Second Circuit Affirms Large Upward Variance For Violation Of Terms Of Supervised Releases

United States v. Parrish, No. 09-2482-cr (2d Cir. June 24, 2010) (found here)

Parrish violated the terms of his supervised release, for which he faced an advisory Guidelines range of punishment of between 5 and 11 months.  The district court, though, sentenced him to 42 months imprisonment.  On appeal, that sentence was affirmed. 

In particular, the Second Circuit found that "[a]ny severity apparent in Parrish's violation sentence (almost four times the top of the Guidelines range) vanishes when one considers the tremendous leniency of his underlying sentence (barely more than one-eighth of the bottom of the Guidelines range)."  The Second Circuit went on to note that:

The Guidelines specifically provide than an upward departure may be warranted in sentencing for a violation of supervised release where a downward departure was granted at the sentencing for the underlying conviction.  Where the original downward departure was a major departure, as it was in this case, a district court may well act reasonably when it applies a major upward departure to the defendant who has been shown such leniency and has later breached that trust by violating his supervised release.

Hate to admit it, but it sounds like the right result to me.  What do you think?

Sentencing the Troubled Child

United States v. Serrano, No. 08-CR-612 (JBW), 2010 WL 147924 (E.D.N.Y. Jan. 11, 2010)

Serrano pled guilty to a single count indictment charging that, having been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, he knowingly and intentionally possessed a firearm.  He faced an advisory Guidelines range of imprisonment of between 41 and 51 months, but was sentenced to 36 months imprisonment.  Why? 

he offense is serious in view of the dangers posed by firearm possession. Defendant was a troubled child who had problems in school from a young age and was sent to a school for children with emotional disturbances. He is young and has a supportive mother and several supporting siblings. He has accepted responsibility for this offense. A sentence of 36 months reflects the seriousness of the offense, and will promote respect for the law and provide just punishment.

Supervisory, Yet Minor, Role in a Conspiracy.

United States v. Sanchez-Rangel, No. cr-08-186, 2009 WL 4626646 (E.D.N.Y. Dec. 7, 2009)

Sanchez-Rangel pled guilty to conspiracy to distribute cocaine and firearms sales.  He faced an advisory Guidelines range of imprisonment of between 135 and 168 months.  He was sentenced, however, to 60 months imprisonment.  As detailed by the district court, "[w]hile the defendant played a supervisory role in the criminal conspiracies of which he was a part, that role was relatively minor, making the guidelines sentence excessive.  The defendnat is a hardworking man without any education who supported his family."  Not sure how one can both play a supervisory and minor role in a conspiracy.

No Credit For You!

United States v. Coons, No. 07-2485-cr (2d Cir. March 30, 2009) (found here)

Coons received a 2-6 year indeterminate New York state sentence for reckless endangerment.  He was released on parole, and subsequently arrested and placed in state custody for violating the terms of his parole.  He thereafter pled guilty in federal court to being a felon in possession.  His federal sentencing was not held, however, until after he'd been in state custody for 16 months. 

At sentencing, the court determined his advisory range to be 27-33 months, and sentenced him to 27 months.  The sentencing court did not credit Coons for the 16 months that he'd already been in custody, as it could have under U.S.S.G. § 5G1.3(b) and (c).  The Second Circuit affirmed, basically holding that the sentencing court affirmatively decided not to give him that credit. 

So, yes, Coons could have been in state custody for those 16 months solely because of his parole violation.  But the description of the case seems to indicate that his detention was based on the federal gun charges.  Even under those circumstances, he was not entitled to credit for the 16 months.  But was it fair not to credit him?

Once A Weapon, Always A Weapon

United States v. Pope, Docket No. 08-1007-cr (2d Cir. Feb. 3, 2009) (found here)

What does it mean to possess a dangerous weapon mean for purposes of an enhancement under Section 2B2.1(b)(4) of the Guidelines?  That is the question that the Second Circuit addressed in Pope.

