When the government must do more, but had its chance

United States v. Bourquin clarifies the government's burden when it seeks to apply a seldom-used guidelines provision. The court's instructions for remand are where defense attorneys may want to take a close look.

Bourquin called in a false tip to the FBI about a plot to attack a former federal prosecutor. He pleaded guilty to maliciously conveying false information concerning an attempt to kill, injure or intimidate the prosecutor by means of fire, under 18 U.S.C. § 844(e).

The PSR recommended a four-level increase under Guidelines § 2A6.1(b)(4)(B) because "the offense resulted in offense resulted in . . . a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense." Bourquin objected. The government attempted to justify the enhancement by noting the steps agencies took based on his false report, arguing that they amounted to more than a typical investigation and required a substantial expenditure of funds.

The court held that the government needed to show more. "Considering § 2A6.1(b)(4)(B)’s text and the government’s burden of proof together with cases analyzing the enhancement, we conclude that to demonstrate the applicability of subsection (B), the government must introduce a full accounting of expenditures or some accounting of expenditures coupled with facts allowing the court to reasonably assess the expenditure of funds required to respond to an offense and whether those funds are substantial."

Perhaps more important is what the court ordered for remand. The government requested a limited remand to provide additional evidence, but the court said no. The government was on notice of Bourquin's objection but failed to provide sufficient evidence, the court reasoned, so the district court should resentence Bourquin based on the existing record, without the four-level enhancement.

This is a useful decision to cite when challenging the evidence supporting an enhancement, to try to limit what the government can do on remand lest the victory on appeal become a loss in the district court.

Pulling back on Havis?

In United States v. Havis, the en banc Sixth Circuit put a stop to expanding the sentencing guidelines through application notes. The court held that Guidelines § 4B1.2's definition of "controlled substance offense" [1] did not include attempt crimes, and the Sentencing Commission couldn't add attempts to the definition through its application notes. The court thus concluded that a Tennessee delivery conviction did not qualify as a controlled substance offense because, under Tennessee law, "'delivery' of drugs means 'the actual, constructive, or attempted transfer from one person to another of a controlled substance.'" Id. (quoting Tenn. Code Ann. § 39-17-402(6)) (emphasis in Havis). No judge dissented.

So everyone is on the same page? Not so fast. The court denied the government's motion for reconsideration, but Judge Sutton filed a concurrence. He pointed out that § 4B1.2's definition included distribution offenses, and although the guidelines don't define "distribution," Congress defined "distribute" as "to deliver," and "deliver" as "the actual, constructive, or attempted transfer" of drugs. 21 U.S.C. § 802.

So, by including distribution (and thus attempted transfers) in its definition of "controlled substance offense," does § 4B1.2 include attempts? Was the court's decision in Havis wrong? No, according to Judge Sutton, with a caveat. In his view, "attempted transfer" carries its ordinary meaning, not the legal-term-of-art meaning of intent plus a substantial step. Havis rightly concluded that the sentencing commission couldn't add legal-term-of-art attempts to § 4B1.2's definition. But § 4B1.2 does include completed crimes of attempted transfers, according to his concurrence.

But wait--wasn't that same "attempted transfer" language the basis for Havis's argument that his Tennessee conviction wasn't a controlled substance offense? Yes, says Judge Sutton, but the government never argued that Havis's Tennessee conviction wasn't an attempt offense. "It is too late to make it now. As for future cases, the parties may wish to consider the point."

That brings us to United States v. Garth. Garth argued that, after Havis, his Tennessee possession-with-intent-to-distribute conviction wasn't a controlled substance offense under the guidelines. Why? Because Tennessee's definition of "distribute" included "attempted transfers," and so his prior offense included possession-with-intent-to-attempt-to-transfer. That, Garth argued, was an attempt crime that fell outside of § 4B1.2's definition.

Judge McKeague's majority opinion and Judge Cole's concurrence agree that Garth's Tennessee conviction counts as a controlled substance offense, and agree on two reasons why. First, possession-with-intent-to-distribute is a completed offense, not an attempt--Garth wasn't convicted of attempted possession. Second, Garth hadn't shown a reasonable probability that Tennessee authorities would prosecute him for possessing drugs with intent to attempt to distribute them (but not with the intent to actually distribute them).

Echoing Judge Sutton's Havis concurrence, though, Judge McKeague's opinion went a step further. It said that, in Havis, the court merely accepted "the parties' agreement" that that Tennessee delivery covers attempted delivery because delivery means attempted transfer. The court would not "extend that agreement," and so Garth's Tennessee conviction was simply possession-with-intent-to-distribute, identical to § 4B1.2's definition. Judge Cole's concurrence noted that this part of the court's opinion was "unnecessary to our decision today," so he "would leave for another day the issue of whether Tennessee delivery includes attempted delivery."

