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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. 

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. Bell, 2018 WL 1432956, the Third Circuit vacated an improperly assigned sentence.

Bell pled guilty to the offense of felon in possession of a firearm. He was enhanced at sentencing due to the ACCA and his priors.

Bell’s first ground for appeal, that his priors did not meet the standard for the ACCA was denied.

Bell’s second ground was that his sentence was improperly calculated. The PSI calculated his sentence at 37 and assessed a three-level downward variance for acceptance of responsibility down to 34. When combined with his criminal history category of IV, his sentencing range came out to 262-327 months. The court adopted the PSI and granted a downward variance to 202 months.

Bell argued that his offense level should have started at 34 under U.S.S.G. § 4B1.4(b)(3)(A) which after the three-point reduction for acceptance of responsibility would put him at a 31 (note:  level 31 criminal history category 6 would be 188–235 months on the 2016 manual). The government conceded this to be accurate AND conceded this to be plain error under Rule 52(b) and Molina Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

The Third Circuit vacated the sentence and remanded it back to the district court. United States v. Bell, 2018 WL 143295

Acceptance Of Responsibility

In United States v. Knight, No. 16-10404, the Ninth Circuit vacated a sentence after the government failed to recommend a third point off the defendant’s acceptance of responsibility point.

Knight originally pled not guilty and asked to extend his trial date. Knight also filed a motion to suppress evidence which was denied. Knight then asked for another trial date extension, later pled guilty pursuant to a plea agreement, and then asked that it be withdrawn so he can plead “straight up.” At sentencing, the government refused to move for the third point for acceptance of responsibility because they were forced to prepare for a motion to suppress. There was no other justification or reasoning involved.

On appeal, the Ninth Circuit noted that “a motion to suppress evidence cannot be held a against a defendant for purposes of the adjustment.” The court also noted that the government can only refuse to seek the third point for acceptance of responsibility for the reasons in Sentencing Guideline 3E1.1(b), which are “when failing to timely notify of an intention to enter a guilty plea either (1) did not allow the government to avoid preparing for trial or (2) impeded the government’s or court’s ability to allocate their resources efficiently.” The court noted that there may have been other things that could have been justification for the denial of the third point but that none of them had been referenced by the record.

The court vacated the sentence and remanded the case back to the trial court.  No. 16-10404

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.