The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.

Glen Ray Briggs plead guilty to a series of crimes involving methamphetamine and cocaine. The most serious charges related to his participation in a reverse sting operation organized by government agents to rob an alleged stash house.

As part of the plans for the robbery Briggs was to brings guns to be used in the robbery. He was arrested after he got into a vehicle that was going to be used in the robbery. No guns were found.

While the Ninth Circuit court refused refused to allow him to withdraw his plea it found that the two level enhancement for possession of a weapon was inappropriate since no weapon was found.

Briggs claimed that he should be allowed to withdraw his plea since he did not understand the consequences of the plea. Specifically he expected a sentence of approximately 200 months and the actual sentence was 324 months. He pointed to the fact that he has an IQ of 70 as a reason he did not understand the possible consequence. But the court pointed out that it is only in rare circumstances that a plea can be withdrawn for misunderstanding the possible sentence. It examined the plea transcript and the psychiatric records. Both point to Briggs understanding the plea and asking questions when he did not understand the proceedings.

Briggs also claimed that he should be allowed to withdraw his plea because of sentencing entrapment. Sentencing entrapment occurs when the government pushes the quantity of drugs up beyond the expectation of the defendant in order to increase the possible sentence. While in a reverse sting the government has practically total control over the amount of drugs and the court must be leery of drug quantities the facts here showed that Briggs was excited over the large quantity to be seized and he had no problem with it. In this circumstance there is no sentencing entrapment since Briggs agreed to the quantity.

The case was remanded for reconsideration of the gun enhancement.

Being a judge does not mean that you are very bright. United States District Court for the Eastern District of Wisconsin Rudolph T. Randa sentenced Jose Figueroa after a drug trial in which he was found guilty of distribution of cocaine and conspiracy to sell cocaine to 235 months in prison. However it was not the sentence that causes Randa to have his IQ questioned. After all, believe it or not, 235 months was the bottom of Figueroa’s guidelines. But it is some of the things Randa said at sentencing that got him criticized by the Seventh Circuit Court of Appeals.

Not only did the judge question Figueroa’s Mexican heritage but he questioned Figueroa’s immigration status, as well as that of his wife and three sisters. He brought up unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog. He told Figueroa that he ought to be happy that he is doing time in an American jail instead of in Mexico or Turkey. He should also be glad, according to Randa, that he is not in Thailand or Malaysia where he could be sentenced to death. He claimed that American have a greater respect for the rule of law than in some other countries including Mexico.

You guessed it. The Seventh Circuit remanded the case for resentencing with a different judge.

The Eighth Circuit Court of Appeals upheld the twenty month sentence of Michael Lee Knight for failure to pay child support. The Court found that he failed to pay $35,833.13 in child support and that he owed $78,565.85 (including interest?) in restitution.

Knight claimed that the trial court did not take into sufficient consideration “his poverty, history of sexual and physical abuse, struggles with drug addiction and bipolar disorder, incarceration while he was to pay child support, and efforts to care for his current wife, mother, children and stepchildren.”

Knight plead guilty to the offense of not paying child support. The appellate court pointed out that its responsibility was limited to determining whether the District Court abused its discretion in sentencing Knight to twenty months. The Sentencing Guidelines indicated a sentence of 30-37 months. But since the maximum sentence for the offense is two years the District Court sentenced Knight to twenty months. The Eighth Circuit pointed out that the District Court need not address every possible sentencing issue on the record. Sentences within the Guidelines are presumptively valid and according to the court it is highly unlikely that that any sentence below the Guidelines is an abuse of discretion.

What I don’t get is what possible benefit is there to society of placing a person in prison for failing to pay child support. Certainly during the period of the sentence no child support is going to be paid. Knight is already on Social Security Disability so his ability to pay child support must be questioned. Even if he can work the prison commitment will make it more difficult when he gets out for him to get a job and pay child support. We have long ago given up debtor’s prisons. We cannot put him back in prison for failing to pay the restitution unless he has the ability to pay the restitution and fails to do so.

Percy Dillon was convicted of various drug offenses including some involving rock cocaine (also known as crack) in 1993, He was sentenced under the mandatory guidelines that were in effect at that time to 322 months in prison. At sentencing the judge said that if he had a choice he would sentence Dillon to five years but the guidelines left him with no choice.

