Federal Sentencing Guidelines - James T. Skuthan and Rosemary T. Cakmis

• Publication year: 2000

Federal Sentencing Guidelinesby James T. Skuthan* and Rosemary T. Cakmis"

I. Introduction

In 1999 the Eleventh Circuit Court of Appeals broke new ground on a variety of issues related to the United States Sentencing Guidelines ("U.S.S.G.").¹ A significant number of cases interpreted firearms possession in connection with various offenses;² loss calculations for fraud offenses;³ Chapter Three adjustments, such as role,⁴ obstruction of justice,⁵ and reckless endangerment;⁶ and U.S.S.G. Section 5K depar-

tures.⁷ At the same time, the court consistently refused to revisit previously decided issues, such as the constitutionality of the crack cocaine guidelines,⁸ and sided with the majority of circuits in resolving issues of first impression in the Eleventh Circuit.⁹

II. 1999 Sentencing Guidelines Decisions from the Eleventh Circuit Court of Appeals

A. Chapter One: Introduction and General Application Principles—Relevant Conduct

Although most relevant-conduct cases are discussed in connection with Chapter Two, a few are noted in connection with Chapter One to give a preliminary overview. Relevant conduct is a recurrent theme in drug cases. For example, in United States v. Matthews,¹⁰ several defendants challenged the district court's drug-quantity calculations under U.S.S.G. Section lB1.3(a). The Eleventh Circuit noted that

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[i]n determining the base level of the charged offense, the district court must consider as relevant all conduct actually undertaken by, or taken at the direction of, the defendant, Sec. 1B1.3(a)(1)(A), and, in the case of a conspiracy, all acts by other participants that were both reasonably foreseeable and in furtherance of the conspiracy, Sec. lB1.3(a)(l)(B).^u

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In United States v. Cook,¹² a bank robbery case, the court vacated and remanded a Section 3C1.2 sentencing enhancement for reckless endangerment during flight from a police officer.¹³ The enhancement

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6. See United States v. Cook, 181 f.3d 1232 (11th Cir. 1999); United States v. Matos-Rodriguez, 188 f.3d 1300 (11th Cir. 1999); United States v. Sawyer, 180 f.3d 1319 (11th Cir. 1999).

7. See United States v. Melvin, 187 f.3d 1316 (11th Cir. 1999); United States v. Sawyer, 180 f.3d 1319 (11th Cir. 1999); United States v. Magluta, 198 f.3d 1265 (11th Cir. 1999), vacated in part, 203 f.3d 1304 (11th Cir. 2000); United States v. Steele, 178 f.3d 1230 (11th Cir. 1999); United States v. Pickering, 178 f.3d 1168 (11th Cir. 1999); United States v. Mignott, 184 f.3d 1288 (11th Cir. 1999).

8. See United States v. Wilson, 183 f.3d 1291 (11th Cir. 1999); United States v. Matthews, 168 f.3d 1234 (11th Cir. 1999); United States v. Rutherford, 175 f.3d 899 (11th Cir. 1999).

9. See United States v. Wooden, 169 f.3d 674, 676 (11th Cir. 1999); United States v. Garrett, 190 f.3d 1220,1222-23 (11th Cir. 1999); United States v. Ortega-Torres, 174 f.3d 1199, 1200 (11th Cir. 1999); United States v. Richardson, 166 f.3d 1360, 1361 (11th Cir. 1999); United States v. Mignott, 184 f.3d 1288, 1290-91 (11th Cir. 1999).

10. 168 f.3d 1234 (11th Cir. 1999).

11. Id. at 1247.

12. 181 f.3d 1232 (11th Cir. 1999).

13. Id. at 1236. had been imposed on two codefendants who exited the getaway car before the driver led police on a dangerous high-speed chase. The district court held the two codefendant passengers responsible for the driver's involvement in the chase, finding that the chase was relevant conduct under Section lB1.3(a)(l)(B).¹⁴ Reversing the district court, the Eleventh Circuit explained that relevant conduct under Section 1B1.3, which extends to all "reasonably foreseeable" conduct in jointly undertaken criminal activity, applies "'[ujnless otherwise specified'" elsewhere in the guidelines.¹⁵ Section 3C1.2 specifies otherwise because it holds defendants responsible only for conduct that they '"aided or abetted, counseled, commanded, induced, procured, or willfully caused.'"¹⁶ The court found that this guideline limited defendants' responsibility to conduct in which they "directly engaged" or conduct in which they "actively 'aided or abetted, counseled, commanded, induced, procured or wilfully caused' another to engage."¹⁷ The court further noted that a contrary reading of Section 3C1.2 would make the enhancement applicable to "virtually everyone whose co-conspirators fled from law enforcement immediately following the commission of a crime, resulting in a substantial risk of death or serious bodily injury to another person."¹⁸

