December 12, 2017

Tenth Circuit: Within-Guidelines Sentence Presumably Reasonable Even if it Contains Serious Flaws

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wireman on February 28, 2017.

The issue in this case was whether the Defendant’s sentence was procedurally reasonable when the district court failed to address Defendant’s non-frivolous arguments for a downward variance from his within-Guidelines sentence.

Defendant pled guilty to five counts of distributing child pornography and one count of possessing child pornography. Defendant had also emailed a friend non-pornographic images of children that he personally knew and claimed at the time he had sexually abused. Defendant had prior sexual offenses that involved children, including being convicted of five different sexually based crimes involving minors, four of which included physical sexual conduct with a minor.

Section 2G2.2 of the United States Sentencing Guidelines (USSG), set Defendant’s base level offense for his crimes and applied several other Specific Offense Characteristics (SOCs) under § 2G2.2 to Defendant, which increased his offense level. These SOCs included increases because (i) the material involved prepubescent minors; (i) he distributed material involving the sexual exploitation of a minor; (iii) the material involved sadistic or violent depictions; (iv) he engaged in a pattern of activity involving sexual abuse or exploitation of a minor; and (v) because he used a computer to distribute the material. The corresponding USSG range for Defendant’s crimes and the added SOCs was 210-262 months’ imprisonment.

In his sentencing memorandum to the district court, Defendant argued that he was entitled to a downward variance from the USSG range because § 2G2.2 was inherently flawed. Defendant argued that the Sentencing Commission did not depend on empirical data when drafting § 2G2.2, that the range for his crimes was “harsher than necessary,” and that the SOCs in § 2G2.2 were utilized so often that they applied in nearly ever child-pornography case and therefore fail to distinguish between various offenders. The district court never specifically mentioned this memorandum at sentencing, but alluded to it.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. The district court addressed the personal nature of the non-pornographic images the Defendant emailed to his friend as well as Defendant’s prior criminal history. After handing down the sentence, the district court asked Defendant if they had “anything further,” to which Defendant’s counsel stated that they did not.

On appeal, Defendant claimed that his sentence was procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. Because Defendant did not contemporaneously object in the district court to the method by which the district court arrived at a sentence, including that the sentencing court failed to explain adequately the sentence imposed, the Tenth Circuit applied the plain error standard of review, rather than de novo review. The Tenth Circuit explained that it finds plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The Tenth Circuit first addressed the first prong of the plain error standard, whether the district court committed error. The Tenth Circuit first noted that a district court must explain its reasons for rejecting a defendant’s non-frivolous argument for a more lenient sentence. Further, the Tenth Circuit held that Defendant’s critiques of § 2G2.2 were non-frivolous. In fact, the Tenth Circuit addressed how many of its sister circuit courts, along with itself, have described arguments criticizing § 2G2.2 as “quite forceful.”

However, the Tenth Circuit stated the principle that whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments depends on whether the sentence imposed is within or outside of the USSG range. If the sentence is varied upwards of the USSG range, the district court must specifically address and reject the defendant’s arguments for a more lenient sentence. If it is within the USSG range, then the district court does not need to specifically address and reject each of the defendant’s arguments, so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the USSG sentence actually conforms in the circumstances to the statutory factors.

In the Tenth Circuit, a within-guideline range sentence by the district court is entitled to a rebuttable presumption of reasonableness on appeal. The Tenth Circuit stated that this was true even if the USSG at issue arguable contains serious flaws or lacks an empirical basis.

In this case, the Tenth Circuit held that the district court was at least aware of Defendant’s arguments because the district court explicitly referenced Defendant’s sentencing memorandum at the sentencing hearing. Because the district court’s ultimate sentence was within the USSG range, the Tenth Circuit held that the district court did not need to explicitly reject Defendant’s arguments. The district court needed only to indicate that it did not rest on the guidelines alone, which the district court did. The district court stated that it relied on the USSG as well as Defendant’s extensive criminal history and the personal nature of the emailed images in determining Defendant’s sentence. The Tenth Circuit held that this acted as a functional rejection of Defendant’s policy disagreement with § 2G2.2. Therefore, the Tenth Circuit held that the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence. Because the district court did not err, the Tenth Circuit did not address the three remaining prongs of the plain error review.

