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A summary of recent cases from the Federal Courts

Dealing with the Federal Sentencing Guidelines

Section 1B1.3 - Relevant Conduct

United States v. Mulder, 273 F.3d 91 (2nd Cir. 2001)

This is a case that shows the importance of staying on top of the inordinately complex rules that often apply when district courts attempt to use "relevant conduct" and uncharged crimes as a means of enhancing sentences. The defendants in this case were members of a labor coalition known as Brooklyn Fight Back (BFB), an organization that was charged with extorting money and jobs from contractors operating in New York City. Four of the defendants, Dennis McCall, Trevor Johnson, Robert Carnes and Daniel Hunter, where tried on one count of conspiracy to commit extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and one substantive count of extortion. At their six-week trial, one of the Government's key witnesses was a fifth defendant, Eric Mulder, who had murdered a member of a rival coalition during the course of the conspiracy. He testified against his four co-defendants pursuant to a cooperation agreement; and, since he probably wasn't sentenced until after he testified, the decision is silent about what sentence the Government would recommend that he receive in exchange for his cooperation.

McCall, Johnson, Carnes and Hunter were all convicted on the conspiracy count; but the jury acquitted each of them on the substantive count of extortion. At sentencing, Judge Casey of the S.D.N.Y. attributed to each of the four defendants the murder that had been committed by Mulder; and as a result their sentencing ranges were increased as follows:

• Hunter - from a Guideline range of 27-to-30 months to a sentence of 204 months;
• McCall - from a Guideline range of 27-to-30 months to a sentence of 204 months;
• Carnes - from a Guideline range of 30-to-37 months to a sentence of 204 months; and
• Johnson - from a Guideline range of 27-to-30 months to a sentence of 240 months.

Although they raised many issues on this direct appeal, they particularly argued that the district court had erroneously attributed to them as relevant conduct the murder committed by Mulder. First, they argued that due process required the Government to prove the facts underlying the attribution to them of the murder committed by Mulder by proof beyond a reasonable doubt - rather than the preponderance of evidence standard used by Judge Casey. Citing the Supreme Court's nightmarish decision in U.S. v. Watts, 519 U.S. 148, 156-57 (1997), the panel held that a preponderance standard for proving relevant conduct "generally satisfies due process," even though the Supreme Court did leave open the possibility that the Due Process Clause might require a higher standard of "clear and convincing evidence" in cases where the "tail" of the relevant conduct "wag[ged] the dog of the substantive offense." (Id., at 116). Based on Watts (and without ever discussing whether the magnitude of the sentence increases in this case did, in fact, become the "tail" that "wagged the dog"), the panel concluded that the district court had not committed any error by using the preponderance of evidence standard in the instant case.

The panel then turned to whether the district court had properly considered the factors involved in treating Mulder's act of murder as an event that was properly attributed to the other defendants as relevant conduct, pursuant to the provisions of U.S.S.G. § 1B1.3(a)(1)(B). Citing its decision in U.S. v. Studley, 47 F.3d 569 (2nd Cir. 1995), the Court stated that, to make such an attribution, the district court "must make two particularized findings. First, it must determine ‘the scope of the criminal activity agreed upon by the defendant.' . . . Second - and only if it finds that the scope of the activity to which the defendant agreed was sufficiently broad to include the conduct in question - the court ‘must make a particularized finding as to whether the activity was foreseeable to the defendant. . . . Mere ‘knowledge of another participant's criminal acts' or ‘of the scope of the overall operation' will not make a defendant criminally responsible for his co-defendant's acts." (Id., at 118).

In this case, the Government conceded that the district court had not made sufficiently particularized findings on the scope of the individual defendants' agreements - and it actually consented to a remand on that ground (although it also argued that the scope of each defendant's agreement was broad enough to cover the murder in question).

The Court felt that there was some evidence in the record that might support the conclusion that McCall and Johnson had entered into the type of joint agreement required by the first part of Studley - but since there were no particularized findings on the second part of the Studley analysis, the sentences of both McCall and Johnson had to be vacated and the case remanded to the district court for the required particularized findings. (Id., at 119).

The Court further found that there was "no evidence - direct or circumstantial" to connect Hunter to the murder; and there was insufficient evidence to connect Carnes to the murder; so, their sentences had to be vacated and the Court directed that they be resentenced at an offense level that does not take into account the murder. (Id.)

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United States v. Swiney, 203 F.3d 397 (6th Cir. 2000)

Back in 1946, the Supreme Court held in Pinkerton v. U.S., 328 U.S. 640, 647-48 (1946), that a co-conspirator may be vicariously liable for a substantive offense committed by another co-conspirator if the act was done "in furtherance of the conspiracy" and was "reasonably foreseen as a necessary or natural consequence of the unlawful agreement." The ruling in this case holds that Congress, in enacting the Sentencing Guidelines, carefully considered, and rejected, the Pinkerton rule under the Guidelines’ definition of "relevant conduct" as set forth in U.S.S.G. 1B1.3(a)(1)(B); and instead provided for a narrower and less-inclusive standard of co-conspirator liability under the Guidelines, based on "reasonable foreseeability."

The distinction, while technical, is significant. Effectively, what the ruling means is that if the Government wants to sentence all the members of a conspiracy based on a crime committed by one of the co-conspirators, it will either have to charge and prove at trial, based upon proof beyond a reasonable doubt, that the specified crime was reasonably foreseen by the other members of the conspiracy, or it will have to establish that reasonable foreseeability at sentencing by a preponderance of the evidence. In short, it will not be permitted simply to assert that, based on the Pinkerton rule, each defendant should automatically be held liable, for sentencing purposes, for all crimes committed by each of the co-conspirators without some proof that such crimes were reasonably foreseeable to each of the other co-conspirators.

In this case, twelve individuals were indicted in a 24-count indictment charging them with conspiracy to distribute heroin and related drug charges. Nine of the defendants pled guilty; and several of them testified at the trial of the three remaining defendants. Defendant Andy Lee Swiney was one of the defendants who went to trial and was convicted of the drug conspiracy charges under 21 U.S.C. 846. It was undisputed that one of the defendants, Johnny Issacs, who pled guilty, sold heroin to a person who subsequently died of a drug overdose.

At sentencing, the Government argued that all of the defendants should have received a statutory mandatory minimum sentence of 20 years pursuant to 21 U.S.C. 841(b)(1)(C) and U.S.S.G. 2D1.1(a) because a death resulted from the use of the heroin that was distributed by a member of the conspiracy. With the exception of the presentence report for Johnny Issacs (who actually sold the drugs that resulted in the death), none of the presentence reports for the remaining defendants recommended the sentence enhancement to reflect the death; and in fact, the probation officer concluded that an enhancement under U.S.S.G. 2D1.1(a) for the other defendants would not be appropriate. At sentencing, the district court found no proof linking the remaining defendants to the death "using a ‘critical proximate cause’ inquiry." (Id., at 399). The Government, however, appealed all the sentences, arguing that all of the defendants should be held accountable for the death under the Pinkerton theory of vicarious liability.

[It should be noted that several of the defendants who did not appeal, challenged the Government’s right to appeal, claiming that the sentences imposed were within the district court’s discretion and within the Guidelines, and thus were not appealable by the Government under the provisions of 18 U.S.C. 3742(b). The Sixth Circuit disagreed on that issue, stating that "the Government has a limited right to appeal an otherwise final sentence if the sentence was imposed as a result of an incorrect application of the Sentencing Guidelines." (Id., at 401)].

In dealing with the enhancement issue, the Sixth Circuit took somewhat of a middle course. It rejected the Government’s theory of strict accountability "because the scope of conduct for which a defendant can be held accountable under the Sentencing Guidelines is narrower than the conduct encompassed by conspiracy law." (Id.). Conversely, it held that the district court had erred by insisting that the Government had to prove, by a preponderance of evidence, that each defendant’s conduct was "the critical proximate cause" of the death, rather than applying the "reasonable foreseeability" analysis of U.S.S.G. 1B1.3(a)(1)(B). (Id., at 404-05).

What is particularly instructive about the Court’s ruling on the Pinkerton issue was its detailed analysis of the history of 1B1.3(a)(1)(B) and its listing of judicial precedents from virtually all the Circuits which have recognized that co-conspirator liability under the Guidelines is different than that which attaches to conviction for the conspiracy offense itself. For example, the Court cited from a 1990 article, written by Judge William W. Wilkins, the then Chairman of the Sentencing Commission and a person often described as the architect of the Guidelines, in which he wrote about the relationship of the "otherwise accountable" language used in the Guidelines and the stricter Pinkerton theory of conspiracy accountability.

