Federal Criminal Law News

December 17, 2010

Federal Sentencing Guidelines Amendments Part VI: Remediation Efforts and Reporting Obligations for Effective Compliance and Ethics Programs of Organizations

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. We have been posting analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

This amendment clarifies the remediation efforts required for effective compliance and ethics programs used by organizations. The Guidelines now suggest that defendant organizations should provide restitution and other forms of remediation, self-report, and cooperate with authorities. The organization should also ensure the program is effective, perhaps by including the use of an outside professional advisor.

The amendment also creates a limited exception to the general prohibition against applying a 3-level decrease for having a program when high-level personnel are involved in the offense. The organization may receive the decrease if:

December 9, 2010

Federal Sentencing Guidelines Amendments Part V: Hate Crimes

by Kish Law

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. We are posting analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

This amendment responds to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. The Act created a new offense at 18 U.S.C. § 249 for injuring any person because of actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. That offense is now referred to §2H1.1 (Offenses Involving Individual Rights). It also broadened the definition of “hate crime” to include crimes motivated by actual or perceived “gender identity.” §3A1.1 (Hate Crime Motivation or Vulnerable Victim) gained an application note to account for the expanded definition.

The Act created a second new offense at 18 U.S.C. § 1389, prohibiting attacks on members of the military, which is now referred to §§2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction, and Fraud).

November 12, 2010

Federal Sentencing Guidelines Amendments Part III: Cultural Assimilation

by Kish Law

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The third amendment to the Sentencing Guidelines addresses judges’ discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.

The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:

November 10, 2010

Federal Sentencing Guidelines Amendments Part II: Relevance of Specific Offender Characteristics

by Kish Law

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, “may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service “may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines”.

August 9, 2010

U.S. v. Belfast: Eleventh Circuit Court of Appeals Holds That § 924(c) May Apply to Crimes of Violence Committed Outside United States Territory

by Kish Law

Last month, the Eleventh Circuit Court of Appeals held that 18 U.S.C. § 924(c), which makes it a federal crime to use or possess a firearm in connection with a crime of violence, can apply to crimes of violence committed outside the United States. In U.S. v. Belfast, the first case prosecuting an individual under 18 U.S.C. § 2340A (the Torture Act,) the Court upheld a § 924(c) conviction where the American citizen defendant tortured people in Liberia.

The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.

The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”

August 4, 2010

U.S. v. Irey: Divided En Banc Eleventh Circuit Holds Criminal Child Pornography Sentence Substantively Unreasonable And Remands for Sentencing at Statutory Maximum

by Kish Law

Last week, the Eleventh Circuit Court of Appeals, sitting en banc, decided United States v. Irey. The 142-page majority opinion recounted gruesome sex crimes that Mr. Irey admitted to committing against as many as 50 Cambodian girls, some as young as four years old. The Court held that the 17½ year sentence ordered by the federal district court judge was a substantively unreasonable downward variance and remanded for sentencing within the Sentencing Guidelines range, which was 30 years at both the top and bottom. As one of the dissenting judges noted, “hard facts often lead to bad law” and we worry that this case will unduly limit district court judges’ discretion in imposing variances in future sentencing decisions.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

August 3, 2010

Federal Sentencing Disparity Between Crack and Powder Cocaine Reduced

by Kish Law

Today President Obama signed the Fair Sentencing Act of 2010 into law. This federal law reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. While this is a step in the right direction, a significant disparity remains and the law has not been made retroactive.

The major features of the law include the following:

• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.

June 23, 2010

Gilbert: Eleventh Circuit Corrects “Complete Miscarriage of Justice” in Federal Criminal Sentencing Under Career Offender Enhancement

by Kish Law

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

The Original Sentence and Appeals

In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

June 8, 2010

Eleventh Circuit Reverses Judge Martin’s District Court Decision that a 30-Year Mandatory Minimum Sentence was Cruel and Unusual Punishment

by Kish Law

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

June 7, 2010

Barber v. Thomas: Supreme Court Holds That Bureau of Prisons Has Been Correctly Calculating Good Time Credits on Federal Criminal Sentences

by Kish Law

This morning, the United States Supreme Court issued its opinion in Barber v. Thomas. In a 6-3 decision, the Court held that the calculation method used by the Bureau of Prisons (BOP) to determine the amount of “good time” earned on federal criminal sentences is lawful. The Court rejected two other methods for calculating good time, one proposed by federal prisoners and one suggested by the dissenting justices. As a result of this holding, the taxpayers will be forced to continue paying for prisoners longer than Congress may have wanted.

This case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. … [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.