Wednesday, August 23, 2006

Cross-Referencing to Achieve a Higher Sentence

By: Julie Vandegrift, Paralegal for Federal Defender Services of Eastern Tennessee, Inc., Chattanooga

U.S.S.G. § 2K2.1, the guideline for being a felon in possession of a firearm, contains a section which allows for cross-referencing "if the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense" or with the knowledge that it would be so used. U.S.S.G. § 2K2.1(c). If the case fits that criteria, § 2X1.1 is used instead of § 2K2.1, if the resulting offense level is greater. The sentence calculation then crosses to the guideline for that other offense. As an example, if a felon possessed a firearm or ammunition during a murder, the murder guideline is used instead of the felon in possession guideline if it will result in a higher sentence. Based on this, a defendant convicted of being a felon in possession of a firearm or ammunition can serve a sentence for murder without ever being charged or convicted for the murder. No jury, no plea, no beyond a reasonable doubt.

More and more, defendants guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), are finding themselves receiving a sentence under the guideline for some other crime. That statement begs the question, how could this be happening? The answer is simply, through the federal Sentencing Guidelines, despite Supreme Court holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

In Booker, the Supreme Court extended its holding in Blakely to the federal Sentencing Guidelines, reaffirming the holding in Apprendi that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Booker, 125 S. Ct. at 756. The Booker requirement seemingly conflicts with earlier decisions that approve of cross-referencing to sentences for a crime different from that charged, and based solely on facts found under the preponderance of the evidence standard.

Under the Fifth Amendment of the United States Constitution, "[n]o person shall be held to answer for a capital, or otherwise infamous crime . . . without due process of law." In an insightful concurrence years before Apprendi, Blakely or Booker, Senior Circuit Judge Heaney wrote on this very issue in a felon in possession case, stating "[t]his case is but another in a growing list of cases in which the government charges an offender as a felon in possession with the knowledge that if the offender is convicted or pleads guilty to that charge, the sentencing will turn on some state law offense that the government will attempt to prove through hearsay at the sentencing hearing." United States v. Fleming, 8 F.3d 1264, 1267 (8th Cir. 1993). Judge Heaney further stated, "I remain firmly convinced that the use of so-called relevant conduct in this context violates Fleming’s right to due process of law." See also United States v. Wilson, 992 F.2d 156, 159 (8th Cir. 1993). "This sentencing regime turns federalism on its head, but more importantly, it violates the offender’s right to due process." Fleming at 1267. The state law conduct should be charged in state court where the defendant "would have the right to a jury trial, to confront witnesses, and to have the necessary findings made beyond a reasonable doubt." Fleming at 1267, quoting Wilson at 159. Apparently, many circuit courts do not feel the same as the cross-referencing to § 2X1.1 is being affirmed across the country.

The Sixth Amendment of the United States Constitution states an accused has the right to an impartial jury "and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor." Interestingly, the Sixth Circuit Court of Appeals has concluded in one case that application of a cross-reference based on judicially-determined facts violates the Sixth Amendment. In United States v. Smith, 404 F.3d 1019 (6th Cir. 2005), based upon an attempted robbery, the defendant was charged and tried for being a felon in possession of a firearm. Smith at 1021. The jury was instructed on more than one occasion that the only issue there was the defendant’s guilt on the felon in possession of a firearm charge. Id. The defendant was found guilty under 18 U.S.C. § 922(g). Id. In the Presentence Report, the probation officer in Smith determined that the defendant used the firearm in connection with an attempted robbery and applied the cross-reference to U.S.S.G. § 2X1.1, which in turn led to the robbery guideline. Smith at 1022. Instead of being placed at a base offense level of 14, with a criminal history score of VI (37-46 months) for the felon in possession charge, the defendant was placed at a base offense level of 25 under the attempted robbery guideline (110 to 137 months). However, the defendant in Smith never admitted to the robbery. Smith at 1023. The Sixth Circuit Court of Appeals held that Smith’s Sixth Amendment rights were violated because the court relied on judicially-determined facts to impose a sentence that could not have been imposed based solely on facts found by the jury beyond a reasonable doubt. Smith at 1023, citing United States v. McDaniel, 398 F.3d 540, 548 (6th Cir. 2005).