Judge Wilkins wrote that the "otherwise accountable" language "is a sentencing rule and not necessarily co-extensive with the Pinkerton rule of co-conspirator liability. Thus, in determining the outer limits of the attribution dimension under this aspect of Relevant Conduct, courts should focus on the language in Application Note 1 addressing conduct of others that was ‘within the scope of the defendant's agreement' or ‘in furtherance of the execution of the jointly-undertaken criminal activity’ or ‘that was reasonably foreseeable by the defendant . . . in connection with the criminal activity the defendant agreed to jointly undertake.’ As the note further explains, in a broad conspiracy the relevant conduct considered in constructing the guideline range may not be the same for every defendant in the conspiracy, although each may be equally liable for conviction under Pinkerton. . . . Thus, in applying the Relevant Conduct guideline, the Commission intended that courts would, in necessary instances, make differing determinations among co-conspirators." (Id., at 403-04).

In this case, because the district court had created "its own test" that was inconsistent with the Guidelines’ concept of "reasonable foreseeability", the Sixth Circuit, on remand, directed the district court to determine whether Johnny Isaacs’ distribution of heroin to the deceased victim was reasonably foreseeable to any of the other defendants. "In other words, before any of the defendants can be subject to the sentence enhancement of 21 U.S.C. 841(b)(1)(C) and U.S.S.G. 2D1.1(a), the district court must find that he or she [was] part of the distribution chain that lead to [the victim’s] death." (Id., at 406).

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United States v. Ahmad, 202 F.3d 588 (2nd Cir. 2000)

In this case the Second Circuit held that, in computing a defendant's "relevant conduct" for purposes of the sentencing enhancements contained in U.S.S.G. 2K2.1, it is not proper to include State firearms offenses that contain elements that are not elements of a federal crime. The Court said that the principle underlying its holding was that an offense must be a "harm" under federal law in order to count as relevant conduct.

In this case, a search of the defendant's home yielded a semiautomatic pistol whose serial number had been obliterated, a sawed-off shotgun, four silencers, and seven other firearms, for a total of 13 items. The defendant was convicted in Federal court of illegal possession charges with respect to the pistol, sawed-off shotgun, and silencers. At sentencing, the district court considered all 13 items under the sentencing scheme set forth in 2K2.1(b)(1)(D) which provides for graduated increases "[i]f the offense involved three or more firearms . . . ." It thus applied a four level increase in the defendant’s offense level. The defendant appealed, arguing that the district court improperly used seven of the uncharged firearms in computing the sentence.

The Second Circuit agreed that the seven uncharged firearms should have been ignored even though the defendant violated state law by possessing them. As a result, the appropriate number-of-firearms increase in this case was two levels, not four. The Court noted that 2K2.1(b)(1) "specifically directs that we count only the firearms involved in 'the offense'." While the Guidelines permits the use of offenses that can be "grouped" under the provisions of 3D1.2(d) as relevant conduct, the seven uncharged crimes did not qualify as relevant conduct because the seven uncharged firearms were not within the narrow class of firearms that federal law puts off-limits for the general population.

The fact that both sets of offenses involved illegal firearms possession gave some "superficial appeal" to the Government’s argument that the seven uncharged firearms qualified as relevant conduct under the "same course of conduct or common scheme or plan" rubric. Nevertheless, the Court emphasized that a state offense does not count as relevant conduct for purposes of 1B1.3(a)(2) unless it would be a Federal offense but for a lack of a jurisdictional element. Moreover, the Court held that the grouping rules referenced by 1B1.3 contain an implicit requirement that the uncharged offense in question have caused a "harm" under Federal law. "Conduct that may only be charged as a state crime, because it involves elements criminalized under state law that are not elements of a federal crime, may not be grouped under 3D1.2(d) and thus may not be considered as 'relevant conduct' under 1B1.3(2)," the court said. It thus concluded that only the six firearms for which the defendant was convicted should have been counted as being involved in his offenses.

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United States v. Galbraith, 200 F.3d 1006 (7th Cir. 2000)

Rarely does a case express as clearly as this one does the enormous advantages that accrue to the Government through the use of relevant conduct at sentencing. In this case, the defendant was charged with two counts of manufacturing methamphetamine at his home, in violation of 21 U.S.C. 841(a)(1) and 846. After jury selection began, he decided to enter an unconditional plea of guilty to both counts.

The presentence report attributed a total of 240 grams of methamphetamine to the defendant -a figure that the defendant did not challenge. However, at the sentencing hearing, a DEA agent testified that the evidence established that the defendant had produced a total of 361.46 grams of methamphetamine - which pushed the defendant’s sentencing level up by two levels. He also noted that an informant had told him that the defendant had also been involved in two other methamphetamine transactions with the informant which involved an additional 148.83 grams in one case, and an additional 850 to 1700 grams in another case. The Government did not, however, rely on the informant’s statements regarding either the 148 gram or the 850-1700 gram transactions when calculating the drug amounts constituting the defendant’s relevant conduct.

Nevertheless, the trial judge (Judge Gilbert) did accept the 148 gram figure, which pushed the amount of drugs involved to 509 grams thereby increasing the defendant’s sentencing level to level 32. Although the defendant denied even knowing the informant, Judge Gilbert stated to defense counsel: "Your client takes the position that he doesn’t even know [the informant] in his objections. And yet at this hearing I have been presented with no evidence that he doesn’t know him. Your client’s elected not to testify. If he was so concerned with his position and so sure of it, he probably would have testified. I’m not holding that against him. I’m just saying that I have evidence that this thing is over 500 grams." (Id., at 1011).

On appeal, the defendant challenged the trial court’s decision to credit the hearsay information about what the informant had said. He also noted that the informant had been convicted of prior drug offenses, and was facing possible drug charges himself. He also decried the fact that the informant’s testimony was uncorroborated.

The Seventh Circuit acknowledged that it was "disturbed" by the fact that the informant had given "vastly different" stories, in two separate interviews with the DEA. (Id., at 1012). It was also acknowledged that Judge Gilbert had failed to explain why he felt that the informant’s statements about the 148 grams were reliable, but had rejected as "suspicious" the same informant’s statements about the larger quantity of drugs - "an explanation [which] . . . might have been advisable." (Id., at 1013).

Nevertheless, the Court rejected the defendant’s appeal. It’s statement on the burden of proof facing a defendant who seeks to challenge "evidence" produced at a sentencing hearing is a classic. The Court stated: "The government has a considerable advantage in proving a defendant's relevant conduct. At sentencing it must prove the quantity of drugs only by a preponderance of the evidence. . . . Further, the Federal Rules of Evidence do not apply at sentencing, meaning the court may consider hearsay evidence and other information not admissible at trial. . . . Not only procedural but also substantive advantages go to the government in the contest over calculating relevant drug conduct. For instance, the testimony of just one witness, even a potentially biased witness, is sufficient to support a finding of fact. . . . Further, the trial court is entitled to credit testimony that is ‘totally uncorroborated and comes from an admitted liar, convicted felon, large scale drug_dealing, paid government informant’." (Id., at 1012) (Emphasis added) (Internal citations omitted).

Applying those standards, the Court then concluded that the facts of this case did not "necessarily" render the hearsay statements attributed to the informant unreliable; and so it affirmed the increase in the defendant’s sentence on the basis of the informant’s conflicting hearsay statements as related by the DEA.

The Court seemed comfortable with the concept that defendants possess a "significant counterweight to these government advantages: the defendant has a due process right to be sentenced on the basis of reliable information." (Id., at 1012). While it may be argued that the Guidelines have achieved some of Congress’ goals of achieving a fairer and more uniform sentencing system, we still find many aspects of "relevant conduct" hard to swallow, especially where, as here, a defendant who elects not to testify (probably to avoid risking the double whammy of an obstruction of justice charge and its resulting automatic loss of an acceptance of responsibility sentence reduction) is hammered at sentencing by "totally uncorroborated" hearsay statements from a "potentially biased" informant. That, to us, hardly strikes a chord of being "reliable" evidence.

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United States v. Palafox-Mazon, 198 F.3d 1182 (9th Cir. 2000)

In this case three Mexican drug mules were caught in Arizona by the U.S. Border Patrol, each carrying some 47 pounds of marijuana into the U.S. Several other mules traveling in the same group fled after abandoning their backpacks; and the Border Patrol recovered some 287 pounds of marijuana. Each of the three defendants who were caught pled guilty to one count of possession of drugs with intent to distribute. At sentencing, the district court found that the defendants had not "jointly undertaken criminal activity" within the meaning of U.S.S.G. 1B1.3(a)(1)(B) and that they should be sentenced solely on the basis of the drugs that each defendant was carrying individually. Essentially the district court found that the defendants were "human mules" who had been separately recruited and hired by a drug smuggler; and that none of them had any played any role in preparing or planning the drug scheme.

The Government appealed, arguing that the defendants had implicitly and willfully participated in a joint criminal enterprise and thus that the drug quantities should have been aggregated for sentencing purposes.

Citing the example given in Application Note 2(c)(8) to 1B1.3 (which it noted that few cases have interpreted), the Ninth Circuit affirmed the district court’s finding. It stated: "We hold that the record provides ample support for the court's finding. Indeed, the only ‘joint’ activity that we can glean from the record is that each Defendant was hired by the same person to carry the same individual amount of marijuana, and that each followed the same guide to an unknown destination in the United States.

