Armed bank robbery sentence remanded for application of incorrect enhancement in original sentence and failure to justify alternative sentence.

United States v. Smalley, No. 06-4552 (3d Cir. Feb.29, 2008). At sentencing in this armed bank robbery case, the government and defense argued that the defendant should receive a three-level enhancement for "brandishing or possessing" a weapon under U.S.S.G. § 2B3.1(b)(2)(E). The judge, however, accepted the probation officer’s recommendation that he should receive a four-level enhancement for "otherwise using" a weapon under U.S.S.G. § 2B3.1(b)(2)(D). The judge imposed a 71-month sentence -- at the high end of the range.

After sentencing, the government wrote to the Court requesting that it issue an amended judgment explaining that it would have imposed the same sentence even if it had applied the three-level enhancement. The Court filed the amended judgment, but outside the time limit set under Federal Rule of Criminal Procedure 35(a).

On appeal, the Third Circuit agreed with the government and the defense that the lower enhancement should apply because although the defendant threatened to stab the teller if she didn’t cooperate, he never took his knife out of his pocket. The government argued harmless error because the district court amended the judgment to explain that the defendant would have received the same sentence no matter what enhancement applied.

The Third Circuit rejected the amended judgment for its failure to comply with Federal and Local procedural rules (Rule 35/out of time, Rule 36/not clerical, L.A.R. 3.1/not amplifying), and because it provided no basis for the 8-month upward departure or variance that would have been necessary to maintain the 71-month sentence (a Gall/Gunter error).

District court is powerless to grant the third point absent a § 3E1.1(b) motion by the Government, even where bad faith alleged.

In United States v. Drennon, No. 06-3399 (3d Cir. February 20, 2008), Drennon was charged with bank robbery and, prior to trial, challenged the constitutionality of an identification made by one of the bank tellers. After the suppression hearing, the motion was denied. As a result, Drennon entered guilty plea without an agreement one month prior to trial. At sentencing, Drennon received a two point reduction for acceptance of responsibility under § 3E1.1(a). Drennon moved, however, for the additional third point but the Government refused to file a motion § 3E1.1(b). "The Government argued that the large amount of work to prepare for trial had been done in connection with the suppression hearing." The district court then determined it could not grant the third point without such a motion from the Government. Therefore Drennon’s motion for the third point was denied. Drennon appealed.

On appeal, Drennon did not dispute whether or not the district court had the discretion to grant the third point. In fact, Drennon conceded that it’s predicated on the Government’s filing of a motion under 3E1.1(b) pursuant to a 2003 revision to the Sentencing Guidelines. Instead, Drennon argued that, in his case, the Government’s refusal to file such a motion was an act of bad faith.

In an opinion drafted by Judge Stapleton, the Third Circuit disagreed and held that the district court is powerless to grant the third point absent a § 3E1.1(b) motion by the Government. The Court noted that similar arguments had been made where the Government refused to file a motion for downward departure under § 5K1.1. In those cases, the Court held that there was no bad faith exception for the failure to file a motion for downward departure. Citing Wade v. United States, 504 U.S. 181, 185 (1992), the Court recognized that "the condition limiting the court’s authority [under § 5K1.1] gives the government a power, not a duty, to file a motion ..." The same rationale applies in the § 3E1.1(b) context.

While there is no bad faith exception, the Court noted that district courts have discretion to review the denial where the Government’s refusal to file a motion was based on an unconstitutional motive. The Court cited as examples the refusal to file because of the defendant’s "race, religion, or gender" or where it can be shown the refusal "was not rationally related to any legitimate government end." Unfortunately for Drennon, none of those factors were found. Affirmed.

Third Circuit addresses applicability of new crack guidelines to cases on direct appeal

In United States v. Wise, No. 06-4926, and United States v. Brown, No. 06-4928, (3d Cir. Feb. 12, 2008), a Third Circuit panel addressed for the first time the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court’s decision in Kimbrough. Defendants Wise and Brown were convicted of possession with intent to distribute 50 grams or more of crack cocaine and possession of a firearm in furtherance of that offense. Defendant Brown was sentenced to a total of 324 months imprisonment (the middle of his advisory Guidelines range), and defendant Wise received a sentence of 319 months (the top of his advisory Guidelines range).

