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Sunday, February 25, 2007

Guidelines enhancement for bartering drugs for gun

In US v. Charles Navarro, No. 05-4102 (3d Cir. 2/14/06) (click to link) the 3rd Circuit upheld a 4-level enhancement under USSG section 2K2.1(b)(5) for possession of a gun "in connection with another felony offense."

Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.

On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken together establish a two-part test: 1) "Whether the predicate offense and the firearms offense each have an element not shared by the other." (The Blockburger test.) 2) "Whether more than mere possession of the firearm (such as brandishment or other use) was an integral aspect of the predicate offense." If the answer to both is yes, the enhancement applies.

Applying this test here, the Circuit found first that drug delivery and firearms possession each have an element not shared by the other. Second, the Circuit found that since drug dispensation does not require an exchange of something of value, Navarro's possession of the firearm was not an integral aspect of the offense. The Court thus concluded that the enhancement applied; under this test, the drug dispensation was sufficiently distinct to count as "another felony offense."

Judge Bright (from the Eighth Circuit, sitting by designation) wrote a persuasive dissent. As Judge Bright points out, "In this case, firearm possession was integral to Navarro's drugs for guns exchange" since this exchange was the means through which he came into possession of the gun. The gun was not brandished or used in any other way beyond mere possession, and thus the facts do not meet the second part of the test. Thus, Judge Bright would hold that the enhancement should not have applied.

Wednesday, February 21, 2007

“Closely-regulated industry” exception to warrant requirement, as applied to PA Liquor Control Board, requires that Board officials conduct search

In a civil action under section 1983 alleging that a warrantless search of their tavern violated plaintiffs’ Fourth Amendment rights, defendants moved for summary judgment on the ground that the search had been conducted lawfully pursuant to the closely-regulated industry exception. That exception "requires that the search or seizure actually be carried out in accordance with a regulatory scheme that provides a constitutionally adequate substitute for a warrant." The defendants argued that the search was authorized under the Pa. Liquor Control Board’s regulations. Because the record showed that the search had been conducted by local police and not by any officials of the Board, the court examined Pa. law to determine whether the search met the requirements of the exception. Reviewing the state statutes and caselaw, the court determined that the regulatory scheme in Pa. only permits warrantless inspection by specified categories of individuals connected to the Board or working under their direction. Because the plaintiffs alleged that the search was performed by local police acting without any grant of authority by the Board, the court reversed the grant of summary judgment and allowed the case to proceed. Watson v. Abington Township, http://www.ca3.uscourts.gov/opinarch/054133p.pdf, 2/16/07.

“Fast-track” programs in other districts do not create “unwarranted” disparities with non-fast-track districts

In a decision that appears to create a conflict with the court’s decision in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit has rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. U.S. v. Vargas, http://www.ca3.uscourts.gov/opinarch/061368p.pdf, 2/16/07. At sentencing for illegal reentry by an alien, the defense requested that the court consider the disparity between his guideline range and the range he would fall in if he were being sentenced in one of the many districts that has a fast-track program. In those districts, where the Attorney General has granted the U.S. Attorney’s office authority to institute a fast-track program, defendants who plead guilty under the program receive a downward departure under U.S.S.G. § 5K3.1. The district court refused to consider the disparity argument and the Third Circuit affirmed. The court reasoned that the refusal to consider the disparity did not render the sentence unreasonable because the disparity was warranted in light of legislative and executive action in fast-track districts. The court left open a window of possibility in cases in which the defense can show that a defendant under exactly parallel circumstances would have received a lower sentence. The court’s legal reasoning is difficult to reconcile with Gunter, where the court held that section 3553(a) requires courts to consider all circumstances in imposing sentence, including the crack/powder cocaine differential approved by Congress and the Sentencing Commission.

“Indecent assault” is a “crime of violence” under the guidelines, categorical approach does not apply and court can look to underlying facts

In U.S. v. Siegel, http://www.ca3.uscourts.gov/opinarch/054537p.pdf, (3d Cir. 2/16/07), the defendant had a prior Pa. conviction for "indecent assault." Under U.S.S.G. § 4A1.1(f), an extra criminal history point is awarded under certain circumstances for prior crimes of violence, as defined under section 4B1.2(a). The question on review was whether the indecent assault conviction qualified as a "forcible sexual offense," one of the enumerated crimes of violence under section 4B1.2(a). The Pa. statute has numerous subsections, some of which have an element of force and some of which do not. The charging information did not identify any particular subsection, but rather listed all of them. Also, the government did not introduce a plea agreement or colloquy from the prior case. Therefore, under a strict categorical approach, the conviction would not qualify. However, applying its 2004 decision in Singh v. Ashcroft, 383 F.3d 144, the court decided that it was not bound by the categorical approach to an analysis of the elements of the offense, because "the disjunctive phrasing of the particular state statute . . . invites inquiry into the specifics of the conviction." The court then looked to the PSR, which contained a factual description of the offense that included the application of force. Because the defense had not objected to the PSR, the court took that as an admission of the facts and concluded that the admission was sufficient for application of the additional criminal history point. This case present a potentially significant inroad into application of the categorical approach to prior conviction enhancements.

