Kimbrough's Not Just For Crack, and How to Vary Based On Policy Disagreements with Guidelines

United States v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (King, Stewart, Southwick)

In case there was any doubt left after Mondragon-Santiago as to whether Kimbrough allows a district court to vary from the advisory Guidelines range based on policy disgreements with guidelines other than the crack guidelines, Simmons makes things crystal clear:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar. In Kimbrough, the Court referred to the following concession made by the government: “the Guidelines are now advisory and . . . , as a general matter, courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” Kimbrough, 128 S. Ct. at 570 (emphasis added) (internal quotation marks omitted). The Court added, however, that the appellate court may need to conduct a “closer review” if the judge has varied from the Guidelines because of a belief that the resulting sentence range, even in an unexceptional case, is inconsistent with Section 3553(a) factors. Id. at 575.

Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal. See id.; see also Lindsay C. Harrison, Appellate Discretion and Sentencing after Booker, 62 U. MIAMI L. REV. 1115, 1136 (2008). The Court also required a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.

So how does this policy disagreement work? The court provides a helpful recipe:

Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.

Pop quiz: what kind of error is a district court's mistaken belief that it cannot vary based on policy disagreements with the Guidelines? Procedural error. Don't forget to object if the district court makes that mistake in one of your cases, lest you get saddled with plain error review on appeal.

Panel Members Call for En Banc Reconsideration of Whether Federal Sentence May Be Ordered to Run Consecutively to Yet-To-Be-Imposed State Sentence

United States v. Garcia-Espinoza, No. 08-10775 (5th Cir. May 15, 2009) (per curiam) (unpublished)

Sometimes you find the most interesting things in unpublished opinions. Like a call for the court to reconsider earlier precent en banc in light of 1) a long-standing circuit split, and 2) the Government's belief that the earlier precedent was wrongly decided.

In this case, the split is over whether 18 U.S.C. § 3584(a) permits a district court to order that a federal sentence run consecutively to an anticipated, but yet-to-be-imposed, state sentence. Nearly two decades ago, in United States v. Brown, 920 F.2d 1212, the Fifth Circuit answered that question "yes." Over the years, some circuits have reached the same conclusion as Brown, while others have disagreed, creating at least a 4-4 split.

Which brings us to Mr. Garcia's case. At his sentencing for illegal reentry, the district court "ordered his federal sentence to run consecutively to a not-yet-imposed state sentence." Garcia appealed, and the panel affirmed the sentence due to Brown.

Judge Owen, joined by Judge Dennis (but not Judge King, who was also on the panel), concurred, suggesting that the court should reconsider the issue en banc. Not only because of the circuit split, but also because the Government now says that the Fifth Circuit "in an appropriate case, should overrule or modify United States v. Brown [citations omitted] and hold that 18 U.S.C. § 3584(a) does not authorize a district court to order that the federal term of imprisonment be served consecutively to a yet-to-be-imposed state sentence." (second alteration in Garcia-Espinoza). That's not to say the Government believes Garcia-Espinoza to be an appropriate case:

The Government contends that we should not revisit Brown in the present case because the defendant has now served his state sentence and cannot receive credit toward his federal sentence, thus making this matter moot. I disagree. The Bureau of Prisons (BOP) has the authority to implement a concurrent sentence by retroactively designating the state prison in which the defendant served his state sentence as the place for service of his federal sentence as well. Thus, if we were to vacate and remand for resentencing and the district court imposed a concurrent sentence, the BOP could still implement that sentence notwithstanding the fact that the defendant has already served the entirety of his state sentence in a state prison.

Intriguing. Make sure you preserve the issue. (Wouldn't hurt to keep that anti-mootness argument handy, too.) You could also ask the district judge not to do this in the first place, citing the Government's position as support.

The Next SCOTUS ACCA Case? Fives Hold TX Fleeing-By-Vehicle Is ACCA Violent Felony, Deepening Circuit Split On Issue

United States v. Harrimon, No. 08-10690 (5th Cir. May 14, 2009) (Jones, Wiener, Benavides)

James, Begay, Chambers, Johnson, . . . Harrimon? Looks like we got us a convoy, as Harrimon contributes to yet another circuit split over whether a particular offense falls within the Armed Career Criminal Act's "violent felony" definition.

The felony offense in question: evading arrest or detention by use of a vehicle ("fleeing by vehicle" to its friends), in violation of Texas Penal Code § 38.04(a). The elements: "'(1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, (6) the attempted arrest or detention is lawful, and (7) the person uses a vehicle while . . . in flight.'"

