Federal Sentencing Guidelines - Rosemary T. Cakmis

• Publication year: 2004

Federal Sentencing Guidelinesby Rosemary T. Cakmis^*

I. Introduction

Despite the passage of almost two decades since the enactment of the United States Sentencing Guidelines ("U.S.S.G."), issues relating to the sentencing guidelines continue to dominate Eleventh circuit case law. This is no doubt due, at least in part, to the fact that by 2003, the guidelines had been amended 662 times.¹

Ambiguities within the guidelines regularly lead to differing interpretations of those guidelines among the circuit courts of appeals. These differing interpretations result in further guideline amendments aimed at reconciling the splits among the circuits. The amended guidelines result in new issues of first impression, new interpretations, and new splits among the circuits. The guidelines are amended again, and the cycle continues.

The year 2003 was just another chapter in this continuing saga. The United States court of Appeals for the Eleventh circuit was confronted with several issues of first impression that related in large part to guideline amendments. Many of the amendments became effective in 2001 but did not begin to surface in reported decisions until 2003.

II. Chapter One, Part B: General Application Principles

General application principles, such as relevant conduct and retroactive guideline amendments, were addressed in several Eleventh Circuit cases in 2003. Recent guideline amendments, especially Amendment 599,² resulted in decisions of first impression in the Eleventh Circuit. Although the substance of these decisions may be more relevant to the particular guideline at issue, the procedural aspects and some of the general principles of the cases are discussed here.

A. U.S.S.G. Section 1B1.3: Relevant Conduct

U.S.S.G. section 1B1.3 allows courts to consider relevant conduct in calculating a defendant's sentencing guidelines.³ United States v. Hunter⁴ demonstrates the concept of reasonable foreseeability in the context of fraud conspiracy loss.⁵ Defendants in Hunter were three of nineteen runners who presented themselves to banks and cashed counterfeit checks.⁶ The three defendants cashed checks totaling less than $15,000. However, the sentencing court held them accountable for the total actual loss from the entire scheme, which was approximately $125,000. The court reasoned that it was reasonably foreseeable to defendants, as participants in a counterfeit check ring, that they participated in a scheme that entailed more than their own individual conduct. Thus, under U.S.S.G. section 2F1.1, the court enhanced defendants' sentence based on a $125,000 loss.⁷

The Eleventh Circuit held that the district court erred in its attribution of the entire loss amount to the defendants.⁸ The court pointed out that under the relevant conduct guideline, a sentencing court must determine the scope of the criminal activity the defendant undertook before reaching the matter of reasonable foreseeability.⁹ In this regard, the sentencing court should consider "'any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.'"¹⁰ However, the court cautioned that a defendant's knowledge of a larger operation and agreement to perform a particular act do not constitute "acquiescence in the acts of the criminal enterprise as a whole."¹¹ Rather, the government must present "evidence of sharing or mutuality from which an agreement in the larger criminal scheme can be inferred."¹² The court held that the government in Hunter failed to produce such evidence.¹³ Additionally, one defendant, who joined the conspiracy after certain acts had been committed, could not be held accountable for conduct that occurred prior to his entry into the criminal undertaking.¹⁴

The Eleventh Circuit also addressed relevant conduct and reasonable foreseeability in United States v. Pringle.¹⁵ Defendant in Pringle was convicted in 1991 of conspiracy to commit a burglary and six robberies, some of which involved the use of firearms, in violation of the Hobbs Act,¹⁶ robbery of the Liberty Savings Bank, and use of a firearm during the robbery of the Liberty Savings Bank.¹⁷ The co-defendants used firearms during the robberies involved in the conspiracy, and the conspiracy base offense level was enhanced due to the use of those firearms. However, the use of a firearm during the Liberty Savings Bank robbery did not result in any enhancement. After the passage of Amendment 599, defendant sought a reduction of his sentence under 18 U.S.C. Sec. 3582(c)(2).¹⁸ The district court denied the motion.¹⁹

On appeal the Eleventh Circuit addressed two questions.²⁰ First, defendant argued that the district court miscalculated his original sentence when it considered acts committed by the co-conspirators that were not reasonably foreseeable to the defendant, contrary to U.S.S.G. section 1B1.3.²¹ Second, defendant argued that even if the acts were reasonably foreseeable, his sentence should have been reduced retroactively based on Amendment 599.²² The court in Pringle set forth a three-part analysis for determining whether the defendant "should be held accountable for his co-conspirators['] possession of a firearm during the robberies that formed the basis of [defendant's] conspiracy convic-tion."²³ Specifically, it must be determined

