Fourth Circuit Vacates Sentence for Improper Enhancement: Morehouse
In 2019, Morehouse was indicted on one count of distribution of child pornography, in violation of 18 U.S.C. 2252A(a)(2) and (b)(1). Morehouse agreed to plead guilty to the one-count indictment and Probation prepared its presentence investigation report (“PSR”). The PSR attributed a 5-level enhancement to Morehouse’s base offense level for distribution “in exchange for any valuable consideration, but not for pecuniary gain.” U.S.S.G. 2G2.2(b)(3)(B). With the inclusion of the 5-level enhancement, Morehouse’s Sentencing Guidelines range was determined to be 97 to 121 months imprisonment. Morehouse objected to the 5-level increase arguing, in part, that a defendant’s generalized expectation of receiving something of value is insufficient for the enhancement to apply.
The district court ultimately overruled Morehouse’s objection; however, the court imposed a downward variance and sentenced Morehouse to 84 months imprisonment. Morehouse timely appealed to the Fourth Circuit Court of Appeals.
On appeal, the Fourth Circuit applied an abuse of discretion standard of review and noted it would only reverse judicial error unless the error was harmless. In applying the 5-level enhancement, the district court relied on the Fourth Circuit’s 2013 decision in United States v. McManus, 734 F.3d 315 (4th Cir. 2013). However, McManus was decided prior to the U.S. Sentencing Commission’s 2016 Guidelines amendment to U.S.S.G. 2B2.2(b)(3) and its commentary.
The Fourth Circuit concluded that the 2016 amendment abrogated its prior decision in McManus and, because Morehouse was sentenced after the amendment had taken effect, was entitled to application of the amended Guidelines. The district court’s failure to apply the amended Guidelines was, according to the Fourth Circuit, an abuse of discretion.
Notably, the Fourth Circuit explained that the 2016 amendment altered the meaning of the Guidelines by replacing the phrase “for the receipt, or expectation of receipt” with “in exchange for.” While the distinction may seem trivial at first glance, the alteration meant that the government must prove that “the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person[.]” U.S.S.G. 2G2.2 cmt. n.1 (2016). Put simply, the 2016 amendment required the government to prove more than a mere expectation in order for the 5-level enhancement to apply under the Guidelines. That did not occur in Morehouse’s case.
After concluding that application of the enhancement was error, the Fourth Circuit next had to determine whether the error was harmless-especially in light of the below-the-guidelines sentence imposed by the district court. The Guidelines the court applied were 97 to 121 months, but the court varied down to 84 months. Had the court applied the correct 2-level enhancement under 2G2.2(b)(3)(F) instead of (b)(3)(B), Morehouse’s Guidelines would have been 70 to 87 months instead. Thus, Morehouse’s sentence would still fall within the correct Guidelines range.
However, an incorrectly calculated sentence falling within a corrected Guidelines range does not automatically render the error harmless. As the Fourth Circuit pointed out, the district court believed it was imposing a sentence thirteen months below the advised Guidelines. But utilizing the correct Guidelines calculations, Morehouse’s sentence was actually at the top end of the Guidelines range. Accordingly, the Fourth Circuit determined that the error was not harmless.
The appellate court reversed the district court’s application of the five-level enhancement, vacated Morehouse’s sentence, and remanded to the district court for resentencing.
JEREMY’S TAKEAWAY: The 2016 Guidelines amendment to 2G2.2(b)(3)(B) and its commentary has obviously been around some time now. Yet, we still see district courts using incorrect methods for calculating sentence enhancements. In fact, it was not until this case six years later that the Fourth Circuit overruled its prior 2013 case dealing with application of this enhancement. This goes to show that these sort of errors can easily be overlooked by the government, defense counsel, and the courts.
If you were enhanced under 2G2.2(b)(3)(B) and your case is currently on direct appeal or you are within the one-year time frame to file a 28 U.S.C. 2255 motion, you should make sure that the district court applied the proper standard under the amended Guidelines. If you are looking for an attorney to assist in determining whether your Guidelines were calculated correctly, reach out to me at [email protected] so that we can discuss your case.
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