5/9/2016
The Itch to Snitch Who are we & what do we do? Are we defenders of liberty preserving Plea Agreements, constitutional rights? Cooperation, and 5ks in the Or are we just the pit crew at the NDNY Government’s oval track where unlicensed drivers with no seat belts Presented by are made to drive in a circle at 200 Edward Z. Menkin miles an hour and our job is to try and 555 East Genesee Street Syracuse, New York 13202 keep them safe before they crash? 315-425-1212 [email protected] www.edmenkin.com
Overview of Federal Criminal Cases (Sentencing Commission Report, Fiscal Year 2012)
The vast majority of convicted defendants Like it or not, plead guilty. In fiscal year 2012, 97.0 percent of all offenders did so, the highest rate since fiscal year 2002. We are in the business of When offenders pleaded guilty, 45.9 percent received a sentence below the applicable sentencing guideline range, either at the assisting people to plead request of the government, at their own request, or initiated by the court. Approximately 62 percent (62.4%) of these guilty to crimes. below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
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Source: United States Sentencing Commission
How many PLEA trials did you have AGREEMENTS last year?
FRCrP Rule 11: Three kinds of Pleas No simple matter
• Guilty • Committing a crime is usually not that –“straight, no chaser” (Guilty) complicated –“maybe guilty” (Conditionally guilty, issue preserved –11(a)(2)) • But pleading guilty to that crime is no simple –Fixed sentence – 11(c)(1)(C) matter • Not Guilty • Nolo Contendre – Not favored: USAM §9‐27.500 ‐Offers to Plead Nolo Contendere— Opposition Except in Unusual Circumstances
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Where to you think your client’s ideas Why are Plea Agreements 20 pp. long? about plea bargains come from?
• Cynical Answer #1: • Cynical Answer #2: State Court Proceedings? OR Television?
The Government doesn’t The Government doesn’t trust YOU to have properly trust the COURT to have explained the procedure properly explained the and consequences of procedure and pleading guilty. consequences of pleading guilty.
Plea Bargains in 2 Different Worlds Does your client know what rights he’s/she’s giving up by pleading guilty in FEDERAL Court? New York State U.S. District Court • Not to be prosecuted for • Right to know max sentence • Court involved in plea • Court is never involved in perjury for a false plea • Right to know mandatory discussions prior to the plea plea discussions statement minimum • • Almost never in writing • Agreement is always in Right to plead not guilty • Right to be aware of • Right to jury trial forfeiture • writing Sentence or sentencing • Right to trial counsel • Possibility of restitution • range almost always Sentence is never • Right to confront • Possibility of special guaranteed guaranteed (even in • Waiver of these rights assessment • Plea allocution to facts 11(c)(1)(C) situations) • Right to understand the • Relevance of advisory usually very limited • Allocution usually detailed charges Guidelines sentence • • • Waiver of appeal or Defendant’s Plea is not Defendant is placed under collateral attack under oath oath • Immigration consequences
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To be truly effective, you need to at least understand and be sensitive 15 to your client’s point of view about Pattee correctly points out that the district court omitted five of the approximately fifteen rights of plea bargaining and cooperation which a court is required to advise a defendant before accepting a guilty plea: the right to persist in a not guilty plea (Rule 11(b)(1)(B)); the right to trial by jury • You went to law school. (Rule 11(b)(1)(C)); the right to be represented by counsel, including appointed counsel if necessary – So did the prosecutor (Rule 11(b)(1)(D)); and the rights to be protected from – So did the Judge compelled self-incrimination and to compel the attendance of witnesses (Rule 11(b)(1)(E)). – Your client almost certainly didn’t US v. Bradley Pattee, 14‐2163‐cr, (2nd Cir., April 21, 2016) • You can’t have the client feel that you are treating the process as just another routine day in Court
Which picture best describes your It’s a CONTRACT client’s view of a Plea Agreement • “A plea bargain is a contract between the prosecutor and the defendant.” Contract? U.S. Attorneys’ Manual §626.2
“When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. . . . the circumstances of this case require only that there be specific performance of the agreement on the plea.” Santobello v. New York, 404 U.S. 257
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The Art of the Deal: The Sanity Clause How do you do that? • Do a Guidelines calculation, using “best case”, “worst case” and “just in case” scenarios (see sample handout)
• Work towards minimizing or limiting the stipulations you will agree to in a proposed Plea Agreement
• Remember the lesson of United States v. Richardson
SAMPLE GUIDELINES ANALYSIS TEMPLATES • It is suggested that this exercise be done at your earliest opportunity (and then repeated as often as required as discovery evolves).
