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Thursday, November 17, 2011

Court Errs by Not Considering Postsentencing Rehabilitation on Remand after Pepper

In United States v. Salinas-Cortez, No. 11-1580 (3d Cir., November 8, 2011), the defendant challenged the sentencing court’s rejection of his request for a downward variance based upon postsentencing rehabilitation. In Salinas-Cortez, the defendant pled guilty to possession with intent to distribute more than five kilograms of cocaine, as well as conspiracy to do so. At his initial sentencing hearing, the defendant requested a downward adjustment based upon his minimal or minor role in the offense. The probation office claimed in the Presentence Report that the defendant had more than a minimal or minor role in the offense. The sentencing court, at this first proceeding, adopted the PSR without specifically addressing the defendant’s request. The Third Circuit vacated this initial decision, ruling that the sentencing court erred when it failed to address the defendant’s colorable argument for a minor role adjustment. On remand, the defendant also requested a reduction based upon his postsentencing rehabilitation. The sentencing court again rejected the defendant’s request, reasoning that it did not have the authority to consider any other issue on remand except the previously-requested minor role adjustment. Approximately one week after the sentencing court’s decision on remand, the U.S. Supreme Court decided United States v. Pepper, 131 S.Ct. 1229 (2011). The High Court in Pepper addressed the issue of whether, after the original sentence has been set aside on appeal, a sentencing court may consider evidence of postsentencing rehabilitation to support a downward variance. The Court answered in the affirmative, reasoning that information regarding the defendant’s history and characteristics historically has been highly relevant to the sentencing process. The Third Circuit interpreted Pepper to conclude that the defendant’s postsentencing rehabilitation is an essential part of his history, and therefore relevant to determine his likelihood of recidivism. The court in Salinas-Cortez concluded that, while the appellate court retains the authority limit the scope of a sentencing hearing on remand, such limitation must be explicitly instructed. The court ultimately ruled that its decision to remand the defendant’s original sentence did not dictate that the sentencing court could consider only the defendant’s previously-requested minor role adjustment. Consequently, the Third Circuit remanded the sentencing once again to afford the sentencing court the opportunity to address the defendant’s request for a downward variance based upon postsentencing rehabilitation.

*Congratulations to Supervisory Assistant Federal Defender David L. McColgin on this mighty win “on the papers”! He will surely be missed here in the Eastern District of PA, as he has decided to take his “mojo” up north to Vermont.

Monday, November 07, 2011

Court finds PA Terroristic Threats Prior to be Crime of Violence

United States v. Mahone, 2011 WL 5153699 (Nov. 1, 2011).

Mahone pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mahone objected to the base offense level in the PSR, calculated under U.S.S.G. § 2K2.1(a)(2) at 24 because he had "at least two felony convictions of either a crime of violence [ (COV) ] or a controlled substance offense." Mahone asserted that one of his priors, a 1994 Pennsylvania conviction for making terroristic threats in violation of 18 Pa. Cons.Stat. § 2706, did not qualify as a COV.

At the time Mahone incurred the prior conviction, the statute made it unlawful for a person to:

"threaten[ ] to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience."

18 Pa. Cons.Stat. § 2706 (1972).

Application of the formal categorical approach showed the offense to be broader than the definition of COV under U.S.S.G. § 4B1.2(a)(1). However, § 2706 is phrased in the disjunctive, and the court applied the modified approach, outlining § 2706 to determine if there was a variation that could constitute a COV. (Since Mahone’s conviction, the PA legislature has rewritten the statute into three distinct subsections, because the Court found the statute has always been divisible into the three enumerated offenses, the analysis is the same).

The court next concluded that the subsection prohibiting a threat to commit a crime of violence with intent to terrorize another person, of which Mahone was convicted, may qualify. Next the Court re-employed the modified approach to determine whether the underlying state crime of violence could satisfy the requirements for a federal COV.

The charging document and colloquy in this case showed that the predicate PA "crime of violence" was "criminal homicide," a statutory provision states that prohibits "intentionally, knowingly, recklessly or negligently cause[ing] the death of another human being." Despite the fact that the PA crime of violence contained reckless and negligent mens reas which would not satisfy the federal COV standard, the Court concluded that the only variations of the criminal homicide statute that could serve as the predicate crime of violence for purposes of § 2706 is the act of intentionally or knowingly causing the death of another, because a person cannot threaten to terrorize another with a reckless act.