What does this mean for Tennessee delivery convictions going forward? Havis concluded that a Tennessee delivery conviction was not a controlled substance offense, but Garth tells us that at least some of the judges don't consider that settled.

[1] "The term 'controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S. Sentencing Guidelines Manual § 4B1.2(b).

Plain Error and Rehaif

After the U.S. Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), when the government prosecutes a person on a felon-in-possession charge under 18 U.S.C. § 922(g)(1), it must prove that the person knew s/he previously had been convicted of a felony. But Rehaif hasn't been much help to most defendants previously convicted under section 922(g)(1). Add Gregory Raymore to that list.

A grand jury indicted Raymore, and a jury convicted him, before the Supreme Court decided Rehaif. The indictment didn't allege that he knew he previously had been convicted of a felony, and the jury instructions didn't ask the jury to decide that.

On appeal, Raymore challenged the indictment's sufficiency and the jury instructions in light of Rehaif. He hadn't objected below, though, so the Sixth Circuit reviewed the issues only for plain error.

In an opinion by Judge Nalbandian, with a concurrence from Judge Moore, the court affirmed Raymore's conviction. Given Rehaif, the court concluded that there was error, and the error was plain. But the error didn't affect Raymore's substantial rights, because he couldn't show a reasonable probability that the outcome would have been different. The court focused on two points. First, Raymore stipulated to to his prior felony convictions, which the court said was "strongly suggestive" that he knew he was a felon. Second, Raymore twice before had been convicted on felon-in-possession charges. Those convictions made it "near-impossible for him to contest knowledge of his status as a felon in this case."

Judge Moore disagreed that Raymore's stipulation suggested that he knew he was a felony at the time of the offense--after all, the stipulation said only that he had a previous felony conviction, not that he knew about it. But she agreed that Raymore's previous felon-in-possession convictions "almost certainly would establish that Raymore knew, at the time of his arrest in this case, that he was a convicted felon."

"Double-Counting" under USSG 2K2.1; United States v. Fugate

A defendant who admitted that he sold firearms, some of which he knew were stolen, to drug traffickers and gang members was subjected to dual four-level enhancements under U.S.S.G. § 2K2.1(b): one under 2K2.1(b)(5) for trafficking in firearms, and the other under § 2K2.1(b)(6)(B) for possessing or trafficking firearms. Addressing an issue of first impression, the Sixth Circuit has ruled in United States v. Fugate that these twin enhancements constituted impermissible “double-counting” and vacated the defendant’s sentence.

The defendant was indicted for violations of both 18 U.S.C. §§ 922(g) (felon in possession of firearms) and 922(j) (knowingly trafficking in stolen firearms). He knew his business, his customers and his trade: he trafficked in guns in exchange for money. He pleaded guilty only to the 922(g) charge.

The defendant’ s guidelines were calculated in the presentence report as follows:

• 14 – base offense level per 2K2.1(a)(6) because he was already a convicted felon and prohibited from possessing a firearm
  
• +6 - per 2K2.1(b)(1)(C) because the defendant trafficked in more than 25 but less than 99 firearms
  
• +2 – per 2K2.1(b)(4)(A) because some of the firearms were stolen and he knew it 
• +4 – per 2K2.1(b)(5) - because the defendant engaged in the trafficking of firearms
  
• +4 – per 2K2.1(b)(6)(B) because he trafficked in firearms in connection with another felony offense. This enhancement could be applied if there is knowledge that the guns would be used in connection with a felony offense by their purchaser but there was no evidence to support that.

The Sixth Circuit found that its holding was driven by Application note 13 (D) to the section, which directs courts to apply the 2K2.1(b)(6)(B) enhancement only if it is based on a felony offense other than a firearms possession or firearms trafficking offense. Otherwise, the defendant would be twice punished for trafficking in firearms “once simply for engaging the trafficking of firearms under 2K2.1(b)(5), and once for knowingly trafficking stolen firearms under 2K2.1(b)(6)(B). In the run of cases, the Court observed, the (b)(6)(B) enhancement is applied when the defendant used the firearms in connection with a completely distinct crime, like drug trafficking. The Court acknowledged where there was evidence that the defendant had traded firearms in exchange for drugs that both the enhancements would apply. But Fugate was a pure businessman, and there was no evidence that he wanted or sought or obtained anything other than money for the guns that he sold.

U.S.S.G. § 2K2.1 has other flaws that produce incongruous results. One is where it leads to a higher offense level for a person that merely facilitates possession of firearms by a prohibited person than it does where a person transfers firearms to an individual believed to intend on using that firearm to commit a crime. Here’s how that would unfold for a defendant that had no prior felony conviction and could lawfully purchase a firearm and transfer it to a prohibited person in a strawman transaction:

 

• The base offense level would be 14 instead of 12 under 2K2.1(a)(6)(C)
  
• A four (4) level enhancement would apply under U.S.S.G.§ 2K2.1(b)(5) for trafficking in firearms if two or more firearms are involved and two or more firearms are involved and the transferor had reason to believe or knew that the transferee was prohibited from possessing a firearm on account of a prior conviction.
  