• Note that it is helpful that each iteration is dated in order to give you a sense of how and when prospects have changed]
• It helps you clarify in your own mind what is achievable and the form itself can serve as a basis to help the client see and understand what they are looking at.
• The form is also helpful when it is time to create a Sentencing Memorandum.
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POP QUIZ: pencils out please Getting to 5K1.1 in Mandatory • Your client is a Category II offender Minimum Cases • Because of a prior drug conviction, she faces a mandatory minimum of 20 years (240 mos.) (Level 36) • Without the prior, her projected Guidelines level • The lesson of United States v. Richardson is 25 (63‐78 mos) • There are numerous §3553(a) mitigating factors you can put forward other than minor role and an acceptance of responsibility Guidelines reductions • The Government moves under §5K1.1 and §3553(e) and recommends a ‐3 level departure
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rd : United States v. Richardson, 521 F.3 Here’s the question 149 (2nd Cir., 2008) • Since the Court is now relieved of imposing the • “When, as here, the Guidelines sentence ends up statutory minimum (20 yrs/240 mos.), does the as the statutory minimum, both the decision to depart and the maximum permissible extent of Court start departure 3 levels downward: this departure below the statutory minimum may • from Level 36 (188‐235 mos, Category I) ? be based only on substantial assistance to the • or from Level 25 (57‐71 mos, Category I)? government and on no other mitigating considerations.”
• [N.B.: the Court may venture deeply below the statutory minimum in departing, but it must state its reasons for doing so & create a sufficient record to demonstrate that the sentence is reasonable.]
The 5K/851 Dilemma What can be better than a 5K letter? in Mandatory Minimum cases A Defendant is charged with a §841(a) drug felony, has a prior “Traditional” sentencing factors Grounds for departure drug felony, and the Govt files an 851 Notice. He's looking at a
• 18 U.S. Code § 3553 ‐ Imposition of a sentence mandatory minimum of 20 yrs. • (a)Factors To Be Considered in Imposing a Sentence.—The court • §5K1.1. Substantial Assistance to Authorities (Policy shall impose a sentence sufficient, but not greater than necessary, Statement) to comply with the purposes set forth in paragraph (2) of this If he had had no prior, the man/min would be 10. subsection. The court, in determining the particular sentence to be • Upon motion of the government stating that the defendant imposed, shall consider— has provided substantial assistance in the investigation or prosecution of another person who has committed an • (1) the nature and circumstances of the offense and the history and offense, the court may depart from the guidelines. He cooperates, the Govt files a 5K1.1 motion and a 3553(e) characteristics of the defendant; • (2) the need for the sentence imposed— • (a) The appropriate reduction shall be determined by Motion, & withdraws the 851. • (A) to reflect the seriousness of the offense, to promote respect for the court for reasons stated that may include, but are not the law, and to provide just punishment for the offense; limited to, consideration of the following: • (B) to afford adequate deterrence to criminal conduct; The prior still counts in his criminal history. – (1) the court’s evaluation of the significance and usefulness • (C) to protect the public from further crimes of the defendant; and of the defendant’s assistance, taking into consideration the • (D) to provide the defendant with needed educational or vocational government’s evaluation of the assistance rendered; training, medical care, or other correctional treatment in the most Question: Does the Govt's withdrawal of the 851 Notice drop the effective manner; – (2) the truthfulness, completeness, and reliability of any • (3) the kinds of sentences available; information or testimony provided by the defendant; Man/Min to 10? • (4) the kinds of sentence and the sentencing range established – (3) the nature and extent of the defendant’s assistance; for— • (A) the applicable category of offense committed by the applicable – (4) any injury suffered, or any danger or risk of injury to the Since a 5K departure would proceed downward from 120 months category of defendant as set forth in the guidelines— ...... defendant or his family resulting from his assistance; • (5) any pertinent policy statement— and not 240, it is unlikely in the extreme that the Govt would file • (A) issued by the Sentencing Commission ...... • (5) the timeliness of the defendant’s assistance. BOTH a 5K/3553(e) Motion AND withdraw the 851. • (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and • (7) the need to provide restitution to any victims of the offense. WHAT WOULD YOU RATHER HAVE?
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So what’s the lesson of Richardson?
• You have as much at stake as the Government to see to it that the Court follows the proper sentencing procedure • It’s not enough to simply get a 5K1.1 COOPERATION & motion/letter from the Government; there must also be a 3553(e) Motion relieving the Court of the obligation to impose the man/min. • Removing the impact of a 851 Notice of prior 5K1.1 conviction is critical • YOU must/should substantiate the extent of your client’s cooperation (sealed letter to the Court)
Would you buy a 5K from this man?
