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Koons v. United States. No. 17-5716

The petitioners in Koons v. United States had committed crimes that invoked the use of the mandatory minimums, their sentences were based on these ranges.  Each of them provided information to the government that assisted in the investigation and prosecution of a case. As a result of this the prosecutor filed for reduction motions that resulted in sentences below the mandatory minimums.  The court did not consider the guideline ranges on the case. This is because the court discarded those when the court sentenced the petitioners to the mandatory minimums.

Later, the sentencing commission approved Amendment 782, which retroactively reduced the guidelines allowing a proportional reduction in sentence for those convicted under the advisory guidelines. In this case, the petitioners claimed they should be eligible for a sentence reduction.  The court said that the petitioners would have to prove that their sentence was based on a sentence that was “based on” the guidelines. They were unable to, and their motions were denied.

Writing for the court, Justice Alito held that petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges, but instead their sentences were “based on their mandatory minimums and on their substantial assistance to the Government.

 

The court noted that they had ruled in Hughes that “for a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence,” but “when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sentence—the resulting sentence is not “based on” a Guidelines range.”  Here, the guideline ranges played no part in their sentences because “the ranges play[ed] no relevant part in the judge’s determination of the defendant’s ultimate sentence” as the guideline ranges were discarded for the mandatory minimums.

 

The court also noted in response to the petitioners argument that “What matters, instead, is the role that the Guidelines range played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sentences ultimately selected.”

 

The Supreme Court affirmed the decision of the appellate court, denying the petitioner’s motions.  Koons v. United States. No. 17-5716

Hughes v. United States, No. 17–155, 584 U. S. ____ (2018)

Eric Hughes accepted a plea deal in 2013 after being accused of four charges related to drug conspiracy. He pled guilty to conspiracy to distribute methamphetamine and being a felon in possession of a gun in return for the dismissal of the other two charges and the withholding of information regarding previous drug felonies. For the two guilty charges, Hughes agreed to serve a term of 180 months.

In his plea deal, no reference was made to the Guidelines range, however, upon accepting the deal, the District Court noted that the deal was “compatible” with the Guideline ranges. At the time, the recommended range for Hughes’s crimes was set at 188-235 months. Such a consideration by the District Court is required before accepting any plea deal.

Upon the adoption of amendment 782 to the Sentencing guidelines, a crime like Hughes’s would have a recommended range of 151-188 months. Hughes petitioned the court for a reduction in sentence under Amendment 782. The court denied Hughes a reduction on the grounds that Hughes’s plea agreement did not reference the guideline ranges and, therefore, his sentence was not based on the guidelines in a way that would warrant a reduction.

The Court indicated that “the controlling issue here is whether a defendant may seek relief under §3582(c)(2) if he entered a plea agreement specifying a particular sentence under Federal Rule of Criminal Procedure 11(c)(1)(C).”  This is also called a “type-c” agreement.

 

Writing for the Court, Justice Kennedy said that “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

 

“In the typical sentencing case there will be no question that the defendant’s Guidelines range was a basis for his sentence. The Sentencing Reform Act requires a district court to calculate and consider a defendant’s Guidelines range in every case.”  

 

The Court went to say that “a defendant’s Guidelines range is both the starting point and a basis for his ultimate sentence” and that agreed sentences under 11(c)(1)(C) were no different.  “Although in a Type-C agreement the Government and the defendant may agree to a specific sentence, that bargain is contingent on the district court accepting the agreement and its stipulated sentence.”  Further, the court noted that “the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range.”  Thus, although the plea deal did not directly reference the Guidelines, they are understood to have played a role in the sentence given that the Court is required to consider the guidelines before accepting a plea deal.

For these reasons, the Supreme Court reversed the decision of the court of appeals and the case was remanded for further consideration.  No. 17–155, 584 U. S. ____ (2018)

In United States v. Zuniga the Fifth Circuit remanded the conviction based on improper convictions.

Zuniga was a passenger in his vehicle.  Zuniga and the driver were followed by the police.  The police witnessed the vehicle fail to signal 100 feet continuously before turning left and park in a “disabled only” parking space (these things are law violations in Texas).  The officer who witnessed these violations was undercover and asked another officer to stop the vehicle.  The other officer did not see the law violations but stopped the vehicle anyway.  The driver did not have a license.  Zuniga had city warrants.  Both were arrested.  Zuniga was searched and was found to be in possession of a plastic bag of meth.  His vehicle was searched and a backpack with more meth was found as well as a firearm and holster.

Zuniga moved to suppress the stop and was denied on the grounds of the “collective knowledge doctrine.”  He later pled guilty to one count of Possession with Intent to Distribute 500 grams or More of Meth and Aiding and Abetting while preserving his right to challenge the suppression ruling.

At sentencing the court found Zuniga to be a career offender for his two priors of evading arrest and delivery of a controlled substance.  He was sentenced to 327 months and five years of supervised release.