• As the court noted in Fugate, a four level enhancement could then be applied based on § 2K2.1(b)(6)(B), if the transfer was for the purpose of obtaining drugs. 
• This scenario would lead to an adjusted offense level of 22.

A lower offense level is applicable if that same defendant would know that the guns he was trafficking in were intended to be used to commit a crime. Here’s how that would unfold: (1) the base offense instead of 14 would be 12 under 2K2.1(a)(7); and, (2) if the same four level enhancements under 2K2.1(b)(5) and 2K2.1(b)(6)(B) were applied, the adjusted offense level reaches only to 20.

This is incongruous because federal law generally punishes firearm possessory offenses less than it does for firearm use crimes, a comparison that the maximum sentence for 922(g) offense of ten years and the minimum five year sentence attaching to a 924(c) offense illustrates well. One reason for this incongruous result is that the first scenario both increases the base offense level from 12 to 14 based on the defendant’s knowledge that he was making the purchase for a prohibited person and to support the four-level enhancement under (b)(5), which is premised also on that knowledge. It also appears to run afoul of the analysis in United States v. Farrow, 198 F.3d 179 (6^th Cir. 1999), establishing the rule that where a fact that is not an element of the crime is used to both increase a defendant’s base offense level and to support application of an enhancement impermissible “double-counting” occurs.  

Robert L. Abell

District Court may consider Apprendi’s impact when deciding a First Step Act case

          In 1997, Robert Ware was convicted by a jury of conspiring to distribute and possess with intent to distribute cocaine (21 U.S.C. §846); conspiring to distribute and possess with intent to distribute cocaine base (crack) (21 U.S.C. §846); and distributing and possessing with intent to distribute cocaine (21 U.S.C. §841(a)(1). There were no specific findings regarding the drug quantities involved in those offenses. United States v. Ware,

          According to the PSR, Mr. Ware’s guidelines range was 360 months to life. His statutory sentencing range on the powder cocaine convictions was 10 years to life (21 U.S.C. §841(b)(1)(A)(ii)) and on the crack conviction it was 0 to 20 years (21 U.S.C. §841(b)(1)(C)). He was sentenced to 360 months imprisonment and 5 years of supervised release. The district court did not specify the sentence for each count, instead it imposed a general sentence for all three offenses. The court also did not indicate the specific statutory provisions of §841(b)(1) under which Mr. Ware was sentenced.

          In 2019, Mr. Ware sought a First Step Act sentence reduction. The district court found that he was eligible for a sentence reduction but it was concerned about sentencing disparities. The court noted that the minimum guideline sentence would have been 360 months even without the crack offense and that First Step Act relief was not available to other offenders who had a similar amount of powder cocaine but did not have an additional crack charge. The court denied Mr. Ware any relief.

          Mr. Ware appealed the ruling and argued that since a jury did not find that his offenses involved specific drug amounts, he could be lawfully sentenced under present law only under 21 U.S.C. §841(b)(1)(C), which imposed a statutory cap of 20 years on each count which was 10 years less than his current sentence. Mr. Ware contended that the higher sentencing ranges in §§841(b)(1)(A) and (B) could not be applied to him under Apprendi v. New Jersey, 530 U.S. 466 (2000) and recent statutory interpretation of those provisions.

          The Sixth Circuit found that Mr. Ware’s statutory construction argument was foreclosed by Circuit precedent but it considered his argument “as an alleged Apprendi error.” Slip. Op. at 7. Although Apprendi does not apply retroactively to cases on collateral review, “the ‘retroactivity’ of a new constitutional rule concerns whether the rule provides an independent basis on which to grant relief to a defendant.” Slip. Op. at 8 (citation omitted). The Sixth Circuit explained that since “the source of a ‘new rule’ is the Constitution itself, the underlying right necessarily pre-exists the Supreme Court’s articulation of the new rule.” Id. (citation and internal quotation marks omitted). This means that Mr. Ware’s “Sixth Amendment rights were violated when judge-found facts were used to raise his statutory maximum sentence, even though this occurred before Apprendi was decided.” Slip. Op. at 8.

          The Sixth Circuit held that a district court, when deciding whether to grant First Step Act relief to an offender who was sentenced before Apprendi, may consider the impact that case would have had on his statutory sentencing range. Id. The district court’s consideration of Apprendi here was not an abuse of discretion. The court considered the fact that under Apprendi Mr. Ware’s “statutory maximum would have been lower because specified drug amounts were not found by the jury or charged in the indictment.” Slip. Op. at 9. That factor, however, “did not weigh heavily in favor of granting relief, due in large part to concern regarding disparities with other similarly situated defendants.” Id. Thus, denial of First Step Act relief was not an abuse of discretion.