Federal Legal News

Traps for the Unwary Cross References and Guideline Sentencing
Fourth Amendment and Exclusionary Rule
Fraud and Drug Conspiracies
Plea Agreement Pitfalls and Mindfields
Sentencing Mitigation and Departures Post Booker

Traps for the Unwary Cross References and Guideline Sentencing
By: Mark P. Rankin and Rachel R. May
(reprinted with permission from Champion Magazine)

To laypersons and attorneys alike, it sounds like an illogical and grossly unfair idea: defendants pleading guilty to one crime and then being sentenced severely for a completely different act. Unfortunately, this travesty is reality in federal court, as implemented by a series of "cross references" within the United States Sentencing Guidelines. Aimed at capturing real offense conduct and preventing charge bargaining, cross references have long been identified as a trap for the unwary. In Blakely v. Washington,¹ Justice Scalia expressed dismay at sentencing guidelines' tendency to punish defendants based upon uncharged, even acquitted, conduct. He noted that under such a system "a judge could sentence a man for committing murder, even if the jury convicted him only of possessing the firearm used to commit it - or of making an illegal lane change while fleeing the death scene."² Justice Scalia called such a sentence an "absurd result."³ Soon thereafter, in United States v. Booker,⁴ the Court declared the Sentencing Guidelines to be in violation of the Sixth Amendment, then remedied that little inconvenience by simply declaring them "advisory."

Many of us hoped that Booker would mark the end of cross references, or at least significantly reduce their application. To the contrary, federal sentencing has changed very little going on two years later, with district courts largely imposing guideline-driven sentences. One commentator's analysis of Booker, made soon after the ruling, now seems almost prophetic: "The Federal Sentencing Guidelines are dead. Long live the Federal Sentencing Guidelines."⁵ As such, the cross references still found within the now ostensibly advisory Sentencing Guidelines still embody Justice Scalia's proverbial "absurd result," and the government still too often utilizes this mechanism to prosecute defendants for non-violent crimes, and then punish them for uncharged violent ones.⁶ Counsel must, therefore, remain ever-vigilant in this area of sentencing law and procedure.

This article describes some of the cross references that apply in the most common of federal criminal cases - those applying to defendants charged with offenses related to drugs, firearms, and child sex crimes. It assumes that the guideline system is operating as one of the many § 3553(a) factors, and as such does not discuss variances or statutory penalties (except as the latter relates to strategically capping defendants' sentencing exposure). The article also assumes, quite safely we think, that the sentence given, despite your best efforts, will be a guideline sentence. Finally, and most important, we suggest strategies for avoiding the draconian sting of many of these commonly imposed cross references.

I. Historical Overview of Cross References in the Guidelines

In formulating the Sentencing Guidelines, the United States Sentencing Commission aimed to base sentences upon a defendant's actual conduct, labeled "real offense" sentencing, rather than only upon the crime of conviction, regardless of actual conduct, labeled "charge offense" sentencing.⁷ Charge offense sentencing was deemed inconsistent with the goals of the Sentencing Reform Act, as it gave prosecutors nearly unfettered discretion over the defendant's sentence, allowed for charge bargaining, and did not necessarily take into account the defendant's actual behavior.⁸

However, when the Commission attempted to form a pure real offense system based upon a countless number of different harms, the system proved to be too complex.⁹ Therefore, the Commission took the middle road with a modified charge offense system with real offense elements.¹⁰ Under this system, calculation of a defendant's sentence begins with the charged offense(s).¹¹ From that point, three mechanisms largely come into play: grouping of multiple counts, relevant conduct, and cross references among the guidelines.¹² Cross references direct the sentencing court to a guideline other than that which applies to the offense of conviction, if such guideline is more applicable to the defendant's actual conduct.¹³ As long as the sentence is within the statutory range proscribed for the offense of conviction, the court may find that the cross reference applies by a preponderance of the evidence standard, even if the defendant has been acquitted of the same conduct.¹⁴ As disheartening as this may be for defendants and counsel, the system is not unbeatable. A federal practitioner must, however, recognize the applicable cross references and successfully avoid their painful effects... Read More

Fourth Amendment and Exclusionary Rule
Marcia G. Shein, esq.
www.federalcriminallawcenter.com

PART I

The Fourth Amendment to the United States Constitution prohibits unreasonable search and seizure of persons and places. Many cases in the pre-trial stage require an attack on evidence seized by the government that is protected under the Fourth Amendment. In an attempt to provide information concerning the Exclusionary Rule and Fourth Amendment questions it will be difficult to address every aspect of this very significant area of the law. However, it is my hope that the following information can provide insight in determining whether or not a case presents a Fourth Amendment question. This is a two part series and the second half will appear in the next issue of Prison Living Magazine.