"Although the Defendants traveled in a group of six backpackers and one guide across the United States-Mexican border, the district court found that they acted separately. Each Defendant was recruited individually, and each had the criminal objective of transporting one backpack of marijuana into the United States in order to receive $800 compensation.

"Each Defendant knew nothing of the details of his endeavor and did not prepare or plan its execution. Indeed, none of them knew where they were going, how to get there, or what would happen after they arrived in the United States. They simply followed the guide because the ‘guide knew and had more control over the situation.’ The record suggests, moreover, that the Defendants did not know each other or care about each other before or after Garcia took them, along with the three others, to an unknown location in the desert. Indeed, the district court found that they assumed no responsibility for each other or for each other's load." (Id., at 1187).

The Court also found that the record did not "suggest . . . that the Defendants in any way ‘aided and abetted’ each other in executing a joint criminal activity." (Id., at 1189).

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United States v. Stephens, 198 F.3d 389 (3rd Cir. 1999)

The defendant in this case pled guilty to social security fraud, in violation of 18 U.S.C. 510(a)(2), for cashing 43 benefit checks issued in the name of her father after his death. In computing the defendant’s offense level, the district court included as relevant conduct the proceeds of an additional 214 checks that were also cashed during the 21 years after the father’s death, but which were outside the applicable statute of limitations period. That resulted in an upward adjustment of seven levels to the defendant’s base offense level under the provisions of U.S.S.G. 2F1.1(b)(1). Although she failed to raise the objection at sentencing, on appeal the defendant objected to the inclusion of the 214 checks that were outside the applicable statutes of limitation period.

Joining seven other courts of appeal (the 2nd, 5th, 6th, 7th, 10th, 11th and D.C. Circuits), the Third Circuit held that conduct that is not chargeable because the statute of limitations has expired may properly be considered in determining the appropriate sentence under the Guidelines. (Id., at 391). The Court emphasized that U.S.S.G. 1B1.3(a)(1)(A) states that relevant conduct, for the purposes of determining specific offense level characteristics used in calculating the base offense level, includes "all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction." It also noted that both 18 U.S.C. 3661 and U.S.S.G. 1B1.4 state that "no limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court . . . may consider for the purposes of imposing an appropriate sentence."

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United States v. Wall, 180 F.3d 641 (5th Cir. 1999)

This is one of those relevant conduct cases that shows how the Government seeks to expand drug sentences beyond reason. The defendant was initially indicted for various drug offenses arising out of three separate transactions. The first involved his arrest in 1992 at the Mexican border for the possession of 0.1 kilograms of marijuana. The second two incidents occurred in 1996 and 1997 - and did not even involve the defendant. They involved his girl friend (who he met in 1995). She was first arrested in 1996 with 58 kilograms of marijuana hidden in the tires of her truck; and she was sentenced to ten years probation. In 1997, she was arrested again, this time with 20.8 kilograms of marijuana hidden in the gas tank of her truck. She was sentenced to 36 months in prison.

After the defendant was arrested and charged with those three transactions, he pled guilty to the 1992 charge (involving the 0.1 kilograms of marijuana); and the Government dismissed the remaining charges. At sentencing, however, it sought to attribute to him the entire 78.9 kilograms of marijuana, which resulted in a sentence of 42 months - a sentence that was greater than that given to the girlfriend.

He objected, arguing that the 1996 and 1997 offenses were neither part of the same "common scheme or plan" as the 1992 offense (see U.S.S.G. 1B1.3(a)(2), Application Note 9(A)), nor part of the "same course of conduct" as the 1992 offense (see U.S.S.G. 1B1.3(a)(2), Application Note 9(B)).

After the district court rejected his arguments, the defendant appealed to the Fifth Circuit - and it reversed. The Court first held that the 1996 and 1997 offenses were clearly not part of the same "common scheme or plan" as the 1992 offense. It then analyzed whether the three offenses were part of the "same course of conduct." It noted that such a determination depends on "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." (Id., at 645).

The Court concluded that the incidents were separated by an "unprecedented lapse of time;" that there were "significant differences between the 1992 offense and the 1996 and 1997 offenses;" that there was no "common source, supplier, or destination;" and that their modus operandi were different. The Court concluded by citing an Eleventh Circuit case, where that court stated:

"We do not think that two offenses constitute a single course of conduct simply because they both involve drug distribution. To so conclude would be, in the words of the Fourth Circuit,

to describe [the defendant's] conduct at such a level of generality as to eviscerate the evaluation of whether uncharged criminal activity is part of the "same course of conduct or common scheme or plan" as the offense of conviction. With a brushstroke that broad, almost any uncharged criminal activity can be painted as similar in at least one respect to the charged criminal conduct." U.S. v. Maxwell, 34 F.3d 1006, 1011 (quoting U.S. v. Mullins, 971 F.2d 1138, 1145 (4th Cir. 1992))." (Id., at 646-47).

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United States v. Gomez, 164 F.3d 1354 (11th Cir. 1999)

After his conviction on drug charges, the defendant in this case challenged the calculation of his base offense level under the Guidelines. The district court (Judge Moore) found that he was responsible for selling 3 kilograms of cocaine - a total which included 2 kilograms allegedly sold to the boyfriend of a Government witness in a transaction that was totally separate from that charged in the indictment. The issue, therefore, was whether the sale of the 2 kilograms was properly included for sentencing purposes, under the relevant conduct provisions of U.S.S.G. 1B1.3(a)(2), as conduct that was "part of the same course of conduct or common scheme or plan" as the offense of conviction.

The Eleventh Circuit emphatically concluded that the district court had erred, and it vacated the sentence. It acknowledged that "whether two acts are part of the ‘same course of conduct’ depends largely on how the relevant ‘course of conduct is defined. If the course of conduct in this case is merely the distribution of cocaine, then the sale to [the boyfriend] would be part of that conduct. This, however, seems too broad of a characterization. The course of conduct on which the indictment and the trial focused was the distribution of cocaine through [a car wash operation] . . . . Therefore, only sales that are related to [that car wash operation] should be considered part of the same course of conduct. [The boyfriend] was in no way connected to the [car wash operation]. (Id., at 1356) (Emphasis added).

The Court continued that the commentary to 1B1.3(a)(2) states that it is meant to apply "to offenses that ‘involve a pattern of misconduct that cannot readily be broken into discrete, identifiable units.’ When an act of misconduct can be easily distinguished from the charged offense, a separate charge is required. . . . In this case, the sale to [the boyfriend] is conceptually distinct . . . and easily could have been brought as a separate charge against Gomez. It was therefore inappropriate to use this sale in calculating the sentence for Gomez’ conspiracy conviction." (Id., at 1357).

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United States v. Jackson, 161 F.3d 24 (D.C.Cir. 1998)

The defendant in this case, Adolph Jackson, was arrested in a reverse sting operation that was masterminded by a drug lord, one Rayful Edmond, who was serving a life sentence in a Federal prison. Jackson pled guilty to possession of 10 kilograms of cocaine with intent to distribute. The imprisoned drug lord also claimed that Jackson had been involved in a similar 15-kilo drug transaction four years earlier. At sentencing, the district court concluded that the earlier, alleged drug transaction was "relevant conduct" under U.S.S.G. 1B1.3; and, by aggregating the two transactions, the court was able to increase the defendant’s sentence by two levels.

On appeal, Jackson challenged the use at his sentencing of evidence of the earlier alleged transaction principally on the ground that the earlier drug transaction was "too distant in time to be considered part of the same course of conduct" as the instant offense, for purposes of U.S.S.G. 1B1.3(a)(2). Ultimately, the Court rejected that argument - but narrowly so. Essentially it held that because of the "extreme similarities" between the two transactions, it held that the district court’s decision to lump the two transactions together for relevant conduct purposes was justified. However, the Court also emphasized that "a ‘course of conduct’ is not a limitless concept, and the limits are approached in this case." (Id., at 30). "Congress’s failure to impose defined limits on what may constitute a course of conduct certainly does not mean there are no limits. . .." (Id., at 29). The decision also cites a number of significant rulings from various circuits for the proposition that when two drug transactions are separated by a significant gap in time, a relevant conduct finding may not be premised solely on a similarity of the drugs.

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United States v. Hull, 160 F.3d 265 (5th Cir. 1998)

Ten years after the Sentencing Guidelines became binding on all sentences imposed in the Federal system, the courts still struggle with the concept that a person can be convicted of one crime and sentenced for another - even if the defendant has been acquitted for that other crime or even if the other crime was never charged. That anomaly arises principally because of the mandated use of "relevant conduct" under U.S.S.G. 1B1.3 (which was the principal issue addressed in this case).

Here, a number of defendants were indicted for participating in a fraudulent investment scheme. After a jury trial, the jury found one of the defendants not guilty of various conspiracy counts. At sentencing the district court took into account the conduct of his co-defendants, pursuant to U.S.S.G. 1B1.3(a)(1)(B), and held him liable for the conduct of his co-defendants for sentencing purposes. The defendant argued that the jury's determination on not guilty on the conspiracy counts precluded the court from holding him liable for the conduct of his co-defendants.