Monday, February 05, 2007

Proof Beyond Reasonable Doubt Not Necessary To Apply Sentencing Enhancements That Don't Increase Sentence Beyond Stat Max

[The Third Circuit’s decision in United States v. Grier includes the majority’s opinion, two concurrences and two dissents. The majority opinion, which is fairly straightforward, is summarized below. Summaries of Judge Ambro’s concurrence, Judge Sloviter’s dissent and Judge McKee’s dissent, will follow in a separate post.]

Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.

The Third Circuit held today in United States v. Grier that facts relevant to sentencing enhancements, even when those facts constitute a separate offense, need not be established beyond a reasonable doubt, so long as the sentence remains within the statutory maximum set by the statute of conviction. The Court reasoned that the jury trial and reasonable doubt guarantees apply only to the facts constituting elements of the charged crime. Once a defendant is convicted by proof beyond a reasonable doubt as to all of the elements, thereby triggering a statutory maximum penalty, "a court may impose any sentence on the individual up to that maximum." That maximum is the one set by Congress in the United States Code. Judicial factfinding for the purpose of setting a sentence within that range does not offend the Constitution. In the course of its decision, the Court distinguished United States v. Jones as involving statutory interpretation rather than a statement of constitutional doctrine and United States v. Cunningham as involving a mandatory sentencing regime.

Turning to the standards of review, the Court held that it will continue to review factual findings for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.

The Court remanded for more specific findings both as to the District Court’s finding that the conduct constituted an aggravated assault and as to its reasoning for the sentence imposed. It emphasized the need for "thorough explication of sentencing decisions" in the wake of Booker.
The Court declined to address the continued viability of United States v. Kikumura, given that the sentence in the instant case was within the guideline range.

Judge Rendell concurred in the judgment, writing separately to add that "due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here." She noted the possibility, however, that due process concerns could be implicated when and if a defendant's sentence is "in fact based predominantly on conduct wholly collateral to his convicted crime."

Judge Ambro concurred in the judgment but only because he considers the matter controlled by Supreme Court precedent, namely, McMillan v. Pennsylvania and Harris v. United States. He wrote that while joining the result, he did not join the opinion "because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing."

More to come...

Friday, February 02, 2007

Large Upward Variance Rejected in First Substantive Sentencing Reversal, as Third Cir. Clarifies That Rehabilitation Is Not Grounds for Imprisonment

The Third Circuit broke new ground today by reversing, as unreasonably long, a 30-month sentence for counterfeiting checks when the Guidelines range was 2-8 months.

The bulk of the Court's opinion in United States v. Manzella deals with the threshold procedural issue of whether district courts may use imprisonment to promote rehabilitation, in this case drug treatment. The Court says "no," based on 18 U.S.C. 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court explains that this is perfectly consistent with 18 U.S.C. 3553(a)(2)(D), which directs district courts to consider rehabilitation in determining sentence, because "imprisonment" and "sentence" do not mean the same thing. Thus, defendants "[can]not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. Instead, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment." Manzella, slip op. at 21.

But another potentially far-reaching ruling in Manzella is the reasonableness holding. While the primary rationale the district court gave for the 30-month sentence was its belief that this was the minimum to qualify the defendant for BOP's 500-hour drug treatment program, the court also cited the defendant's many violations of her pre-trial release conditions. These were substantial: failure to report to drug treatment, breaking home confinement, and testing positive for cocaine. Manzella, slip op. at 4-5. Additionally, the court made a rote recitation of the other Section 3553(a) factors.

Despite the seriousness of these violations, the Third Circuit held that they "cannot alone justify in this case a sentence nearly four times the advisory Guidelines range." Manzella, slip op. at 24. Nor did it matter that the district court recited the other sentencing factors.

In a final twist, the Court seems to raise the bar regarding the level of explanation of sentence district courts must put on the record. The Third Circuit has always required post-Booker that the record reflect the district court's consideration of all non-frivolous arguments advanced by the parties, but Manzella goes a step further by faulting the district court for failing to state "why [it] disagreed with defense counsel's argument that an alternative sentence [of halfway house detention coupled with intensive drug treatment] would have accomplished the district court's rehabilitative goals." Manzella, slip op. at 24. This is a significantly heightened explanation requirement.

It bears remembering that Manzella presents a quite sympathetic defendant. As the Court's affirmance in Colon earlier this week shows, dramatic upward variances are sometimes approved. So far, it is difficult to tell when the seemingly-tougher review afforded in Manzella will apply.