Zuniga argued that his career offender sentence must be remanded under Johnson v. United States.  Zuniga filed a second supplemental brief based on United States v. Hinkle challenging the Texas Delivery of a controlled substance.  He had also challenged the reasonable suspicion of the stop as well as the application of the collective knowledge doctrine.  His reasonable suspicion arguments and his collective knowledge doctrine arguments were denied and after Beckles v. United States was published, Zuniga conceded that his argument about Johnson v. United States was foreclosed.  However Hinkle explained that Mathis does not allow sentencing courts to look at the actual method of delivery on which a defendant’s conviction was based on for purposes of determining whether the conviction constituted a controlled substance offense under the guidelines.

The government indicated that Zuniga did not raise this argument in the district court and in the opening brief to this court and as such the court should hold that Zuniga forfeited his right to bring this argument citing that Mathis only “reaffirmed” the principle articulated in Descamps.  The Court rejected this argument indicating that Mathis clarified the law on divisibility.  While Descamps was about whether a sentencing court could consult additional documents when a defendant was convicted under an ‘indivisible’ statute, Mathis was concerning “a different kind of alternately phrased law” and held that alternative means do not make alternative elements.  Hinkle then applied Mathis to a Texas Statute.

With that, the forfeiture argument was laid waste to.  The government conceded that the error was plain in this case especially when considering the disparity between the imposed sentence and the applicable guideline range.

The Fifth Circuit Vacated and Remanded.  U.S. v. Zuniga.

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

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In United States v. Cummings, the Second Circuit reversed a conviction because of prejudicial double hearsay.  Cummings was charged with several offenses regarding drugs, firearms and two counts of killing a person during and relation to a conspiracy to distribute cocaine base.  During the trial the government sought to offer evidence that Cummings threatened a cooperating witness because of his cooperation by offering the testimony of that person.  That person was going to testify to the defendant saying that he was going to kill the witness because of the witnesses’ cooperation.  Cummings’ counsel opposed, arguing that the probative value of that evidence was substantially outweighed the prejudicial effect under rule 403 of the Federal Rules of Evidence.  The Trial Court allowed the evidence in subject to a limiting instruction.

During the trial it came out that the witness did NOT actually hear Cummings actually say that he was going to “shoot [the witness] in the face.”  The witness never alleged that Cummings that to him directly, rather he said that to people around the witness.  Defense counsel did not re-raise the request for the limiting instruction and the court did not grant it.  There was no 404(b) instruction either (a 404(b) instruction means in this case that the jury wouldn’t have been allowed to use this threat as evidence that he committed the crimes he was charged with).  The prosecutor said at final argument that Cummings made those threats because he knew the evidence would be damaging to him at trial and that testimony, “was in fact completely devastating proof of [Cummings’] crimes.”

The Jury found Cummings guilty of all counts.

With regard to the hearsay evidence, the court held that the statements of the witness that Cummings didn’t say anything to him directly meant that it was less likely that the witness heard Cummings make the death thread.  So that means that other people heard Cummings say what he said and then told it to the witness.  That created a potential “hearsay within hearsay” problem; the first hearsay issue is when Cummings allegedly told some unknown person that he was going to “shoot [the witness] in the face.”  Then the second statement is when the unknown person told the statement to the witness who testified.

(Remember, under Federal Rule of Evidence 801, Hearsay is an Out of Court Statement offered in court for the truth of the matter asserted).

(A note by Jeremy:  Okay, so when you’re dealing with two levels of hearsay then you have to have either an exception or that it’s not actually hearsay for each one.  You have to deal with each one on its own individually)

The court noted that although the first statement could be deemed “Not Hearsay,” because it is not offered for the truth of the matter asserted but rather for consciousness of guilt OR it could be deemed “Not Hearsay” because it is a statement by a party opponent (as in the case is U.S. v. Cummings and the U.S. is offering the statement).  But even if that clears Cummings stating it to the unknown person, it doesn’t clear the unknown person saying it to the witness.  The government didn’t call the unknown person and the court indicated that the only way that the statement gets in is if it was admitted for its truth.  If it wasn’t admitted for its truth then it wouldn’t be probative of his consciousness of guilt.  So since the second statement from the unknown person to the witness is hearsay without an exception, then it is inadmissible.

The court then weighed whether the admission was harmless error.  Although Cummings did not ask for a limiting instruction, the court determined that the death threat testimony created an undue risk that the jury construed the thread as evidence of Cummings’s murderous propensity.  Second the court did not provide a limiting instruction to the jury about the limited permissible purpose of the death threat testimony.  Third the government’s description of the death threat testimony went beyond the purpose of its admission because of the government’s final argument.  Finally, the hearsay nature of the death threat testimony unfairly prejudiced Cummings and may have affected the jury’s understanding of his testimony.