Motions to Suppress under the protections afforded through the Fourth Amendment are pre-trial motions and must be filed with the court prior to the trial. These motions attack the question of whether your person or a place was searched illegally. If evidence is obtained illegally in a criminal case it must be excluded from use. Additionally anything that leads to other evidence against the accused that comes from the illegally seized evidence may also not be used. This is known as the fruit of the poisonous tree effect.

A. Test for Suppression of Evidence

In Katz v. United States the Supreme Court articulated a two-prong test to determine whether a warrantless search violated a defendant's legitimate expectation of privacy. To receive the protection of the Fourth Amendment, a defendant must have a subjective expectation of privacy, and that expectation of privacy must be one that society is "prepared to recognize as reasonable." See Katz v. United States, 389 U.S. 347, 361 (1967). That expectation of privacy has been distinguished in a number of cases dealing with different types of searches. For example, in United States v. Redmon, 138 F.3d 1109, 1112 (7th Cir. 1998) (en banc) a warrantless search of a garbage can was upheld where a defendant had no reasonable expectation of privacy in the trash which was placed near a garage on a joint driveway, cert. denied, 525 U.S. 1066 (1999). When the garbage can is placed on a public curtilage or in an area of common ground then there is no expectation of privacy. If the garbage can is in your garage or near the home away from public access, there is a different question as to whether or not the garbage can be searched. The distinguishing feature here is where the garbage can is located.

example of search and seizure is found in United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir. 1993). Here, the canine sniff of a warehouse door that sheltered marijuana was not illegal or a warrantless search where the defendant had no legitimate expectation that a canine would not detect odor of marijuana in a warehouse that was accessible to the public. Even warrantless scans of a defendant's home with thermal imaging devices are not an infringement of a legitimate expectation of privacy. See United States v. Kyllo, 190 F.3d 1041 (9th Cir. 1999). See also United States v. Depew, 210 F.3d 1061 (9th Cir. 2000). Some of the key features of whether or not a particular search can be conducted is whether that item is on public land, public location, physically or visually accessible by the public. However, in United States v. Sandoval, 200 F.3d 659, 660 (9th Cir. 2000), a warrantless search of an unoccupied tent located on the Bureau of Land Management property, near a marijuana crop was illegal and infringed upon a legitimate... Read More

Fraud and Drug Conspiracies
by Marcia G Shein, Attorney

A. Drug Conspiracies

18 U.S.C. § 846 makes it unlawful for any person to conspire to commit a drug offense. The elements of a conspiracy to commit a substantive offense under 18 U.S.C. § 371 must allege a specific drug offense. Unfortunately, the Supreme Court, in United States v. Shabani, 115 S.Ct. 382 (1994), abolished the requirement held by some circuits that the government must prove an overt act in order to prove the conspiracy. This is why conspiracy charges are found in many drug cases, fraud cases and money laundering cases. Attempting to commit conspiracy is identical, in most circumstances, to a full conspiracy. An attempt to conspire requires intent to commit a specific crime and is a substantial step in furtherance of that crime. Thus, if you are charged with attempt, that substantial step becomes a factor that is not evident in simple drug conspiracy cases. Intent can be inferred from a defendant's conduct and surrounding circumstances. Therefore, an attempt can be circumstantial. See United States v. Still,850 F.2d 607 (9th Cir. 1988) and United States v. Buffington, 815 F.2d 1292 (9th Cir. 1987). In Buffington, the mere possession of materials to do a robbery, two visits to the intended target, driving near the bank, staring at the bank, and the defendants standing armed with their attention toward the bank were sufficient inferences of an act of intent pursuant to 18 U.S.C. § 2113(a). The term "substantial steps" is defined in United States v. Cruz-Jiminez, 977 F.2d 95 (3rd Cir. 1992) and United States v. Smith, 962 F.2d 923, 930 (9th Cir. 1992). A substantial step must strongly corroborate the intent, and such evidence can be used to establish that intent. Cruz-Jiminez at 111-02. An attempt is established when coupled with objective evidence of the defendant's conduct. United States v. Fletcher, 945 F.2d 725 (4th Cir. 1991).

