Thursday, October 28, 2021

A defendant cannot directly petition a court for compassionate release based on substantial assistance to bypass Rule 35(b)’s requirement that the government file a motion for sentence reduction exclusively on this ground

18 U.S.C. § 3582(c) provides various routes for a District Court to reduce a defendant’s sentence after sentencing. Subsection (c)(1)(A) permits courts, as modified by the First Step Act, to directly receive a defendant’s motion for compassionate release 30 days after he has requested such relief from his warden. This subsection requires consideration of the 3553(a) factors and a finding that “extraordinary and compelling reasons warrant such a reduction.”

Subsection (c)(1)(B) permits a sentence modification if “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Rule 35(b) only permits sentence reduction one year after sentencing based on a defendant’s substantial assistance upon the government's motion. 

In United States v. Claude,, the Third Circuit held that a defendant may not use the compassionate release process to bypass Rule 35(b)’s requirement that the government bring a motion for sentence reduction based on a defendant’s post-sentencing substantial assistance in investigating or prosecuting another person. While a defendant cannot satisfy the “extraordinary and compelling reasons” standard for compassionate release based on his unilateral evaluation of his assistance, a District Court may consider such assistance in its compassionate release analysis. It can be “a relevant factor” just not serve as the only basis to establish extraordinary and compelling reasons.

Assault by a prisoner by “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease," as prohibited by 18 Pa. Cons. Stat. § 2703, is not a crime of violence under the career offender guidelines

 Under the career offender guidelines, a crime of violence is defined as the “use, attempted use, or threatened use of physical force.” U.S.S.G. § 4B1.1(a)(1). The “use of physical force” involves the “intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.” The qualifying physical force may be direct or indirect so long as it is “strong enough to constitute power,” and more than the “slightest offensive touching.” See United States v. Chapman, 866 F.3d 129 (3d Cir. 2017).

 In United States v. Quinnones,, the Court determined that the least culpable form of assault by a prisoner under 18 Pa. Cons. Stat. § 2703 was not a crime of violence. In analyzing § 2703, the Court used the modified categorical approach because “certain elements of the statute fit within the definition of a crime of violence, while other alternative elements d[id] not.” United States v. Jones, 740 F.3d 127, 134 (3d Cir. 2014). The parties agreed that Quinnones was convicted of the statutory section of “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease. The Court then decided that “spitting or expelling fluid in their least culpable forms do not involve force for the purpose of § 4B1.2 because such acts are not capable of causing physical pain or injury.”

 This spitting a communicable disease offense is also not a crime of violence because it can be committed with recklessness or negligence. Section 2703 has two state of mind components. To violate § 2703, the actus reus must be performed knowingly or intentionally, a defendant must knowingly or intentionally cause another to come into contact with a fluid by engaging in certain specified acts, such as spitting. But the defendant only needs to have known or should have known that the bodily fluid came from someone with a communicable disease. “Should have known” embodies the standard for negligence and cannot be a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 9, 13 (2004).


Friday, October 01, 2021

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

            Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Application note 11 further provides: “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”

            In U.S. v. Denmark, 20-2267, 2021 WL 4127257 (3d Cir. Sept. 10, 2021), the Court held that physical proximity between drugs (or paraphernalia) and guns is only one of the four factors to consider in making the “clearly improbable” determination. 

              Here, the defendant acted as a middle man in arranging meth deals by video calls (from home), and by delivering meth packages to the post office.  Law enforcement recovered firearms and paraphernalia, but no drugs from his home.  The guns and paraphernalia were in different rooms on different floors.  At sentencing, the defense objected to the firearm enhancement, arguing that the firearms could not have been connected with the offense because the meth had never been at the residence.  He argued that for the enhancement to apply, the guns needed to be present at the crime of transporting the meth to the post office.

           The Court reviewed the “mechanics” of applying the enhancement as set forth in United States v. Napolitan, 762 F.3d 297 (3d Cir. 2014).  The government must first prove, by a preponderance of the evidence, only that the defendant possessed the weapon. The burden then shifts to the defendant to “demonstrate that the connection between the weapon and the drug offense was clearly improbable,” with no burden on the Government to prove a relationship between the weapons and the drugs.  Rather, the “general rule” is that the enhancement should be applied if a firearm was present.  

          In determining whether it is clearly improbable that a weapon was connected with a drug offense, the Court looks to four factors, only one of which is proximity: “(1) the type of gun involved, with clear improbability less likely with handguns than with hunting rifles, (2) whether the gun was loaded, (3) whether [it] was stored near the drugs or drug paraphernalia, and (4) [ ] whether [it] was accessible.”

          Although the district court failed to make express findings on whether defendant met the clear improbability standard, the Court found nothing in the record to dispel the presumption of a connection.  In the house were two handguns, a semi-automatic assault rifle, and a shotgun.  One handgun and several magazines were loaded.  Although there were no drugs in the house, law enforcement observed Denmark make a drug deal over FaceTime from his home.  Finally, the firearms were sufficiently accessible.  Because none of the four factors weighed in favor of the defense, application of the enhancement was affirmed.

(Case reviewed and post written by Christy Martin)

The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

              In United States v. Packer , 83 F.4th 193 (3d Cir. Sept. 26, 2023), , the ...