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Showing posts from July, 2007

100:1 Crack/powder ratio: Cannot replace ratio, but can vary from GL based on case-specific reasons

In US v. Ricks, Nos. 05-4832, 4833 (3d Cir. 7/20/07), the Circuit followed its prior decision in US v. Gunter, 462 F.3d 237 (3d Cir. 2006), in ruling that although a district court can consider the 100:1 crack/powder differential in the guidelines and find the differential is "too vast," it may not categorically reject the ratio and substitute its own. Instead, in varying from the guideline range for crack cocaine, the court must give reasons for why the ratio is too harsh "when applied to the defendant." In doing so, the district court may draw on the reports of the Sentencing Commission finding that the 100:1 ratio treats crack offenses too severely.

On its surface, the Ricks decision may seem very straightforward: The district court judge found that the 100:1 ratio was too severe, based on the reports of the Sentencing Commission, and it sentenced instead based on the 20:1 ratio that the Sentencing Commission recommended. The 3rd Circuit then decided Gunter, hold…

Illegal re-entry: Date offense commences for GL purposes

In US v. Hernandez-Gonzalez, Nos. 06-1998 & 2130 (3d Cir. 7/19/07), the Circuit held that for purposes of calculating the Guidelines criminal history score, the offense of being an alien "found in" the United States following deportation commences on the date the alien entered the US, not the date he/she was actually found in the US by authorities.

Defendant, an alien from Mexico, was convicted of five minor offenses from 1990 to 1992. In 1994 he was convicted of an aggravated felony, and after serving his sentence he was deported to Mexico in 1998. He then re-entered the US illegally sometime in 1999. He was ultimately "found in" the US by authorities in March, 2005. The district court did not count the five offenses from 1990 to 1992 in the criminal history score because they were all more than 10 years prior to his being found in the US in 2005. The government appealed, arguing that for Guidelines criminal history purposes, USSG 4A1.2, the offense should be d…

District Court's Reliance on Unsworn Police Report to Impose Sentence 82 Months Longer Than Government's Recommendation Upheld

In United States v. Leekins, No. 05-1658 (3d Cir. June 29, 2007), the Third Circuit affirmed a sentence at the bottom of the guideline range, rejecting the appellant’s arguments that he was improperly sentenced on the basis of judge-found facts and unsworn statements in a police report. Leekins pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) pursuant to a plea agreement wherein he agreed that he was subject to the armed career criminal sentencing enhancement. The government agreed to recommend imposition of the 15-year mandatory minimum sentence. The district court did not follow the government’s recommendation. At sentencing, the district court adopted the presentence report’s finding that Leekins possessed or used a firearm in connection with a crime of violence—namely, attempted murder. This upward adjustment resulted in a guideline range of 262-327 months, and the district court sentenced Leekins to 262 months. With little analysis…

Independent Contractors With No Control Over Federal Funds Are "Agents" Under Section 666 and Prosecutors' Vouching Deemed Harmless Error

In United States v. Vitillo, No.05-4330 (3d Cir. June 25, 2007), the Third Circuit affirmed the conviction of John Vitillo and two of his companies on several counts of theft and conspiracy in violation of 18 U.S.C. § 666, which prohibits theft from organizations and government agencies that receive more than $10,000 in federal funds. The Court rejected Vitillo’s argument that he was not an "agent" for purposes of § 666 because he did not have control over the federal funds. It explained that, according to the statutory definition, an "agent" is "merely a person with authority to act on behalf of the organization receiving federal funds," which can include independent contractors.

During the government’s investigation of Vitillo’s billing practices, the two AUSAs who later served as trial counsel accompanied the FBI agents who executed a search warrant at the defendant’s office. These prosecutors were also present during the FBI’s subsequent interrogation …