The substantial step element is important because some circuits have different views on what is required for a substantial step. For example, in the Cruz-Jiminez case the Third Circuit pointed out that some circuits require that the "substantial step" be an unequivocal act that strongly corroborates the criminal intent, yet other circuits require only a substantial step that merely corroborates criminal intent but need not be unequivocal... Read More

Attorney-at-Law
Plea Agreement Pitfalls and Mindfields
By Marcia G. Shein, esq.

In federal or state court the plea bargain is a difficult and important decision. Sometimes a plea bargain is necessary in order to resolve a defendant's case with the most potential for mitigating the outcome. It is hard to make the decision to plea bargain but on occasion, good offers are made by the government that are both reasonable and fair in light of the totality of the circumstances and the evidence that may be overwhelming to your attorney's ability to mount a successful defense. Pleading guilty has both direct and collateral consequences. The direct consequences are that you agree to plead guilty to a particular crime with either a sentencing limitation or a broad-based sentencing range depending on if you are a state defendant governed by state sentencing guidelines or a federal defendant government by the Federal Sentencing guidelines. The collateral consequences of pleading guilty are that you have a conviction and that conviction, should you get in trouble a second time, could be used against you to enhance any additional term of imprisonment.

There are pitfalls to plea bargaining and you must be wary of them. If you agree to cooperate with the government you must do so one hundred percent in order to get any benefit in the plea bargain or the sentencing disposition. If you withhold anything or mislead the government in any way, that misinformation will come back to haunt you even if you otherwise gave substantial assistance. Frequently we see minor infractions of the cooperation agreement being used to dismantle the entire cooperation benefit even though the government retains the information that was given... Read More

Sentencing Mitigation and Departures Post Booker

First and foremost, in order to get a sentence mitigated you must object to anything you think is inaccurate in the presentence report or inaccurate as it relates to relevant conduct. Second, you have to be creative in what mitigating factors would warrant a departure below the applicable guideline range that have not been considered by the sentencing commission.

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), the Sentencing Guidelines became advisory. In essence, they already should have been advisory in that 18 U.S.C. §3553 and all the related factors contained in that statute existed from the passage of the Sentencing Reform Act in 1984 and declared constitutional as in United States v. Mistretta, 488 U.S. 361 (1989). Somehow courts became adverse to departures and considered the guidelines mandatory notwithstanding an outside the heartland analysis for departures for extraordinary circumstances not adequately considered under the Federal Sentencing Guidelines. After Booker, it appeared that this standard was no longer applicable and variant sentences could be applied if the court determined under the other factors established under 18 U.S.C. § 3553 that there was reason to go below the guidelines and the resulting sentence was reasonable. Once again, the Supreme Court has eroded its own decision in Booker by the decision rendered in Rita v. United States, 177 Fed. Appx. 357 (4th Cir. 2006). Here, the Court determined that the guidelines were presumptively reasonable but were still advisory. Therefore, judges could use the guidelines to impose a reasonable sentence.

Those judges who were still willing to go below the guidelines for mitigating factors and reasons established under 18 U.S.C. §3553 have now been overturned as imposing unreasonable sentences because the sentence that was imposed did not fall within a factor that was outside those already considered by the sentencing guidelines. Here we are, once again, back where we started. Now, in United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006) and United States v. Kimbrough, 174 Fed. Appx. 798, 799 (4th Cir. 2006) the question arises as to whether or not the pre-Booker standard for downward departures, "outside the heartland", is applicable to post-Booker analysis in sentencing mitigation below the guidelines. There was a time when the sentencing mitigation factors, after Booker, were subjected to a reasonableness standard, but now, with Rita, it appears the question turns on whether the issue was considered by the Sentencing Commission in the application of the guidelines. For example, the Eighth Circuit has rejected downward variance based on factors accounted for in the guidelines... Read More