Federal Sentencing Guidelines - Rosemary T. Cakmis and Fritz Scheller

• Publication year: 2003

Federal Sentencing Guidelinesby Rosemary T. Cakmis^* and

Fritz Scheller^**

I. Introduction

As in the past two years, the Eleventh Circuit's 2002 docket contained numerous conviction and sentencing appeals, primarily in drug and firearm cases, based on the Supreme Court's 2000 decision in Apprendi v. New Jersey.¹ Most of these Eleventh Circuit decisions involved the effect of Apprendi on statutes, such as the statutory maximum and mandatory minimum penalties provided in statutes relating to drugs and firearms.² In the cases involving Apprendi challenges to the United

States Sentencing Guidelines ("U.S.S.G."),³ the Eleventh Circuit remained consistent with its decisions in 2000 and 2001 and continued to rule that Apprendi does not apply to the sentencing guidelines.⁴

Child pornography cases were also the focus of much debate in the Eleventh Circuit in 2002. The most apparent reason for this focus is the Supreme Court's recent decision in Ashcroft v. Free Speech Coalition,⁵ in which the Court held that part of the child pornography statute was unconstitutional.⁶ This decision produced a wave ofchallenges to child pornography convictions, much like numerous defendants challenged their drug convictions in the aftermath of the Supreme Court decision in Apprendi. In addition to challenging their convictions, many defendants in these child pornography cases raised challenges to several guideline enhancements involving child pornography found in Chapter Two, Part G, of the sentencing guidelines.⁷

As in 2001, the Eleventh Circuit again in 2002 addressed various aspects of U.S.S.G. section 2F1.1, which was the fraud guideline in effect at the time some of the defendants who appealed in 2002 were sentenced.⁸ In November 2001, section 2F1.1 was deleted, and its provisions were consolidated into the amended version of section 2B1.1.⁹

Departures from the guidelines also continued to attract much attention from the Eleventh Circuit in 2002. The court followed the general trend it established by affirming upward departures and reversing downward departures in most cases.¹⁰ Other guidelines that played an important part in Eleventh Circuit case law in 2002 include U.S.S.G. section 1B1.2(d) (multiple object conspiracies),¹¹ U.S.S.G. section 1B1.3 (relevant conduct),¹² U.S.S.G. sections 3B1.1 and 3B1.2 (role adjustments),¹³ U.S.S.G. section 2S1.1 (money-laundering),¹⁴ U.S.S.G. section 3D1.2 (grouping),¹⁵ and U.S.S.G. Chapter Four, Parts A and B (criminal history considerations).¹⁶

II. Chapter One, Part B: General Application Principles

Chapter One, Part B of the guidelines contains the general principles used in applying the guidelines. Two of these principles that were the subject of several Eleventh Circuit cases in 2002 involved conspiracies to commit more than one offense¹⁷ and relevant conduct.¹⁸

A. U.S.S.G. section 1B1.2(d): Multiple Object Conspiracies

The offense level for a conspiracy charge is the offense level for the substantive offense upon which the conspiracy is based.¹⁹ Many indictments, however, charge conspiracies to commit more than one offense. Such multiple object conspiracies are the subject of U.S.S.G. section 1B1.2(d).

In United States v. Hersh,²⁰ the Eleventh Circuit noted that under section 1B1.2(d), a conspiracy count may be divided into separate counts for guideline calculations if the defendant is convicted of a conspiracy containing multiple objects. That guideline, however, does not apply when the "conspiracy involves the commission of 'one crime in two ways.'"²¹ Because the indictment in Hersh charged a conspiracy with only one object, the Eleventh Circuit found that section 1B1.2(d) did not apply.²² Accordingly, the Eleventh Circuit ruled that the district court erred by dividing the conspiracy count into separate counts in calculating defendant's offense level.²³

In United States v. Venske,²⁴ defendants were convicted, inter alia, ofconspiracy to launder money based on their participation in a telemarketing scheme. The conspiracy had two objects: one was a violation of 18 U.S.C. Sec. 1956(a)(1)(A)(i), and the other was a violation of 18 U.S.C. Sec. 1956(a)(1)(B)(i).²⁵ The jury returned a general verdict, and the district court sentenced defendants, using the more severe base offense level required for the Sec. 1956(a)(1)(A)(i) offense, "without determining beyond a reasonable doubt which of the charged offenses was the basis of the jury's verdict."²⁶