You think this is an urban myth?: Your client doesn’t
“Many view a cooperating witness as a betrayer or informer; unquestionably, such a person is not generally held in high regard.” United States v. Ming He, 94 F.3rd 782 [2nd Cir., 1996]
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“O, sole mio” –what is your client The scariest words in a defense really buying? attorney’s vocabulary: • If the United States Attorney’s Office determines, in its sole discretion, that the defendant has provided "substantial assistance" in the investigation or prosecution of one or more other persons “TRUST ME” who have committed offenses, it may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a • downward departure pursuant to either or both U.S.S.G. §5K1.1 Can/does your client trust you when you and/or 18 U.S.C. § 3553(e); or (ii) move to dismiss one or more say trust the Govt to move under 5K1.1? charging informations the government has filed pursuant to 21 U.S.C. § 851 concerning the defendant’s conviction for one or more • felony drug offenses that trigger enhanced penalty provisions in The Govt won’t guarantee it –why should Title 21 of the United States Code, in any case in which the the client “trust” the Govt? Government has filed such information(s). However, the United States Attorney's Office does not promise or guarantee that it will – They locked him up, took his money, destroyed make such motion(s) for departure or to dismiss. Whether and how to credit any proffered cooperation and assistance is within his family and they SAY they want him to go to the sole discretion of the United States Attorney’s Office. jail and do more time
If your client cooperates: NDNY Cooperation Agreements • Do not waive your presence at any debriefings & meetings with Government agents • Signed but not filed • Considered an “Addendum” to a Plea Agreement • Make dated notes of who says what about whom – A breach of one causes a breach of the other – Specifically identify each agent & agency at the table • “Full” cooperation owed – Serves as a basis for your 5K submissions to the Court • Cannot be disclosed to others – Helps flag potential conflicts (e.g., other clients • Confidentiality protected by not filing, Govt not named?) disclosing, not being referenced in open court (plea or • Take your name tag off before you leave the sentencing) building • Right to have counsel present at mtgs/debriefings waived (unless expressly renewed)
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NDNY Cooperation Agreements, cont’d NDNY Cooperation Agreements • Consent to adjourn sentencing Standard NDNY language: • Stay out of further trouble “The defendant is entitled to have an attorney present at any session during which the defendant provides testimony, information, or other cooperation to • Limited use immunity for statements the United States Attorney’s Office or any designated law enforcement agency pursuant to this agreement. The defendant hereby waives the right to – Not used in case‐in‐chief; not for crime of violence; not for have an attorney present at such sessions unless and until the defendant or perjury; not if Plea/Cooperation Agreements breached the defendant’s attorney informs the Assistant United States Attorney or • If “substantial”, Govt MAY move for 5K/3553(e) designated law enforcement agent that the attorney’s presence is desired.” departure OR dismiss 851 (prior conviction) enhancement TRANSLATION: – Govt’s sole discretion Attorney = • If released pending sentencing, Defendant will contact “The special nature of a §5K1.1 motion demonstrates that the government debriefing interview is crucial to a case agent every day, agree to a polygraph, remain cooperating witness. To send a defendant into this locatable by GPS tracking, not leave NDNY, consent to perilous setting without his attorney is, we think, remand in case of breach inconsistent with the fair administration of justice.” U.S. v. Ming He, 94 F3rd 782, 790 (2nd Cir., 1996)
Shhhh! Don’t tell anyone One of life’s small mysteries • Rule 11(c)(2) requires Plea Agreements to be DISCLOSED IN OPEN COURT (unless good cause exists to be otherwise) • In the NDNY, Plea Agreements are routinely FILED and DOCKETED (therefore publicly available) – Why is that? – What purpose is served? • In the WDNY, SDNY, & EDNY Plea Agreements are NOT routinely filed to be publicly available
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Plea Agreements are FILED Cooperation Agreements are NOT The Rule 11 FILED • HOW do you make the Court aware of “Waiver” Form your client’s cooperation and eligibility for a substantial assistance in the NDNY departure?
CREATING A RECORD of Creating a record of “off the record” “off the record” cooperation cooperation (the most important thing in the record) • 4. The sentencing memos, which are not sealed, • 1. A plea agreement is filed with no mention of say nothing about cooperation. cooperation. • 5. Instead, counsel for both sides brief the Court • 2. The original signed cooperation agreement is regarding the cooperation issue by sending letters maintained in the U.S. Attorney's Office. A to the Judge by email. courtesy copy of this cooperation agreement is • provided to, and maintained by, the Judgment, 6. After sentencing, the Rule waiver, sentencing but is not filed on the docket. letters and cooperation agreement are attached • 3. Defendant and defense counsel sign a Rule 11 to the Statement of Reasons, which is lodged waiver before the plea agreeing not to mention with the Court (for purposes of review) but not cooperation on the record (e.g., "5K1," filed. "agreement," "Court exhibit," etc).
