Monday, July 23, 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, holding that district courts can consider the crack/powder differential and the Sentencing Commission reports, but cannot substitute their own ratio. The district court here, in light of Gunter, thus erred mainly by expressly relying on the 20:1 ratio and not explaining its sentence in terms of case-specific factors.

But the Ricks decision, in reaching its holding, contains a number of statements that may strike some as inconsistent. On the one hand, the Circuit rules that the district court may not disagree with the 100:1 ratio as a "policy matter," but on the other hand, it rules that district courts may "view the sentencing disparity [based on this ratio] as too vast," based on the findings of the Sentencing Commission. The Circuit further states, "Indeed, as a matter of policy, we agree with the District Court that a 100-to-1 ratio leads to unjust sentences,..." but then indicates that only Congress can address this policy. This may leave district courts and counsel confused. What exactly counts as "policy" and what counts as a "case specific reason"?

The Circuit's reasoning, moreover, appears inconsistent with a case just decided by the Supreme Court -- US v. Rita, 2007 WL 1772146 (6/21/07) (see blog here). Rita, in ruling that at the district court level there is no presumption of reasonableness for a guidelines sentence, states that the district court can choose to sentence outside the range "because the Guideline sentence itself fails properly to reflect section 3553(a) considerations." Rita at *9. In a similar vein, Rita, suggests a district court may agree with arguments that the "Guidelines reflect an unsound judgment, or for example, that they do not generally treat certain defendant characteristics in the proper way." Rita at *12. These certainly sound like "policy" considerations.

Rita thus strongly suggests that the district courts, in independently considering the 3553(a) factors, may disagree with the policies on which the Guidelines are based. Nothing in Rita limits the district court to consideration of "case specific factors" and nothing suggests that the policies on which the Guidelines are based are sacrosanct. Indeed, treating the policies underlying the Guidelines as sacrosanct would make the Guidelines no longer truly "advisory." This would recreate the 6th Amendment problems that Booker supposedly resolved.

Hopefully these issues will be cleared up when the Supreme Court decides Kimbrough next term, which will address sentences below the Guidelines for crack cocaine. (See Prof. Berman's blog discussion here.) In the meantime, the bottom line in light of Ricks and Gunter is that sentences below the range in crack cases can be based on a finding that the 100:1 differential is "too vast," but the district court should not mention any other ratio, and should couch the reasons for the sentence expressly in terms of case-specific factors.

Thursday, July 19, 2007

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 deemed to have "commenced" when defendant re-entered the US sometime before Jan 1st of 2000.

The Circuit agreed that the offense of being found in the US, for Guidelines purposes, commences when the alien enters the US. The Circuit distinguished two cases the district court relied upon, finding that neither addressed the exact issue presented here. In US v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), the Court held that for purposes of the statute of limitations, being found in the US is not a continuing offense when the alien enters non-surreptitiously through a port of entry. That decision is thus limited to the statute of limitations context where the authorities are aware of the alien's entry. In US v. Lennon, 372 F.3d 535 (3d Cir. 2004), the Court declined to address the issue here, but suggested that the reasoning of DiSantillo does not apply when the alien has entered the country surreptitiously.

The Circuit reversed and remanded for a sentencing hearing to determine the date of the re-entry, because the district court had not made any findings regarding when the last time was that defendant entered the US. The presentence report stated that defendant had visited his parents on at least two occasions following his re-entry in 1999, and if the last of these visits took place later than 2002, the prior convictions would still be outside the 10 year time period. On remand, the district court will thus determine when the most recent re-entry was, and when the "found in" offense commenced for Guidelines purposes.

The Circuit also rejected defendant's cross-appeal arguing for a lower sentence based on disparity with jurisdictions that have a "fast-track" program. Following its decision in US v. Vargas, 477 F.3d 94 (3d Cir. 2007), the Circuit affirmed the district court's refusal to vary from the Guidelines range on disparity grounds.

Friday, July 13, 2007

Third Circuit Resubmits Opinion After Panel Rehearing

The Court granted a panel rehearing in United States v. Rivas, (No. 05-3380), blogged on this site on March 20, 2007 (see here). The panel submitted the same opinion (affirming the defendant's conviction on several grounds) following the rehearing.

Wednesday, July 04, 2007

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, the Third Circuit cited United States v. Grier, 475 F.3d 556 (3d Cir. 2006)(en banc), and rejected Leekins’s argument that the district court violated his Sixth Amendment right to trial by jury and Fifth Amendment right to due process by sentencing him on the basis of facts that he did not admit and that were not found by a jury. The Court also found the defendant’s sentence to be reasonable. The Court acknowledged that Leekins pleaded guilty with the expectation that he would receive an 180-month sentence, but noted that the plea agreement explicitly advised him of the possible statutory maximum sentence of life imprisonment.

The Court also rejected Leekins’s argument that the district court erroneously considered an unsworn police report for sentencing enhancement purposes. The Court noted that police reports are neither inherently reliable nor inherently unreliable. The relevant inquiry is whether the facts upon which a judge bases a sentence have sufficient indicia of reliability to support their probable accuracy. The Court found that the other evidence presented at the sentencing hearing corroborated the findings in the police report and concluded that the district court’s reliance on the report was reasonable.

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 of Vitillo. The agent who conducted the interview testified at trial that Vitillo confessed; Vitillo testified to the contrary. During the government’s opening statement and witness examination, the prosecutors made repeated reference to their presence at the FBI raid and the defendant’s interview. The Court expressed concern over this "ill-advised" practice and suggested that the trial counsel either should not have attended the interview or should not have served as trial counsel. It held that the prosecutors’ comments and questions referring to their presence at the defendant’s interview constituted improper vouching because it implied that the prosecutors knew that the agent was testifying truthfully.

The Court also held that under its recent decision in United States v. Harris, 471 F.3d 507 (3d Cir. 2006), it was improper for the prosecutor to explicitly ask Vitillo whether the agent who interviewed him was lying because this type of questioning tends to infringe upon the jury’s exclusive role as the arbiter of credibility. Despite these instances of prosecutorial misconduct, however, the Court concluded that a new trial was not warranted because of the "overwhelming" evidence of the defendants’ guilt.

Finally, the Court held that the district court’s determination of the amount of restitution ($317,760) was supported by a preponderance of the evidence.