation, and making false statements to judicial officials. At sentencing, the district court imposed a one-level upward departure in defendant’s criminal history category based on civil judgments against defendant, his prior unlawful marriage to two women, his extended unlawful presence in the U.S., and his unpaid child support. Defendant appealed.
* Holding: The court held that an upward departure in criminal history may be appropriate based on prior misconduct that was established by “a civil adjudication or by a failure to comply with an administrative order.” The court found that defendant’s past wrongdoings were of a sufficient degree to justify the one-level upward departure in criminal history category. Accordingly, the district court’s ruling was affirmed.
• 5C1.2/18 USC § 3553(f) - Safety Valve
U.S. v. Haynes, 05-5889 (11/6/06)
> Defendant was convicted of aiding and abetting a drug conspiracy and at sentencing the district court refused to apply the safety valve provision of USSG § 5C1.2 and 18 USC § 3553(f). Defendant appealed.
* Holding: The court held that defendant met the first four requirements of the safety valve, but that she failed to satisfy the fifth prerequisite which required that she fully disclose to the government all information that she had regarding the offense, and all relevant conduct. The court noted that the defendant has the burden of proving that she is entitled to the safety valve by a preponderance of the evidence. The court found no clear error in the district court’s conclusion that defendant did not disclose all information she knew about the drug conspiracy. Thus, the conviction was affirmed.
• 5C1.2 - Safety Valve - Booker
U.S. v. Branch, 06-5393 (8/12/08)
> Defendant was convicted of drug trafficking. At sentencing, the district court determined that the correct guideline calculation placed defendant in criminal history category II. The court concluded, however, that category II overstated defendant’s criminal history because it found that defendant’s prior marijuana conviction was non-serious. Accordingly, the court reduced defendant to criminal history category I, and applied the safety valve provisions of USSG § 5C1.2 and 18 USC § 3553(f). Under these provisions, the court departed below the statutory mandatory minimum of 5 years, and placed defendant on probation. The government filed a motion, pursuant to Fed. R. Crim. P. 35, to correct the sentence based upon the Sixth Circuit’s decision in U.S. v. Penn, which held that a district court may not apply the safety valve based upon a downward departure to criminal history category I. The district court agreed, and amended its judgment to sentence defendant to the mandatory 5 years in prison. Defendant appealed.
* Holding: The court held that its prior decision in Penn was not affected by Booker and its progeny. Thus, a district court may not reduce a correctly calculated criminal history category for the purpose of applying the safety valve to a defendant’s sentence. Further, the court held that the district court was correct in determining that it made “clear error” under Rule 35, and accordingly, its correction of its sentence was proper. Thus, the sentence was affirmed.
•5H1.6-Departure for Family Circumstances
U.S. v. Husein, 05-2548 (3/2/07)
> Defendant was convicted of conspiracy to distribute ecstacy and at sentencing the district court granted a downward departure in her sentence from a range of 37-46 months to a non-incarceration sentence. The basis for the departure was defendant’s family circumstances because she and her mother were the only viable caregivers for her father, who required around-the-clock care. The government appealed.
* Holding: A downward departure for family circumstances may only be awarded if the circumstances are exceptional based upon the following four considerations: (1) service of a guideline sentence will cause a “substantial, direct, and specific loss of essential caretaking, or essential financial support, to defendant’s family;” (2) such loss substantially exceeds the harm ordinarily incident to incarceration; (3) the loss is one for which no remedial program is readily available, such that defendant is irreplaceable; and (4) a departure will effectively address the loss. In the case, the government challenged only the third factor, and the court held that the district court did not abuse its discretion in determining that defendant was irreplaceable in the care of her father. Accordingly, the downward departure was appropriate. The court further found the sentence was reasonable. (See infra).
• 5K1.1/§ 3553(e) - Downward Departures
U.S. v. Gabbard, 08-5445 (11/25/09)
> Defendant was convicted of conspiracy to manufacture more than 100 marijuana plants and at sentencing the district court determined that, although the sentencing guidelines called for a lower sentence, a 10 year mandatory penalty was applicable under the statute. The government moved for a sentence reduction under 18 USC § 3553(e) and USSG § 5K1.1 based on defendant’s cooperation. The district court granted the motion but did not specify whether it was reducing defendant’s sentence under § 3553(e) or § 5K1.1. The court imposed a sentence of 87 months, defendant did not object to the district court’s failure to delineate between the two provisions, and defendant appealed.
* Holding: First, the court held that, where a statutory mandatory minimum is applicable, a motion pursuant to § 3553(e) is necessary in order for the district court to impose a sentence below the minimum. Second, the court held that, in such a situation, a motion under § 5K1.1 is superfluous. Finally, the court found no plain error in the district court’s failure to delineate between the two motions in awarding the downward departure. Accordingly, defendant’s sentence was affirmed.