The Tenth Circuit affirmed the district court’s sentence of Defendant.

Tenth Circuit Judge McKay wrote a concurrence to this decision. Judge McKay expressed his view that precedence requires a district court rejecting a defendant’s non-frivolous arguments to provide at least a general statement of its reasons for rejecting such arguments. If the defendant’s arguments are that the USSG reflect an unsound judgment, Judge McKay states that the sentencing judge should go further to explain why he rejected those arguments. Here, the district court did not do as much.

Further, Judge McKay questioned the wisdom of applying the “reasonable” presumption to within-Guidelines sentences, regardless of a particular Guideline’s alleged lack of empirical support. The Sentencing Commission did not use an empirical approach when developing § 2G2.2, and therefore Judge McKay believes that the Tenth Circuit should not presume the sentence’s reasonableness. Regardless, he agrees that the Majority followed the rules of the Tenth Circuit in applying the “reasonable” presumption as it stands.

Judge McKay believed that the district court erred, but he concurred in judgment because the Defendant still could not satisfy the requirement that the error affected his substantial rights. There was nothing on the record to suggest that the district court would have imposed a different sentence even if he explicitly considered Defendant’s arguments.

Tenth Circuit: Sentencing Enhancement Properly Applied When Defendant Conceded to Crime of Violence

The Tenth Circuit Court of Appeals published its opinion in United States vSnyder on Tuesday, March 28, 2017.

Mr. Snyder pleaded guilty to possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) while on probation. The probation officer recommended a base offense level of 20 pursuant to United States Sentencing Guidelines (USSG) § 4B1.2(a)(2), because Mr. Snyder had a prior conviction of a crime of violence. Mr. Snyder sought a reduction to the base offense level pursuant to USSG § 2K2.1(b)(2). The district court held that Mr. Snyder’s prior conviction of voluntary manslaughter was a crime of violence and he was not entitled to a reduced sentence. Mr. Snyder appealed.

The Tenth Circuit ordered supplemental brief to determine whether the residual clause of USSG § 4B1.2(a)(2) provided a basis for Mr. Snyder’s sentencing enhancement if his prior conviction of voluntary manslaughter was a crime of violence. Mr. Snyder’s supplement brief conceded that his prior conviction was a crime of violence. Further, the Supreme Court reasoned in Beckles “the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence with the statutory range.”

The court concluded that the district court properly applied the sentencing enhancement and affirmed Mr. Snyder’s sentence.

Tenth Circuit: No Abuse of Discretion by Imposing Within-Guidelines Sentence after Variance Request

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wireman on February 28, 2017.

The issue in this case was whether the Defendant’s sentence was procedurally reasonable when the district court failed to address Defendant’s non-frivolous arguments for a downward variance from his within-United States Sentencing Guidelines sentence.

Defendant pled guilty to five counts of distributing child pornography and one count of possessing child pornography. Defendant had also emailed a friend non-pornographic images of children that he personally knew and claimed at the time he had sexually abused. Defendant had prior sexual offenses that involved children, including being convicted of five different sexually based crimes involving minors, four of which included physical sexual conduct with a minor.

Section 2G2.2 of the United States Sentencing Guidelines  set Defendant’s base level offense for his crimes and applied several other Specific Offense Characteristics under § 2G2.2 to Defendant, which increased his offense level. These SOCs included increases because (i) the material involved prepubescent minors; (i) he distributed material involving the sexual exploitation of a minor; (iii) the material involved sadistic or violent depictions; (iv) he engaged in a pattern of activity involving sexual abuse or exploitation of a minor; and (v) because he used a computer to distribute the material. The corresponding USSG range for Defendant’s crimes and the added SOCs was 210-262 months’ imprisonment.

