Skip to main content

Determining the “most appropriate” Sentencing Guideline for convictions


In United States v. Boney, Nos. 13-3087, 3199 (3d Cir. 9/15/14), the Third Circuit heard cross-appeals from following a sentence imposed as a result of a jury’s verdict of guilt for distributing more than 500 g of cocaine, witness intimidation, and solicitation to intimidate a witness. The Defendant was first arrested after he arranged to buy large quantities of cocaine from someone who turned out to be an informant. Following his arrest, the Defendant agreed to cooperate with the Government, but disenchantment with the DEA led him to seek out a hit man to kill the informant who caused his arrest. The Defendant had a few meetings with the hit man, and told him that if he could not kill the informant, to kill his son.  Alas, the Defendant had not improved his ability to assess potential co-conspirators— the hit man too was a Government informant— and the Defendant was arrested again, this time on the witness intimidation charges. The Defendant was sentenced to 220 months, and appealed his conviction. The Government cross-appealed the District Court’s application of the Sentencing Guidelines.

The Court made short work of the Defendant’s appeal of his conviction, dismissing his five issues in a single footnote. Its opinion concerns the Sentencing Guidelines issues raised by the Government. The Court found that the District Court incorrectly selected §2J1.2—obstruction of justice— for sentencing the Defendant for the conviction for 18 U.S.C. § 1513(a)(1)(B) (attempting to kill another person with intent to retaliate against that person for providing to a law enforcement officer information relating to the commission or possible commission of a Federal offense). The Government contended, and the Court agreed, that the “most appropriate” guideline (§1B1.2 Application Note 1) for determining the Defendant’s score was § 2A2.1 (Attempted Murder).  The District Court erred in looking to the testimony presented at trial, rather than the conduct charged in the indictment, for determining the correct guideline. This crime charged attempted murder, and not obstruction of justice, so the correct guideline was the one that related to attempted murder.

The Court had more bad news for the Defendant. The witness intimidation was charged, and the Defendant convicted, under 18 U.S.C. §373 (solicitation of a person to attempt to kill another with intent to retaliate for providing information to a law enforcement officer relating to the commission or possible commission of a Federal offense, as prohibited by 18 U.S.C. §1513(a)(1)(B)). Although the Sentencing Guidelines Statutory Index lists two crimes applicable to §373 (§2A1.5 (Conspiracy or Solicitation to Commit Murder) and § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense and Guideline)), the District Court chose neither, again choosing  §2J1.2—obstruction of justice. The Court concluded that §2A1.5 was the “most appropriate” guideline, again, as the Defendant was charged and convicted of soliciting a murder.

The Defendant’s pre-sentence report had calculated the Defendant’s Guidelines sentencing range as 360 months to life, but the District Court had calculated the Defendant’s Guidelines sentencing range as 151-188 months. When sentencing the Defendant though, it varied upward and imposed a sentence of 220 months. The Court remanded the matter for resentencing.


Comments

Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …