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2012 Sentencing Guideline Amendments

Federal Criminal Law Seminar September 21, 2012. 2012 Sentencing Guideline Amendments. Alan Dorhoffer Deputy Director, Office of Education and Sentencing Practice. U.S. Sentencing Commission Office of Education & Sentencing Practice. 9/14/2012. 1. Discussion Outline. Amendments

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2012 Sentencing Guideline Amendments

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  1. Federal Criminal Law Seminar September 21, 2012 2012 Sentencing Guideline Amendments Alan Dorhoffer Deputy Director, Office of Education and Sentencing Practice U.S. Sentencing Commission Office of Education & Sentencing Practice 9/14/2012 1

  2. Discussion Outline • Amendments • Supreme Court Cases • Sixth Circuit Case Law 2

  3. U.S.S.C. HelpLine 202-502-4545 Web Site www.ussc.gov 3

  4. Commission Sentencing Statistics 4 4

  5. Primary Offense Types National - FY 2011 SOURCE: U.S. Sentencing Commission, 2011 Datafile USSCFY11: 85,122 of 86,201 cases

  6. Primary Offense Types Southern District of Ohio - FY 2011 SOURCE: U.S. Sentencing Commission, 2011 Datafile OPAFY11: 743 of 744 cases

  7. Position of Sentences in Relation to Guideline Range National - FY 2011 BelowGuideline Range 43.7% OtherBelow17.4% WithinGuidelineRange54.5% Other Govt 15.1% §5K1.1 11.2% AboveGuidelineRange 1.8% SOURCE: U.S. Sentencing Commission, 2011 Datafile USSCFY11: 84,744 of 86,201 cases

  8. Position of Sentences in Relation to Guideline Range Southern District of Ohio - FY 2011 BelowGuideline Range 63.8% OtherBelow26.9% WithinGuidelineRange34.4% Other Govt 7.2% §5K1.1 29.7% AboveGuidelineRange 1.9% SOURCE: U.S. Sentencing Commission, 2011 Datafile OPAFY11: 741 of 744 cases

  9. Median Sentences For Selected Offenses Fiscal Year 2011 Cases missing information on position of sentence relative the guideline range were excluded from this analysis. SOURCE: U.S. Sentencing Commission, 2011 Datafile, OPAFY11

  10. Five Year Trends in Average Sentencefor Selected OffensesFiscal Years 2007-2011 Months Cases missing information on primary offense type or with missing or indeterminable sentencing information were excluded from this analysis. Sentences of probation only are included in this analysis as zero months of imprisonment. In addition, the information presented in this figure includes time of confinement as described in USSG §5C1.1. SOURCE: U.S. Sentencing Commission's Interactive Sourcebook (www2.usscsourcebook.org) Preliminary Tables using the Commission's fiscal year 2007-2011 Datafiles, USSCFY2007-USSCFY2011.

  11. Commission Update • Proposed 2012 amendments • Commission public hearings and Reports • Child pornography • Booker • Commission Report to the Congress • Mandatory Minimum Penalties, submitted Oct. 2011 11

  12. 2012 Proposed Amendments Passed by the Commission on April 13, 2012 for Submission to Congress by May 1, 2012 Will Become Effective November 1, 2012 Unless Rejected by Statute 12 12

  13. 2012 Proposed Amendments • Mortgage fraud • Securities fraud and insider training • 2-level reduction at §2D1.11 (Listed chemicals) • “Human Rights” guideline • Eliminates §5K2.19 (Post-sentencing rehabilitation) 13

  14. Proposed Amendments for November 1, 2012 Creates a rebuttable presumption that, if the property is not disposed of by the time of sentencing, the most recent tax assessment at the time of plea is the fair market value Mortgage Fraud – §2B1.1 14

  15. Proposed Amendments for November 1, 2012 (cont.) New rule for the determination of “loss” in offenses involving fraudulent inflation or deflation in the value of securities Provides a departure example of a fraud where the offense level overstates the seriousness of the offense: A fraudulent statement made publicly to the securities market that resulted in numerous victims and a substantial aggregate loss, but only a small amount of loss to each of the victims Securities Fraud – §2B1.1 15

  16. Proposed Amendments for November 1, 2012 (cont.) A “safety valve” SOC for a 2-level reduction added at §2D1.11 (Listed Chemicals) Chemical & Drug Offenses 16