The Fifth Circuit disagreed, holding that a defendant who has been acquitted of a conspiracy may still be held liable as a co-conspirator for sentencing purposes. It ruled: "For two reasons . . . these apparently contradictory findings are not irreconcilable. . . . The government must prove all elements of a criminal offense beyond a reasonable doubt. But, findings of fact for sentencing purposes need meet only the lower standard of "preponderance of evidence." U.S.S.G. 6A1.3, p.s., comment; United States v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998). Therefore, a finding that Hull was not guilty of conspiracy for purposes of conviction is not inconsistent with a finding that he was a conspirator for purposes of sentencing.

"Once we conclude that the "not guilty" verdict on conspiracy charges did not preclude the court from taking into consideration the acts of co- defendants for sentencing purposes, we need merely to review the decision for clear error. More specifically, we must consider whether the court rationally could have found that, by a preponderance of evidence, Hull acted "in furtherance" of a "jointly undertaken criminal activity" that had "reasonably foreseeability" consequences. . . .

"A second ground for affirming is to read 1B1.3(a)(1)(B) more broadly than the definition of conspiracy in 18 U.S.C. 371. Support for this comes from the text of the sentencing guidelines.

"In setting forth the crime of conspiracy, the statute does not define "conspiracy" but merely criminalizes the act of conspiring against the United States. 371. The guidelines define "jointly undertaken criminal activity" as "a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others." 1B1.3(a)(1)(B). The fact that the guidelines provided this list, and did not simply reference "conspiracy" as per 371, suggests that the two concepts may not be identical. Additionally, the guidelines state that such conduct is attributable to the defendant "whether or not charged as a conspiracy." 1B1.3(a)(1)(B). This in turn suggests that the scope of relevant conduct should not depend on whether a particular defendant has been convicted of conspiracy if so charged." (Id., at 269)

"Lastly, the commentary following 1B1.3 provides still further reason to believe that co-conspirator liability need not be predicated by a conspiracy conviction: "[T]he scope of criminal activity jointly undertaken by the defendant . . . is not necessarily the same as the scope of the entire conspiracy." U.S.S.G. 1B1.3, comment. (n.2). A review of the Sentencing Commission's discussion of "Real Offense vs. Charge Offense Sentencing" confirms this. See U.S.S.G. ch. 1, pt. A. . . .

"This suggests that 1B1.3(a)(1)(B) does not refer solely to conspiracy to commit the crime, but rather to the general concept of assisting others to achieve some unlawful end. Thus, whether the defendant was charged with, convicted of, or acquitted of conspiracy should not dispositively affect attributable conduct for sentencing purposes as per 1B1.3(a)(1)(B)." (Id., at 269-70)

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United States v. Rohde, 159 F.3d 1298 (10th Cir. 1998)

We first noted this case in the April 27, 1998 issue of Punch and Jurists, when we reported that district judge Greene of Utah ruled that the Double Jeopardy Clause barred the Government from seeking both a sentence enhancement for obstruction of justice and a separate perjury conviction for the exact same conduct. The defendant in this case pled guilty to bank robbery and at her sentencing she was also assessed with a two-level sentence enhancement for obstruction of justice after she admitted that she had lied on the witness stand in an effort to help her co-defendant escape from a "three-strikes-and-you’re-out" sentence. Three days after she was sentenced, the Government indicted her for perjury in violation of 18 U.S.C. 1621, citing the exact same instance of perjury for which her sentence had already been enhanced. Judge Greene rejected that second prosecution, stating that "The plain meaning of the Double Jeopardy Clause is that it is violated when a defendant is placed in jeopardy for the ‘same offense,’ not when or whether punishment by way of additional sentences is imposed." (U.S. v. Rohde, 989 F.Supp. 1151, 1159 (D.Utah 1997)).

The Government of course appealed; and, in this decision, the Tenth Circuit reversed. It relied heavily on the Supreme Court’s Alice-in-Wonderland reasoning in Witte v. U.S., 515 U.S. 389 (1995), which held that when a sentencing court bases a Guidelines sentence in part on relevant conduct, it does not thereby punish the defendant for that conduct. The defendant attempted to distinguish Witte by arguing that 1B1.3 applies only to conduct "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." (U.S.S.G. 1B1.3(a)(1)). She noted that her perjury occurred years after the conduct comprising her offenses of conviction, not in the same time period, as is generally true of conduct taken into account under 1B1.3. She also argued that the district court did not take her perjury into account under 1B1.3 but used it to enhance her sentence under 3C1.1, which directs the court to increase an offense level by two "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." The Court rejected those "temporal" arguments, essentially by stressing that by obstructing the prosecution of her accomplice, the defendant "not only show[ed] that her character deserved special punishment . . . she also aggravated the character of her charged offenses."

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United States v. Bacallao, 149 F.3d 717 (7th Cir. 1998)

This case is a good reminder of another important limitation on the use of uncharged relevant conduct to enhance a defendant’s sentence - namely the so-called "aggregation rule" which permits a sentencing court to enhance a defendant’s sentence based on relevant conduct so long as it is "part of the same course of conduct or common scheme or plan as the offense of conviction." (U.S.S.G. 1B1.3(a)(2)). As one court has observed, the aggregation rule "grants the government a fearsome tool in drug cases. It permits prosecutors to ‘indict defendants on relatively minor offenses and then seek enhanced sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted’." U.S. v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991).

In this case, the defendant (Bacallao) and a co-defendant (Saunders) were arrested in 1997 after a high-speed chase in Saunders car; and the police found 75.1 grams of cocaine in their car. Saunders promptly pled guilty to various drug and gun charges and agreed to cooperate with the authorities in their case against Bacallao. Ultimately Bacallao also pled guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1). The presentence report recommended that Bacallao be sentenced on the basis of (a) 75.1 grams of cocaine that were found in the car, (b) an additional 258 grams found at Saunders’ place of business, (c) an additional kilogram of cocaine that Saunders said Bacallao had brokered a year earlier, and (d) another two kilograms that still another witness said Bacallao had purchased in 1996. Thus, the initial 75.1 grams of cocaine rapidly increased some 4,344 percent to 3,333 grams!

The sentencing court (Judge Crabb) found that a preponderance of evidence supported the Government’s contention that Bacallao was involved with 3.3 kilograms of cocaine, and on that basis she sentenced Bacallao to 168 months in prison. However, she never made any explicit findings as to how the cocaine, other than the 75.1 grams found in the car, constituted relevant conduct.

On appeal, Bacallao argued that, except for the 75.1 grams, the rest of the drugs should not have been used to calculate his sentence because the other quantities were not "part of the same course of conduct or common scheme or plan" as required by U.S.S.G. 1B1.3(a)(2). Essentially, the Seventh Circuit agreed. "[T]he district court placed too much reliance solely on the PSI to support its finding of relevant conduct and thereby failed to establish the requisite nexus between the 75.1 grams of cocaine found in or near Bacallao’s car and the three kilograms of cocaine used to enhance his sentence." (Id., at 722).

In support of its holding, the Court stated, inter alia, that: "In assessing whether offenses are part of the same course of conduct, courts looked to ‘a strong relationship between the uncharged conduct and the convicted offense, focusing on whether the government has demonstrated a significant "similarity, regularity, and temporal proximity" ‘. . . Moreover, ‘section 1B1.3(a)(2) must not be read to encompass any offense that is similar in kind to the offense of conviction but that does not bear the required relationship to that offense’." (Id., at 719-20).

"[W]hen a district court, for purposes of calculating a defendant’s base offense level, aggregates drug quantities from uncharged or unconvicted relevant conduct, the court should ‘explicitly state and support, either at the sentencing hearing or (preferably) in a written statement of reasons, its finding that the unconvicted activities bore the necessary relation to the convicted offense’." (Id., at 720)

Finally, citing U.S. v. Crockett, 82 F.3d 722, 730 (7th Cir. 1996), the Court concluded: "The mere fact that the defendant has engaged in other drug transactions is not sufficient to justify treating those transactions as ‘relevant conduct’ for sentencing purposes." (Id., at 722)

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 United States v. Perulena, 146 F.3d 1332 (11th Cir. 1998)

This case explores some of the vagaries (and ever changing standards) of relevant conduct under U.S.S.G. 1B1.3. The defendant was one of 14 defendants charged in a massive marijuana distribution scheme that spanned several years. By the time defendant Perulena and one other co-defendant went to trial, five of the remaining co-conspirators had fled the country and were listed as fugitives; and seven others had pled guilty (and five of those seven testified against Perulena at his trial.) According to evidence introduced at trial, it was undisputed that Perulena did not join the conspiracy until the very end; and, significantly, not until some 11 months after the conspiracy had successfully imported 11,794 kilograms of marijuana into the United States. The Government never even attempted to prove that Perulena was involved in the importation of those 11,794 kilograms of marijuana.