Both defendants challenged their sentences on procedural and substantive grounds. The Third Circuit reiterated the three step process to be applied by sentencing courts post-Booker, specifically: (1) properly calculating the Guidelines range; (2) formally ruling on the parties’ motions and if granting a departure stating how that departure affects the Guidelines calculations; and (3) exercising its discretion by considering all § 3553(a) factors and determining the appropriate sentence.

The Third Circuit noted that its review is two-fold, with the first duty being to ensure that the district court committed no significant procedural error in arriving at its decision, "such as failing to calculate (or improperly calculating) the Guidelines, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range" (quoting Gall). It then stated that it will review the district court’s decision under an abuse-of-discretion standard, but noted that the amount of deference it gives will depend on the type of procedural error asserted on appeal. By way of example, the Court said that it would hold that a district court abused its discretion if the sentencing decision was based on a clearly erroneous factual conclusion or an erroneous legal conclusion. The Court held that its review is highly deferential if the asserted procedural error is purely factual, but that it will not defer to a district court when the asserted procedural error is purely legal. Once the Third Circuit has determined that no procedural error has been committed, it will review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether the sentence falls within the Guidelines range.

The Court rejected Brown and Wise’s challenges to their sentences, including an allegation that their Guidelines range was incorrectly calculated because lower crack Guidelines took affect during the pendency of their appeal. The panel held that the rule requiring application of the version of the Guidelines in effect on the date of sentencing continues to apply, with two exceptions: (1) if applying the version of the Guidelines in effect on the date of sentencing presents an ex post facto problem, and (2) if a subsequent Guidelines amendment merely clarifies the law in existence at the time of sentencing, as opposed to working a substantive change in the law. Because the post-sentencing amendment reducing the base offense level applicable to a particular offense is a substantive change, it is not applied retroactively to cases on appeal.

The most significant portion of this opinion, however, may be in its discussion of the defendants’ ability to apply for relief pursuant to 18 U.S.C. § 3582(C)(2), noting that its decision was without prejudice to the defendants’ statutory right to pursue reduced sentences once the amendment to Guidelines § 1B1.10 becomes effective on March 3, 2008. In a footnote, the panel rejected the argument that because the Guidelines are no longer mandatory, defendants need not wait to apply for relief under the new crack cocaine Guidelines pursuant to 18 U.S.C. § 3582(c)(2):

Some may argue that, because the Guidelines are no longer mandatory, defendants need not wait to apply for relief under § 3582(c)(2). That fundamentally misunderstands the limits of Booker. Nothing in that decision purported to obviate the congressional directive on whether a sentence could be reduced based on subsequent changes in the Guidelines. As we have stated before, "[t]he language of the applicable sections could not be clearer: the statute directs the Court to the policy statement, and the policy statement provides that an amendment not listed in subsection (c) may not be applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)." United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995).

Gov did not breach plea agreement by withdrawing 5K motion

In US v. Schwartz, No. 05-4978 (Jan 10, 1008), the 3rd Circuit rejected Schwartz's claim that the government breached its plea agreement and acted in bad faith when it withdrew its previously filed motion for downward departure under USSG 5K1.1.

Schwartz pleaded guilty to conspiracy to distribute drugs and agreed to cooperate with the government pursuant to a plea agreement in which the government agreed to file a downward departure motion under 5K1.1 in exchange for the cooperation. Schwartz cooperated, and the government filed a downward departure motion one week prior to sentencing. The next day, however, DEA agents arrested Schwartz for violating his bail conditions by using drugs, and found about $4,500 worth of meth, plus a triple beam scale, in his residence. At the sentencing hearing the government moved to withdraw its 5K motion, and the court granted the motion.

The 3rd Circuit upheld the district court on the ground that the plea agreement was predicated on Schwartz's continued cooperation. The agreement specified that it was a condition of the agreement and an obligation of the cooperation that "defendant not commit any additional crimes." The agreement also allowed the government to withdraw any 5K motion if the defendant failed to cooperate. The commission of the additional crime of drug possession thus constituted a failure to continue cooperating, and triggered the government's right to withdraw the 5K motion.