In his sentencing memorandum to the district court, Defendant argued that he was entitled to a downward variance from the USSG range because § 2G2.2 was inherently flawed. Defendant argued that the Sentencing Commission did not depend on empirical data when drafting § 2G2.2, that the range for his crimes was “harsher than necessary,” and that the SOCs in § 2G2.2 were utilized so often that they applied in nearly every child-pornography case and therefore fail to distinguish between various offenders. The district court never specifically mentioned this memorandum at sentencing, but alluded to it.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. The district court addressed the personal nature of the non-pornographic images the Defendant emailed to his friend as well as Defendant’s prior criminal history. After handing down the sentence, the district court asked Defendant if they had “anything further,” to which Defendant’s counsel stated that they did not.

On appeal, Defendant claimed that his sentence was procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. Because Defendant did not contemporaneously object in the district court to the method by which the district court arrived at a sentence, including that the sentencing court failed to explain adequately the sentence imposed, the Tenth Circuit applied the plain error standard of review, rather than de novo review. The Tenth Circuit explained that it finds plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The Tenth Circuit first addressed the first prong of the plain error standard, whether the district court committed error.  The Tenth Circuit first noted that a district court must explain its reasons for rejecting a defendant’s non-frivolous argument for a more lenient sentence. Further, the Tenth Circuit held that Defendant’s critiques of § 2G2.2 were non-frivolous. In fact, the Tenth Circuit addressed how many of its sister circuit courts, along with itself, have described arguments criticizing § 2G2.2 as “quite forceful.”

However, the Tenth Circuit stated the principle that whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments depends on whether the sentence imposed is within or outside of the USSG range. If the sentence is varied upwards of the USSG range, the district court must specifically address and reject the defendant’s arguments for a more lenient sentence. If it is within the USSG range, then the district court does not need to specifically address and reject each of the defendant’s arguments, so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the USSG sentence actually conforms in the circumstances to the statutory factors.

In the Tenth Circuit, a within-guideline range sentence by the district court is entitled to a rebuttable presumption of reasonableness on appeal. The Tenth Circuit stated that this was true even if the USSG at issue arguable contains serious flaws or lacks an empirical basis.

In this case, the Tenth Circuit held that the district court was at least aware of Defendant’s arguments because the district court explicitly referenced Defendant’s sentencing memorandum at the sentencing hearing. Because the district court’s ultimate sentence was within the USSG range, the Tenth Circuit held that the district court did not need to explicitly reject Defendant’s arguments. The district court needed only to indicate that it did not rest on the guidelines alone, which the district court did. The district court stated that it relied on the USSG as well as Defendant’s extensive criminal history and the personal nature of the emailed images in determining Defendant’s sentence. The Tenth Circuit held that this acted as a functional rejection of Defendant’s policy disagreement with § 2G2.2. Therefore, the Tenth Circuit held that the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence. Because the district court did not err, the Tenth Circuit did not address the three remaining prongs of the plain error review.

The Tenth Circuit affirmed the district court’s sentence of Defendant.

Tenth Circuit Judge McKay wrote a concurrence to this decision. Judge McKay expressed his view that precedence requires a district court rejecting a defendant’s non-frivolous arguments to provide at least a general statement of its reasons for rejecting such arguments.  If the defendant’s arguments are that the USSG reflect an unsound judgment, Judge McKay states that the sentencing judge should go further to explain why he rejected those arguments. Here, the district court did not do as much.

Further, Judge McKay questioned the wisdom of applying the “reasonable” presumption to within-Guidelines sentences, regardless of a particular Guideline’s alleged lack of empirical support.  The Sentencing Commission did not use an empirical approach when developing § 2G2.2, and therefore Judge McKay believes that the Tenth Circuit should not presume the sentence’s reasonableness. Regardless, he agrees that the Majority followed the rules of the Tenth Circuit in applying the “reasonable” presumption as it stands.

Judge McKay believed that the district court erred, but he concurred in judgment because the Defendant still could not satisfy the requirement that the error affected his substantial rights. There was nothing on the record to suggest that the district court would have imposed a different sentence even if he explicitly considered Defendant’s arguments.