The second circuit reversed, 15-2035

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

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The defendant was found guilty of one count of possession of child pornography for owning a collection of the material and bringing it across the US-Canada Border on the way to a family vacation for personal viewing.  He was sentenced to 120 months for the possession and 225 months for the transportation (the max was 240 months).  He was also sentenced to 25 years of supervised release with extensive conditions including the inability to use or possess any computer or any other device with online capabilities at any location except at his work unless participating in the computer restriction and monitoring program, a mandate that the probation was allowed to conduct periodic unannounced examinations of any computer equipment that he used, not being allowed to have any direct contact with a person under the age if 18 without supervision or any indirect contact with someone under 18 such as online.  He was also directed to “reasonably avoid and remove” himself from situations where he has any other form of contact with a minor and not to be in any area where persons under the age of 18 are likely to congregate like school grounds child care centers or playgrounds.

The defendant was a 44 year old white male with a life expectancy of 76.5 years at the time of his sentencing.

The court noted that a sentence is substantively unreasonable if it “cannot be located within the range of permissible decisions” as well as noting that the length of a sentence my be excessively punitive or needlessly harsh with or without far reaching post-release restrictions.  The court determined that the review of a sentence for substantive reasonableness is governed by the 3553 factors with particular attention to the need for the sentence to reflect the seriousness of the offense and to promote respect for the law.  In addition, supervised release conditions are also governed by the same factors as well as involving no greater deprivation of liberty than is necessary to implement the statutory purposes of sentencing and that they are consistent with pertinent Sentencing Commission Policy statements.

The court noted that the guideline starting point in this case was 2g2.2 and that guideline is fundamentally different from most and must be applied with great care in order to prevent unreasonable sentences.  The court also noted that the offense level failed to sufficiently differentiate between offenders who distribute for pecuniary gain and those who distribute for personal noncommercial reasons.  The Appellate court noted that these concerns weren’t considered by the district court.

The court identified that 2g2.2 resulted in a sentence that came from outdated enhancements related related to the defendant’s collecting behavior even though he was not alleged to be involved in the production or distribution of such material.  The court also noted that the the defendant’s sentence was higher than that for individual who engaged in sexual conduct with in-person victims.  Simply put, he wasn’t the worst of the worst but he was sentenced as such; someone convicted of a more severe crime than the defendant in this case was given a less severe sentence.

With regard to his supervised release, the defendant would have been prohibited from interacting with family members or friends who have children under the age of 18 until he was 88 years old, well above his life expectancy and the condition that bars him form “indirect contact” is also confusing because it is unclear and could mean that he wouldn’t be able to go to sporting events, natural history museums or street fairs.

The court reversed  United States v. Jenkins 14-4295-cr

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

Miguel Bustamante-Conchas was not allowed a chance to allocute before being sentenced.  As you may know, Allocution is the right of a defendant in a criminal case to say anything to the Judge that they wish to say with the hopes that the Judge would impose a lesser sentence.

The right to allocute is in the Federal Rule of Criminal Procedure 32( i)(4)(A)(ii) which says that federal courts must  “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

The U.S. Court of Appeals for the Tenth Circuit, sitting en banc (where all the judges hear the case and decide instead of a panel) held that Bustamante-Conchas had been denied the right to allocate. Since he did not object at sentencing, the Court had to decide whether this was “Plain Error.”  In this case the court wrote that Plain error is shown where there is an  “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings[.]”

The first two prongs of that test were easily satisfied.  The court said, “a complete denial of allocution thus satisfies the first and second prongs of plain-error review.”

On the third prong, Tenth Circuit held that defendants need only show that “there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” A reasonable probability, should not be confused with, “a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Rather, the court said that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”

On this, the court held that “without some exceptionally good reason to doubt that allocution would have mattered, the complete denial of a defendant’s right to allocute raises a reasonable probability of a lesser sentence,” adding “just as the Guidelines are ordinarily expected to have some impact on a sentence, there is at least a reasonable probability that allocution matters in the usual case.”  Even more importantly, the court held defendants “need not identify the particular statements they wished to make” to show prejudice.

There are some situations where a defendant will not be able to show prejiduce with the denial of an allocution such as a mandatory minimum or a sentence pursuant to Fedaral R. Crim P. 11 11(c)(1)(C), or certain types of violations of supervised release cases.

The court also overruled its prior cases which held that a “defendant must proffer an allocution statement to obtain relief.” The court did so because “accepting a proffered allocution statement would violate the fundamental tenet that appellate courts will not consider material outside the record before the district court.” Also, “appellate courts are in a poor position to assess an allocution statement.”

In refusing to require a proffer of what the defendant’s allocution would have been to demonstrate prejudice, the Tenth Circuit created a split with the Fifth Circuit which specifically requires such a statement as a precondition to being afforded relief. United States v. Palacios, 844 F.3d 527, 532-33 (5th Cir. 2016) (collecting cases).

Bustamate-Conchas’s sentence was accordingly reversed, and the case was remanded for resentencing. See: United States v. Bustamate-Conchas, No. 15-2025 (10th Cir. 2017).

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.