The Circuit held that "the government may withdraw a downward departure motion when a defendant agrees not to violate the law and the written plea agreement reserves to the government the right to withdraw the motion upon that occurrence."

Government Did Not Breach Agreement to Make No Recommendation as to Sentence in "Package Deal" Plea Bargain

United States v. Neal Hall, No. 07-2373, (3d Cir. February 8, 2008), involves a "package deal plea bargain" in which the government accepted defendant husband’s guilty plea to willfully failing to file tax returns on the condition that co-defendant wife also plead guilty. Only Dr. Hall appealed.

Dr. Hall first argued that the District Court failed to exercise the "special care" required in determining whether a plea entered during a joint plea hearing as part of a tied plea agreement was voluntary.

The Court begins by observing that (1) "package deal" plea agreements must be disclosed to the court, and (2) colloquies must be conducted with special care to ensure the plea is voluntary. Here, although the district court did not follow a specific script, the Court found the plea was voluntary considering defendant’s education and intelligence and the fact that Dr. Hall had his own separate attorney, who he consulted during the colloquy. The Court rejected the argument that tied pleas are involuntary merely because a defendant benefits his co-defendant more than himself by pleading.

Dr. Hall’s plea agreement included a provision that the government would make no recommendation as to the sentence. Mrs. Hall’s plea agreement contained no such provision.


The joint sentencing hearing proceeded with argument from Mrs. Hall’s attorney followed by allocution and argument from Dr. Hall’s attorney followed by allocution.


The government began by responding to both defendants’ arguments. At various points, the government specified he was directing his comments toward Mrs. Grayson-Hall as he could not make a sentencing recommendation as to Dr. Hall. He asked for a sentence at the top of the guidelines for Mrs. Hall and made no recommendation as to Dr. Hall.

The government also maintained it was important to send a message in these white collar cases, arguing that because failing to file tax returns is a significant crime, a sentence of imprisonment is necessary for public perception.

Dr. Hall argued that the government breached the plea agreement by recommending a sentence of incarceration.

"[T]he doctrine that the government must adhere to its bargain in the plea agreement is so fundamental that even though the government’s breach is inadvertent and the breach probably did not influence the judge in the sentence imposed, due process and equity require that the sentence be vacated."

The Court initially distinguished between a promise to "[m]ake no recommendation as to the sentence," and a promise to take no position as to sentence, which speaks to no attempt at all to influence the defendant’s sentence.

In finding no breach of the plea agreement, the Court stressed two points. (1) The parties’ crimes and roles in the offense were identical such that government comment about one defendant necessary reflected on the other, and (2) Mrs. Greyson-Hall was sentenced first at Dr. Hall’s request thereby ensuring that the court would hear the government’s ardent advocacy concerning Mrs.Hall before it imposed sentence on Dr. Hall:

In retrospect Hall may have been unrealistic to expect, if he did so, that the Government’s statements regarding Grayson-Hall’s sentence would not have the capacity to impact on the court when it considered his sentence. In fact, Hall likely should have expected that, in light of the plea agreement reached by his wife and the identical role in the crimes played by Hall and Grayson-Hall, the Government would be making recommendations and comments as to Grayson-Hall that could affect him. There is no escape from the reality that this case differs from criminal cases . . . in which different defendants may have different roles in the offenses and may have different criminal records so that a recommendation as to one defendant will have limited or no effect on the case of another defendant. Hall and his wife committed identical offenses in identical ways and each could point to the same mitigating sentencing factors on his or her own behalf. Nonetheless, Hall proposed and consented to the manner in which his sentencing occurred, i.e., in a joint proceeding in which Grayson-Hall would be sentenced first, which gave rise to the possibility that comments meant to refer to his wife could be taken as referring to his situation as well. Hall’s express request for and consent to this arrangement, when taken in conjunction with the Government’s explicit recognition of the terms of Hall’s plea agreement and its statement that it was limiting its sentencing comments to Grayson-Hall, leads us to conclude that the Government’s comments . . . did not breach the plea agreement. . . .