Tenth Circuit: Denial of Sentence Reduction Appropriate Where Not “Based On” Guidelines Range

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Tuesday, November 15, 2016.

Jeremy Gilmore was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine in 2009. Due to his two prior drug felonies, Gilmore received a mandatory life sentence. After the Tenth Circuit affirmed his conviction, Gilmore filed a motion to vacate under 28 U.S.C. § 2255, claiming his trial counsel was ineffective. The district court granted his motion, but instead of setting aside the conviction it ordered the parties to meet and confer regarding an appropriate remedy. The two parties informed the court at a later status conference that a 168 month sentence would be fair, based on the reduction in offense level Gilmore could have received if his counsel were effective. The parties reduced their agreement to writing, wherein Gilmore agreed to knowingly admit committing one count of conspiracy, for which he had already been sentenced, in exchange for the government’s agreement not to file additional charges against Gilmore. The agreement did not specifically reference any Guidelines range. The court accepted the agreement, agreed to be bound by it, and resentenced Gilmore to 168 months’ imprisonment.

Almost two years later, Gilmore filed a motion to reduce his sentence pursuant to Amendment 782, which reduced the Guidelines ranges for various offenses. Gilmore argued that his sentence mirrored the low end of a Guidelines range based on a total offense level of 32 and a criminal history level of IV, and was thus “based on” a Guidelines range. The district court dismissed Gilmore’s motion, finding it lacked jurisdiction to reduce his sentence since it was based on the agreement of the parties and not a particular Guidelines range. Gilmore appealed.

The Tenth Circuit addressed Gilmore’s argument that the district court erred in concluding it lacked authority to modify his sentence. The Tenth Circuit found Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011), compelling. Justice Sotomayor suggested that when a plea agreement is “based on” a Guidelines range that is subsequently amended, the defendant is entitled to use the amendment, but when the plea does not “use” or “employ” a particular Guidelines range, the amendment is inapplicable. The Tenth Circuit agreed with this reasoning, and found that because the sentencing agreement was not “based on” a specified Guidelines range, the amendment was inapplicable to Gilmore.

The district court was affirmed.

Tenth Circuit: District Court’s Application of Sentencing Enhancements Procedurally Reasonable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Craig on Tuesday, December 22, 2015.

Christopher Craig participated in a conspiracy from January 2006 until December 2012 in Kansas City, Missouri, the general purpose of which was the distribution and sale of marijuana and cocaine. In August 2012, Craig orchestrated the armed robbery of a rival drug-dealer by recruiting his two cousins, DaRyan Pryor and Arterrius Pryor, to actually commit the robbery, while Craig remained in the driver’s seat of the get-away vehicle. During the course of the robbery, DaRyan Pryor was fatally shot by the rival drug-dealer. In November 2013, a grand jury charged Defendant Christopher Craig with three separate counts as part of a twenty-seven-count indictment containing nine other co-defendants. The first count charged Defendant with conspiring to manufacture and distribute cocaine and marijuana, and maintaining a drug-involved premises. The other two counts charged Defendant with using a communication facility to commit this conspiracy. The indictment, however, did not list either DaRyan or Arterrius as co-conspirators, and Defendant was not charged with the murder of DaRyan Pryor.

After Defendant pleaded guilty to the three charges against him, the Presentence Investigation Report (“PSR”), relying on the United States Sentencing Guidelines Manual (“Sentencing Guidelines”), suggested the district court should take DaRyan’s death into account when determining Defendant’s sentence by applying a murder cross-reference under the Sentencing Guidelines. Second, the PSR recommended the district court impose a leadership enhancement under the Sentencing Guidelines because Defendant organized the armed robbery of the rival drug-dealer that resulted in DaRyan’s death. Third, stemming from Defendant’s refusal to provide a court ordered voice exemplar, for which Defendant was held in contempt of court, the PSR moved the district court to apply the obstruction of justice enhancement under the Sentencing Guidelines.

