federal criminal appeal lawyer

As many of you may know, the government is typically only required to establish a “preponderance of evidence” standard when arguing for the application of an enhancement under the U.S. Sentencing Guidelines. However, a preponderance of evidence is not always the appropriate level of proof. When a sentencing factor “has an extremely disproportionate effect on the sentence relative to the offense of conviction, the government may have to prove the factor by clear and convincing evidence.” United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009). But in United States vs. Rigdill, No. 18-50128 (9th Cir. Oct. 17, 2019), this issue came up on federal criminal appeal.

Edward Ridgill was found guilty at trial of 26-counts of illegally distributing various controlled substances. At sentencing, the district court relied on “CURES” data to enhance Ridgill’s sentence by fourteen levels. (CURES stands for Controlled Substance Utilization Review and Evaluation System). In assessing the fourteen-level enhancement, the district court did so under the preponderance of evidence standard.

What happened in Rigdill?

On appeal before the Ninth Circuit, Ridgill argued that 1) the court erred in utilizing a preponderance of evidence standard is enhancing his offense level by 14 points, 2) part of the Standard Conditions of supervised release imposed by the district court were impermissibly vague, 3) the district court plainly erred by admitting challenged portions of testimony at trial; 4) the district court abused its discretion in rejecting Ridgill’s proposed modifications to the jury instructions, and 5) Ridgill’s 60 month sentence was procedurally unreasonable.

Relying on United States v. Jordan, 256 F.3d 922 (9th Cir. 2001), United States v. Felix, and United States v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000), the Ninth Circuit found that the district court erred by not using the higher burden of proof standard–clear and convincing evidence–in assessing the 14-level enhancement. The court discussed its previous holding in Jordan where it found a nine-point increase under the Guidelines “strongly support[ed] application of the clear and convincing evidence standard.” However, Ridgill did not object to this issue before the district court so the Ninth Circuit reviewed for plain error. Nonetheless, the Ninth Circuit concluded that the court’s error was plain and affected Ridgill’s substantial rights. As such, the appellate court vacated Ridgill’s sentence and remanded to the district court to assess the evidence utilizing the proper standard.

Both parties agreed that a portion of the Standard Conditions of Ridgill’s supervised release were unconstitutionally vague. The Ninth Circuit remanded to the district court to modify the conditions consistent with its opinion in United States v. Evans, 883 F.3d 1154 (9th Cir. 2018). The Ninth Circuit concluded that it need not determine whether Ridgall’s sentence was substantially reasonable given its remand for resentencing. Lastly, the court rejected Ridgill’s remaining arguments for appeal.

What Does All this Mean? How can my Loved One Use this on their Federal Criminal Appeal?

Most sentencing enhancements require the addition of a few additional levels (for example an enhancement under U.S.S.G. 2D1.1(b)(1) requires a two-level enhancement for possession of a dangerous weapon). Under those circumstances, a district court is permitted to find the enhancement applicable under a preponderance of the evidence standard. However, when an enhancement dramatically increases a sentence, a higher burden of proof is imposed on the government. In those cases, the government must establish clear and convincing evidence that the enhancement applies. As seen in Rigdill, this standard of proof can be overlooked by judges and attorneys at sentencing, which can have a dramatic effect on a defendant’s sentence.

About the Law Office of Jeremy Gordon

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. 

United States v. Fleming, No. 17-3954

Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  


At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.  


There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  


The court varied upward and imposed a sentence of 120 months in prison.  The court said that “the Guidelines were not ‘sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.


The court noted that a sentence can be procedurally unreasonable when “the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”  The court also said that the reliance on information from the article from was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.


The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.


Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  


The government claimed that the plain error doctrine applied to this case.  Plain error is “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”


The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  


The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.


The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  


Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  


Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses three factors to determine whether reassignment is warranted:


(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;

(2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.


Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.


The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954

In United States vs. Aminov. No. 17-1703, the Third Circuit reversed a sentence based on plain error.

Aminov was sentenced in 2011 for aiding and abetting in the production of a document without lawful authority. The PSI recommended a Sentencing Guidelines range of 0-6 months instead of the government’s suggested range of 12-16 months. Aminov was sentenced to 6 months imprisonment followed by 3 years of supervised release. He was accused of healthcare fraud while on supervised release and sentenced to 15 months imprisonment. He was then charged with violation of supervised release. He asked for a concurrent sentence, or in the alternative, a consecutive sentence at the low end of the guideline range. The government sought a consecutive sentence at the high end of the guideline range stating in the sentencing memorandum that “[a]t his original sentencing, in this case, the government advocated for a term of imprisonment in the range of 10 to 16 months. Judge Shapiro imposed a sentence below the government’s recommended range. This was repeated in their sentencing closing arguments. The court gave a sentence at the top of the guideline range and said “I am looking back at what Judge Shapiro saw in you and she imposed a below-guideline range sentence, significantly below guideline range sentence. And in return for her doing that, you immediately went back out and engaged in further similar criminal conduct.” No objection was made to this statement.

Aminov appealed his sentence. It was subject to plain error analysis where he must show:

(1) an error; (2) that is plain or obvious; (3) that affects the defendant’s substantive rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The Third Circuit said that plain error was established here because the range of punishment was not 10-16 months like the prosecutor said, but 0-6 months like what was in the PSI. The district court crafted its sentence in consideration of incorrect facts and committed plain error. It affected the outcome of the district court proceedings because the district court relied on it as support for its sentencing decision and said the same. Finally, allowing a sentence to stand on incorrect information would undermine public confidence in the judicial process.

The Third Circuit vacated and remanded the sentence to the district court for resentencing. No. 17-1703

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

The Tenth Circuit recently reversed in United States v. Dahda. Dahda was convicted on a drug conspiracy for over 1,000 kilograms or more of marijuana. On appeal, Dahda alleged seven grounds for relief, including that the district court erred in applying Dahda’s base offense level by miscalculating the amount of marijuana attributed to Dahda.

While the rest of the grounds were rejected on appeal, the Tenth Circuit reversed on Dahda’s claim that the district court miscalculated the base offense level. The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing a ‘minimum indicia of reliability.’”

However, the Tenth Circuit found the information used to sustain Dahda’s offense level was not reliable. The appellate court found that the quantities of marijuana found in pallets varied. The government’s witnesses indicated that each pallet had between five to ten to eighty pounds of marijuana. Toward the end of the conspiracy, each pallet usually contained 80 pounds, but there “could have been” times when the pallets contained more than 80 pounds. There was also no indication of the time periods that the government’s witnesses were referencing when discussing the pallets that contained 80 pounds. The court found that there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Dahda and as such, it was insufficient. The court also rejected the government’s harmless error analysis.

The Tenth Circuit reversed, United States v. Dahda, No. 15-3237

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.