In 2005 the Supreme Court in United States v. Booker found the mandatory guidelines an unconstitutional violation of the Sixth Amendment right to have facts used to aggravate a sentence found to be true beyond a reasonable doubt by a jury. As a result the guidelines became advisory.

In 1987 the Sentencing Commission set guidelines for the sentencing of Federal offenses. though widely criticized the guidelines, based upon drug quantities treated rock cocaine 100 times as harshly as powder cocaine. In other words, two people, one convicted of possessing 10 grams of rock cocaine and the other convicted of possessing 1000 grams of powder cocaine got the same sentence.

In 2007 the Sentencing Commission attempted to alleviate the problem by decreasing by two levels the penalty for rock cocaine. Thereafter the ratio was approximately one to twenty. The following year the Commission gave judges the power the power to make the change retroactive. But judges were only allowed to modify the sentence in so much as the former sentence did not comply with the new guidelines.

Dillon claimed that he should be resentenced, not only to take into account the change in the guidelines but also to take into effect the now voluntary guidelines and other corrections in his sentence. He claimed that under Booker the mandatory guidelines are unconstitutional and he should get the five year sentence the judge wanted to give him at his original sentencing. According to Dillon to merely reduce the guidelines by two levels maintained the mandatory guideline and therefore violated Booker.

But the Supreme Court held otherwise. In the majority opinion by Justice Sotomeyer, the court held Booker was was not violated. The general rule is that “A federal court . . . may not modify a term of imprisonment once it has been imposed.” However Congress imposed an exception to the rule in the Sentencing Reform Act of 1984 to allow the Sentencing Commission to reduce the sentence of inmates after a significant reduction in the guidelines. But the reduced sentence can only bring the sentence into line with the new guideline. Therefore, since Booker is not retroactive Dillon’s sentence can be modified to reduce it by two levels to bring it into line with the current guidelines but it cannot be changed in such a manner as to take into effect the Booker decision.

German Ordino-Ortega was sentenced to 60 months in the Federal prison for being unlawfully present in the united States following deportation. The sentence was based on a base offense level of eight and an 16-level enhancement for having a prior conviction for a crime of violence.

However, the Fifth Circuit Court of Appeals ruled that a conviction for injury to a child under the Texas Penal Code did not qualify as a crime of violence. A crime of violence, according to the comment to Sentencing Guideline Section 2L1.2 is one that either is on “a list of enumerated crimes or ‘any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.’”

But under Texas law injury to a child can be committed without the use, attempted use, or threatened use of physical force. For example it can be committed by an act of omission or by placing poison in a child’s food. Neither of these would qualify as an act of violence under the Guidelines. Therefore an act of violence is not an element of the offense and cannot be used to aggravate the sentence.

The vast majority of people who come before our criminal courts at one point or another face sentencing. Either they plead guilty, often as part of a plea agreement or they are found guilty after trial. Particularly in the Federal Courts sentencing is a complicated and drawn out procedure. As a result many of the cases that are decided on appeal involve sentencing issues. As a general rule if one pleads guilty and admits the charged offense one cannot allege innocence on appeal. Thus the only issue on appeal in most cases where there is a guilty plea is the sentence imposed.

In United States v. Pape the Seventh Circuit Court of Appeals considered the correctness of a sentence in a child pornography case.

Jason Pape was an outstanding member of his community. He was a businessman and he was active in his church. He took excellent care of his children and of wife’s children she had by a prior marriage, one of whom was autistic. He had no criminal record.

There is no evidence that he mistreated his children or abused any children. But he was indicted after his daughter reported to her school that she had accidentally run across child pornography on Pape’s computer. He plead guilty and was sentenced to 90 months in prison and twenty year of supervised release. The sentence was below the advisory guideline range of 97 to 120 months.

Appellate consideration of a sentence involves two issues. The first question is whether the sentencing court followed the correct procedure and the second question is whether the sentence is reasonable or whether it is an abuse of discretion.

There was no question raised about the procedure followed by the sentencing judge. But Pape raised four issues on appeal regarding the reasonableness of the sentence. First he claimed that the court did not take sufficient consideration of his parenting responsibilities. While the court must consider non-frivolous issues raised by the defendant the weight to be given to each issue is up to the court. It is clear that the court considered his parenting responsibilities and while the court’s language is slightly ambiguous at times it clearly took the responsibilities into consideration.