The district court ultimately applied the murder cross-reference, the leadership enhancement, and the obstruction of justice enhancement, resulting in Defendant’s total offense level to be calculated as a level 43, the maximum level allowed under the Sentencing Guidelines. Combined with Defendant’s category III criminal history, this corresponded to a sentence of life imprisonment for the conspiracy count and 48 months’ imprisonment for the communication facility counts. Defendant appealed the sentencing order, arguing the district court erred in applying the murder, leadership, and obstruction of justice enhancements, as well as arguing the sentence of life imprisonment is substantively unreasonable.

The Tenth Circuit Court of Appeals upheld the district court’s sentencing order and application of the murder cross-reference, leadership enhancement, and obstruction of justice enhancement. With respect to the murder cross-reference, the Tenth Circuit concluded the preponderance of the evidence suggested DaRyan’s death was in furtherance of the overarching drug-trafficking conspiracy. As such, DaRyan’s death resulting from the attempted robbery was “relevant conduct” under the Sentencing Guidelines, and therefore, the Tenth Circuit concluded the district court did not err in applying the murder cross-reference.

After concluding the attempted robbery was relevant conduct to Defendant’s underlying conspiracy conviction, the court began its analysis of the leadership enhancement by noting that the leadership role need only be over “one or more participants” of a “criminal activity” of “five or more participants.” The Tenth Circuit concluded the district court did not err in applying the leadership enhancement, for the evidence presented at the sentencing hearing supports its finding that Defendant led one of the participants (DaRyan) of a criminal activity (the underlying conspiracy) that involved five or more participants (at least nine other participants).

With respect to the enhancement for obstruction of justice, Defendant argued his plea of guilty eliminated any obstruction of justice that may have occurred. The Tenth Circuit rejected this argument, reasoning Defendant attempted to make prosecution against him more difficult in refusing to provide a voice exemplar the Government had a legal right to possess because he knew it could be used to identify his voice in incriminating situations, and his subsequent guilty plea did not purge him of this refusal. Therefore, the Tenth Circuit held the district court did not error in applying the obstruction of justice enhancement.

Lastly, the Tenth Circuit held the district court did not abuse its discretion in imposing a sentence of life imprisonment on Defendant, as Defendant’s life sentence was not substantively unreasonable, considering the fact that Defendant organized an attempted robbery that resulted in the death of a man over whom he had a significant amount of control and influence.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Conviction for Robbery under California Penal Code Qualifies as Crime of Violence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Castillo on Tuesday, December 15, 2015.

Wilber Castillo was convicted in California in 2004 of second-degree robbery, and was removed from the United States in 2007. In 2009, he reentered the United States without inspection. In 2011, he was convicted of shoplifting and in 2014 he was convicted of disorderly conduct. He was interviewed by ICE after his 2014 arrest, and based on his admission, Castillo was charged with illegal reentry under 18 U.S.C. § 1326. The base offense level for illegal reentry is 8 but because of his 2004 conviction for robbery, which is classified as a crime of violence, his total offense level was 24, resulting in a Guidelines range of 46-57 months’ imprisonment. Castillo objected to the application of the crime of violence enhancer. The district court ruled Castillo’s prior conviction was a crime of violence and the offense level was correct, but nevertheless varied downward and sentenced Castillo to 24 months’ imprisonment. Castillo appealed.

The Tenth Circuit examined California Penal Code § 211 to determine whether a conviction under that section qualifies as a crime of violence for purposes of Guidelines § 2L1.2. Castillo argued that because § 211 considers threats to property as crimes of violence, it does not substantially correspond with the generic definition of robbery. The government conceded that including threats to property is a minority position, but argued that the crimes covered by § 211 outside the generic definition of robbery fell within the generic definition of extortion, which is also considered a crime of violence. The Tenth Circuit agreed.  Following the Ninth Circuit’s reasoning in another case that evaluated whether a conviction under § 211 qualified as a crime of violence, the Tenth Circuit found that because the elements of § 211 that do not correspond to the generic definition of robbery are encompassed in the generic definition of extortion, and both crimes are considered crimes of violence, the sentencing enhancer applied.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Sentence Upheld Because of District Court’s Detailed Findings About its Reasonableness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snowden on Friday, November 27, 2015.

