Tuesday, September 23, 2014

The Guidelines mean what they say and say what they mean (and, how to preserve your issue)

Yesterday, in United States v. Snelling, No. 12-4288, the Sixth Circuit affirmed USSG § 2B1.1(B)(1) and its commentary actually mean what is written.

The case concerned a Ponzi scheme that took in almost $9 million, but also paid out about $3.5 million. The district court set the loss for guidelines purposes at over $7 million, which raised Mr. Snelling's offense level by 20 points. It and the government reasoned the $3.5 million in returned funds were part of keeping the Ponzi scheme going and so the defendant should not benefit. Mr. Snelling argued the loss should be under $7 million, taking into consideration the funds returned, which would raise his guidelines 19 points. The district court calculated his guideline range as 121 to 151 months. Mr. Snelling's calculation put him at 97 to 121 months.

The Sixth Circuit agreed with Mr. Snelling. It noted Application Note 3(E) to § 2B1.1 stated loss shall be reduced by money returned prior to discovery of the crime. It further noted Application Note 3(F)(iv)"specifically states that "when calculating the loss figure in a Ponzi scheme, the 'loss shall not be reduced by the money or the value of the property transferred to any individual investor in the scheme in excess of that investor's principal investment.'" For example, if an investor put in $100 and received $80 back in "dividend payments" (or what have you), the $100 loss would be reduced by the $80 returned. However, if the investor put in $100 and received $130 back, the loss would only be reduced by $100.

This case is also interesting because it details how Mr. Snelling preserved the issue for appeal. The disagreement is noted in the plea agreement. The Presentence Report noted the disagreement. Mr. Snelling filed an objection to the PSR's guidelines calculation. At sentencing, Mr. Snelling further argued his objection.

Tuesday, September 09, 2014

Warning: Santobello works both ways

Coming soon to a Government's Brief on Appeal near you....

The Third Circuit just handed appellate AUSAs a nifty new tool to combat pesky defendants.  In a nutshell, United States v. Erwin, 3rd Cir. Case No. 13-3407 (Aug. 26, 2014), says that if a defendant signs a Rule 11 plea agreement in which he agrees not to appeal, but then appeals anyway (at least without a decent reason for doing so), he has breached the agreement and relieved the government of its own obligations, including its agreement to give the defendant consideration for cooperating.  The penalty for the breach may not just be a dismissal of the appeal; it could be a remand for a harsher sentence.

From Julie McGrain at our sister blog in the Third Circuit:

Defendant Erwin plead guilty, pursuant to a cooperating plea agreement, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. His plea agreement included a waiver of right to appeal his sentence if it was within or below the advisory Guidelines range resulting from a total offense level 39. In exchange for Erwin's plea, the government agreed not to bring further criminal charges against Erwin in connection with the criminal conspiracy, and it also agreed to seek a downward departure under U.S.S.G. §5K1.1.
At sentencing, the district court agreed with the parties and the PSR that Erwin's total offense level was 39. With an offense level 39 and Criminal History Category I, Erwin's initial Guidelines range was 262 to 327 months. This range was, however, capped at 240 months due to the statutory maximum for the offense of conviction. The government moved for a five-level downward departure under §5K1.1, requesting that the court depart from offense level 39 to offense level 34, as opposed to departing from the statutory maximum of 240 months, and sentence Erwin within the resulting range (151 to 188 months). Erwin did not object. The court granted the government's motion and sentenced Erwin to 188 months imprisonment.
Erwin appealed, arguing that the district court's use of offense level 39 as its starting point for the downward departure was error because, when combined with criminal history category I, offense level 39 yielded an advisory Guidelines range above the statutory maximum. The government did not cross-appeal, but argued in response to Erwin's appeal that Erwin's sentence should be vacated and remanded for de novo resentencing where, in light of Erwin's breach of the appellate waiver, the government would seek a "modest" increase in Erwin's sentence.
The Third Circuit began by considering the nature and scope of Erwin's appellate waiver. It concluded that Erwin's appeal was within the scope of the waiver, the waiver was knowingly and voluntarily executed, and Erwin failed to raise any meritorious grounds for circumventing the waiver. The Court noted that its ordinary procedure in such a situation would be to enforce the waiver by dismissing the defendant's appeal, thereby affirming the defendant's sentence. Here, however, the government asked the Court to vacate Erwin's sentence so that it could pursue the remedies specified in the breach provision of the plea agreement, i.e., bring additional criminal charges or withdraw its §5K1.1. motion. The Court found that Erwin's decision to appeal despite waiving that right in his plea agreement resulted in a clear breach of the terms of the agreement. The Court further concluded that the appropriate remedy for Erwin's post-sentencing breach of the plea agreement was specific performance, i.e., de novo resentencing with the government relieved of its obligation to seek a downward departure.
In rendering its opinion, the Third Circuit also decided two procedural questions of first impression. First, the Court concluded that cross-appeal rule did not apply and consequently did not bar the government from seeking de novo resentencing. Second, the Court named its source of authority to grant a de novo resentencing in this case as 28 U.S.C. § 2106, which permits the Court to modify, vacate, set aside, or reverse any judgment lawfully brought before it for review and remand the cause for further proceedings.

For Scott Greenfield's colorful (and critical -- of everyone involved) commentary, see here.