Pope was a bank robber.  His tool of choice was a sledgehammer.  He used it to break bank windows.  In anticipation of sentencing, the Probation Department calculated Pope's advisory Guidelines offense level to include a 2 level enhancement pursuant to Section 2B2.1(b)(4), reasoning that his sledgehammer was a deadly weapon.  And, arguably it was.  It is capable of inflicting death or serious bodily injury.  But, according to Pope's lawyer, it was not used or possessed in Pope's offense as a weapon.  Rather, it was used to facilitate the burglary -- i.e., break windows.  The district court accepted the Probation Department's advisory Guidelines offense level calculation, and determined Pope's advisory Guidelines offense level based on the conclusion that the sledgehammer was a deadly weapon. 

Pope appealed.  He did not dispute that he possessed and used the sledgehammer in the course of his burglaries.  Rather, he argued that the 2 level enhancement didn't apply because a sledgehammer is "not inherently a weapon," and he did not use the sledgehammer as a weapon.  Not so fast, says the Second Circuit.

According to Pope, the Second Circuit has always taken a broad view of the definition of a dangerous weapon.  Application Note 1(D) of Section 1B1.1 states that a dangerous weapon need only be "an instrument capable if inflicting death of serious bodily injury," and a sledgehammer certainly fit that criteria.  But was Pope's mere possession of the sledgehammer sufficient to trigger the 2 level enhancement under Section 2B2.1(b)(4) even if it was not used as a weapon?  Yes, according to a strict interpretation of the word "possess."  Here's what the Second Circuit had to say:

When previously construing different provisions of the Guidelines, we have stated that we will "giv[e] the Guidelines language its plain meaning and force.  The same logic applies to the provision at hand, and there can be nothing ambiguous about the provision's meaning.  The only question, then, is whether Pope possessed the sledgehammer during the burglary.  The record shows that the sledgehammer used in the course of the burglary was recovered the next day at Pope's apartment . . . .  The fact that he did not use the sledgehammer as a weapon is irrelevant to the issue of possession.  To hold otherwise would directly contradict the plain meaning of this provision of the Guidelines, and would lead to absurd results.  For example, a burglar could enter a bank carrying several guns and explosives and remain exempt from the two-level enhancement so long as those "tools of the trade" were used only to break open the safe.  Accordingly, we hold that U.S.S.G. 2B2.1(b)(4) requires only possession of a dangerous weapon, regardless of whether the dangerous weapon was employed as such during the commission of a crime.

Come on, now.  There are dangerous weapons and there are dangerous weapons.  In the context of Pope's offense and the Second Circuit's interpretation of Section 2B2.1(b)(4), almost anything would qualify.  A brick could break a window and be a weapon.  A stick could break a window and be a weapon.  A screwdriver could break a lock and be a weapon.  All would qualify for the enhancement.  Absurd results?  You betcha.  But not the absurd results about which the Second Circuit expressed concern. 

An Unusual Twist On State-Federal Disparity

United States v. Collie, No. 06-1669-cr, 2007 WL 3284065 (2d Cir. Nov. 7, 2007)

As detailed in this post, the Second Circuit seems to have prohibited district court from considering the disparity between state and federal prison terms when deciding whether or not to impose an non-Guidelines sentence.  Collie puts an unusual twist on consideration of state/federal disparity.

Collie was sentenced to 63 months imprisonment for being a felon in possession of a firearm.  On appeal, he argued that this sentence was unreasonable because it was significantly longer than any of the sentences he received for his multiple prior state convictions.

So, let me get this straight: Collie is convicted of a number of state offenses.  He receives sentences for those prison terms that are significantly shorter than the federal prison term he ultimately receives.  He obviously doesn't learn anything from his prior brushes with the law and is now charged with federal offenses.  And he wants the court to impose a shorter sentence because he received shorter state sentences?  Seems Collie has a lot to learn about the American criminal justice system and deterrence.