Unfortunately, this holding is the exception in the Sixth, not the norm. Recently, in an unpublished decision United States v. Tracy Hughley, No. 05-5602 (6th Cir. Aug. 7, 2006) (unpublished decision), the Sixth Circuit upheld the statutory maximum sentence of 10 years for a defendant who pled guilty to being a convicted felon in possession of a firearm. Though convicted of being a convicted felon in possession of a firearm with an applicable guideline range of 77 to 96 months, the district court had used the cross-reference to apply the base offense level of 29 for the drug trafficking offense which had been dismissed by the government, resulting in a guideline range that exceeded the 10-year statutory maximum. Essentially, the defendant was sentenced for an offense to which he did not plead guilty nor had been proven guilty beyond a reasonable doubt to a jury. On appeal, the Sixth Circuit ruled that post-Booker, judicial fact-finding by the district court was permissible, even if it amounts to a sentence being imposed for a different offense.

There is hope. A recent article posted by Professor Douglas Berman on his infamous site,,/ contained a quote from a dissent authored by Justice Ginsburg. In Washington v. Recuenco, 126 S.Ct. 2546 (2006), Justice Ginsburg wrote, "In sum, Recuenco, charged with one crime (assault with a deadly weapon), was convicted of another (assault with a firearm), sans charge, jury instructions, or jury verdict. That disposition, I would hold, is incompatible with the Fifth and Sixth Amendments." While not a cross-referencing case, the situation in Recuenco is analogous.

The article where I read the quote is, as described by Professor Berman, an "extraordinary" work by Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders. The article, The Continuing Struggle for Just, Effective and Constitutional Sentencing after United States v. Booker, is a very good read and can be downloaded here

As we continue to advocate for our clients, objections to cross-referencing in sentencing need to be made. Convicted felons who are guilty of possessing a firearm or ammunition that has traveled in interstate commerce should be sentenced for the crime for which they are found guilty, not crimes that "more likely than not" happened. If they are to be sentenced for a different crime, they should be charged accordingly and afforded their Constitutional rights.

Wednesday, August 16, 2006

Retreat Toward Mandatory Guidelines - Part II

The next round of post-Booker litigation didn’t have to wait long – a day, in fact. In United States v. Cage, No. 05-5241 (6th Cir. 8/15/06), a panel of the Court finds that a "district court does not err in viewing the Guidelines as a presumptively reasonable starting point and ‘considering the Sentencing Guidelines and the Guideline ranges before the court does anything else.’" Slip p. 6.

At issue was the sentencing of the less-than-sympathetic Ms. Cage [sorry, April and Ed] who, while awaiting sentencing on her $132,000 worth of credit card and access device fraud committed another $108,126 worth of additional fraud. In imposing a sentence of 37 months the district court stated, "Under Booker, there is a presumption in favor of the Guidelines because the Guidelines express the public policy and the intention of Congress as to the court’s authority of these matters and the considerations that the court should address. And I think that . . . a sentence under the Guidelines would be a reasonable sentence." Slip p. 3. This appeal followed.

In responding to appellant’s argument that the district court erred by referring to the appellate standard of reasonableness in setting the sentence, the majority holds that her claim is foreclosed by the Court’s decision in United States v. Williams, 436 F.3d 706 (6th Cir. 2006), in which the presumption of reasonableness was first announced. The majority then spends a fair amount of ink defending the presumption before finding that the district court did not err in citing the reasonableness standard as appropriate for sentencing court consideration. As a final kick, the majority notes, "Cage has failed to identify a single factor that might support her claim that her sentence of 37 months in prison is unreasonable under the circumstances." Slip p. 7.