The Probation Office recommended that Perulena be held accountable, for sentencing purposes, for 3,175 kilograms of marijuana in which Perulena was unquestionably involved, plus the 11,794 kilograms that had been imported by the conspiracy nearly a year before Perulena was involved. The basis of that recommendation was (a) the vague testimony of a Florida Marine Patrol Officer that he had been "monitoring" Perulena for years; and (b) a broad reading of U.S.G.G. 1B1.3(a)(1) that Perulena was "otherwise accountable" for all the drugs imported by the conspiracy, regardless of when he joined that conspiracy. The district court (Judge King) rejected Perulena’s objections to a sentence based on the entire 14,969 kilograms of marijuana; fixed his Guidelines’ offense level at 36; and imposed a sentence of 292 months (24 years) in prison. Showing how far the concept of relevant conduct has developed in the minds of some judges, Judge King concluded that "one who has been found guilty of participating in a drug smuggling conspiracy is accountable for all the drugs imported during the life of the conspiracy as a matter of law." (Id., at 1335).

On appeal, the Eleventh Circuit reversed. Essentially, the Court concluded that Perulena could not be sentenced, under the "otherwise accountable" language of 1B1.3, for the 11,794 kilograms of marijuana that were imported nearly a year before Perulena joined the conspiracy because that shipment was clearly "beyond the scope of . . . the criminal activity he agreed to undertake with" his accomplices. In vacating the sentence, the Court not only directed the district court not to include the 11,794 kilograms in Perulena’s sentence, but also pointedly told the district court to consider only the evidence that was before the court when it sentenced Perulena in the first instance.

The decision is particularly noteworthy for its careful analysis of some of the many changes to 1B1.3 over the years from 1991 (the version of the Guidelines applicable to the crimes at issue) to the most recent Guideline Amendments dealing with relevant conduct; and for its helpful discussion of what conduct may and may not be included when sentencing a defendant in a criminal conspiracy.

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United States v. Valenti, 121 F.3d 327 (7th Cir. 1997)

One of the issues raised in this tax evasion case was whether the district court had erred by considering, as relevant conduct under U.S.S.G. 1B1.3, gross income for tax years that fell outside the statute of limitations and that could not be included in the criminal tax prosecution.  After observing that the  Application Notes to 1B1.3 "illustrate that relevant conduct does not focus on acts for which the defendant is criminally responsible", the Court concluded that the statute of limitations does not limit what actions a court may consider as relevant conduct when sentencing a defendant.  Thus, the Seventh Circuit becomes the seventh court of appeals to adopt this approach, joining the Second, Fifth, Sixth, Tenth, Eleventh and D.C. Circuits.

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United States v. Edwards, 105 F.3d 1179 (7th Cir. 1997)

This is an important case that deals with the type of drugs for which a defendant may be sentenced after a jury returns a general verdict of guilty.  It is particularly important because until now the general rule in the Circuits has been that when a jury returns a general verdict to a charge that a conspiratorial agreement covered multiple drugs, the defendants must be sentenced as if the organization distributed only the drug carrying the lower penalty.  (See, U.S. v. Prozco-Prada, 732 F.2d 1976, 1083-84 (2nd Cir. 1984); Newman v. U.S., 817 F.2d 635 (10th Cir. 1987); U.S. v. Owens, 904 F.2d 411, 414-15 (8th Cir. 1990); U.S. v. Bounds, 985 F.2d 188, 194-95 (5th Cir. 1993); U.S. v. Garcia, 37 F.3d 1359, 1369-71 (9th Cir. 1994)).  In the Newman case, the Court even identified the shortcoming it identified as "plain error."

In the instant case, an indictment charged 20 defendants with conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. 841(a)(1).  The instructions told the jury that it could convict the defendants under that count if it concluded that the conspiracy "involved measurable amounts of cocaine or cocaine base."  The defendants did not object to that instruction and they were sentenced on the basis of the more severe penalties for crack cocaine.  They appealed, and the Seventh Circuit affirmed the more severe sentences.

In its ruling, the Seventh Circuit specifically rejected the holdings of the Circuits cited above as "wrong"; and it continued that "what a jury believes about which drug the conspirators distributed . . . is not conclusive."  (Id., at 1181).  Thus, it concluded that a judge "may base a sentence on kinds and quantities of drugs that were not considered by the jury."  (Id., at 1180).

The Court acknowledged that a disjunctive verdict form (or a disjunctively phrased indictment) leaves unresolved the question whether the conspirators pursued both objectives and, if only one, which.  However, it differentiated the cases cited above on the grounds that they "have nothing to do with an indictment that charges the defendants with agreeing to commit one crime in two ways.  Powder and crack cocaine are variations of the same drug sold to distinct segments of the retail market. . . . An indictment could charge the defendants with ‘conspiring to distribute controlled substances in violation of 21 U.S.C. 841(a)' without identifying either the substance or quantities."  (Id., at 1181).

Citing U.S.S.G. 1B1.3, the Court ruled that "the judge alone determines which drug was distributed, and in what quantity . . .  whether or not they were specified in the indictment."  (Id., at 1181).  In support of its position, the Court cited U.S. v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989), and it concluded that "as long as the jury finds that the defendants conspired to distribute any drug proscribed by 841(a)(1), the judge possesses the power to determine which drug, and how much."  (Id., at 1182).

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United States v. Strange, 102 F.3d 356 (8th Cir. 1996) 

The importance of this case is that it emphasizes a major difference between the provisions of 1B1.3(a)(1)(A) and 1B1.3(a)(1)(B) of the Guidelines. Subsection (a)(1)(A) deals with conduct that the defendant personally undertakes; whereas subsection (a)(1)(B) deals with the defendant's responsibility for the acts of his co-conspirators. The Court emphasized that "it is wholly inappropriate to employ paragraph (a)(1)(A) . . . when, as here, the defendant being sentenced stands convicted of a conspiracy only." (Id., at 360, n.5). Citing the Application Notes to those provisions, the Court emphasizes that in drug cases the requirement of reasonable foreseeability applies only in respect to the conduct of others under subsection (a)(1)(B). It does not apply to conduct that the defendant personally undertakes. Thus, reasonable foreseeability "is completely immaterial to the analysis guided by 1B1.3(a)(1)(A)." In short, when a defendant personally participates in a drug transaction, the foreseeability of the drug quantity is irrelevant.

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United States v. Peterson, 101 F.3d 375 (5th Cir. 1996)

This decision, involving a securities fraud conviction under the Securities Exchange Act of 1934 (15 U.S.C. 78j(b)), contains an important analysis of the scope of "relevant conduct" under the Guidelines. Here, the trial court used certain non-charged conduct (that the defendant had withheld funds that should have been disbursed to investors) in establishing the defendant's sentence. At issue was whether such conduct was criminal conduct that could be used as relevant conduct or simply represented a civil breach of a fiduciary duty which could not be so used. The Court vacated the sentence that was imposed because "there has been no determination made that this activity was in any way criminal. For conduct to be considered 'relevant conduct' for the purpose of establishing one's offense level that conduct must be criminal. . . . To hold otherwise would allow individuals to be punished by having their guidelines range increased for activity which is not prohibited by law but merely morally distasteful or viewed as simply wrong by the sentencing court." (Id., at 385).

In its analysis of this issue the Court noted that the concept of relevant conduct was developed out of the conflict within the Sentencing Commission as to whether to have a "real offense" system or a "charge offense" system. It explained that the "real offense" concept involves sentencing a defendant for his or her actual conduct regardless of the offense of conviction or indictment; while the "charge offense" theory entails sentencing a defendant based solely on the elements of the offense for which the defendant is charged and convicted. The Court concluded that "while the Commission did eventually settle upon a model closer to the charge offense system the guidelines contain a number of real offense elements [such as relevant conduct]." (Id.) Relevant conduct permits a sentencing court to consider "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction" in fixing the appropriate sentence; but as this decision affirms the conduct in question must be criminal in nature. However, as if to emphasize its point that relevant conduct is a confusing and complex issue, the Court also notes that some circuits, including the Second, Seventh and Eighth, permit the sentencing court to consider non-criminal conduct when awarding credit for acceptance of responsibility under U.S.S.G. 3E1.1 (id., at n. 1) - a position with which the Fifth Circuit disagrees.

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United States v. Chalarca, 95 F.3d 239 (2nd Cir. 1996)

This drug sentencing case focuses on the subtle distinctions between subsections (1)(A) and (1)(B) of U.S.S.G. 1B1.3 (relevant conduct). Under subsection (1)(A) a defendant is accountable for all quantities of drugs "with which he was directly involved" without regard to whether he knew or could reasonably foresee the total amount of drugs that was actually involved. Under subsection (1)(B) a defendant involved in a jointly undertaken criminal activity is accountable only for the "reasonably foreseeable quantities" within the scope of that activity. The reasonable foreseeability requirement applies only to the conduct of others; it "does not apply to conduct that the defendant personally undertakes." U.S.S.G. 1B1.3, comment. (n. 2). In this case, two defendants were arrested in a drug-buy, sting operation and the Government sought to have both of them sentenced on the basis of 12 kilograms of cocaine, which would have resulted in a mandatory minimum sentence of 10 years. At sentencing, the district court determined that one of the defendants "had no knowledge of any particular quantity of cocaine and that no particular quantity was foreseeable to him in connection with the conspiracy of which he was a member." Thus, it sentenced that defendant under the provisions of subsection (1)(B) and, using the lowest amount of drugs possible (25 grams), imposed a sentence of 16 months.