  17. 2011 Amendments Highlights Effective November 1, 2011 17 17

  18. Supervised Release Lowers the minimum term of supervised release required by the guidelines for certain defendants when a statute does not require a higher minimum term: At least threetwo years but not more than five years for a defendant convicted of Class A or B felony At least twoone years but not more than three years for a defendant convicted of Class C or D felony §§5D1.1 & 5D1.2 18 18

  19. Supervised Release (cont.) New subsection at §5D1.1(c) provides that, unless required by statute, supervised release ordinarily should not be imposed if the defendant is a deportable alien who will likely be deported after imprisonment §§5D1.1 & 5D1.2 19 19

  20. Early Termination & Extension of Supervised Release §5D1.2, App. Note 5 The court may wish to consider early termination if the defendant is a drug or alcohol abuser who successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant 20 20

  21. Health Care Fraud If the defendant was convicted of a Federal health care offense involving a Government health care program; and Loss under the “loss table” at §2B1.1(b)(1) to the Government health care program was more than $ 1,000,000 +2 levels more than $ 7,000,000 +3 levels more than $20,000,000 +4 levels New §2B1.1(b)(8) 21 21

  22. Health Care Fraud (cont.) Provides definitions of “Federal health care offense” & “Government health care program” Adds new special rule in App. Note 3(F) for determining intended loss in a Federal health care fraud: “The aggregate dollar amount of fraudulent bills submitted to the Government health care program shall constitute prima facie evidence of the amount of the intended loss, if not rebutted.” §2B1.1 22 22

  23. Health Care Fraud (cont.) Amended to indicate that a mitigating role is not precluded for a defendant who is accountable under relevant conduct (§1B1.3) for a loss amount under §2B1.1 that greatly exceeds the defendant’s personal gain from a fraud offense and who had limited knowledge of the scope of the scheme §3B1.2 Mitigating Role, App. Note 3(A) 23 23

  24. Mitigating Role Deletes unnecessary language that may have discouraged the application of the adjustment App. Note 3(C): “[a]s with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion; that such a role adjustment is warranted.” App. Note 4: “[i]t is intended that the downward adjustment for minimal participant will be used infrequently.” §3B1.2 24 24

  25. Firearms Increases BOLs for “straw purchasers” convicted under 18 USC § 922(a)(6) or 924(a)(1)(A) who commit the offense with knowledge, intent, reason to believe that the offense would result in transfer of firearm or ammunition to a prohibited person Increased from 12 to 14 generally Increased from 12 to 20 if certain firearms involved Departure provision at App. Note 15 for certain “less culpable” straw purchasers §2K2.1 25 25

  26. Fair Sentencing Act:Guideline Amendment Re-promulgates as permanent the temporary, emergency amendment of November 1, 2010 The November 1, 2011 amendment is essentially identical to the emergency amendment except for additional guidance regarding “maintaining a premises” under §2D1.1(b)(12) §2D1.1, App. Note 28 26 26

  27. Guideline Amendment Retroactivity “Retroactivity” of a guideline amendment allows the sentencing court to consider a possible reduction of imprisonment for inmates meeting certain criteria set by statute and the guidelines See U.S. v. Jackson, 678 F.3d 442 (6th Cir. 2012) 27

  28. Application of FSA RetroactiveCrack Cocaine Amendment

  29. Supreme Court Case Involving The Fair Sentencing Act 29 29

  30. Fair Sentencing Act statutory penalties Dorsey v. United States 132 S. Ct. 2321 (2011) • The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. • U.S. v. Wright, 2012 WL 3871873 (6th Cir. 2012) • U.S. v. Allen, 2012 WL 3038171 (6th Cir. 2012) • U.S. v. Finley, 2012 WL 2505630 ( 6th Cir. 2012)

  31. Supreme Court Cases Involving Sentencing Issues 31 31

  32. Cert granted: Plain error Henderson v. U.S., 646 F.3d 223 (5th Cir. 2012), cert. granted, 2012 WL 894491 (U.S. 2012) Question Presented: “Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.” 32 32

  33. Post-Sentencing Rehabilitation and Remand • Upon remand a federal district judge can consider a defendant’s post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under § 3553(a) Pepper v. U.S. 131 S. Ct. 1229 (2011)