Blake Snowden was a sales rep for Onyx, M.D., Inc. until his termination in August 2010. Onyx is a physician staffing agency that specializes in placing physicians in hospitals and clinics for short terms. Onyx uses a database program called Bullhorn, which it considers a competitive advantage. When Snowden was fired from Onyx, he decided to compete with Onyx in physician placement, and he obtained an Onyx executive’s password in March 2011 and used it to create his own Bullhorn account. Over the next few months, Snowden logged into Bullhorn dozens of times and copied gigabytes of data. He also intercepted emails of four Onyx executives. However, his efforts were unsuccessful; they neither benefited nor harmed Onyx’s business. When Onyx discovered the hack, the FBI traced it to a computer at Snowden’s address. Onyx’s only loss from the hack was about $25,ooo in legal fees and lost employee time related to the hack.

Snowden eventually pleaded guilty to unlawfully obtaining information from a protected computer and intercepting emails. The district court applied a 16-level enhancement based on its estimated loss of the cost of developing the database, $1.5 million, and calculated his Guidelines range as 41-51 months. However, the district court varied downward and sentenced him to 30 months. The court specifically found that it would apply a 30-month sentence no matter what, even if its Guidelines calculation was held to be incorrect on appeal.

The Tenth Circuit was skeptical about the district court’s assumption of $1.5 million in losses, although it understood the court’s reasoning. The Tenth Circuit found that had the district court limited its loss calculation to Onyx’s actual loss of approximately $25,000, the resulting Guidelines range would have been 8-14 months. However, it found any error harmless because of the district court’s detailed and unusual findings about what it considered to be a proper sentence for Snowden’s crime. The court specifically noted that it would vary upward to 30 months if the Guidelines range was too high and would vary downward to 30 months if the Guidelines range was too low. Because of these specific findings, the Tenth Circuit affirmed the district court’s sentence.

The Tenth Circuit affirmed the sentence but reversed and remanded for the correction of the restitution award to the parties’ undisputed proposed restitution amount.

Tenth Circuit: Taser is “Dangerous Weapon” Because it is Capable of Causing Serious Bodily Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Quiver on Tuesday, November 17, 2015.

Delray Quiver and another man were intoxicated and creating a disturbance at their grandmother’s house on an Indian reservation. The grandmother called the police and Officer Friday was dispatched to the scene. The grandmother told Officer Friday that she wanted the men arrested and removed, so he tried to take them outside. However, Quiver was uncooperative, impeding Officer Friday from escorting him by the arm. Quiver tried to walk away from Officer Friday toward the road. Officer Friday tripped Quiver and pushed him face-down in the snow, and removed the prong-mode cartridge from his taser so that it could only be used in drive-stun mode. Quiver punched Officer Friday in the face, breaking his glasses, and wrestled the taser from him. Quiver tased Officer Friday on the thigh, leaving two burn marks from the prongs. The two engaged in a fistfight, which Officer Friday eventually won, and Officer Friday regained control of his taser. After arresting Quiver, Officer Friday sought medical treatment for both himself and Quiver.

Quiver pleaded guilty to forcibly assaulting, resisting, and injuring Officer Friday while he performed official duties. The probation officer recommended a four-level enhancement for use of a dangerous weapon during the assault, which the court applied. Quiver’s resulting Guidelines range was 92 to 115 months’ imprisonment, but the court varied downward to a 70-month sentence based on its view of the danger of tasers as opposed to firearms. Quiver appealed the sentence enhancement.

The Tenth Circuit evaluated the four definitions of “dangerous weapon” contained in U.S.S.G. §§ 2A2.2(b)(2) and found that the first definition applied. The Tenth Circuit found no question that a taser qualifies as a dangerous weapon, even in drive-stun mode, because it is “capable of . . . inflicting serious bodily injury,” which includes injuries causing extreme pain. The Tenth Circuit pointed out that the two burn marks on Officer Friday’s thigh were evidence of the taser’s capability of causing serious bodily injury. The Tenth Circuit rejected Quiver’s argument that the dangerous weapon must actually cause serious bodily injury, noting that there is an additional enhancement for that situation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: District Court Erred by Evaluating Conduct in Choosing Applicable Sentencing Guideline

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kupfer on Wednesday, August 19, 2015.