The dissent comes out gunning: "The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert [Booker] and to make the sentencing Guidelines de facto mandatory. . . . The majority’s holding in this case directly contravenes Booker, 18 U.S.C. § 3553(a), and this Court’s prior holdings that district courts are to consider all the § 3553(a) factors in arriving at a sentence sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)." Slip p. 8. (emphasis in original) The dissent, in footnote 2, directly challenges the binding effect of Williams given the refusal by the Court in Webb to adopt a per se reasonableness rule. The dissent would hold the sentence procedurally unreasonable due to the district court’s reliance on the appellate standard of reasonableness. "This method of calculating Defendant’s sentence violated Booker in that the district court mistakenly believed that it was required to start with a Guidelines sentence and could only depart upward or downward if some other § 3553(a) factor, or combination thereof, compelled a departure. That is not now, nor has it ever been, this Court’s understanding or treatment of the Guidelines post-Booker." Slip p. 11.

This most recent series of cases mirrors the struggle nationally as the Courts of Appeals try to determine what the Supreme Court’s decision in Booker means on a practical, day-to-day level. As highlighted in the Sixth Circuit’s latest series of cases, the fight is between those who think that federal criminal sentencing is business-as-usual with the Guidelines (and a nod and a wink to "advisory") and those who are taking Booker at its word that the Guidelines are just one factor among equals and are trying to fashion a sentencing approach that includes the Guidelines, but also focuses more on the defendant as an individual than the Guidelines ever did and gives more flexibility to the district court’s to craft an appropriate sentence. This leaves the federal criminal defense practitioner (or prosecutor) in a bind as the procedures and standards change from day to day. The only thing we know for sure is that Cage won’t be the last word in this struggle.

Monday, August 14, 2006

Sixth Circuit Retreats Further Toward Mandatory Guidelines

Today a panel of the Sixth Circuit has moved the Court further toward reinstating the old system of mandatory Guidelines in its first opinion reversing a sentence for being substantively unreasonable. United States v. Davis, No. 05-3784 (6th Cir. 8/14/06).

Davis had originally been sentenced to 33 months (the low end of the Guideline range), but on appeal his sentence was reversed due to an error in the version of the Guidelines that had been used and pursuant to Booker. On remand, in what the Court of Appeals describes as "a thorough application of the § 3553(a) factors by an experienced and well-regarded district court jurist," Davis was sentenced to 1 day of imprisonment, three years of supervised release (with one year of home detention) and 100 hours of public service. The factors that led the district court to this sentence were the fact that the criminal conduct had occurred 14 years before sentencing, the defendant was over 70 years old and retired, rehabilitation was not an issue, the lack of sentencing disparity due to the paucity of 70-year-old people brought before the court 14 years after the offense, that he was no danger to the public, and others.

After noting that, post-Booker, it is the duty of the Courts of Appeals to try to eliminate unwarranted disparities circuit-wide, the panel, writing through Judge Sutton, first adopts an appellate review standard that starts with the Guidelines sentence. Slip Op. at 5. (The logic to this is based on Judge Sutton’s concurrence in United States v. Buchanan, 449 F.3d 731 (6th Cir. 5/26/06), in which he argues that the Guidelines account for most, if not all, of the 3553(a) factors.) The majority then notes that a within-Guidelines sentence ("when the independent views of the sentencing judge and the Sentencing Commission align") is then accorded a presumption of reasonableness. Id. [It may be worth noting here that Judge Sutton was the author of United States v. Koch, 383 F.3d 435 (6th Cir. 2004), cert. granted, judgment vacated by Koch v. U.S., 125 S.Ct. 1944 (2005), supporting the constitutionality of the Guidelines by holding that Blakely did not require a finding that the Guidelines were unconstitutional and that is was unlikely that the U.S. Supreme Court would find the Guidelines unconstitutional in order to understand his continued support for the primacy of the Guidelines.]

The majority then adopts a new rule to be applied to any sentence outside the presumptively-reasonable Guidelines sentence: "when the district court independently chooses to deviate from the advisory guidelines range (whether above or below it), we apply a form of proportionality review: ‘the further the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’ must be." Id.