Second, Pape argued that the court failed to consider sections of the Guidelines that authorize consideration of extraordinary childcare responsibilities but these sections do not apply to child pornography cases.

The third issue raised by Pape is that the sentencing court failed to consider his argument that the child pornography guidelines “do not reflect the result of careful study based in empirical analysis and national experience.” The Seventh Circuit found that by sentencing Paper after considering the Guideline the sentencing judge implicitly rejected the defendant’s argument.

Pape’s final argument was the vast difference between the various District Courts in Wisconsin. But since the sentence below Guidelines and Pape did not provide any explanation for the variation the Seventh Circuit found that the argument lacks substance. It affirmed the sentence.

Catherine Miller plead guilty in Federal Court to crossing state lines to have sex with a minor. The presentence report recommended a within guidelines sentence of between 70 and 87 months. However the court sentenced her to 120 months.

The Sentencing Guidelines as originally passed were considered mandatory and judges had only a limited ability to deviate from them. But in United States v. Booker the Supreme Court found the guidelines to be advisory. While the courts have the ability to deviate from the Guideline deviations are limited and must be reasonable.

At sentencing and on appeal Miller objected to the courts adoption of the Probation Department’s recommendation that that the sentencing guidelines be enhanced by an undue influence enhancement. However such enhancement, while subject to rebuttal are required in cases where there is an age difference of over ten years. Neither the trial court not the Seventh Circuit found that the enhancement had been rebutted despite some evidence that the juvenile had prior sexual experiences and seemed open to a romantic relationship with Miller.

The second issue on appeal was the government’s use of surprize evidence at the sentencing hearing. Specifically, the government introduced photo albums showing Miller with other minors. When Miller’s attorney objected, the court gave him a five minute recess to talk to his client. He said thank you and did not further object. Therefore the appellate court found that Miller waived any objection on appeal.

The final issue was the fifty percent upward deviation from the guidelines. The trial court based its decision on the high rate of recidivism among sex offenders. The appellate court rejected the finding and returned the case to the trial court for resentencing. First it found that if there is a high rate of recidivism it applies to all people charged with the crime and the Sentencing Commission would have taken this into consideration in writing the guidelines. Second it found there was no evidence at the sentencing hearing that supported a belief in a high rate of recidivism and there is evidence to the contrary. Therefore it reversed the sentence.

The Ninth Circuit Court of Appeals ruled yesterday that an Idaho conviction for which the defendant received a pardon under Idaho law remains a prior conviction for the purpose of the Sentencing Guidelines.

Clinton DeWitt Bays, Jr. pleaded guilty to a charges of being a drug user in possession of a firearm and possession with intent to distribute methamphetamine. He was sentenced to 78 months in the Federal Penitentiary and he appealed claiming that the District Court judge wrongly considered 1992 convictions in Idaho for two counts of vehicular manslaughter and one count of aggravated driving under the influence. The state charges were pardoned in 2007 by State of Idaho Commission of Pardons and Parole. The pardon restored “all civil, political, and other rights enjoyed prior to the commission of the crime.”

Section 4A1.2(j) of the United States Sentencing Guidelines
. . . states that sentences for expunged convictions are not included when determining a defendant’s criminal history category. U.S. Sentencing Guidelines Manual § 4A1.2(j) (2008). Application Note 10 to section 4A1.2 states, however, that previous convictions which are “set aside or . . . pardoned for reasons unrelated to innocence or errors of law” are to be counted. Id. § 4A1.2 cmt.
n.10.

The Ninth Circuit ruled that the Idaho pardon was not an expungement for the purpose of the Guidelines because it was not a complete removal from Bays’ criminal record. Nor was it necessarily unrelated to innocence or errors of law. Rather it was given in order to restore his civil rights and to remove the stigma associated with a conviction. As such it is not an expungement under the Guideline and it can be used to determine Bays’ criminal history. In fact Idaho has a separate expungement statute which allows a defendent to petition the court for an expungement that vacates the conviction and it becomes a nullity. While this statute was not before the Ninth Circuit it is likely that an expunged conviction under this statute would not count in determining a criminal history score.

The one thing that is certain is that each state has different pardoning and expungement statutes. Each pardon statute and each expungement statute must be considered separately to determine whether it is exempt from the criminal history score granted as part of a guidelines determination.