Joseph Kupfer, along with his wife Elizabeth Kupfer, failed to report $790,000 in income for tax years 2004 to 2006 as part of a conspiracy to enable Dr. Armando Gutierrez to increase his compensation under a New Mexico state contract without doing additional work. The two were tried jointly on tax evasion charges and were found guilty. Additionally, Mr. Kupfer was tried on charges of stealing and conspiracy to steal government property in a joint trial with Dr. Gutierrez. He was found guilty on these charges as well and sentenced to 10 years in prison. Mr. Kupfer appealed the judgment and sentence on all counts.

The Tenth Circuit first addressed Mr. Kupfer’s argument that his tax evasion convictions should be overturned because his underreporting was not willful and the jury instructions failed to adequately advise that he could only be found guilty if the underreporting was willful. The Tenth Circuit disagreed, pointing to its analysis in Mrs. Kupfer’s appeal and concluding the district court acted within its discretion in declining Mr. Kupfer’s proposed instruction. Mr. Kupfer also argued that a juror affidavit alleging misconduct required the district court to hold a hearing, but the Tenth Circuit again disagreed, relying on its reasoning in Mrs. Kupfer’s appeal, and found the district court was within its discretion to decline to hold a hearing based on the affidavit.

Next, the Tenth Circuit turned to Mr. Kupfer’s allegations of error regarding his conspiracy trial. Dr. Gutierrez, a media consultant for the state, was paid millions by the state for three contracts: one to increase voter awareness, one for an anti-smoking campaign, and one for an elder abuse campaign. Dr. Gutierrez paid over $790,000 in kickbacks to Mr. Kupfer, who had influenced the state to give Dr. Gutierrez extra compensation. The government’s theory was that Mr. Kupfer earned only a small percentage of the money he was paid and the rest of the funds were illegal kickbacks. Using this theory, the government charged Mr. Kupfer with one count of conspiracy and three counts of stealing federal money or assisting another to steal federal money based on the three campaigns. Mr. Kupfer alleged the district court erred in allowing the government to introduce evidence of the anti-smoking and elder abuse campaigns. The Tenth Circuit found no error. Although the voter awareness and anti-smoking campaigns were separate and distinct, Dr. Gutierrez used funds from the voter awareness campaign to pay Mr. Kupfer’s consulting company for the anti-smoking campaign even though Mr. Kupfer’s company had done no work. The district court treated the evidence of the anti-smoking campaign as intrinsic and allowed its introduction. Mr. Kupfer argued the government wavered from this theory during trial but, after analyzing the record, the Tenth Circuit found the government’s theory unchanged through the course of the trial. Mr. Kupfer also argued the district court erroneously applied FRE 403, but the Tenth Circuit found any prejudice suffered by Mr. Kupfer was fair because of the inferences that could be drawn from the evidence available. The district court’s admission of the anti-smoking campaign evidence was affirmed.

Turning to the elder abuse campaign evidence, the Tenth Circuit noted that the government did not allege any wrongdoing as to the elder abuse contract, but rather it was admitted as a baseline to compare the cost of the anti-smoking campaign. Mr. Kupfer argued the evidence was erroneously admitted because there was no link between him and the elder abuse campaign, but the Tenth Circuit declined to reach Mr. Kupfer’s arguments, finding the evidence was correctly admitted as probative evidence unrelated to character and that any error in admitting the evidence was harmless.

