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

• Publication year: 1999

Federal Sentencing Guidelinesby James T. Skuthan*and

Rosemary T. Cakmis**

I. Introduction

The Eleventh Circuit decided several cases this past year covering a broad range of United States Sentencing Guidelines ("U.S.S.G.") issues.¹ Two areas of particular concern were firearms and departures.

Due to the 1995 Supreme Court decision in Bailey v. United States,² several defendants had their firearm convictions vacated and were resentenced. Thus, the Eleventh Circuit in 1998 was faced with reviewing these resentencings to determine the applicability of guideline enhancements for firearms.

The court also decided several cases relating to downward departures based on cultural differences,³ a defendant's impulse control disorder,⁴ the over-representation of a career offender's prior record,⁵ and the resolution of sentencing disparities when co-offenders receive a more lenient sentence in the state system.⁶ Although the holding in Koon v. United States⁷ directs that a district judge's departure decision is subject to an abuse of discretion review, the court reversed most of the downward departure reductions in 1998. As departure requests get more creative, we can expect to see the Eleventh Circuit devoting more time each year to resolving departures in both directions.

II. 1998 Sentencing Guidelines Decisions from the Eleventh Circuit Court of Appeals

A. Chapter One: Introduction and General Application Principles

1. U.S.S.G. Section 1B1.2: Actual Conduct

Section IB 1.2 application note 3 provides the court may consider the actual conduct of a defendant in certain circumstances, even though that conduct is not an element of the offense. The Government tried to use this provision in United States v. Saavedra⁸ to justify an enhancement under U.S.S.G. section 2D1.2, in which defendant had admitted that the drug offense occurred within one thousand feet of a school, but was not specifically charged under 21 U.S.C. Sec. 860.⁹ The Eleventh Circuit rejected the actual conduct argument, noting that application note 3explains:

the court may consider "actual conduct" in four situations: (a) when an offender stipulates certain facts in plea agreement, (b) when the court considers the applicability of certain offense characteristics within individual guidelines, (c) when it considers various adjustments, and (d) when it considers whether or not to depart from the guidelines for reasons relating to offense conduct.¹⁰

Although defendant admitted at the sentencing hearing that he sold drugs within one thousand feet of a school, the Eleventh Circuit held that the admission could not be used against him under the "actual conduct" prong of the guidelines because he never formally stipulated to this fact.¹¹

2. U.S.S.G. Section lB1.3(a)(l): Relevant Conduct

In United States v. Exarhos,¹² the majority held that the district court erred in failing to consider reliable hearsay evidence showing that defendant stole other cars, which should have been included as relevant conduct under U.S.S.G. sections 2B6.1 and 2F1.1.¹³ The court held that the district court should have counted uncharged conduct directly involving the closely related thefts of motor vehicles.¹⁴

3. U.S.S.G. Section lB1.3(a)(2): Relevant Conduct

In United States v. Perulena,¹⁵ the court held that importation of marijuana that occurred almost a year before defendant joined the drug smuggling conspiracy was not conduct for which defendant could be held "otherwise accountable" under the sentencing guidelines.¹⁶ The importation of marijuana was beyond the scope of criminal activity that defendant agreed to jointly undertake with co-conspirators.¹⁷

B. Chapter Two: Offense Conduct

1. Part D: Drug Offenses

a. U.S.S.G. Section 2D1.1: Crack Cocaine versus Powder Cocaine. The sentencing disparity between crack and powder cocaine remains enormous. In United States v. Hanna,¹⁸ the court rejected another challenge to the 100:1 penalty ratio.¹⁹ Then, in United States v. Riley²⁰ the court held that the type of cocaine involved (crack versus powder) is a sentencing issue.²¹ Defendants in Riley were indicted for conspiracy to possess with intent to distribute crack and powder cocaine in violation of 21 U.S.C. Sec. 841(a).²² The jury returned a general verdict of guilty. Neither defendant requested a special verdict on which substances were involved in the offenses. Defendants were then sentenced according to the amounts of powder and crack attributed to them by their presentence reports.²³