(1) if [defendant] was part of a jointly undertaken criminal activity, whether or not charged as a conspiracy; (2) whether the acts of [defendant's] co-conspirators that took place after the robbery of Liberty Savings Bank were reasonably foreseeable to [defendant;] . . . [and if so] (3) whether Amendment 599 retroactively bars punishment for these acts.²⁴ @@@

As to the first prong of the test, the district court and the Eleventh Circuit agreed that there was sufficient evidence in the record to uphold the jury's guilty verdict on the conspiracy count, which established that the defendant was a knowing and willful participant in the conspiracy.²⁵

The second prong — reasonable foreseeability — was established by the facts that defendant knew the full scope of his co-conspirators' unlawful enterprise, including the fact that weapons were used, well before he joined the conspiracy.²⁶ The court also noted that

[t]he issue of whether [defendant] was involved in the planning or execution of the offenses for which he received a weapons enhancement is wholly separate from the issue of whether [defendant] could have reasonably foreseen that his co-conspirators would commit . . . subsequent offenses, and do so using firearms.²⁷ @@@

Having affirmed the district court's findings that defendant was part of a jointly undertaken criminal activity and that the co-conspirators' use of weapons was reasonably foreseeable to defendant, the EleventhCircuit turned to the applicability of Amendment 599, which was "a matter of statutory interpretation and an issue of first impression in this circuit."²⁸ As discussed in the next section of this Article, the Eleventh Circuit found that the district court properly rejected the Amendment 599 argument because the defendant "received weapons enhancements only in connection with the robberies for which he did not receive 18 U.S.C. Sec. 924(c) convictions."²⁹

B. U.S.S.G. Section 1B1.10: Sentence Reductions Based on Amended Guidelines

U.S.S.G. section 1B1.10(a) provides that

"[w]here a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. Sec. 3582(c)(2)."³⁰ @@@

Section 3582(c)(2) "allows a sentencing court to reduce a prisoner's term of imprisonment, consistent with the factors set forth in 18 U.S.C. Sec. 3553(a), where the defendant has been sentenced pursuant to a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. Sec. 944(o)."³¹

Pringle was one of three Eleventh Circuit decisions published in 2003 that concerned an appeal from the denial of a motion to reduce a sentence filed under 18 U.S.C. Sec. 3582(c)(2).³² All three cases — United States v. Pringle,³³ United States v. Brown,³⁴ and United States v. Armstrong,³⁵ — agreed that Amendment 599 could be applied retroactively inasmuch as it was listed in U.S.S.G. section 1B1.10(c).³⁶ The court in Pringle explained: "Amendment 599 was enacted to clarify under what circumstances a weapons enhancement may be applied to an underlying offense when the defendant has also received an 18 U.S.C. Sec. 924(c)[³⁷ ] conviction, which provides separate punishment for the use or possession of a firearm in a violent crime."³⁸ Because that amendment is "commentary that interprets or explains a sentencing guideline, it is binding on federal courts."³⁹ Of course, whether a sentence reduction is warranted in each case depends on the facts of each case, which is discussed in more detail in connection with the guideline amended by Amendment 599, U.S.S.G. section 2K2.4.⁴⁰

Because the defendant in Armstrong also sought application of two other amendments—Amendments 600 and 635, the court went into more detail on the procedural aspects of Sec. 3582(c)(2) motions.⁴¹ As an initial matter, the district court in Armstrong ruled that defendant's Sec. 3582 (c)(2) motion was not a successive habeas petition and was therefore not affected by the fact that defendant had previously filed unsuccessful motions for post-conviction relief under 28 U.S.C. Sec. 2255.⁴² The Eleventh Circuit affirmed the district court's ruling that "'the existence of prior motions to amend the sentence is . . . not a bar to a motion under 18 U.S.C. Sec. 3582(c)(2).'"⁴³

The court in Armstrong then noted that for a sentence to be retroactively reduced under section 3582(c)(2), two requirements must be met.⁴⁴ First, there must be an amendment to the sentencing guidelines that would result in a guideline...