Friday, April 10, 2009

Prior Conviction for Conduct In Furtherance of Drug Conspiracy Can Be Used to Enhance Sentence for Later Conviction In Same Conspiracy

United States v. Moody, No. 07-11222 (5th Cir. Apr. 6, 2009) (Smith, Southwick, Engelhardt)

Let's say a defendant gets convicted of a charge arising out of his participation in a drug conspiracy, serves his sentence, rejoins the same conspiracy, and gets convicted of conspiring to possess more than 50 grams of crack with the intent to distribute it. Under 21 U.S.C. § 841(b)(1)(A), does the prior conviction elevate the statutory minimum from 10 years to 20 years? Yes:
Our sister circuits have held that prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy. We agree and also conclude that an earlier conviction from the same conspiracy can be used to enhance mandatory minimums. A defendant should not benefit in sentencing because he continued in a criminal enterprise even after he was already arrested and convicted for the same enterprise. “[T]he purpose of the mandatory minimum enhancement is to target recidivism . . ., [and] it is more appropriate to focus on the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity is final rather than when the conspiracy began.” United States v. Garcia, 32 F.3d 1017, 1019-20 (7th Cir. 1994) (citation omitted).

The opinion does not address the potential double jeopardy implications of this holding.

By the way, there's some inaccurate language about reasonableness review that you need to be aware of. Before addressing the § 841 enhancement issue, the opinion says this:
Sentencing guideline decisions are reviewed for abuse of discretion. See United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). “Though we review a sentence for abuse of discretion, we review the district court’s application of the guidelines de novo and its findings of fact at sentencing for clear error.” Klein, 543 F.3d at 213(citation omitted). “An error in applying the guidelines is a significant procedural error that constitutes an abuse of discretion.” Id. (citation omitted).

That's incorrect for a couple of reasons. First, reasonableness review has nothing to do with whether § 841 authorizes an enhanced sentence in these circumstances. That's simply a matter of statutory interpretation to be reviewed de novo (assuming the issue was preserved below, which it appears to have been). Second, it is an incorrect statement of how reasonablness review operates. Rowan did not say that sentencing guideline decisions are reviewed de novo; it said "We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597[,]" before going on to explain the bifurcated review process Gall established (and which another panel explained again recently in Delgado-Martinez). Moreover, it doesn't make sense to say that guideline decisions are reviewed for abuse of discretion and to then say that guideline application issues are reviewed de novo (for legal issues) and for clear error (for factual issues). So the first sentence should just say "sentencing decisions," rather than "sentencing guideline decisions."

Unfortunately, the court makes the same mistake a few paragraphs later when it addresses a guideline issue that the same defendant raised:
We review guideline decisions, whether inside or outside the guideline range, for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007). “In performing that review, we are ‘first [to] ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.’” United States v. Williams, 517 F.3d 801, 808 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 597) (quotations and ellipses omitted). Findings of fact are reviewed for plain error; legal conclusions, de novo. See United States v. Villanueva, 408 F.3d 193, 202 (5th Cir. 2005).

Although the court cites Gall in this paragraph, rather than Rowan, it's still incorrect. Here's what Gall said:
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.

Thus, abuse-of-discretion is the standard of review at step two when the court of appeals evaluates the substantive reasonableness of the sentence, it is not the standard for determining whether a district court committed procedural error in the Guidelines calculation.

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