Federal Sentencing Guidelines - Andrea Wilson

• Publication year: 1996

Federal Sentencing Guidelinesby Andrea Wilson^*

I. Introduction

Whether the sentencing guidelines have finally become familiar enough for consistent application or because there were so few amendments last year,¹ there seem to be fewer dramatic and controversial Eleventh Circuit decisions regarding sentencing this year than in years past. The court took the opportunity to focus more closely on the process of sentencing itself rather than on the precise application of the guidelines.

The Court wrote extensively about the district courts' frequent failure to create a fully articulated record on which appellate review can be had. Expanding on its earlier requirement that district courts elicit and respond to objections to sentencing issues by the parties set forth in United States v. Jones,² the Eleventh Circuit criticized district courts for failing to follow Jones' simple conditions.³ In a similar vein, the Eleventh Circuit remanded a number of drug crime sentences because the district courts had not sufficiently supported their determinations of the appropriate quantities of drugs involved with facts on the record.⁴

The burden these failed sentences create on the court is obvious; they have been remanded for new sentencing hearings and will undoubtedly be appealed again, only to take up more of the court's time and energy the second time around.

Naturally, the sentencing guidelines cannot be completely divorced from other more general sentencing issues, and the court addressed a number of those as well. These areas include the application of statutory minimum mandatory sentences based on drug quantities and on prior convictions.⁵

II. Significant Non-Guidelines Issues

A. Restitution

In United States v. Page,⁶ the district court ordered restitution jointly and severally among the defendants, but also stated that the restitution paid by one could not be applied to the restitution owed by another.⁷ The Eleventh Circuit discourages joint and several restitution obligations because of the natural differences in each defendant's ability to pay.⁸ The court, however, found that sentencing courts could not require joint and several responsibility and, at the same time, preclude payment by one to be credited to others because the "concepts are mutually exclusive."⁹

In United States v. Schrimsher,¹⁰ the court held that a defendant can agree to restitution greater than the loss relating to the offense of conviction.¹¹ The defendant was arrested in possession of three stolen cars, and he later pled guilty to one count of possession of a stolen motor vehicle.¹² At sentencing, Schrimsher's attorney told the district court that even though "the plea agreement does not set out specifically that [Schrimsher] will agree to restitution [for the] three automobiles . . . we represented by stipulation [that Schrimsher] knew the cars were stolen . . . and he had the three cars so he is responsible for them."¹³ The court held that the defendant waived any objection and agreed to pay restitution for the three vehicles.¹⁴ Earlier, the court had remanded the case for reconsideration of the restitution order in light of the fact that the plea agreement did not contain a specific agreement for restitution greater than the single count of conviction.¹⁵

B. Mandatory Minimum Sentences

Title 21 U.S.C. Sec. 841(b)(1)(A), in conjunction with 21 U.S.C. Sec. 851, requires a mandatory life sentence for a defendant convicted of a drug trafficking crime if the defendant has previously been convicted of more than two felony drug offenses and if the government has filed an information invoking the enhancement. Title 18 U.S.C. Sec. 851(a)(2) provides that, "[a]n information may not be filed under this section . . . unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed."

In United States v. Brown,¹⁶ the defendant claimed that his sentence was improper because the prior convictions being used as the basis for the enhancement were charged by information, and he had not waived indictment.¹⁷ The Eleventh Circuit, deciding the question for the first time, agreed with other circuits and held that the case in which the enhanced penalty is being sought is the one that must be brought by indictment or by information with a waiver, not the prior convictions.¹⁸

The enhanced sentence provision of 18 U.S.C. Sec. 922(g), however, does not require that the defendant be put on notice the way other enhancement statutes do.¹⁹ According to United States v. Cobia,²⁰ the enhancement is invoked automatically when the defendant enters a plea negotiation in which the government has specifically agreed not to seek enhanced penalties (although the government maintained that the enhancement might not be discretionary).²¹ The court, studying the legislative history of the provision, determined that Congress meant for the enhancement to be mandatory and automatic and, therefore, refused to set aside the enhancement.²²

III. 1995 Amendments

More than twenty-five new amendments went into effect November 1, 1995.²³ The Commission added only two amendments to the list of those which can be applied retroactively.²⁴ Amendment 505, passed in 1994, eliminates the first two sections of the drug table, limiting the offense level for drug cases to a maximum of 38.²⁵ Amendment 516, which reduces the equivalent weight of marijuana plants, can be applied to defendants who have already been sentenced using procedures set out in U.S.S.G. Sec. 1B1.10 and 19 U.S.C. Sec. 3582(c)(2).²⁶