The appalled Government appealed, arguing that the district court's ruling was clearly erroneous and that the defendant should have been sentenced on the basis of his personally undertaken criminal activity (i.e., the entire 12 kilograms). In a rare departure from form, the Government lost the appeal and the sentence was affirmed. The Second Circuit agreed with the Government that the quantity of drugs attributed to a defendant need not be foreseeable to him when he personally participates, in a direct way, in a jointly undertaken drug transaction. However, it ruled that "Because the involvement of Chalarca was not direct . . . and because he did not constructively possess drugs or actually posses them . . ., he cannot be sentenced under subsection (1)(A)." (Id. at 243).

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United States v. Gigante, 94 F.3d 53 (2nd Cir. 1996) 

Although the Second Circuit, in this case, confirmed the general proposition that a sentencing court may increase a defendant's sentence for unconvicted conduct based on proof by a preponderance of the evidence, the court also suggested that a more rigorous standard should be used in determining disputed aspects of relevant conduct where such conduct, if proven, will significantly enhance a sentence.

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United States v. Behr, 93 F.3d 764 (11th Cir. 1996) 

The Eleventh Circuit holds that uncharged conduct that occurred outside the statute of limitations period can be considered as relevant conduct to enhance a sentence; and in the process it cites decisions from Second, Fifth, Sixth, Tenth and D.C. Circuits which it says are in accord.

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United States v. Barber, 93 F.3d 1200 (4th Cir. 1996)

This is another case that shows the broad scope of "relevant conduct" as that term is used in U.S.S.G. 1B1.3 of the Guidelines. Here, the Fourth Circuit joins the Second and Tenth Circuits in holding that a dismissal of counts pursuant to a plea agreement does not bar a court's reliance on the conduct underlying those dismissed counts to sustain a decision to depart upward from the otherwise applicable Guideline range. The defendants creatively argued that either the Policy Statement set forth in U.S.S.G. 6B1.2(a) or Rule 11 of the Fed.R.Crim.P., or a combination of the two, barred using dismissed count conduct from consideration for departures under U.S.S.G. 5K2.0.

While the Fourth Circuit acknowledged that several Circuits have agreed or have appeared to agree with that proposition (see listing of cases at page 1208), it decided to follow the reasoning of those courts that have rationalized that using acquitted-count conduct to determine a sentence does not punish the defendant for crimes for which he has not been convicted, but rather justifies the heavier penalties for the offenses for which he was convicted. While the Court did cite a number of Second Circuit decisions in support of its ruling, it failed to cite Judge Newman's dissent in one of those cases in which he wrote: "In some way, the law must be modified. A just system of criminal sentencing cannot fail to distinguish between an allegation of conduct resulting in a conviction and an allegation of conduct resulting in an acquittal." United States v. Concepcion, 983 F.2d 269, 295-96 (2nd Cir. 1992) (Newman, J., dissenting).

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United States v. Raposa, 84 F.3d 502 (1st Cir. 1996)

One of the most important provisions contained in the Federal Sentencing Guidelines is an oft overlooked sentence in Application Note 1(a) to 3E1.1 which states that "A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction" of his sentence for acceptance of responsibility. This case is living proof of the folly of "telling all" to the Probation Officer who prepares the presentence report. Here, the defendant was charged with two drug counts (one for cocaine and one for heroin) and he initially pled guilty to both counts. He subsequently moved to suppress evidence of all of the cocaine found in his apartment on the grounds that it was the fruit of an illegal search.

After the court granted that motion, the Government dropped the cocaine count and the defendant pled guilty to the remaining count which involved possession of less than five grams of heroin with intent to distribute. His sentencing range for that count was 10-16 months. However, on the advice of counsel, the defendant then signed a statement to the Probation Office in which he voluntarily admitted that he had indeed owned the cocaine that had been found in his apartment and that had been the subject of the suppression hearing. His reward for telling the truth was that he was immediately sentenced on the basis of both counts.

Despite expressing "serious reservations about the fairness of considering illegally seized evidence for purposes of the Guidelines' relevant conduct provisions", Judge Boyle used both the cocaine and the heroin in determining the defendant's sentenced and gave him 30 months in prison. On appeal, the First Circuit declined to address the issue of whether the Fourth Amendment's exclusionary rule prohibits a sentencing court from considering illegally seized evidence for purposes of determining or enhancing a defendants Guidelines sentence. While it noted that five Circuits have previously held that "the exclu-sionary rule does not apply in the sentencing context and that there is no blanket prohibition on the consideration of illegally seized evidence for purposes of making the findings required under the Guidelines" (Id., at 504), the Court ruled that the defendant's written admission obviated the need to decide the more weighty issue. The Government must still be laughing.

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United States v. Crockett, 82 F.3d 722 (7th Cir. 1996) 

One of the issues raised by the defendant on this appeal was that the trial court erred by improperly taking into account a transaction that was outside the scope of the charged conspiracy and was not properly categorized as relevant conduct under 1B1.3 of the Guidelines. The Court held that the rationale for including the questioned transaction was "unclear and may be erroneous", but it still concluded that any error was harmless and it affirmed the sentence that was imposed.

However, the Court also made a number of interesting observations about relevant conduct. For example, it wrote: "As we have noted on prior occasions, the government's burden at sentencing is considerably lightened through the application of the preponderance of evidence standard and the relaxed evidentiary rules which govern. However, because the relevant conduct rule is 'not without limits' and 'because its application so favors the government,' we insist that courts be 'scrupulous to ensure that the government has adhered to those limits'." (Id., at 729) It continued: "One important distinction to be made in the relevant conduct determination is 'that section 1B1.3(a)(2) should not be applied to offenses that are of the same kind, but not encompassed in the same course of conduct or plan as the convicted offenses'. . . . The mere fact that the defendant has engaged in other drug transactions is not sufficient to justify treating those transactions as 'relevant conduct' for sentencing purposes." (Id., at 729-30).

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United States v. Hill, 79 F.3d 1477 (6th Cir. 1996) 

The principal holding in this sentencing appeal is that the district court erred when it included, as relevant conduct under U.S.S.G. 1B1.3, evidence of a different drug transaction that took place some 19 months before the offense of conviction. The defendant pled guilty to an illegal drug transaction involving 20 grams of crack that took place in May of 1993. As part of his plea agreement, the Government agreed to dismiss its appeal of a district court's decision to suppress evidence in a 1991 case that involved possession with intent to distribute 75 grams of crack. District Judge McCalla ignored that agreement and sentenced the defendant on the basis of the drug quantities in both transactions.

On appeal, the Sixth Circuit reversed. Judge Moore stated at the outset that "we recognize the apparent unfairness in the district court's determination, which effectively nullifies Hill's plea agreement by imposing the same sentence Hill would have received had he not struck a deal with the government to abandon the appeal of his motion to suppress in the 1991 case." Then she carefully reviewed the law dealing with relevant conduct. First, she noted that 1B1.3 applies only to offenses of a character for which 3D1.2(d) would require grouping of multiple counts. She explored the differences between the terms "same course of conduct" and "common scheme or plan"; and she examined the "similarity factor" from the perspective of the lapse of time between the two drug transactions. While refusing to adopt a hard rule, she does rule that where two isolated drug transactions are separated by more than one year, a "relevant conduct" finding may not be premised on the sole similarity [as existed here] that both transactions involved the same type of drug. She also rejected the Government's argument that the defendant should be viewed as a crack dealer because it produced no evidence to support that position.

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United States v. Young, 78 F.3d 758 (1st Cir. 1996) 

This case deals with the use of "uncharged conduct" at sentencing under the concept of relevant conduct. The Court notes that "to bring uncharged conduct into play, the government must show a sufficient nexus between the conduct and the offense of conviction by a preponderance of evidence" (Id., at 763, citing U.S. v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990). The Court also notes that for two or more offenses to be considered part of a common plan or scheme "they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purposes or similar modus operandi."

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United States v. Putra, 78 F.3d 1386 (9th Cir. 1996)

The Court frames the issue in this case as "whether a judge can sentence a defendant for a crime of which the jury found her not guilty." In most countries in the free world the answer to that question would be a resounding NO - but the answer is not so easy in America under the Guidelines' concept of "relevant conduct." Here, the defendant was charged with aiding and abetting in the possession with intent to distribute cocaine on two separate occasions. She was found guilty on one count that involved one ounce of cocaine, but she was acquitted of the other count that involved five ounces. The district court aggregated the cocaine from both counts, thereby bumping her offense level up four levels. She appealed, arguing that she was being punished for an offense for which she had been acquitted.