  34. Rehabilitation Tapia v. U.S.,131 S. Ct. 2382 (2011) • A district court may not impose or lengthen a term of imprisonment in order to promote the defendant’s rehabilitation • U.S. v. Jackson, 2012 WL 1449681 (6th Cir. 2012) • U.S. v. Tucker, 468 F. App’x 610 (6th Cir. 2012) • U.S. v. Sanders, 472 F. App’x 376 (6th Cir. 2012) • U.S. v. Tolbert, 668 F.3d 798 (6th Cir. 2012) • U.S. v. Walker, 649 F.3d 511 (6th Cir. 2011) • U.S. v. Censke, 449 F. App’x 456 (6th Cir. 2011) • U.S. v. Brooks, 431 F. App’x 460 (6th Cir. 2011)

  35. Consecutive Sentence Authority Setser v. U.S., 132 S. Ct. 1463 (2012) • A District Court has discretion under 18 U.S.C. § 3584(a) to order that a defendant’s sentence run consecutively to his anticipated, but not yet imposed, state sentence • See U.S. v. Quintero, 157 F.3d 1038 (6th Cir. 1998) (not allowed)

  36. “Violent Felony” and ACCA Sykes v. U.S.,131 S. Ct. 2267 (U.S. 2011) • Felony vehicle flight as proscribed by Indiana law is a “violent felony” within the meaning of the Armed Career Criminal Act

  37. “Violent Felony” and ACCA (cont.) Sykes v. U.S.,131 S. Ct. 2267 (U.S. 2011) • The crime of using a vehicle to knowingly or intentionally flee from a law enforcement officer is not a strict-liability, negligence, or reckless crime, and as a categorical matter is similar in risk to the crimes enumerated in the ACCA

  38. Recent Supreme Court Cases Involving “Violent Felony” (cont.) • Sykes v. U.S. 131 S. Ct. 2267 (2011) • Indiana felony vehicle flight which involved intentional fleeing is a violent felony • For crimes involving intentional conduct, the only relevant inquiry is whether the crime presents a serious potential risk of physical injury to another • Limits Begay’s additional requirement of “purposeful, violent, and aggressive conduct” to strict liability, negligent, or reckless crimes 38

  39. Derby v. U.S., 131 S. Ct. 2858 (2011)cert. denied dissent by Scalia regarding ACCA • “Certainly our most recent decision interpreting ACCA’s residual clause, Sykes v. United States, would be of no help. The “rule” we announced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a “beginning point,” look at the statistical record, which is not “dispositive” but sometimes confirms “commonsense conclusion[s],” and check whether the crime is “purposeful, violent, and aggressive,” unless of course the crime is among the unspecified “many cases” in which that test is “redundant with the inquiry into risk.”

  40. Derby v. U.S., 131 S. Ct. 2858 (2011)cert. denied dissent by Scalia regarding ACCA • If it is uncertain how this Court will apply Sykes and the rest of our ACCA cases going forward, it is even more uncertain how our lower-court colleagues will deal with them. Conceivably, they will simply throw the opinions into the air in frustration, and give free rein to their own feelings as to what offenses should be considered crimes of violence—which, to tell the truth, seems to be what we have done.

  41. Derby v. U.S., 131 S. Ct. 2858 (U.S. 2011)cert. denied dissent by Scalia regarding ACCA • Before throwing the opinions into the air, however, they should check whether littering—or littering in a purposeful, violent, and aggressive fashion—is a felony in their jurisdiction. If so, it may be a violent felony under ACCA; or perhaps not. • Since our ACCA cases are incomprehensible to judges, the statute obviously does not give “person[s] of ordinary intelligence fair notice” of its reach.” I would grant certiorari, declare ACCA's residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.

  42. Cert. Granted: ACCA and Modified Categorical Approach U.S. v. Descamps, 466 F. App’x 563 (9th Cir. 2012), cert. granted, 2012 WL 1031489 (U.S. 2012) • Question Presented: Whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the modified categorical approach

  43. 6th Circuit VF & COV Cases U.S. v. Amos, 2012 WL 3608600 (6th Cir. 2012) Court could use probable cause statement incorporated into a sentencing hearing U.S. v. Anderson, 2012 WL 4009702 (6th Cir. 2012)* OH aggravated assault is a VF under force OH felonious assault is a VF Jones v. U.S., 2012 WL 3089348 (6th Cir. 2012)* KY reckless homicide is not a VF Kirk v. U.S., 2012 WL 3064766 (6th Cir. 2012) OH aggravated vehicle assault is not a VF U.S v. Doyle, 678 F.3d 429 (6th Cir. 2012) TN Class E evading arrest is a VF 43 43

