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

• Publication year: 2001

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

I. Introduction

Compared to the previous two years, the Eleventh Circuit issued relatively few published opinions relating to the United States Sentencing Guidelines ("U.S.S.G.") during 2000.¹ This decline could be the result of fewer guidelines cases being presented to the Eleventh Circuit or more guideline cases being disposed of in unpublished opinions.² An equally likely explanation, however, may be that the court has been inundated with cases involving the application of the landmark United States Supreme Court decision in Apprendi v. New Jersey.³ Courts across the nation have been grappling with the ripple effects of the potentially far reaching applications of Apprendi.⁴ This Article discusses some of those applications, including the effect of Apprendi on the guidelines in general,⁵ on drug quantity calculations under U.S.S.G. Sec. 2D1.1,⁶ and on the career offender guideline.⁷

The published guidelines cases that the Eleventh Circuit considered in 2000 address the applicability of the guidelines,⁸ relevant conduct calculations,⁹ and the scope of resentencing based on retroactive guideline amendments.¹⁰ The court also reviewed the guidelines applicable to various offenses, such as robbery, drugs, racketeering influenced in corrupt organizations (RICO), pornography, voter fraud, firearms, immigration, and money laundering.¹¹ In contrast to recent years, the cases involving the robbery guidelines¹² far outnumbered the cases involving other guideline provisions, including the drug guidelines.¹³

The court also interpreted some of the guideline adjustments, such as the defendant's role in the offense,¹⁴ abuse of a position of trust,¹⁵ obstruction of justice,¹⁶ acceptance of responsibility,¹⁷ and the safety valve.¹⁸ Although the court only dealt with the criminal history chapter of the guidelines in a few cases, it issued some significant decisions regarding criminal history calculations¹⁹ and the career offender enhancement.²⁰ The court dealt with fewer departure cases than in prior years. Nonetheless, the court followed the general trend established in recent years by affirming upward departures, reversing downward departures, and affirming district court decisions not to depart downward.²¹ Additionally, the court rendered several decisions relating to sentencing procedures²² and plea agreements,²³ and guideline calculations in cases involving supervised release violations.²⁴

II. Applicability of the Guidelines

Before addressing the cases in which the Eleventh Circuit applied specific guidelines, it is important to note two cases in which the Eleventh Circuit stated that the sentencing guidelines are not applicable. United States v. Nealy²⁵ involved the application of Apprendi in a drug case. Prior to deciding Nealy, the Eleventh Circuit held, in United States v. Rogers,²⁶ that "drug quantity in [21 U.S.C.] section 841(b)(1)-(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt in light of Apprendi."²⁷ However, in Nealy the court noted that the sentencing guidelines are not subject to the Apprendi rule.²⁸ Thus, the district court can consider relevant conduct to determine overall drug quantity in calculating the base offense level, even if the drug quantity involved in the relevant conduct is not pled in the indictment or proven beyond a reasonable doubt at trial.²⁹

In United States v. Chavez,³⁰ the court noted that the offense of assault by striking, beating, or wounding within the territorial jurisdiction of the United States,³¹ which carries a maximum penalty of six months imprisonment and a $5,000 fine, is a Class B misdemeanor.³² The court then held that "[s]entences for Class B misdemeanors, such as the charged offense, are not subject to the Sentencing Guidelines and will not be disturbed on appeal unless 'they were imposed in violation of law (such as by exceeding statutory limits) or are plainly unreasonable.'"³³

III. Chapter One: Introduction and General Application Principles

A. U.S.S.G. Section 1B1.3(a)(1)(B)—Relevant Conduct (Reasonably Foreseeable Acts of Others)

In addition to being accountable for one's own acts, U.S.S.G. section 1B1.3(a)(1)(B) holds defendants liable for "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense."³⁴ As more fully discussed under the robbery guidelines section of this Article,³⁵ section lB1.3(a)-(1)(B) was applied to hold a defendant liable for his accomplice's acts of carjacking and kidnapping in United States v. Cover.³⁶