• 5K2.0 - Upward Departure - Obstruction
U.S. v. O’Georgia, 05-2598 (6/24/09)
> Defendant was convicted of failure to appear for sentencing, making false claims of citizenship, obstruction of justice for lying to probation, and making false statements to judicial officials. At sentencing, in addition to applying an enhancement for obstruction of justice (based on defendant’s perjury at trial) the district court imposed a two-level upward departure based on USSG § 5K2.0. The court found that defendant, acting outside the advice of his counsel, filed numerous frivolous motions and appeals, and refused to accept documents provided by his attorney. Additionally, the court applied a second two-level enhancement under the subsection for defendant’s relocation to Arizona, in violation of the conditions of his bond. Finally, the court applied a one-level departure pursuant to the subsection for defendant’s extensive planning in using a fake identity for 20 years to remain in United States. Defendant appealed.
* Holding: First, the court held that the two-level upward departure for his pro se court filings was improper. Pursuant to § 5K2.0, departures may be appropriate where either the conduct is different than that taken into account in the guideline, or the conduct is present to an unusual degree. The court found that the case fell into the first category, but that defendant’s conduct was not of the type that warranted a departure. The court ruled that defendant’s conduct amounted to “abysmal lawyering” on his own behalf and, while such conduct was undoubtedly annoying, it was not the type of obstructive conduct upon which an upward departure was warranted.
Second, the court held that the two-level upward departure for relocating to Arizona was inappropriate. The court found nothing extraordinary about defendant’s action in moving to Arizona. Although defendant’s move violated his bond, his wife notified the pretrial services officer of the change of address and defendant was promptly arrested in Arizona. Thus, the departure was unwarranted. Because the district court did not justify either of the first two upward departures alternatively based on the factors under 18 USC § 3553, the case was remanded for resentencing in regard to the first two departures.
Third, the court held that the one-level upward departure for more than minimal planning was appropriate. Under the prior guideline USSG § 2F1.1, a defendant could receive a two-level enhancement if his fraud offense involved more than minimal planning. The court found that the district court did not err in determining that a one-level additional increase was proper given the long-term, extensive nature of defendant’s attempts to take on his invented identity. Accordingly, the one-level departure was affirmed.
• 5K2.3 - Departure - Psychological Harm
U.S. v. Erpenbeck, 06-4247 (7/2/08)
> Defendant was a home builder who was convicted of bank fraud. At sentencing, the district court determined that the only “victims” of the offenses for purposes of the loss calculation (USSG § 2B1.1) were the construction lenders. The court held that the homebuyers were not victims because their losses were eventually recouped by the banks. Nonetheless, the court determined that an upward departure was warranted based upon extreme psychological harm suffered by the “victim” homebuyers, pursuant to USSG § 5K2.3. Defendant appealed.
* Holding: An upward departure may be warranted under § 5K2.3 where a “victim” of the offense suffers severe psychological injury. The court held that the term “victim” in § 5K2.3 must be interpreted consistently with that terms use throughout the guidelines. Thus, the court found that it was error for the district court to conclude that the homebuyers were not “victims” for purposes of § 2B1.1, but were “victims” for purposes of § 5K2.3. The court ruled, however, that the error was harmless because it concluded that the district court erred in determining that the homebuyers were not “victims” for purposes of § 2B1.1. (See supra). Therefore, defendant’s sentence was affirmed.
• 5K2.5 - Departure - Property loss
U.S. v. Erpenbeck, 06-4247 (7/2/08)
> Defendant was a home builder who was convicted of bank fraud. At sentencing, the district court found that defendant’s fraudulent acts caused financial loss to several hundred people, caused many of the subdivisions to go into disrepair, and left many homeowners with acrid waterways and unpaved streets instead of the promised nice neighborhoods. Accordingly, the district court imposed a 65 month upward departure from the guideline range, pursuant to USSG § 5K2.5. Defendant appealed.
* Holding: Section 5K2.5 allows the district court to depart upward from a guideline range where the offense caused property damage or loss not taken into account by the guidelines. A court may take into consideration whether the defendant intended to cause the harm and whether the harm is more serious than “other harm caused or risked by the conduct relevant to the offense of conviction.” In the case, the court held that the district court did not err in concluding that the extreme financial loss caused by defendant warranted the upward departure. Thus, the sentence was affirmed.
• 5K2.7-Disruption of Government Function
U.S. v. O’Georgia, 05-2598 (6/24/09)
> Defendant was convicted of failure to appear for sentencing, making false claims of citizenship, obstruction of justice for lying to probation, and making false statements to judicial officials. At sentencing, the district court determined that defendant disrupted a government function by obtaining mental health diagnoses from two doctors, based on false information, in an effort to wrongfully delay his sentencing. Accordingly, the district court imposed a two-level upward departure under USSG § 5K2.7. Defendant appealed.
* Holding: The court held that the defendant’s efforts did not harm or inconvenience the doctors in any way, and that he only was able to delay his sentencing for one month. Thus, the court found that no unusual circumstances existed such that defendant’s sentence should be increased above the sentence defendant was already facing for being convicted for failure to appear for sentencing. Because the district court did not justify the departure alternatively based on the factors under 18 USC § 3553, the case was remanded for resentencing.