The Government conceded that the offense lacks a force element; that it isn't burglary, arson, or extortion; and that it doesn't necessarily involve the use of explosives. Leaving the question: "whether it 'otherwise involves conduct that presents a serious potential risk of physical injury to another' under the 'residual' provision of clause (ii) of § 924(e)(2)(B)." Per Begay and Chambers, that's actually a two-part question that asks whether the offense in question is roughly similar to the enumerated violent felonies—burglary, arson, and extortion—"both (1) in kind [meaning purposeful, violent, and aggressive], and (2) in degree of risk posed (which must be at least a serious potential risk of physical injury to another)." Harrimon answers "yes" on both counts.

As for the in-kind similarity, the court

conclude[d] that fleeing by vehicle is purposeful, violent, and aggressive. First, it is purposeful: unlike the DUI statute at issue in Begay, fleeing by vehicle requires intentional conduct. Further, it is aggressive. “As commonly understood, aggressive behavior is offensive and forceful and characterized by initiating hostilities or attacks.” Fleeing by vehicle requires disregarding an officer’s lawful order, which is a clear challenge to the officer’s authority and typically initiates pursuit. This active defiance of an attempted stop or arrest is similar to the behavior underlying an escape from custody, which, as the Supreme Court noted in Chambers, is “less passive” and “more aggressive” than that likely underlying failure to report. Fleeing by vehicle is also violent: the use of a vehicle, usually a car, to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome. As the Seventh Circuit observed in Spells, not only the arresting officer or officers, but also pedestrians and other motorists are subject to this force. Further, fleeing by vehicle “will typically lead to a confrontation with the officer being disobeyed,” a confrontation fraught with risk of violence.

(cites fled). As the court notes, this analysis is in line with that of the Fourth, Seventh, and Tenth Circuits, but contrary to an Eleventh Circuit decision—United States v. Harrison—involving a Florida statute similar to Texas's. Harrison "held that 'disobeying a police officer’s signal and continuing to drive on, without high speed or reckless conduct, is not sufficiently aggressive and violent enough to be like the enumerated ACCA crimes,' and that '[i]t is not the deliberate kind of behavior associated with violent criminal use of firearms.'" Harrimon declined to follow Harrison's lead, because "[t]o our minds, an offender’s willingness to use a vehicle to flout an officer’s lawful order to stop shows 'an increased likelihood' that the offender would, if armed and faced with capture, 'deliberately point the gun and pull the trigger.'" (quoting Begay)

Which brings us to the risk question. Noting James's proviso “that [not] every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony[,]" the court

ha[d] no difficulty concluding that, in the ordinary case, fleeing by vehicle poses a serious risk of injury to others. While Harrimon argues that fleeing by vehicle does not become dangerous until law enforcement interrupts the perpetrator, fleeing by vehicle, by definition, can only occur after an initial attempt by an officer to arrest or detain the perpetrator. “This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders.”

Moreover, while it is possible, as Harrimon argues, to be guilty of fleeing by vehicle despite obeying all traffic laws and later surrendering quietly, we think that, in the typical case, an offender fleeing from an attempted stop or arrest will not hesitate to endanger others to make good his or her escape. [citing James and the Tenth Circuit]

(some more cites fled). But wait, there's also data. The court cites a DOJ-funded study that found an incidence of .04 injuries per police pursuit. Which should weigh against a holding that flight-by-vehicle presents a serious potential risk of physical injury, right? Wrong. The court also cites a study by the U.S. Fire Administration finding that there are "roughly .009 injuries per arson." Thus, according to the court, the risk of injury presented by flight-by-vehicle is roughly similar to that presented by arson.

Assuming the court's understanding and use of those studies is correct—and I'm no statistician; haven't even played one on TV—then isn't the court effectively saying that by "serious potential risk of physical injury" Congress meant "even a vanishingly small risk of physical injury?" After all, .04 injuries-per-chase is practially zero, and that's an order of magnitude greater than the .009 injuries-per-arson. And if that's true, then there's really only one question to answer under the Begay/Chambers analysis isn't there? Because an offense is similar in kind to burglary, arson, or extortion—that is, a purposeful, violent, and aggressive offense—will always present a risk of injury at least as great as the virtually zero risk of injury posed by arson, won't it?

I suppose we'll just have to see how things play out in light of Harrimon. It'll also be interesting to see whether this case winds up as the next chapter in the Supreme Court's repeated efforts to explain how to apply the residual clause, a distinct possibility given the circuit split. (I'd like to see a cert grant if for no other reason than the "Who's-on-first?" comedy sure to arise at oral argument from having Harrison and Harrimon on opposite sides of the split.)