Applying the plain error standard of review because defendants did not preserve the issue for appeal, the Eleventh Circuit found that the district court erred when it failed to determine which offense formed the basis of the conspiracy.²⁷ The Eleventh Circuit also found that the error affected defendants' "substantial rights and the fairness, integrity, and public reputation of the judicial proceedings."²⁸ The court explained that the sentence could have been lower depending on which money-laundering offense was determined to be the object of the conspiracy.²⁹ Thus, the sentence was vacated, and the case was remanded for resentencing.³⁰

In United States v. Vallejo,³¹ defendant was convicted of conspira-cy³² and extortion.³³ The indictment alleged, and the government argued at the bench trial, that the conspiracy was based on multiple substantive offenses, including extortion, mail fraud, and money-laundering.³⁴ At the conclusion of the bench trial, the trial court found defendant guilty of conspiracy, but did not mention the substantive offenses on which the conspiracy was based. Defendant's sentencing guidelines were calculated based on a multiple object conspiracy.³⁵

The commentary to section 1B1.2(d) cautions the courts to exercise "[p]articular care" when applying that guideline "because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy."³⁶ The commentary explains that section 1B1.2(d) should only be applied in such cases "with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense."³⁷

The phrase "were it sitting as trier of fact" has been defined as requiring the court to "find beyond a reasonable doubt that the defendant conspired to commit the particular object offense."³⁸ The Eleventh Circuit rejected the government's argument in Vallejo that "because the district court both acted as the trier of fact and imposed the sentence, the court's decision to base [defendant's] sentence on a multi-object conspiracy for mail fraud and money[-]laundering necessarily implies that those objects were proved beyond a reasonable doubt."³⁹ In light of the district court's application of the preponderance of the evidence standard in ruling on defendant's various sentencing objections and failure to mention proof beyond a reasonable doubt or make specific findings, the Eleventh Circuit refused to speculate or assume that the district court found the multiple objects of the conspiracy were proved beyond a reasonable doubt.⁴⁰ The Eleventh Circuit concluded that the "'failure to apply the proper standard of proof at sentencing compels us to vacate the appellant[']s sentence[] and remand this case to the district court for resentencing.'"⁴¹

B. U.S.S.G. section 1B1.3: Relevant Conduct

U.S.S.G. section 1B1.3 allows for relevant conduct to be considered in calculating a defendant's sentencing guidelines.⁴² In 2002 this guideline arose in the context of various offenses. Some of the cases are discussed in connection with the specific offense guideline for which the relevant conduct was considered.⁴³ Two of the cases discussed in this section involve some general principles for applying the relevant conduct guideline.

In United States v. Petrie,⁴⁴ defendant was convicted of conspiracy to launder funds that were derived from wire fraud. On appeal, defendant challenged the ten-level enhancement found in U.S.S.G. section 2S1.1(b)(2)(K),⁴⁵ which applies if the loss was more than $20 million but not more than $35 million.⁴⁶ The district court based the loss on defendant's direct conduct and the reasonably foreseeable acts ofhis co-conspirators.⁴⁷

Pursuant to sections 1B1.3(a)(1)(A) and (B), the district court must consider "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity" in calculating the loss in conspiracy cases.⁴⁸ Because the "scope of the activity jointly undertaken by the defendant is not necessarily the same as the scope of the entire conspiracy," the district court "'must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake.'"⁴⁹ Then the district court must determine the "'conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant.'"⁵⁰ In so doing, the district court may consider "'any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.'"⁵¹ In affirming defendant's sentence in Petrie, the Eleventh Circuit concluded that the district court correctly calculated the amount of money laundered based on defendant's conduct "in contacting clients and introducing them to the scheme to defraud them and his establishment of a company . . . used to defraud clients at later stages of the conspiracy."⁵²

In United States v. Ryan,⁵³ defendant was convicted of conspiracy to possess and attempt to distribute 100 kilograms or more of marijuana and simple possession of marijuana.⁵⁴ On appeal, defendant argued he should not have been held accountable for approximately 227 kilograms of marijuana because there was no evidence that he was a party to the negotiations for the purchase of the marijuana.⁵⁵ The Eleventh Circuit disagreed, holding that defendant was accountable for the acts the co-conspirators committed in...