  44. 6th Circuit VF & COV Cases U.S. v. Johnson, 675 F.3d 1013 (6th Cir. 2012) MO assault is a VF under modified categorical U.S. v. Jones, 673 F.3d 497 (6th Cir. 2012) TN burglary statute (1982) was a VF TN intent to commit 1st degree murder was a VF TN intent to commit 2nd degree murder was a VF U.S. v. Sosa, 448 F. App’x 605 (6th Cir. 2012) IL burglary was a VF under modified approach U.S. v. Clark, 458 F. App’x 512 (6th Cir. 2012) KY wanton endangerment in 1st degree was a VF U.S. v. Fraker, 458 F. App’x 461 (6th Cir. 2011) TN robbery is a VF under modified approach 44 44

  45. 6th Circuit VF & COV Cases U.S. v. White, 455 F. App’x 647 (6th Cir. 2012) TN aggravated assault is a VF under modified U.S. v. Oaks, 665 F.3d 719 (6th Cir. 2012) TN escape from a “unsecured courtroom was not a VF U.S. v. LeMaster, 445 F. App’x 851 (6th Cir. 2012) OH 4th degree burglary is a VF under modified U.S. v. Meeks, 664 F.3d 1067 (6th Cir. 2012) KY 1st degree wanton endangerment is COV U.S. v. Rodriguez, 664 F.3d 1032 (6th Cir. 2011) OH 4th degree aggravated assault is a COV U.S. v. Gloss, 661 F.3d 317 (6th Cir. 2011) TN facilitation of aggravated robbery (robbery must occur) is a VF 45 45

  46. 6th Circuit VF & COV Cases U.S. v. Coleman, 655 F.3d 480 (6th Cir. 2011) OH 3rd degree burglary is a VF U.S. v. McMurray, 653 F.3d 367 (6th Cir. 2011) TN aggravate assault not a VF U.S. v. Briggs, 431 F. App’x 389 (6th Cir. 2011) KY manslaughter is a VF (wanton) U.S. v. Benton, 639 F.3d 723 (6th Cir. 2011) TN solicitation to commit aggravated assault is a VF under residual clause, not force clause U.S. v. Noah, 401 F. App’x. 54 (6th Cir. 2010) TN intentionally evading arrest in a car is a VF U.S. v. Gibbs, 626 F.3d 344 (6th Cir. 2010) MI 2nd degree home invasion is a COV MI “walk-away” escape not a COV 46 46

  47. 6th Circuit VF & COV Cases U.S. v. Vanhook, 640 F.3d 706 (6th Cir.2011) TN facilitation of burglary of building not a VF U.S. v. Mosley, 635 F.3d 859 (6th Cir. 2011) MI shooting pepper spray at person w/out justification is a COV U.S. v. Culbertson, 389 F. App’x 515 (6th Cir. 2010) MI manslaughter with a car is not a VF U.S v. Young, 580 F.3d 373(6th Cir. 2009) MI fleeing and eluding is a VF U.S. v. Wynn, 579 F.3d 567 (6th Cir. 2009) OH sexual battery is not categorically a COV U.S. v. Evans, 378 F. App’x 485 (6th Cir. 2010) TN statutory rape is not categorically a COV 47 47

  48. 6th Circuit VF & COV Cases (cont.) U.S. v. Ford, 560 F.3d 420 (6th Cir. 2009) KY walk-away escape is not a COV U.S. v. Baker, 559 F.3d 443 (6th Cir. 2009) TN reckless endangerment is not categorically a COV U.S. v. Oaks, 554 F.3d 1087 (6th Cir. 2009) TN escape remand to determine type of escape U.S. v. Hawkins, 554 F.3d 615 (6th Cir. 2009) Fed possession of sawed-off shotgun is a COV U.S. v. Alexander, 543 F.3d 819 (6th Cir. 2008) MI battery and assault is a COV U.S. v. Bartee, 529 F.3d 357 (6th Cir. 2008) MI attempted sexual conduct is not categorically COV 48 48

  49. Reasonableness Review 49 49

  50. Procedural Reasonableness and Substantive Reasonableness Sentences are first reviewed for procedural reasonableness, e.g., Correct guideline application Proper consideration of the § 3553(a) factors All non-frivolous arguments by the parties were addressed No clearly erroneous facts were relied upon The chosen sentence was adequately explained 50 50

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