Finally, what effect will Harrimon have on the Fifth Circuit's upcoming revisitation of the UUV-as-aggravated-felony issue? Recall that the Supreme Court remanded three cases presenting that issue for reconsideration in light of Chambers, that the U.S. Attorney in the Southern District of Texas has taken the position in those cases that UUV is not an aggravated felony in light of Begay and Chambers, and that the Solicitor General has asked for a GVR in yet another case in light of that concession. Note also that Harrimon's similar-in-kind analysis is a lot like the reasoning underlying the Fifth Circuit's holdings in the UUV cases. Then again, the issue in those cases is whether UUV presents a substantial risk that force will be used, as opposed to a serious potential risk that injury will occur. Apples and oranges, or two peas in a pod? When it comes to waiting for the answer, you'll pay for the whole seat, but you'll only need the edge.

2001 Amendment to 2B1.1 Loss-Amount Definition Supercedes Prior Fifth Circuit Law on Calculation of Losses From Ponzi Scheme

United States v. Setser, No. 07-10199 (5th Cir. May 12, 2009) (Smith, Southwick, Rodriguez, D.J.)

Deborah Setser, along with her brother Gregory, "were convicted of involvement in a Ponzi scheme focused on soliciting funds from Christian groups for largely mythical deals involving real estate and retail products." During the course of the scheme, some of the existing investors reinvested funds that had been returned to them as profits. Deborah evidently got involved in the scheme sometime after it had begun.

Deborah appealed her sentence, arguing that the district court got the loss calculation wrong.

The question at the core of the loss-calculation dispute is whether it was appropriate to consider as new losses the funds from existing investors that were reported or returned to them as profits and then reinvested in the scheme. For those situations in which the original investments occurred before Deborah Setser’s involvement, but the reinvestments occurred during her involvement, the effect of including the reinvestments was to increase the loss amount and number of victims attributed to her. Using this methodology, with credit given for money returned to original investors (but not “profits” received by investors), the district court concluded that the loss amount attributable to Setser was $61,601,032.

The Fifth Circuit addressed a similar issue in its 2000 decision in United States v. Deavours, 219 F.3d 400, which held that

no credit should be given for money returned to investors, because money in a Ponzi scheme is returned “not to compensate the victims for their losses,” but “to extend the defendants’] criminal activities and the profitability thereof” by prolonging the life of the scheme. Id. In fact, repayment of invested funds in a Ponzi scheme serves to “increase the total returns from [the] criminal activity, and endanger yet more victims.” Id. at 404.

Deborah argued that Deavours' "reasoning prevents a late-arriving conspirator from being made responsible for losses that occurred from money invested before joining the scheme. Just as a defendant cannot receive credit for returning money to an investor, she cannot be subject to 'double counting' when an investor chooses to reinvest profits in the scheme."

The Government countered that a 2001 amendment to guideline §2B1.1's loss-amount definition supercedes Deavors. The amendment provided that "[l]oss shall be reduced by the . . . money returned . . . by the defendant, to the victim before the offense was detected[.]"

In its explanation of the change to the application note, the Sentencing Commission contrasted Deavours with cases from other circuits that had permitted offsetting of payments to investors up to the amount they had invested. It stated explicitly that the “amendment adopt[ed] the approach of the Eleventh Circuit” in order to “resolve[] a circuit split.”

The court agreed with the Government, holding that "the district court’s method of loss calculation was correct. Deborah Setser was given credit for money that was returned to investors, but such credits were offset when the money was reinvested into the scheme." The court further held that

[u]nder this loss calculation method, it also was reasonable to conclude that investors became “victims” again when they reinvested, thus explaining the district court’s conclusion about the number of victims for whom Deborah Setser was responsible. . . . [T]he rationale for counting the victims a second time is that a new offense occurred when the investors’ money was plowed back into the conspiracy, justifying the different outcome.

Finally, the court rejected Deborah's "'as applied' Sixth Amendment challenge to the district court’s calculation of loss amount and number of victims at her sentencing, and a Fifth Amendment challenge with regard to acquitted conduct for which she claims she was held responsible at sentencing."

Solicitor General Endorses View that UUV Is Not an Aggravated Felony, Seeks GVR In Serna-Guerra

Long-time readers of this blog, as well as those of you who handle immigration and illegal reentry cases, are familiar with the Fifth Circuit's frustrating adherence to its view that unauthorized use of a vehicle is an aggravated felony, notwithstanding Supreme Court decisions undermining the Fifth Circuit's reasoning. If you're not already familiar with the issue, you can get up to speed lickety split here, here, here, and here (in that order).