A. Section 2A2.3 (Minor Assault)

Amendment 510 adds a four offense-level increase if "substantial bodily injury" was inflicted on a victim under sixteen and defines the term.²⁷ This amendment corresponds to recent legislation regarding assaults against minors.²⁸

B. Sections 2A3.1, 2A3.2, 2A3.3, and 2A3.4 (Sex Abuse)

Amendment 511 authorizes a departure if the victim was raped by more than one person or when the defendant has similar prior convictions.

C. Section 2B 1.1(b) (Theft, Possession of Stolen Property, etc.)

Amendment 512 adds a cross-reference based on the role of weapons or drugs in the offense if calculation under other guidelines would result in a higher computation.

D. Section 2B5.1(b) (Counterfeit)

Amendment 513 adds a two offense-level increase if a dangerous weapon was possessed in connection with the offense.

E. Section 2D 1.1(b) (Drugs)

Amendment 514 adds a two offense-level enhancement for distribution of drugs in jail. It also adds a cross-reference if the offense is simple possession in jail.

F. Section 2Dl.l(b) (Drugs)

Amendment 515 provides a two offense-level reduction for defendants who meet the "safety valve" criteria of U.S.S.G. Sec. 5C1.2 and 18 U.S.C. Sec. 3553(f) if the base offense level calculation is 26 or higher. The decrease applies to the offense-level before any reductions for acceptance of responsibility, role in the offense, substantial assistance, etc.

G. Section 2Dl.l(c) (Drugs)

Amendment 516 changes the equivalency of marijuana plants to 100 grams regardless of the number or the sex of the plants.²⁹ This amendment is retroactive.

H. Section 2Dl.l(c)(10) (Drug Table)

Amendment 517 changes the equivalency calculation for a number of drugs which are normally delivered in pill form to account for different methods of manufacture. The modification more fairly represents the actual amounts of controlled substances involved by counting the number of pills instead of the weight of the pills.

/. Section 2D 1.1(c) (Drug Table)

Amendment 518 is an eight-part amendment changing numerous aspects of the drug table. First, the amendment supplies a definition of hashish and hashish oil to eliminate circuit splits.³⁰ It next addresses the treatment of marijuana whose dampness makes it unusable without drying.³¹ Courts are instructed to approximate the weight in a usably dry form. The amendment also addresses the often-asked question, "when is a plant a plant?" The answer is, when it has "leaves and a readily observable root formation."³² The amendment adds two drug equivalencies to the table, for khat and levo-alpha-acetylmethadol (LAAM) and deletes LSD as a listed precursor chemical. It eliminates the distinction between D- and L-Methamphetamine, saying that L-Methamphetamine is really only a mistake and should be treated just like D-Methamphetamine since that is what defendants intend to make.³³ Finally, the amendment addresses cases involving negotiated drug quantities by applying the negotiated amount unless the sale has been completed and the actual amount delivered is a more accurate reflection of the scope of the offense. The district courts are instructed not to include amounts that were negotiated but which the defendant "was not reasonably capable of providing."

J. Section 2D1.11(d) (Listed Precursor Chemicals)

Amendment 519 renames parts of the list and deletes references to LSD. It adds two other chemicals, Benzaldehyde and Nitroethane, and addresses the difference between ephedrine (purchased from chemical companies in a very pure form) and pills containing ephedrine (usually at very low dosages).

K. Section 2D 1.12(a) (Lab Equipment Offenses)

Amendment 520 addresses those defendants who "had reasonable cause to believe" that the equipment was to be used to manufacture controlled substances, but not actual knowledge, by giving them a three offense-level reduction.

L. Section 2H1 (Offenses Involving Individual Rights), Sec. 3A1.1 (Vulnerable Victim)

Amendment 521 deletes most of subpart H of Chapter Two. The offenses formerly covered by several different guidelines are now scored under the new section 2H1.1. A new offense for obstructing access to clinic entrances is now scored in this subpart.³⁴ Offenses against the elderly are also addressed in the new section 2H1.1.

U.S.S.G. Sec. 3A1.1 is completely rewritten and now includes a three offense-level enhancement for hate crimes. The...