• 5K2.9 - Concealing a Prior Crime
U.S.v. O’Georgia, 05-2598 (6/24/09)
> Defendant was convicted of failure to appear for sentencing, making false claims of citizenship, obstruction of justice for lying to probation, and making false statements to judicial officials. At sentencing, the district court imposed a two-level upward departure because defendant made false claims of citizenship to the probation department (claiming he was born in Albany, Georgia) in order to conceal his crime for lying about his citizenship status to the district court, and his years of living under a fake identity to avoid deportation. Defendant appealed.
* Holding: The court found that defendant’s use of a fake identity for two decades in order to successfully avoid deportation, and his lies to the court, probation department, and others, justified the two-level enhancement under USSG § 5K2.9. Accordingly, the district court’s ruling was affirmed.
• 5K2.20 - Aberrant Behavior
U.S. v. Carson, 05-1812 (3/30/09)
> Defendant was convicted of conspiracy to obstruct justice based upon his assistance in covering up the beating of a motorist by fellow officers. At sentencing, the district court awarded a downward departure under USSG § 5K2.20 for aberrant behavior. The government appealed.
* Holding: Pursuant to 5K2.20, a downward departure may be warranted where the criminal conduct was a single occurrence or transaction that was (1) committed without significant planning, (2) was of limited duration, and (3) represented a marked deviation by defendant from an otherwise law abiding life. The court held that the offense could not be considered a single criminal episode committed without significant planning because it was a conspiracy that spanned almost two years. Thus, application of the departure was error. Nonetheless, the court found that the district court imposed a proper downward variance from the guidelines based on the factors under 18 USC § 3553. (See supra). Accordingly, the sentence was affirmed.
• Downward Departures
U.S. v. Williams, 04-4152 (1/5/06)
> Defendant was convicted of being a felon in possession of a firearm and his sentencing guideline range was calculated to be 46-57 months. At sentencing, the district court downwardly departed, and imposed a sentence of 24 months. The departure was based upon a two point offense level reduction and a two level criminal history category reduction. The government appealed.
* Holding: The court held that the sentence reduction was appropriate. First, the court ruled that the two point offense level reduction was proper because defendant was outside the heartland of the typical felon in possession case. Defendant had been charged with no serious criminal conduct in the previous ten years, and had possessed the gun based upon extenuating circumstances where he feared retaliation from others seeking revenge upon him. The court noted that U.S.S.G. § 5K2.11 (avoiding a perceived greater harm) supported a departure under such circumstances. Second, the court found the two-level criminal history category reduction appropriate because most of defendant’s criminal history points stemmed from conduct that had occurred ten years earlier. The court found that the departure was justified based upon U.S.S.G. § 4A1.3 because defendant’s criminal history was substantially overstated by criminal history category V. Finally, the court determined that the sentence was reasonable under Booker. Accordingly, the sentence was affirmed.
• Applicable Version of Guidelines
U.S. v. Gardiner, 05-1247 (9/12/06)
> Defendant was convicted of a RICO conspiracy and he claimed at sentencing that an earlier version of the sentencing guideline manual should apply because no conduct occurred in furtherance of the conspiracy after the year 2000. The district court disagreed and applied the later version of the guidelines because it believed that a meeting that defendant held with a coconspirator in 2002 to discuss concealing the conspiracy was an act in furtherance of the conspiracy. Defendant appealed.
* Holding: A district court must apply the guideline manual in effect at the time of sentencing unless the version in effect at the time of the commission of the offense provides for a lower sentence. In a conspiracy case, a district court may consider the last act committed in furtherance of the conspiracy as being the date applicable in determining which guideline manual to utilize. Acts of concealment committed after the main objectives of the conspiracy have been reached are not considered to be in furtherance of the conspiracy. In the case, the court found that defendant failed to demonstrate his withdrawal from the conspiracy; moreover, the meeting in 2002 suggested a continuity of purpose and continued performance of acts in the conspiracy. Accordingly, the court ruled that the 2002 meeting was an act in furtherance of the conspiracy and that the district court had correctly applied the 2002 guideline manual.
• Applicable Version of Guidelines
U.S. v. Jeross, 06-2257 (4/4/08)
> Defendant was convicted of conspiracy to distribute ecstacy. Defendant argued at sentencing that the 2001 version of the guidelines should apply because, at the time, the guidelines attributed each ecstacy pill as .1 grams in weight. In the 2002 guideline manual, however, each ecstacy pill counted .25 grams. The district court applied the 2002 guideline manual, and determined that the applicable guideline range was 360 months to life in prison. The statutory maximum for the offense was 240 months, so the court imposed a 240-month sentence. Defendant appealed.
* Holding: The court first noted that, pursuant to the Ex Post Facto Clause, the district court should have applied the 2001 guideline manual if it would have “led to a more favorable result” in defendant’s sentence. The court held, however, that the even under the 2001 manual, defendant’s guideline range would have been 292-365, which was well above the statutory maximum of 240 months. Thus, even had the district court applied the correct manual, the sentence would have been the same. Accordingly, defendant’s sentence was affirmed.