Anyhoo, Bender's Immigration Daily reports on a big development in Serna-Guerra v. Holder, which seeks cert to resolve this whole fooferaw. The Solicitor General's brief in response (available here) asks the Court to grant cert and remand to the Fifth Circuit for reconsideration in light of Chambers v. United States, just as the Court recently did in at least three other criminal cases:

Petitioner argues that this Court should grant plenary review because the Texas UUV offense of which he was convicted is not a “crime of violence” under 18 U.S.C. 16, and because the court of appeals’ decision upholding his removal conflicts with decisions of this Court and the United States Court of Appeals for the Tenth Circuit. In the alternative, petitioner argues that this Court should grant the petition for a writ of certiorari, vacate the decision of the court of appeals, and remand for further consideration in light of Chambers v. United States, 129 S. Ct. 687 (2009). The Court in Chambers held that a failure to report for weekend confinement is not a violent felony under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), because it does not present a serious potential risk of physical injury to another. Respondent agrees that the Court should grant, vacate, and remand in light of Chambers.

As petitioner notes, following the decision in Chambers, this Court granted certiorari, vacated the judgments below, and remanded for further consideration in three cases from the Fifth Circuit raising the same issue that petitioner raises here. See Castillo-Lucio v. United States, 129 S. Ct. 993 (2009); Armendariz-Moreno v. United States, 129 S. Ct. 993 (2009); Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009). The United States subsequently filed letter briefs in two of those three cases, informing the Fifth Circuit that, in light of Chambers and Begay v. United States, 128 S. Ct. 1581 (2008), which held that DUI is not a violent felony under the ACCA, the government no longer adheres to its prior position that UUV is a crime of violence under Section 16. See Letter from Tim Johnson, Acting U.S. Att’y, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Armendariz-Moreno, No. 07-40225 (Mar. 30, 2009); Letter from Tim Johnson, Acting U.S. Atty, to Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Appeals for the Fifth Circuit, regarding United States v. Castillo-Lucio, No. 07-40752 (March 30, 2009).

In light of the remands and the government’s change of position, the Fifth Circuit may well reconsider its prior rulings on the issue and bring itself into alignment with the Tenth Circuit. Plenary review of the issue by this Court would therefore be premature at this time. Instead, the Court should follow the same approach here that the Court took in Castillo-Lucio, Armendariz-Moreno, and Reyes-Figueroa.

(emphasis added; some extraneous cites pruned). Note the careful wording here. The SG doesn't explicitly concede the issue, but I thinks it's fair to characterize it as an endorsement of the position that the U.S. Attorney in Texas Southern has staked out in those other Chambers remands. Nevertheless, the fight's not won yet, so keep preserving the issue in your cases. And until then, the SG's brief is great fodder for an argument for non-Guidelines sentences in illegal reentry cases involving the issue.

Intertubes = Interstate Commerce

United States v. Barlow, No. 08-60556 (5th Cir. May 6, 2009) (Wiener, Dennis, Clement)

Barlow was convicted of "(1) attempting to persuade or entice a person he believed to be a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and (2) sending obscene material to a person he believed to be younger than 16 years old in violation of 18 U.S.C. § 1470." On appeal, he argued, among other things,

that the government failed to establish the requisite interstate nexus to support either charge. The testimony of a single FBI agent, with no apparent firsthand knowledge, that Yahoo! had no servers in Mississippi was inadequate to establish that the emails and pictures traveled in interstate commerce, according to Barlow’s argument.

Barlow misunderstands the statutes. Neither § 2422(b) nor § 1470 requires proof of travel across state lines. Section 2422(b) requires the use of “any facility or means of interstate or foreign commerce.” Section 1470 requires the same with the added specific that the obscene material be “transfer[red]” using that “facility or means.” In 2009, it is beyond debate that the Internet and email are facilities or means of interstate commerce. And, it is undisputed that Barlow conducted his entire affair with Rebecca online — that is, using the Internet — and sent her obscene material by email. The interstate nexus requirements of the statutes were satisfied irrespective of the agent’s testimony.

(emphasis added). Bear in mind that the court was reviewing for plain error, although it doesn't sound like the result would have been any different if Barlow had raised the argument below.

Another eyebrow-raising aspect of the case:

In August 2006, Barlow, then 39 years old and living in Lumberton, Mississippi, spied an online picture and profile of a teenage Mississippi girl named Rebecca and emailed her, introducing himself and asking how old she was. Rebecca responded that she was 14 years old, though in reality, she was a middle-aged, married paralegal from Dixie, Mississippi, named Ginny English (“English”). English freelanced for law enforcement by posing online as an underage girl to attract potential sex offenders.

Barlow was arrested when he showed up for an in-person meeting he arranged with "Rebecca" after about a year of e-correspondence (which included sexually explicit conversation and photos).