Sentencing Commission Promulgates Guidelines Amendments for November 2011

Last week the Sentencing Commission issued this press release announcing a new crop of Guidelines amendments. Absent Congressional action, the amendments will take effect on November 1, 2011.  There's some good and some bad for defendants, with changes affecting illegal reentry, firearms, supervised release, mitigating role, health care fraud, and more. The Sentencing Resource Counsel Project has prepared a helpful summary of the amendments, which have not yet been posted on the Commission's website.  For bootleg redlines of the amendments, make your way over here.

Proposed Guidelines Amendments and Requests for Comment

As Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines.  A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days).  There are also some requests for comment on matters perennial (mitigating role for drug mules) and emerging (cross-border gun smuggling).  I'll highlight a few of the bigger ones.

Supervised Release
The Guidelines currently recommend that a court include a term of supervised release whenever a defendant is sentenced to more than one year's imprisonment (and, of course, whenever required by statute). Turns out that, according to a recent Commission study, "supervised release is imposed in almost every case, including in more than 99 percent of cases where the guidelines require imposition of a term of supervised release but there is no statutory requirement to do so."  What's more, "[s]upervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen[,]" and non-citizens account for nearly half of all federal offenders.

The Commission wants to know whether this is a good idea.  (Although it puts it more bureaucratically: "The Commission is considering whether revisions to the supervised release guidelines would help courts and probation offices focus limited supervision resources on offenders who need supervision.")  To that end, it is floating a few ideas: raising or even eliminating the threshold term of imprisonment that would trigger a recommended term of supervised release, reducing the recommended terms of supervised release, and even doing away with the recommendation entirely unless an applicable statute requires a term of supervised release in the case.  Along with these changes, courts would be encouraged to take a defendant's criminal history into account when making the supervised release determination, recognizing (in accord with that study) that the less serious a defendant's criminal history, the more likely it is that he will successfully complete supervision.

Perhaps the most significant proposed change to the supervised release guidelines is to recommend against imposing a term of supervised release on an alien defendant who is likely to be deported and unlikely to be allowed to return to the United States legally.  The proposal recognizes that a term of supervised release is absurd unnecessary in such cases, because the prospect of an illegal reentry charge provides adequate deterrance to an alien's possible unlawful return.

More proposed amendments and requests for comment after the jump . . .
Read more »

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).

Court Overlooks Guideline Commentary Regarding Availability of Mitigating Role Adjustment, Rejects Fear-Of-Consequences Exception to Safety Valve

United States v. Washington, No. 05-30163 (5th Cir. Feb. 19, 2007) (Smith, Garza, Owen) (This is actually a consolidated appeal, but I'll address each defendant in separate posts because a single post would be way too long.)

Washington was convicted of conspiring to distribute 100 kilograms or more of marijuana (21 U.S.C. §§ 841, 846). "The factual basis for Washington's [guilty] plea established his involvement in an operation involving more than 4,000 pounds of marijuana, which were transported from Dallas to Shreveport. Washington's role was to store the marijuana at his property in Shreveport." Slip op. at 2. The district court sentenced him to 108 months' imprisonment, which was the high end of the guideline range calculated by the court.

On appeal, Washington argued that the district court erred by not applying safety-valve or minor-role adjustments when calculating his guidelines, and that his sentence was unreasonable. The court rejected all three of Washington's arguments.

Safety Valve
The district court refused to apply the 2-level safety valve adjustment under §2D1.1 because the Government claimed that Washington failed to "truthfully provide[] to the Government all information and evidence [he had] concerning the offense . . . ." Slip op. at 3 (quoting U.S.S.G. §5C1.2(a)(5)). Specifically, the Government complained that Washington refused to explain his role in the conspiracy, to tell the Government whether he used certain guns in the offense, or to reveal how much he was being paid. "Washington asserted that his lack of cooperation was based in part on his fear of reprisal[,]" and that such fear "justified his conduct, entitling him to the 2-point reduction." Slip op. at 3.

The Fifth Circuit had never confronted this issue before, but according to the court all eight courts of appeals that have addressed this argument have rejected it. The court followed the decisions of those other circuits and declined to create a "fear-of-consequences" exception to the safety valve's disclosure requirement.

Mitigating Role Adjustment
Washington argued that "he should have received a mitigating-role reduction under U.S.S.G. § 3B1.2 because his only involvement in the conspiracy was storing the drugs." Not a bad argument, given the guideline's commentary on the applicability of the adjustment:

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.

U.S.S.G. §3B1.2, comment. (n.3(A)). That commentary was added to the guideline to resolve a circuit split on the issue, and became effective November 1, 2001. See U.S.S.G. App. C, amend. 635. It appears that the 2004 Guidelines applied to this case, so application note 3(A) should be controlling on the issue of Washington's mitigating-role eligibility.

Nevertheless, the court seems to have overlooked application note 3(A). It held that

[t]he district court did not err in refusing to grant the mitigating-role reduction. Washington was not charged or sentenced based on some larger conspiracy involving more drugs than he stored; he was only charged and sentenced based on the drugs stored on his property. Accordingly, he is not entitled to a mitigating-role reduction under section 3B1.2.

Slip op. at 5. In fact, the opinion doesn't mention application note 3(A) at all. It instead cites as authority United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001), a case involving a pre-2001 version §3B1.2. (The court also cites three more recent unpublished cases.) However, the Sentencing Commission expressly rejected Garcia's approach to this issue when it adopted Amendment 635. Of course, there's still the factual question of exactly what Washington's role was, but the court's holding on the threshold elibility question is flatly contrary to the controlling guideline commentary.

Reasonableness
The presumption of reasonableness carried the day.