The Court also rejected Dr. Hall’s argument that a guidelines sentence was unreasonable where the Guidelines "evaluate tax felonies with an element of fraud exactly the same as they do tax misdemeanors which involve no more than a willful neglect of a known statutory filing duty".

Plea Agreement Waiver of Right to File “Any Appeal” Bars Appeal of Restitution Order

At issue in United States v. Perez, No. 06-2036, is whether an appeal of a restitution order is barred by an appellate waiver.

The plea agreement contained a broad waiver of the right "to file any appeal, any collateral attack, or any other writ or motion" as well as a stipulation that loss amount was between $70,000 and $120,000. During sentencing, the defendant further stipulated to the loss amount of $73,476.

On appeal, the defendant argued that restitution is not technically a component of his sentence such that an appeal of restitution is not barred by the waiver. The waiver, he continued, only applies to challenges to the conviction and duration of confinement.

The Court rejected this argument, relying on prior cases law that restitution, ordered as part of a criminal sentence, is a criminal penalty. See United States v. Leahy, 438 F.3d 238 (3d Cir. 2006).

The Court observes that the plea colloquy was thorough and that it included a "lengthy discussion specifically regarding the waiver of appellate rights contained in the plea agreement."

There is a circuit split on this issue: Specifically the Fourth, Sixth, Tenth, and now the Third Circuits hold that a defendant who knowingly and voluntarily waives his right to appeal his sentence has waived the right to appeal a restitution order whereas the Second, Eighth and Ninth Circuits do not.

In closing, the Court cites Leahy for the proposition that restitution amounts need not be admitted by the defendant nor proven to a jury beyond a reasonable doubt.

Pennsylvania’s Sex Offender Notification Statute must apply equally to in-state and out-of-state sex offenders

In Doe v. Pennsylvania Bd. of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008), a Court of Appeals panel, affirming the decision of District Court Judge Louis Pollak, held in a 2-1 decision that a provision in Pennsylvania’s sex offender notification statute that treated out-of-state sex offenders differently from in-state sex offenders violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The anonymous plaintiff, John Doe, brought an action under 42 USC § 1983, claiming that Pennsylvania’s Registration of Sexual Offender’s Act, 42 Pa. C.S. § 9791 et. seq. ("Megan’s Law"), violated the Equal Protection Clause. Doe is a Pennsylvania resident who was convicted of a sexual offense in New Jersey and sought to return to Pennsylvania to serve his parole. Pennsylvania’s Megan Law provides that an out-of-state offender seeking to transfer supervision to Pennsylvania must register with state and local police, and also be subject to community notification. In contrast, an in-state offender would not be subject to community notification unless designated, after a civil hearing, as a "sexually violent predator due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." Id. at § 9792. Doe claimed that this disparate treatment of out-of-state offenders was unconstitutional.

Circuit Judge Nygaard’s majority opinion, joined by Circuit Judge McKee, ruled that the disparate treatment of in-state and out-of-state offenders violated the Equal Protection Clause, finding that the Commonwealth’s interest in protecting citizens from sex offenses committed by repeat offenders did not provide a rational basis for discriminating between in-state and out-of-state offenders. Because the Court concluded that the statute did not survive rational basis review, the Court did not determine whether the higher threshold of strict scrutiny review should apply to Doe’s claim.

In dissent, Circuit Judge Ambro concluded that the statute should be reviewed under the rational basis standard, and that the out-of-state offender classification satisfied that review standard. Judge Ambro stated that the Commonwealth’s legitimate interest in protecting its citizens from sexual offenses was rationally related to different treatment of out-of-state sex offenders, in light of, first, the Commonwealth’s asserted inability to replicate adequately for out-of-state offenders the proceedings that in-state offenders receive prior to community notification, and second, the likelihood that Pennsylvania communities would know more about in-state offenders than out-of-state offenders because of local media coverage.

Posted by Ronald A. Krauss at Thursday, February 7