Next, Mr. Kupfer argued his sentence was procedurally unreasonable because the district court (1) selected the wrong guideline for the offense, and (2) improperly enhanced the sentence based on obstruction of justice. The Tenth Circuit agreed with both arguments. When calculating the guideline range, the district court examined the evidence, which Mr. Kupfer asserted was error because the district court should only have looked at the offense of conviction as charged and presented to the jury. A 2000 amendment to the sentencing guidelines required the district court to look only at the offense of conviction and not the underlying conduct in selecting the relevant guidelines section. However, the district court determined that Mr. Kupfer’s conduct involved fraud against the government and included an elected official, and applied a different guidelines section than the one for Mr. Kupfer’s conviction of conspiracy to steal federal money. The district court’s error resulted in a guidelines range of 121 to 151 months imprisonment, but the Tenth Circuit’s calculations resulted in a guidelines range of 78 to 97 months. The Tenth Circuit reversed for recalculation of the sentence using the applicable guidelines range. Mr. Kupfer also argued the district court erred by applying an obstruction of justice enhancement, and the government agreed, as did the Tenth Circuit. On remand, the district court should not apply the enhancement.

The Tenth Circuit affirmed Mr. Kupfer’s convictions but reversed and remanded for resentencing consistent with its opinion.

Tenth Circuit: Two Incidents of Producing Child Pornography Satisfy “Pattern of Activity” Requirement for Sentence Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Evans on Thursday, April 2, 2015. The Tenth Circuit originally issued its opinion in Evans on March 3, 2015, as an unpublished opinion, but granted Evans’ petition to publish.

In 2012, authorities found 4,800 images of child pornography in Jesse Evans’ possession, at least 100 of which depicted his own minor daughters and his minor niece. He eventually pled guilty to production of child pornography, and admitted in his plea that he had produced child pornography of two minor victims between January 2010 and November 25, 2011. Over Evans’ objection, the district court applied a five-point sentence enhancement pursuant to Guidelines § 4B1.5(b), specifically finding that Evans had produced child pornography on November 5, 2011 and November 25, 2011, satisfying the “pattern of activity” element of 4B1.5(b). Evans’ Guidelines range was 360 months, and the judge varied downward and sentenced him to 252 months.

Evans appealed, arguing § 4B1.5(b) does not apply to him because the “pattern of activity” requirement was not met, and also the district court erred because the government did not request the sentence enhancement so it should not have been applied in the interest of fairness. The Tenth Circuit first found that Evans had preserved his objection at the sentencing hearing, then evaluated the language of the application notes to § 4B1.5(b), finding Evans’ conduct clearly satisfied the criteria for a “pattern of activity.” The Tenth Circuit similarly rejected Evans’ argument that the district court should not have applied the sentence enhancement in the interest of fairness, noting the court was not bound by Evans’ plea agreement.

The Tenth Circuit affirmed Evans’ sentence, and granted his motion to permanently seal Attachment B to the government’s opening brief.

Tenth Circuit: District Court Erred in Suggesting Offense Level Before Finding Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sabillon-Umana on Monday, December 8, 2014.

Elder Geovany Sabillon-Umana was convicted of drug offenses as part of a larger trafficking scheme. Because of his relatively small role in the scheme, the district court suggested that he should have a base Guidelines offense level of 32 and requested the prosecutor to justify that offense level. The prosecutor offered facts to support the offense level, telling the court that finding Sabillon-Umana responsible for 1.5 kilos of heroin and 1.5 kilos of cocaine would arrive at that offense level, and the court adopted those factual findings. Later in the proceedings, when the defendant requested a sentence reduction for compliance with the prosecution, the court rejected his request, instead finding the prosecution had authority to issue sentence reductions.

The Tenth Circuit found two errors in the district court proceedings. First, the Tenth Circuit sharply reprimanded the district court for reversing the proper order of proceedings by deciding on an offense level before finding facts. The Tenth Circuit evaluated the facts on which Sabillon-Umana’s conviction was based and found he could only be responsible for 1.5 kilos of heroin and cocaine combined, not 1.5 kilos of each, which would reduce his base offense level to 30.

Next, the Tenth Circuit found plain error in the district court’s failure to reduce the sentence due to Sabillon-Umana’s participation with the prosecution. The district court had contemplated a sentence of 72 months prior to stating it would not reduce the sentence unless the prosecution suggested it, and instead arrived at a sentence of 96 months. The Tenth Circuit found that sentencing discretion lies solely in the court.

The case was remanded for resentencing.

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.