On appeal, defendants challenged their sentences based on the absence of a special verdict or a finding beyond a reasonable doubt on whether the offenses involved powder cocaine or crack cocaine. Because defendants failed to preserve the issues in the district court, the appellate court applied the plain error analysis.²⁴ The Eleventh Circuit held that under the law of that circuit, the indictment's use of "and" between crack and powder permits conviction for an offense involving either one.²⁵ Relying on the recent Supreme Court decision in Edwards v. United States,²⁶ the court then held that the district court could impose a sentence based on the amount of both crack cocaine and cocaine powder involved in defendants' offenses and that the district court was not required to find beyond a reasonable doubt whether defendants' conspiracy involved cocaine powder, crack cocaine, or both prior to imposing sentence.²⁷

b. U.S.S.G. Section 2D1.1(b)(1): Enhancement for Possessing a Firearm During a Drug Offense. Section 2D1.1(b)(1) provides for a two-level enhancement if a dangerous weapon (including a firearm) is possessed during a drug offense. In United States v. Trujillo,²⁸ the Eleventh Circuit upheld a two-level firearm enhancement pursuant to Section 2D1.1(b)(1) for a defendant who had a gun in a leather pouch in his warehouse office next to the room where the cocaine was found.²⁹ The enhancement in this case is interesting because the gun was found in a separate office area of the warehouse that did not contain any drugs. Defendant argued that because he had a concealed weapons permit, he could legally possess the gun.³⁰ The court rejected this argument, finding that the gun was available to defendant in case something went wrong with the drug transaction.³¹ In other words, because defendant was using the gun for an illegal purpose, the fact that defendant had a concealed weapons permit was irrelevant.³²

This two-level enhancement has been especially troublesome in the wake of the United States Supreme Court decision in Bailey v. United States.³³ Since the Court in Bailey defined the term "use" as found in 18 U.S.C. Sec. 924(c),³⁴ a number of section 924(c) convictions have been reversed. However, many of those cases also involved drug convictions that were not disturbed by the ruling in Bailey.

One example is United States v. Oliver.³⁵ Prior to the Supreme Court decision in Bailey, defendants in Oliver had been convicted of federal drug offenses and of using a firearm in relation to a drug trafficking offense (18 U.S.C. Sec. 924(c)). Defendants successfully challenged their section 924(c) convictions in light of Bailey. However, once the section 924(c) conviction was vacated, the Government moved for resentencing and requested a two-level upward adjustment based upon section 2D1.1(b)(1).³⁶ The district court agreed with the Government and enhanced defendant's drug sentence after applying section 2D 1.1 (b)(1).³⁷ Defendant appealed, arguing that the district court lacked jurisdiction to resentence him. The Eleventh Circuit affirmed, relying on United States v. Mixon.³⁸ In Mixon the court held that "based on the language of Sec. 2255 and the interdependence of the multiple counts for sentencing purposes," a district court has jurisdiction to recalculate a defendant's entire sentence, and such resentencing does not defeat the defendant's double jeopardy rights.³⁹

United States v. Watkins*⁴⁰ took the decision in Mixon one step further. In Watkins defendant was originally sentenced as an armed career criminal with regard to the count charging him with possessing three firearms.⁴¹ His armed career criminal status trumped any two-level enhancement on the drug count. After vacating defendant's sixty-month sentence under section 924(c) (and after considering his additional substantial assistance), the district court resentenced defendant to twenty-four months more than the initial sentence imposed on the drug and section 924(e) counts, but thirty-six months less than his prior aggregate sentence (the total sentence for the section 924(e), drug and section 924(c) counts).⁴² The Eleventh Circuit held the district court had jurisdiction to resentence the defendant on the unchallenged drug and section 924(e) counts and that the resentencing did not violate defendant's double jeopardy or due process rights.⁴³

c. U.S.S.G. Section 2D1.2: Enhancement for Drugs within One Thousand Feet of a School. In Saavedra defendant successfully challenged his two-level enhancement, pursuant to section 2D1.2, for selling drugs within one thousand feet of a school.⁴⁴ The indictment alleged that defendant conspired with others to distribute controlled substances in Miami Springs, Florida.⁴⁵ The indictment did not refer to 21 U.S.C. Sec. 860 (possession with the intent to distribute drugs within one thousand feet of a school) and did not mention that defendant's criminal actions took place within one thousand feet of an elementary school. Nonetheless, the district court enhanced defendant's base offense level by two levels for selling drugs within one thousand feet of a school.⁴⁶

On appeal, the Eleventh Circuit reversed the trial court and held that section 2D1.2 was not an enhancement guideline and that the guideline enhancement applied only to those cases in which defendant was charged under section 860.⁴⁷ Because the offenses in this case were charged under section 846 and section 841, the proper guideline was section...