August 19, 2019

Archives for November 19, 2013

Tenth Circuit: Term “Case-in-Chief” Does Not Include Sentencing for Immunity Purposes

The Tenth Circuit Court of Appeals published its opinion in United States v. Oyegoke-Eniola on Thursday, November 14, 2013.

Defendant Eni Oyegoke-Eniola challenged his sentence following his guilty plea to charges of mail fraud and making a false statement on an immigration document. After pleading guilty, the defendant objected to two enhancements in the probation office’s presentence investigation report (PSR) that resulted in a sentencing guideline of 27-33 months’ incarceration. The government stated it would not seek one of the enhancements because it did not have evidence to prove defendant had five or more stolen-identity documents. The court wrote the parties a letter saying the defendant’s recalculated guideline sentence would be 21-27 months. At the sentencing hearing, the judge stated he would not impose the second disputed enhancement but felt an upward variance was necessary. Despite this, the judge later adopted the PSR “without change.”

On appeal, the Defendant argued  that the district court improperly imposed enhancements under the Sentencing Guidelines. Given the circumstances, the Tenth Circuit reviewed for abuse of discretion and found the defendant’s sentence had to be vacated.

The defendant also argued that statements he made under an immunity agreement should have been stricken from PSR. The immunity letter given by the government to the defendant said his statements would not be used against him “in the government’s case-in-chief.”  The term case-in-chief  does not include sentencing and so the court may use statements to vary upward from the guidelines.

The court vacated and remanded for resentencing.

Tenth Circuit: Defendant May be Charged with Two Separate Counts Arising from a Single Use of a Firearm

The Tenth Circuit Court of Appeals published its opinion in United States v. Rentz on Monday, November 18, 2013.

After Philbert Rentz fired a single gunshot that wounded one victim and killed another, he was charged with two separate counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Mr. Rentz moved to dismiss the second § 924(c) count. The district court granted his motion, holding that § 924(c) cannot support multiple § 924(c) charges arising from a single use of a firearm. The Government appealed.

At issue on appeal were: (1) whether § 924(c) permits two § 924(c) violations to be charged based on two underlying crimes of violence arising from a single use of a firearm, and (2) whether charging the two crimes of violence would violate the Double Jeopardy Clause.

18 U.S.C. § 924(c) criminalizes the use of a firearm in connection with a federal crime of violence or drug trafficking offense. A § 924(c) firearm charge is therefore derivative in nature. It rests on the commission of an underlying predicate offense—either a violent or a drug trafficking crime. It is unnecessary for a criminal defendant charged with a § 924(c) offense to be separately charged with and convicted of the underlying offense. But to establish a violation of § 924(c), the Government must prove the Defendant committed the underlying crime of violence.

Mr. Rentz was charged with two predicate offenses—murder and assault causing serious bodily injury. It would likely be uncontested in most cases that these two predicate offenses would support two § 924(c) derivative offenses. But this case arises from the unusual circumstance of a single gunshot causing both predicate offenses. The Tenth Circuit held that the statute allows two § 924(c) charges based on a single gunshot, because previous cases recognized that multiple § 924(c) counts are permitted based on a single criminal episode. The court stated that multiple underlying offenses could support separate § 924(c) charges so long as double jeopardy is not implicated.

The court held Double Jeopardy was not implicated here. The Fifth Amendment Double Jeopardy Clause of the United States Constitution provides that no “person be subject for the same offence to be twice put in jeopardy of life or limb.” Each underlying offense in this case required proof of an element that the other did not. Count I, second degree murder, required proof that Mr. Rentz caused the death of Mr. Francis with malice aforethought. Count IV, on the other hand, required proof that Mr. Rentz knowingly assaulted Mr. Dawes, causing him serious bodily injury. The charges did not therefore implicate the Double Jeopardy Clause.


Tenth Circuit: In Issue of First Impression, Reasonable Foreseeability Applies to Calculation of “Actual Loss” Under U.S.S.G. § 2B1.1(b)

The Tenth Circuit Court of Appeals published its opinion in United States v. Crowe on Monday, November 18, 2013.

Between June 2004 and December 2006, Vicki Crowe purchased nineteen properties in  Colorado. The residential loan applications that Crowe signed and submitted all contained false job titles, inflated and fabricated employment income, inflated rental income, and/or inflated assets of Crowe or her then-husband, Jamaica Crowe.

As part of the transactions for these property purchases, Crowe persuaded the property sellers to falsely inflate the sale prices so that Crowe could receive the inflated portions of the sale prices as “up front” money at, or shortly after, the closing of the purchase transactions. Sometimes this “up front” money was falsely characterized as a payment to a remodeling company that was supposed to perform specified remodeling work on the subject property. The total “up front” money that Crowe received at or after the closings was $943,332.70.

Crowe was convicted of eight counts of mail fraud and eight counts of wire fraud for her participation in a mortgage fraud scheme. The district court sentenced Crowe to a term of imprisonment of sixty months and ordered her to make restitution in the amount of $2,408,142.37. The sentencing court imposed an 18-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(J) because “the loss exceeded more than $2,500,000, but [was] less than $7,000,000.”

Crowe appealed, arguing that the district court erred in calculating the amount of loss associated with her crimes for purposes of U.S.S.G. § 2B1.1(b), and in denying her motion for new trial, which alleged ineffective assistance on the part of her trial counsel.

Crowe’s challenge to the district court’s calculation of loss raised an issue of first impression for the Tenth Circuit: whether the concept of reasonable foreseeability applies to a district court’s calculation of the “credits against loss” under § 2B1.1(b). The court held that that the concept of reasonable foreseeability applies only to a district court’s calculation of “actual loss” under § 2B1.1(b), and not to its calculation of the “credits against loss.”

The court stated that if it were to state the method for determining “loss” for purposes of § 2B1.1(b)(1) as a mathematical equation, it would be as follows: loss equals actual loss (or intended loss) minus credits against loss. Consequently, it was irrelevant whether Crowe, at the time she negotiated the various mortgages at issue, reasonably anticipated a decline in the real estate market that might result in the original lender or successor lenders being unable to recoup their losses from the sale of pledged collateral should she default. Instead, the only foreseeability issue in this case was the amount of the potential pecuniary harm that might result from Crowe’s offenses, i.e., the reasonable foreseeability of the “actual loss” (rather than the “loss”) that occurred in the case. The reasonably foreseeable pecuniary harm resulting from Crowe’s fraud included the full amount of unpaid principal on the fraudulently obtained loans. Consequently, the court rejected Crowe’s assertion that her sentence was procedurally unreasonable.

Crowe next argued ineffective assistance of her trial counsel. Applying the standards in Strickland v. Washington, 466 U.S. 668 (1984), the court concluded that the record established that Crowe’s trial counsel vigorously represented Crowe in challenging the government’s evidence on the wire fraud counts, particularly the key question of whether Crowe acted with specific intent to defraud or to obtain money or property by means of false pretenses, representations or promises.


Tenth Circuit: Unpublished Opinions, 11/18/13

On Monday, November 18, 2013, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

United States v. Brewster

Countryman v. Farmers Insurance Exchange

United States v. Castillo-Najer

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.