Sentencing Court’s Discretion Not Limited for Career Offenders; Must Consider § 3553

United States v. Clay, No. 14-60283 (5th Cir. May 22, 2015) (Jolly, Higginson, Costa) (per curiam)
 
The district court sentenced Clay, who was classified as a “career-offender” under the Guidelines, within the guideline sentencing range of 151-188 months of imprisonment.  Without such classification, the advisory range would have been 30-37 months.  Despite the district court being “troubled” that the Defendant’s career-offender status led to an increased sentence, the district court refused to vary downward because of no “Fifth Circuit guidance” on the matter. On appeal, the panel vacated the sentence and, on remand, ordered the district court to recognize its own discretion to vary from the Guidelines’ advisory range.

The panel reasoned that the Guidelines are relevant but not dispositive in determining the appropriate sentence. The Guidelines serve only an “advisory” role, which, per the Supreme Court, a district court may defer to for a within-Guidelines sentence only “after considering the factors in 18 U.S.C. § 3553(a).” District courts must “consider the nature and circumstances of the offense and the history and characteristics of the defendant.” Further, district courts must consider “other broad concerns…, in an individualized manner, before imposing its sentence.” If the district court finds that a within-Guidelines sentence is “greater than necessary to serve the objective of sentencing,” then the district court can vary. A district court’s sentencing discretion does not depend on whether the defendant is classified as a career-offender under § 4B1.1.

The district court erred by not applying an “individualized assessment” under § 3553(a) factors. This procedural error was not harmless. The record shows that the district court had misgivings about the within-Guidelines sentence; it was not only “troubled” by it, but also admitted that had there been “Fifth Circuit guidance to vary,” which, as we know now is not necessary, “the outcome [likely] would have been different.” This would also show that perhaps the within-Guidelines sentence was in fact “greater than necessary to serve the objective of sentencing,” thus the need for district courts to exercise sentencing variation.

Thanks to FPD Intern Adam Pena for this post.

Texas Injury to a Child is a Career Offender COV under Modified Categorical Approach

United States v. Nieto, No. 12-50500 (June 27, 2013) (Garza, Southwick, Haynes)

The panel finds that Injury to a Child in violation of Texas Penal Code § 22.04(a) is a “crime of violence” under the U.S.S.G. § 4B1.2(a)(2) residual clause, so Nieto was properly sentenced as a career offender.  The panel used the modified categorical approach to determine whether Nieto’s crime involved conduct that presented a serious potential risk of physical injury to another.  Acknowledging that a prior conviction under § 22.04 does not constitute a “crime of violence” under U.S.S.G. § 2L1.2 because that definition requires force to be an element of the statute of conviction, the panel found that intentionally or knowingly causing a child bodily injury by an act—which is what Nieto’s indictment essentially charged—involves conduct that presents a serious potential risk of injury to another.

The panel also held that the evidence was sufficient to convict the Barrio Azteca defendants on RICO substantive and conspiracy charges as well as conspiracy to possess with intent to distribute controlled substances, and that the district court did not err by “conducting ex parte interviews with the acquiescence of counsel to evaluate intrinsic influence[,]” namely jurors’ anxiety about the case and their safety concerns.  The district court dismissed without objection the one juror who had the extrinsic influence of her husband contacting a friend who then contacted the case officer out of concern for the juror’s safety. 

Career Offenders Ineligible for Mitigating Role Adjustment

United States v. Cashaw, No. 09-51035 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)

As it turns out, this appears to be the first time the Fifth Circuit has held as such.  Cashaw had argued that he was eligible for the adjustment because "the career offender provision does not expressly preclude a downward adjustment for a minor participant and . . . this court has never ruled to the contrary."

The court pointed first to guideline §1B1.1, which sets out the order of operations for Guidelines calculations.  Chapter 2 first (base offense level and specific offense characteristics), Chapter 3 next (where the mitigating role adjustment is found), thence onward to Chapter 4 (home of the whopper career offender guideline).  Applying a Chapter 3 adjustment after applying the career offender guideline—which "provides an alternate offense level if the defendant qualifies as a career offender and the career offender offense level is greater than the 'otherwise applicable' offense level"—would disrupt the order mandated by §1B1.1 (sort of like saying you should have been allowed to eat your dessert before supper, upon learning that mom wouldn't let you have any dessert at all because you refused to eat your broccoli, or something like that).  "The only chapter Three adjustment explicitly permitted by Guidelines § 4B1.1(b), and thus authorized by the instructions, is the acceptance of responsibility adjustment."

As for Cashaw's argument that the career offender guideline doesn't explicitly prohibit a mitigating role adjustment,

The fact that the career offender provision authorizes an adjustment for acceptance of responsibility, but no other adjustments, demonstrates that the Sentencing Commission intended for no other adjustment to apply. As one of our sister circuits succinctly put it, “[h]ad the Sentencing Commission intended for all Chapter Three adjustments to follow a career offender adjustment, there would have been no need for the Commission to expressly indicate the permissibility of a reduction [for acceptance of responsibility].” Furthermore, implying a minor participant adjustment into the career offender provision would prevent implementation of Congress’ directive that career offenders “receive a sentence of imprisonment at or near the maximum term authorized.”

(cites omitted).

Reduced Crack Guidelines Do Not Apply to Defendants Sentenced as Career Offenders

United States v. Anderson, No. 08-41314 (5th Cir. Dec. 21, 2009) (per curiam) (Higginbotham, Clement, Southwick)

Are defendants who were convicted of crack offenses and sentenced as career offenders eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. §1B1.10 in the wake of the Sentencing Commission's lowering of the crack guidelines?

No, says Anderson. Such a defendant was sentenced under the career offender guideline, not the crack guidelines, and therefore "'was not sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission.'"

The crack cocaine guideline amendments do not apply to prisoners sentenced as career offenders. We note that – although this court has never published a binding decision on the issue – this year we have uniformly rejected arguments identical to Anderson’s in at least 10 persuasive unpublished decisions. The claim has no merit in either law or logic.

Incidentally, to the extent that Booker raised any question as to the standard of review applicable to a district court's decision to reduce a sentence, the opinion appears to say that it's the same as it was pre-Booker: abuse of discretion.