Having set the rules for review, the majority then posits, "Few would disagree that we have an extraordinary variance in this case – from a guidelines range of 30 to 37 months to one day, to what the government refers to as a 99.89% variance – so the question is whether extraordinary circumstances justify the full amount of the variance." Id. The majority found that it did not and reversed the sentence. [Whether a sentence of 12 months of home detention versus 30 months imprisonment is extraordinary may be a more open question than the majority here believes.]

Most notable in this opinion are the two new standards for review detailed above for hewing so closely to pre-Booker Guidelines standards. It is surely no accident that the majority talks in terms of "the further the [district] judge’s sentence departs from the guidelines." (emphasis added) The whole tenor of the majority’s approach here is as if it is dealing with a Guidelines departure. This is nowhere more apparent than the Court’s insistence that the variance be justified by "extraordinary circumstances." See, e.g., Introductory Commentary, Part H, Sentencing Guidelines Manual ("Furthermore, although these circumstances are not ordinarily relevant to the determination of whether a sentence should be outside the applicable sentencing range, they may be relevant to this determination in exceptional cases. They may also be relevant if a combination of such circumstances makes the case an exceptional one..."); §5K2.0(c) and Commentary thereto.

And what of the Court’s adoption of the government’s reference to the extent of the departure being 99.89%? It didn’t seem to matter to the Court when the district court in U.S. v. Scott Ferguson [see Randy Alden’s post, below] imposed a 100% higher sentence than the presumptively reasonable guidelines sentence. What will the break point be? 66%? 50%? 33%? Will there be a presumptively reasonable amount of variance?

This great march forward into the past seems to be at odds with other of this Circuit’s cases defining the scope of reasonableness review. In United States v. McBride, 434 F.3d 470 (6th Cir. 2006), for example, the court stated:
Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a) (footnote omitted). In Section 3553(a), there are numerous factors for a court to consider and under Booker's remedial holding, the sentencing guideline range is one of those factors. That is, while the guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant . .

Once the appropriate guideline range is calculated, the district court throws this ingredient into the Section 3553(a) mix. Considering, as Booker requires, all of the relevant Section 3553(a) factors, including the guideline range, the district court then imposes a sentence.

Instead of this approach, however, the majority in Davis suggests that, of all of the considerations in 3553(a), the Guidelines should be "first among equals." This presumption, when coupled with the new proportionality review noted above, would also seem to be contrary to the Court’s holding in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2000), that a sentence outside the Guidelines range is not presumptively unreasonable.

It is also worth noting that if Davis’ use of the presumption and its proportionality review prevail, we will find ourselves, as a practical matter, back at mandatory Guidelines. Mandatory guidelines, of course, could not support judicial fact-finding without running afoul of Booker. If the Court of Appeals has created a de facto mandatory guidelines system by presuming within-the-range sentences to be correct and establishing departure-like requirements for sentences outside the range, then defense attorneys in the Sixth Circuit should be objecting to any sentencing enhancements not found by a jury or admitted as a part of a plea.

In "vigorous" dissent, Judge Keith refers to the reversal of the sentence as "a complete miscarriage of justice." Slip p. 9. He also notes a disturbing pattern to post-Booker appellate review:

The current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range. This holding cannot be reconciled with Booker, which instructs the appellate courts to review a sentence for reasonableness regardless of where the sentence falls in relation to the advisory guidelines range.

Slip pp. 9-10.

Judge Keith details the many circumstances that support the sentence imposed by the district court. Addressing the majority’s approach to the review of sentences he states, "In engaging in this mechanical assessment, the majority starts this Court down the path of the pre-Booker days where the district courts were bound by an algebraic application of the guidelines." Slip p. 10.

Thus, Davis continues the Sixth Circuit’s tug-of-war between a new, post-Booker model of sentencing and review and a return to the business-as-usual Guidelines approach. Where from here? Stay tuned!