In United States v. Hedges,¹⁹ a securities fraud case, the district court determined that the loss attributed to defendant's fraudulent conduct exceeded $92 million for sentencing purposes. Defendant argued that there was insufficient evidence to establish he reasonably foresaw that amount of loss and that the district court improperly relied on conclusory statements in the presentence report ("PSR") to support its loss amount decision.²⁰ The Eleventh Circuit disagreed, noting that defendant did not object to the statements in the PSR; thus, the sentencing court wasallowed "to rely on them despite the absence of supporting evidence."²¹ Because the statements established that defendant played an important role in the overall conspiracy, they were sufficient to support the $92 million loss amount.²²

Relevant conduct under Section lB1.3(a)(2) includes "illegal conduct not in furtherance of the offense of conviction if that conduct was 'part of the same course of conduct or common scheme or plan' as the offense of conviction."²³ In United States v. Gomez,²⁴ the court defined the "course of conduct" by looking to the indictment and the evidence adduced at trial.²⁵ The court then held that because defendant's uncharged cocaine sales to a specified individual were not part of the same course of conduct as the conspiracy alleged in the indictment and focused on at trial, those sales should not have been included in calculating his base offense level.²⁶

B. Chapter Two: Offense Conduct

1. Part A—Offenses Against the Person: Kidnapping; and Part E—Offenses Involving Criminal Enterprises and Racketeering

The court discussed the interplay between the kidnapping²⁷ and racketeering²⁸ guidelines in United States v. DiGiorgio.²⁹ Under the racketeering guidelines, a defendant is sentenced based upon the greater of a given base offense level or "the offense level applicable to the underlying crime or racketeering activity."³⁰ The predicate convictions for the racketeering activity in DiGiorgio were conspiracies to commitmurder and kidnapping.³¹ The Eleventh Circuit noted that "[b]ecause the jury's general verdict did not indicate which of the charged predicate acts it believed [defendants] had committed, the district court was required to find beyond a reasonable doubt that the defendants] conspired to commit [a] particular object offense and sentence [them] accordingly."³² Applying the clearly erroneous standard of review, the Eleventh Circuit upheld the district court's finding that the Government had not sufficiently proven that defendant conspired to commit murder, but had proven that he conspired to commit the kidnapping.³³ Thus, the less severe kidnapping guidelines were applicable.³⁴

In the same case, defendant appealed the six-level enhancement under Section 2A4.1(b)(1) for a ransom demand made during the kidnapping. The ransom demanded in that case was repayment of a debt already owed to defendant.³⁵ The court rejected defendant's argument that the debt could not be considered a ransom for purposes of Section 2A4.1(b)-(l).³⁶ Because the guidelines do not define "ransom," the court relied on the definition found in Black's Law Dictionary, that is, "'[t]he money, price, or consideration paid or demanded for redemption of a kidnapped person or persons; a payment that releases from captivity.'"³⁷ The court held that the definition did not exclude money the kidnapper believed was owed to him by the victim.³⁸

2. Part B—Offenses Involving Property

a. Robbery. Section 2B3.1(b)(2) provides for various enhancements if the robbery involved a dangerous weapon, depending on how the weapon was used.³⁹ In United States v. Wooden,⁴⁰ defendant appealed hissentence for carjacking, in which the district court applied the six-level enhancement under Section 2B3.1(b)(2)(B) for "otherwise us[ing] a firearm." Defendant argued that the district court should have enhanced his offense level by only five levels under Section 2B3.1(b)(2)(C) for brandishing a firearm.⁴¹ As a matter of first impression, the court held that the six-level enhancement for '"otherwise us[ing]' a firearm" applied because defendant "pointed the handgun at a specific victim, holding the gun one-half inch from the victim's forehead."⁴² The court explained that this conduct amounted to "more than brandishing; it was more than merely pointing or waving the weapon about in a threatening manner."⁴³

b. Counterfeiting. In United States v. Matos-Rodriguez,⁴⁴ the district court increased defendant's sentence for counterfeiting offenses by two levels under Section 2B5.1(b)(3) for possession of a dangerous weapon in connection with the offenses.⁴⁵ In a case of first impression, the court adopted an expansive reading of the phrase "in connection with" that encompassed defendant's conduct.⁴⁶ Defendant delivered counterfeit money to the informant and attempted to leave the area when approached by agents. While fleeing from the agents, defendant threw a loaded pistol from his car.⁴⁷ In affirming the enhancement, the Eleventh Circuit held that defendant's conduct constituted possession of a dangerous weapon "in connection with" the counterfeiting offense.⁴⁸ The court further concluded that defendant "possessed the pistol toprevent theft during a close, face-to-face, hand-to-hand encounter with the person he apparently did not know well."⁴⁹

3. Part D—Offenses Involving Drugs

In 1999 drug cases continued to play a predominant role in Eleventh Circuit case law. As with most guidelines issues, the...