In Cover the district court found that the carjacking and kidnapping were reasonably foreseeable to defendant.³⁷ The district court reasoned that "pretty much anything that happens" when a defendant robs a bank "with firearms and with other people intending to do whatever is necessary to effect that robbery" is reasonably foreseeable to all the defendants.³⁸ In finding that this reasoning was "sound," the Eleventh Circuit rejected defendant's argument that his accomplice's carjacking and kidnapping were not foreseeable to him because he "had brought his car to the bank to be used as the getaway car."³⁹ The court explained that "[t]he fact that the co-conspirators agreed to a plan that did not involve carjacking or abduction does not preclude the district court from finding that carjacking and abduction were reasonably foreseeable if 'the original plan went awry' and the police became involved."⁴⁰ The court noted that "an act is reasonably foreseeable if it is 'a necessary or natural consequence of the unlawful agreement.'"⁴¹

B. U.S.S.G. Section 1B1.10—Reduction in Term of Imprisonment as a Result of Amended Guideline Range

In United States v. Bravo,⁴² the Eleventh Circuit discussed the scope of the district court's authority in resentencing a defendant based on a retroactive sentencing guideline amendment.⁴³ This decision is important in light of the substantial guideline amendments that took effect in 2000.⁴⁴ In Bravo defendant was initially sentenced in 1993 for conspiracy to import cocaine.⁴⁵ The guidelines in effect at the time applied base offense level 40 for such offenses involving 897 kilograms of cocaine.⁴⁶ Thereafter, U.S.S.G. section 2D1.1 was amended to lower the base offense level from 40 to 38 for offenses involving more than 150 kilograms of cocaine.⁴⁷ Under U.S.S.G. section 1B1.10(c), this amendment was made retroactive. Additionally, after defendant was sentenced, Congress enacted the safety valve statute, 18 U.S.C. Sec. 3553(f).⁴⁸ The safety valve statute was incorporated into U.S.S.G. section 5C1.2 but was not made retroactive.⁴⁹

Based on the retroactive amendment to section 2D1.1, defendant filed a motion for a sentence adjustment pursuant to 18 U.S.C. Sec. 3582(c)-(2).⁵⁰ Defendant also requested application of the newly enacted safety valve provision and a downward departure based on his extraordinary medical condition that developed while he was incarcerated.⁵¹ The district court reduced defendant's sentence based on the retroactive amendment to section 2D1.1 but found that it lacked jurisdiction to depart downward or to apply the safety valve.⁵²

On appeal the Eleventh Circuit reviewed the two-part analysis that must be applied in reducing a sentence under section 3582(c)(2). "Initially, the court must recalculate the sentence under the amended guidelines, first determining a new base level by substituting the amended guideline range for the originally applied guideline range, and then using that new base level to determine what ultimate sentence it would have imposed."⁵³ In recalculating the guidelines, the commentary to U.S.S.G. section 1B1.10(b) only allows for the sentence to be reduced based on the amended guideline, and requires that "all other guideline application decisions [made during the original sentencing] remain unaffected."⁵⁴ The court then noted that "[t]he next step is for the court to decide whether, in its discretion, it will elect to impose the newly calculated sentence under the amended guidelines or retain the original sentence. This decision should be made in light of the factors listed in 18 U.S.C. Sec. 3553(a)."⁵⁵ A defendant's need for medical care is one such factor, which the district court specifically considered in deciding to reduce defendant's sentence from 210 months to 168 months imprisonment.⁵⁶

However, the Eleventh Circuit determined that the district court lacked jurisdiction to depart downward based on defendant's medical condition.⁵⁷ The court emphasized that a sentencing adjustment under section 3582(c)(2) is not a de novo resentencing.⁵⁸ Rather, other than the application of the amended guideline range, "all original sentencing determinations remain unchanged."⁵⁹ The only exception to this rule is that a downward departure from the original guideline range need not be reapplied to the amended guideline range because "a discretionary decision to permit a downward departure from the original guideline range 'is not a guideline application decision that remains intact when the court considers the new Guideline range.'"⁶⁰ The court declined to reach the question of whether, when resentencing a defendant under section 3582(c), the district court should also apply the safety valve statute if that statute was enacted after the original sentence.⁶¹ The court noted that the safety valve statute only applies when the guidelines range is less than the statutory mandatory minimum.⁶² Because defendant's revised sentence was greater than the statutory mandatory minimum, the safety valve statute was not applicable.⁶³ Additionally, the Eleventh Circuit held that section 3582(c) does not confer...