Wednesday, August 09, 2006

Reasonableness Review: The "Paradigm" and the "Peacekeeper"

Today a panel of the Sixth Circuit affirmed a 100% upward "variance" from an advisory Guideline range of 0 - 6 months to 12 months for (1) transporting in interstate commerce a motor vehicle that the defendant knew was stolen, in violation of 18 U.S.C. § 2312; and (2) selling a motor vehicle that the defendant knew was stolen and that had crossed state lines after the theft, in violation of 18 U.S.C. § 2313. United States v. Scott A. Ferguson, --F.3d--, No. 05-3998 (6th Cir. August 9, 2006)(opinion available here). While not an extraordinarilyly onerous sentence, this case is notable for the panel's use of what I call the "reasonableness review paradigm."

Mr. Ferguson was the Chief of Collections at the United States Air Force Museum located at Wright-Patterson AFB, Dayton, Ohio. Between 1994 and 1996, Mr. Ferguson acquired for the Museum, a Peacekeeper, (see picture above), from an Air Force Base in Plattsburg, New York, fraudulently removed it from the Museum's books, obtained a phony Ohio title, and proceeded to showed it at two Military Preservation Association shows. Mr. Ferguson then sold the Peacekeeper to an acquaintance for $18,000 in June of 1999. The acquaintance made some repairs and sold the Peacekeeper to the Eastern Band of Cherokee Indians for $38,000 in May of 2000.

The district court conducted a series of hearings and, after calculating the amount of loss caused by Ferguson's offenses, agreed to credit Ferguson with a two-level reduction for acceptance of responsibility. These calculations resulted in a total offense level of 8, which yielded a Guidelines range of 0-6 months.

The district court then "proceeded seriatim through most of the factors contained in 18 U.S.C. § 3553(a)." The judge weighed the factors and sentenced Ferguson to 12 months in prison and 3 years of supervised release, and ordered him to pay $29,000 in restitution. The district court stated that Ferguson had "taken advantage of his position at the museum to acquire a vehicle that 'while not on everyone's wish list, is a national treasure.'"

Ferguson made three arguments on appeal. First, he argued that the judge engaged in impermissible fact-finding. He then argued that the judge improperly sentenced him based in part on his socio-economic status. Finally, he argued that the sentence was unreasonable. The panel summarily rejected Ferguson's first two arguments.

Turning to the last argument, the panel spends a paragraph apparently adopting the term "variance" with respect to sentences that exceed the Guideline maximum. The court cites United States v. Barton, -- F.3d --, 2006 WL 2164260 (6th Cir. Aug. 3, 2006) and United States v. Matheny, 450 F.3d 633 (6th Cir. 2006). The panel also cites the Fourth Circuit Court of Appeals' opinion in United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006) which differentiated between "variances" from the Guidelines' range and traditional "departures" made pursuant to Guidelines' provisions.

The panel's opinion in Ferguson is mostly important for how it distinguishes between, and utilizes the concepts, of "substantive reasonableness" and "procedural reasonableness" -- the "reasonablness review paradigm." The panel essentially adopts the concepts that were fully explicated in Judge Sutton's concurrence in United States v. Buchanan, 449 F.3d 731, 735 - 741 (6th Cir. 2006).

Under this paradigm, the panel affirmed the 100% increase in Mr. Ferguson's sentence, stating:

The district court therefore did what it was obligated to do by both this court's caselaw and the governing statute -- it followed a congressional command and then "exercis[ed] independent judgment in sentencing [a] criminal defendant[] within statutory limits." See id.; Douglas A. Berman, Reasoning Through Reasonableness, 115 Yale L.J. Pocket Part 142 (2006), (reading Booker as requiring "district courts to exercise independent reasoned judgment when imposing a sentence"). Under these circumstances, we cannot say that the court's decision to impose a sentence six months above the advisory Guidelines range was unreasonable.
Whether this vehicle is indeed, a "national treasure," is questionable. What probably is not questionable is that the "reasonableness review paradigm" is alive, well, and should be carefully studied by the federal criminal practitioner to have a hope of defeating this type of upward "variance" in future cases.

UPDATE: Professor Berman, as always, has a thoughtful, (and perhaps slightly biased), critique of this opinion, (far better than mine, of course). His post is available here. Click and learn!