The Ninth Circuit agreed; and vacated the sentence. The Court noted that in the tricky world of relevant conduct under U.S.S.G. 1B1.3 it is entirely proper to include the total quantity of drugs involved "in the same course of conduct scheme or plan even if the defendant is convicted of only one count"; but it draws the line when the defendant is charged with a crime and is ultimately acquitted of that charge. In other words, under the silly world of the Guidelines there actually is a built in incentive to charging only a single crime (and proving that crime by proof beyond a reasonable doubt), because then the Government can aggregate at sentencing additional drugs for a whole series of uncharged crimes (which only requires proof by a mere preponderance of evidence). But, at least in the Ninth Circuit, once the Government actually charges more than one crime, if the defendant is acquitted of any of those additional charges, then the additional drugs can't be used. Judge Wallace strongly dissented. Among other things he notes [at page 1392] that most of the Circuits have approved the use of relevant conduct even when arising out of acquitted conduct that the Government has proved by a preponderance of evidence. In short, then, in most places in America a judge can sentence a defendant for a crime for which he or she has been found not guilty.

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United States v. Russell, 76 F.3d 808 (6th Cir. 1996)

In this case the defendant, a now-former cop, was arrested and convicted of various drug and gun crimes, and he was ultimately sentence to 87 months in prison. His sentence was enhanced on the basis of an alleged sale of 57.80 grams of cocaine that was not charged in his indictment, and that took place months after the transactions for which he was convicted. Thus, he argued that the transaction was not "relevant conduct" under U.S.S.G. 1B1.3 because it was not part of the same course of conduct or common scheme or plan as the count of conviction. On appeal, the Sixth Circuit agrees and holds that the later sale of drugs was not "taken in furtherance of the jointly undertaken criminal activity" that occurred "during the commission of the offense of conviction" and thus it vacated the sentence and remanded for resentencing. The Court also noted that it was deeply troubled that the government was able to manipulate Russell's sentence by unilaterally determining the quantity of cocaine" that it intended to sell to Russell in an apparent attempt to increase his sentence.

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United States v. Scarano, 76 F.3d 1471 (9th Cir. 1996)

One of the issues raised in this case was whether double jeopardy concerns are implicated when a district court considers pre-Guidelines loss for the purposes of a pre-Guidelines sentence and then counts the same loss again as relevant conduct in calculating a Guidelines sentence. The Ninth Circuit had originally ruled that such a scenario did implicate the Double jeopardy Clause in U.S. v. Niven, 952 F.2d 289 (9th Cir. 1991). The Court notes that Niven was written before the Supreme Court's holding in Witte v. U.S., 132 L.Ed.2d 351 (1995); and it concludes, based on Witte, that Niven is no longer good law. Thus, it expressly overrules Niven and a series of cases decided thereafter and denies the defendant's claim.

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United States v. Chisholm, 73 F.3d 304 (11th Cir. 1996) 

The two defendants in this case arranged for the sale of some 24 kilograms of powder cocaine to a crack dealer, and after a trial they were both convicted of various drug charges. At sentencing the judge ruled that "the evidence overwhelmingly supports the fact that [the defendants] possessed powder cocaine with the intent of producing crack cocaine." On appeal, the defendants raised numerous issues; most of which were rejected. But one of the defendants argued that under 1B1.3 of the Guidelines, the district court erred in sentencing him on the basis of crack cocaine since the conversion of the cocaine powder into crack was not foreseeable and was outside the scope of the criminal activity in which he agreed to participate. The Court agreed, finding that the evidence only supported the conclusion that the defendant assisted in the procurement of powder cocaine and that there was no evidence to support the trial judges conclusion that the defendant knew of or agreed to the planned conversion into crack.

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United States v. Lombard, 72 F. 3d 170 (1st Cir. 1995) 

In U.S. v. Lanoue, 71 F.3d 966, 984 (1st Cir. 1995) the First Circuit had strongly criticized the use of relevant conduct arising from acquitted crimes as a basis for enhancing a defendant's sentence; see . On the same day, the same panel issued this decision in which it remanded a case back to the district court for consideration of a downward departure in light of similar due process concerns. Here, two defendants were tried in a Maine State court on charges of murdering two men. Both defendant were acquitted. Immediately after that verdict, the two defendants were indicted on various Federal firearms charges; but the two murders were not even alleged by the Government to be an object of the defendants' conspiracy.

One defendant pled guilty and the other was convicted at trial. At sentencing, the district court found that Lombard had used the illegally possessed firearm to commit another offense - namely the same murders for which he had been acquitted in the State court. The resulting Guidelines sentence was a mandatory term of life in prison, "which Maine would not have required even had the defendant been convicted of the murders." (Id., at 172). The sentencing judge, Judge Brody, noted that he was "greatly troubled" by the sentence, but he felt that he had no authority to do otherwise under the Guidelines. On appeal, the First Circuit disagrees and observed that the life sentence enhancement is "the tail that wags the dog" that raises constitutional due process concerns. It specifically held that the sentencing judge did have the authority under U.S.S.G. 5K2.0 to grant a downward departure and it remanded the case back to the district court to consider whether a downward departure was appropriate. It also notes that despite the "nominal characterization" that the murders were being used to "enhance" the sentences for the firearms convictions, "the reality is that the murders were treated as the gravamen of the offense." (Id., at 178)

Perhaps the most significant aspect of this decision is the detailed analysis of the recent Supreme Court decision in Witte v. U.S., 132 L.Ed.2d 351 (1995). A quick reading of that case would seem to support the thesis that the Supreme Court has approved the use of relevant conduct for all sentencing purposes; but this decision sheds new light on Witte. Here, the Court studiously observes that the Supreme Court "framed its analysis by asking when a sentence enhancement can properly be viewed as punishment for the offense of conviction, as opposed to punishment for the enhancing conduct" (id., at 181); and it quotes an important part of the Witte decision which held that "[t]he relevant conduct provisions of the Sentencing Guidelines . . . are sentencing enhancement regimes evincing the judgment that a particular offense should receive a more serious sentence within the authorized range [of the sentences applicable to the count of conviction]." This decision may well be a forerunner to a fresh analysis of the use of relevant conduct that many thought was precluded by Witte.

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United States v. Lanoue, 71 F.3d 966 (1st Cir. 1995) 

This is multi-issue case is noteworthy for its surprising and strong discussion of the use of conduct relating to acquitted crimes to increase a defendant's sentence. The Court observed:

"We believe that a defendant's Fifth and Sixth Amendment right to have a jury determine his guilt beyond a reasonable doubt is trampled when he is imprisoned (for any length of time) on the basis of conduct of which a jury has necessarily acquitted him. Moreover, we believe that the Guidelines' apparent requirement that courts sentence for acquitted conduct utterly lacks the appearance of justice. This panel urges the court to reconsider en banc the issue of acquitted conduct when it is next squarely presented." (Id., at 984).

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United States v. Vital, 68 F.3d 114 (5th Cir. 1995) 

In this case, the defendant pled guilty to one count of an indictment that charged him with the sale of 27 grams of cocaine to an undercover agent - which normally calls for a sentencing level of 14 and a prison term of 15 to 21 months. At sentencing, the judge included, as relevant conduct, other sales of drugs referred to in the Presentence Report that occurred after the count of conviction and sentenced the defendant to 78 months in prison. On appeal, the Court rules that it is proper to consider unadjudicated offenses which occur after the offense of conviction, provided they are "relevant conduct" - which means that they "had to be part of the same course of conduct or common scheme or plan as the offense of conviction." It then noted that although the district court had failed to make any express finding that the unadjudicated offenses did in fact constitute "relevant conduct", such a finding was "implicit". Apparently, criminal defense attorneys now have to worry about a new theory - called sentences based on finding that should have been implicit - which can result in 400% increases in the prison term!

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Kikumura v. United States, 978 F.Supp. 563 (D.N.J. 1997)

The Granddaddy of all Sentencing Guidelines cases is back for another test of Judge Lechner's iron will and steel fist - and that's always a losing proposition.  The original series of Kikumura cases began back in 1988 with U.S. v. Kikumura, 698 F.Supp. 546 (D.N.J. 1988).  The defendant, an alleged member of the Japanese Red Army, was arrested by a New Jersey State Trooper for careless driving.  The Trooper spotted seven cylinders of gunpowder and shot in the back seat of the car; and a subsequent search of the car led to the discovery of three homemade bombs and altered passports.  Kikumura was charged in a twelve count indictment, principally involving the interstate transportation of explosive devices.  Ultimately Kikumura agreed to waive a trial by jury and he entered into a negotiated plea agreement.  In that agreement, he stipulated to the transportation of explosives with knowledge and intent that they would be used to damage and destroy property.  He refused, however, to stipulate that the explosives were to be used to kill or injure any individuals.  The Probation Department prepared a presentence report in which it calculated a sentencing range of 27 to 33 months for all twelve counts for which Kikumura was convicted.