Why Was The Sentence Not Challenged For Substantive Reasonableness?

United States v. Ortiz, No. 06-4030-cr, 2007 WL 3230734 (2d Cir. Nov. 1, 2007)

An interesting appeal.  Ortiz, who pled guilty to one count of being a felon in possession of firearm, was sentenced to the statutory maximium of 10 years imprisonment -- more than double the high end of the 46 to 57 month range recommended by the advisory Guidelines.  Specifically, the district court ordered Ortiz to serve 5 years of his sentence concurrently with a previously imposed 15 year state sentence, and to serve the remaining 5 years consecutively to the state sentence.  On appeal, however, Ortiz did not challenge the substantive reasonableness of his very long sentence.  Rather, "his sole challenge on appeal is that the sentence was unreasonable insofar as it failed to account for the Guidelines' policy statements concerning the imposition of concurrent and consecutive sentences . . . ."  Yes, good grounds for appeal.  But why not also test the substantive reasonableness of the sentence itself? 

The Power Of Cooperation

United States v. Baum, No. 04-CR-508 (JBW), 2007 WL 3274894 (E.D.N.Y. Oct. 30, 2007)

Baum was convicted of very serious weapons and narcotics offenses, and had a long criminal history.  According to the district court, the minimum statutory sentence Baum could receive was 10 years for one offense and a consecutive term of 7 years for another offense, for a total of 17 years or 204 months.  But the court sentenced him to a mere one day of incarceration.

Wow.  Now, granted, Baum had already been incarcerated for 4 years.  But his cooperation was truly extraordinary.  He provided information concerning six murders, including those of his two brothers.  He freely admitted to the facts concerning one of his offenses of conviction, even though the Government had no prior knowledge or information concerning those activities.  And he was incarcerated for those 4 years in the same correctional facility as his brothers' killers, where he himself was under constant threat.

Defense attorneys likely will not often face such unique circumstances.  But Baum is important to the extent it can be relied on as a basis for a quite significant departure for quite significant cooperation.  In other words, defendants can have at least some hope that cooperation will result in a significantly reduced sentence, even if the Guidelines starting point is quite high.

Possession Of A Firearm By A Co-Conspirator Does Not Result In Safety Valve Disqualification

United States v. Herrera, No. 05-1454-CR., 2006 WL 1174141 (2d Cir. May 2, 2006)

The district court that sentenced Barraza (a co-defendant of Herrera) found that Barraza had been jointly responsible for drug stash houses where firearms were kept and exercised personal dominion and control over those weapons.  Thus, the district court found that Barraza's Guidelines offense level should be enhanced by two levels for gun possession pursuant to U.S.S.G. 2D1.1(b)(1).  The district court also found that Barazza did not quality for saftey-valve relief from a mandatory minimum sentence under 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2. 

On appeal, Barraza did not dispute the 2D1.1(b)(1) weapon enhancement that he received.  Rather, Barazza argued that the district court erred because it concluded that his receipt of the 2D1.1(b)(1) enhancement disqualified him from safety-valve eligibility.  The Second Circuit rejected Barazza's appeal but did not reject Barazza's argument.  Indeed, the Second Circuit acknowledged that "other circuits" -- specifically the Ninth and Tenth Circuits -- "have held that a defendant who receives a two-level increase under 2D1.1(b)(1) for possession of a dangerous weapon may nonetheless be eligible for safety-valve relief."  Those circumstances appear to be present when the possession of a dangerous weapon is attributed to a defendant because of the possession of that dangerous weapon by a co-conspirator -- circumstances that would result in a two-level increase pursuant to 2D1.1(b)(1) but that might not necessarily disqualify the defendant from safety-valve relief.  In Barazza's case, the district court did not err because it had, in fact, assumed that "in some circumstances -- such as where the increase under 2D1.1(b)(1) was based on possession of a weapon by a co-conspirator -- a defendant would not be disqualified from safety valve."