At sentencing, Judge Lechner determined that Kikumura possessed the explosives with intent to cause multiple deaths.  In support of that conclusion, he cited Kikumura's participation in a terrorist training camp located in the Bekaa Valley of Lebanon.  He placed great weight on other acts of violence committed by other members of the Japanese Red Army and on the testimony of FBI agents who expressed the opinion that Kikumura's intent was to kill innocent people.  In the end, he imposed a sentence of 360 months - a mere jump from 3 years to 30 years  (see U.S. v. Kikumura, 706 F.Supp. 331 (D.N.J. 1989)).  Many courts have called that departure the largest upward departure (both percentage-wise and absolutely) ever recorded under the Guidelines; and Judge Lechner has always been fiercely proud of that prized laurel.  After numerous appeals, the Third Circuit ultimately reduced the sentence somewhat, declaring that the proper sentence should have been somewhere between 210 and 262 months. (See, U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990)).  The Court reasoned "[i]t would throw the structure of the guidelines out of kilter to say that a defendant may receive more time on a ‘departure' than he could have received had he been convicted of the crimes leading the judge to depart."  (918 F.3d, id. at 1112).

Throughout the long saga of Kikumura's appeals, many important Guidelines' issues emerged; and they became the forerunners of much thought-provoking litigation.  Can a sentencing hearing become the tail which wags the dog of the substantive offense?  Is due process violated when the bulk of the sentence is based on uncharged crimes which were never presented to a jury?  Does there come a point at which due process requires more than proof by a mere preponderance of evidence at sentencing hearings?  Can the Government properly get through the "back door" sentencing phase what it chose not to bring through the "front door" charging phase?

Some of those issues were raised either directly or indirectly by Kikumura in his earlier appeals before the Third Circuit; and of course Judge Lechner's view was that virtually all the issues were "identical" to issues previously adjudicated and were therefore now procedurally barred in this 28 U.S.C. 2255 motion.  As to other issues that took on the appearance of being new, Judge Lechner cited numerous of his own prized decisions, as is his wont (e.g., U.S. v. Cannistraro, 734 F.Supp. 1110 (D.N.J. 1990), which he cited on innumerable occasions and on numerous points.)  He also took his usual swipe at the Third Circuit for reducing Kikumura's sentence on appeal ("The Third Circuit . . . employed a novel sentencing methodology to determine whether the upward departure was reasonable."  (Id., at 572)).  And he cited often, with the pride of a copied author, the Supreme Court's decision in U.S. v. Watts, 139 L.Ed.2d 554 (1997) which held that it is proper to use at the sentencing phase of a criminal proceeding evidence of the defendant's conduct in crimes for which she has been acquitted.

Kikumura also raised an issue of newly discovered evidence on this appeal.  That evidence was based on certain allegations of Dr. Frederick Whitehurst, a Special Supervisory FBI agent who charged that the very FBI agent who testified at Kikumura's sentencing hearing about the bombs found in Kikumura's car "testified outside of his area of expertise and provided false and misleading information at the First Sentencing Hearing."  (Citing The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases", a copy of which is available in the Miscellaneous Links/KeyWebsites Section of our Homepage on the Internet.)  Showing obvious concern that one of the cornerstones of his career-launching decision might be suspect, Judge Lechner quickly dismissed all allegations of wrong-doing that might affect the credibility of his star witness.  After all, he plaintively cried, that very agent "has been certified as an expert in explosives and explosive materials in other courts around the country" and "the allegations are not sufficient to call into doubt the qualifications of Thurman [the FBI agent]."  (Id., at 586).  In fact, the former- prosecutor-now-turned-judge continued "[t]he allegations of Whitehurst, even if proven, will not change the intent to kill finding and does not rise to the level of a violation warranting Section 2255 relief."  No surprise; but if one wants to learn much about some of the extreme consequences of relevant conduct, this decision and its predecessors are must reading.

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United States v. Sanchez, 925 F.Supp. 991 (S.D.N.Y. 1996)

This case covers a number of important sentencing issues that followed the conviction of two defendants for conspiracy to possess and distribute cocaine. One of the defendants (named Chalarca) was not even charged with any substantive offense. He was merely driving his cousin, Sanchez, to a meeting to deliver some cash to a confidential informant. No drugs were either bought or sold; and neither defendant possessed any drugs. There were no tape recordings of any conversations between Chalarca and any confidential informant, undercover agent, or even with the second defendant (Sanchez) - facts that caused Judge Scheindlin to remark that the Government's case against him "paper thin." But he was found guilty by a jury - and the judge faced the task of determining the quantity of drugs attributable to him for sentencing purposes.

The Judge engaged in a detailed discussion of the subtle nuances and differences between clauses (A) and (B) of U.S.S.G. 1B1.3(a)(1) - as interpreted in the Second Circuit and in other Circuits. In the end, he arrives at several significant holdings. First, he concluded that a defendant cannot aid and abet a conspiracy. Next, he concluded that Chalarca's relevant conduct did not fit within the rubric of 1B1.3(a)(1)(A) (which relates to "all acts . . . committed . . . by the defendant"); and that he should be sentenced under the provisions of 1B1.3(a)(1)(B) (which relates to "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity"). Finally, he concluded that Chalarca had no knowledge of any particular quantity of cocaine and that no particular quantity was foreseeable to him. Thus, he determined that the appropriate Guideline offense level for Chalarca was the minimum 12. The cases is important due to the scholarly and methodical way in which Judge Scheindlin analyzes the issues.

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United States v. Patriarca, 912 F.Supp. 596 (D.Mass. 1995)

This is a case with a long and intricate history that raises some fascinating questions about the use of "relevant conduct" at sentencing. The defendant pled guilty to several RICO violations, principally violations of the Travel Act (18 U.S.C. 1952), and he was sentenced to 97 months in prison. At the sentencing, the Government asked the court to sentence the defendant him on the basis of the five crimes to which he pled guilty, plus an additional seven crimes, five of which were not even mentioned in Patriarca's Indictment, and the remaining two of which were crimes that had allegedly been committed by Patriarca's co-defendants - but certainly not by Patriarca himself. Among the "crimes" that the Government wanted to use for sentencing purposes were a couple of murders that were never charged. The sentencing court refused to impose the departures requested because it found that the Government had not proved by a preponderance of evidence its allegations that Patriarca knew about or had authorized the murders - and a very miffed Government appealed.

On appeal, the First Circuit found that Judge Wolf had erred when he "limited relevant conduct to conduct in furtherance of the RICO predicate acts charged against Patriarca" (U.S. v. Carrozza, 4 F.3d 70, 74 (1st Cir. 1993)); and it remanded the case back to Judge Wolf for resentencing. On the remand, the Government suddenly dropped three of the seven crimes that it originally wanted considered; but it still wanted Judge Wolf to consider one of the uncharged murders. That led Judge Wolf to observe that "if [the] uncharged murder was proven at sentencing to be relevant conduct . . . [it would raise] the Guidelines for the defendant's sentence from 63 to 78 months to 65 years in prison." (Id., at 600, n. 1).

Undaunted with such a prospect, the Government charged on, pushing to impose the higher sentence despite the fact that it somehow forgot to advise the defendant that it would seek to charge him with the murder until after he pled guilty. Quoting the First Circuit in U.S. v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993), the defendant tartly responded that "sandbagging in never to be condoned." Judge Wolf engages in a careful and methodical analysis of the applicable standards of "relevant conduct." He agrees that Patriarca is potentially liable for the foreseeable acts of others in furtherance of the criminal enterprise, even though he did not personally participate in them. But he also notes that "this does not mean, however, that he is punishable for every crime his co-conspirator committed." He concludes that, at worst, Patriarca was an accessory after the fact to the murder, and as such his maximum Base Offense Level was a 30, less a four level reduction for being a "minimal participant." In the end, Judge Wolf reimposed the exact same sentence - a decision that must have both shocked and infuriated the prosecutors. But the decision is an important and well-written analysis of the contours of relevant conduct at sentencing.

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United States v. Haynes, 906 F.Supp. 5 (D.D.C. 1995)

This is an important decision on the scope of U.S.S.G. 1B1.3 (relevant conduct) as revised effective November 1, 1992. At the defendant's first sentencing, he was held responsible for 397 grams of cocaine, which included 381 grams found in an upstairs closet. Based on that finding, he was given a Guideline offense level of 34, and was sentenced to 151 months imprisonment. On an appeal, Judge Richey throws out the drugs found in the upstairs closet and fixes the base offense level at 26, which calls for a sentencing range of 63 to 78 months. He notes that under 1B1.3 as revised, with respect to jointly undertaken criminal activity, a defendant is liable for the conduct of others only if it "was both: (i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that activity"; and he notes that "the scope of the defendant's agreement with other co-conspirators" is the most relevant factor. Thus, while a defendant need not know the exact amount of drugs involved in a criminal activity to be held responsible for the entire amount, the court is required to make specific findings as to the quantity that were reasonable foreseeable to each defendant. (Id., at 11).

Perhaps the most important part of Judge Richey's ruling was his statement that "Indeed, even if the defendant knew that his co-conspirators were dealing in much larger quantities, he is not accountable for those larger quantities unless his agreement was to assist in the distribution thereof." (Id., at 12). Finding that the defendant in this case "appears to have been a small time, novice dealer who sold a small amount of drugs over a short period of time", the Judge concluded that there was "little or no evidence to support attribution to him of the "tremendous cache of drugs" found in the upstairs closet.

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