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Government Memos Justifying §5K1.1 WHO decides to move under §5K1.1? Motions are Confidential • “Authority to approve such pleadings is limited to • “Every United States Attorney or Department of the United States Attorney, the Chief Assistant Justice Section Chief or Office Director shall United States Attorney, and supervisory criminal maintain documentation of the facts behind and Assistant United States Attorneys, or a committee justification for each substantial assistance including at least one of these individuals. Similarly, for Department of Justice attorneys, pleading. The repository or repositories of this approval authority should be vested in a Section documentation need not be the case file itself. Chief or Office Director, or such official's deputy, Freedom of Information Act considerations may or in a committee which includes at least one of suggest that a separate form showing the final these individuals” decision be maintained” • [USAM 9‐27.400 ‐ Plea Agreements Generally] • [USAM 9‐27.400 ‐ Plea Agreements Generally]
rd What if the Government’s United States v. Ming He, 94 F.3 782, 787 (2nd Cir., 1996) 5K1.1 Motion is inadequate & When a prosecutor's refusal to make a § 5K1.1 motion is not commensurate with your animated by an unconstitutional or other impermissible motive, or where there is government misconduct or bad client’s cooperation? faith, United States v. Gonzalez, 970 F.2d 1095, 1103 (2d Cir.1992), a defendant is entitled to relief. See Wade v. United Your client has agreed that the States, 504 U.S. 181, 185–86, 112 S.Ct. 1840, 1843–44, 118 5K motion will be at the “sole L.Ed.2d 524 (1992). Because a defendant may challenge the discretion” of the U.S. Attorney. government's refusal to make a §5K1.1 motion when the So, what’s your beef? refusal is premised on an impermissible consideration, it follows, a fortiori, that a defendant is also entitled to point It’s got to be more than just out the inadequacy of such a motion, see United States v. stingy; it’s got to be motivated Gangi, 45 F.3d 28, 31 (2d Cir.1995), and the sentence that by bad faith or misconduct. results from an alleged impermissible motive or from misconduct is susceptible to appellate review.
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NDNY Cooperation Agreements Standard NDNY language: “The defendant is entitled to have an attorney present at any session during which the defendant provides testimony, information, or other cooperation to the United States Attorney’s Office or any designated law enforcement agency pursuant to this agreement. The defendant hereby waives the right to have an attorney present at such sessions unless and until the defendant or the defendant’s attorney informs the Assistant United States Attorney or designated law enforcement agent that the attorney’s presence is desired.”
TRANSLATION:
Attorney = “The special nature of a §5K1.1 motion demonstrates that the government debriefing interview is crucial to a cooperating witness. To send a defendant into this perilous setting without his attorney is, we think, inconsistent with the fair administration of justice.” U.S. v. Ming He, 94 F3rd 782, 790 (2nd Cir., 1996)
14 Plea Agreements, Cooperation, & 5K1.1 in the NDNY: (The Itch to Snitch)
Presented by Edward Z. Menkin, Esq. 555 East Genesee Street Syracuse, New York 13202 315-425-1212 [email protected] http://www.edmenkin.com
General Outline
Materials provided:
UNITED STATES ATTORNEYS’ MANUAL §9-27.000 et seq., Principles of Federal Prosecution
Note especially: 9-27.400 - Plea Agreements Generally and 626. Plea Agreements and Sentencing Appeal Waivers – Discussion of the Law
Sample Plea Agreements from WDNY, SDNY
Sample Guidelines Estimate Charts
Sample Cooperation Agreement
Rule 11 Waiver Form (NOT FOR CIRCULATION OR GENERAL DISTRIBUTION)
United States v. Richardson
United States v. Ming He UNITED STATES ATTORNEYS’ MANUAL
§9-27.000 et seq., Principles of Federal Prosecution
Note especially
9-27.400 - Plea Agreements Generally
and
626. Plea Agreements and Sentencing Appeal Waivers – Discussion of the Law 9-27.000 - Principles Of Federal Prosecution | USAM | Department of Justice https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecut...
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U.S. Attorneys » Resources » U.S. Attorneys' Manual » Title 9: Criminal
9-27.000 - Principles Of Federal Prosecution
9-27.001 Preface
9-27.110 Purpose
9-27.120 Application
9-27.130 Implementation
9-27.140 Modifications or Departures
9-27.150 Non-Litigability
9-27.200 Initiating and Declining Prosecution—Probable Cause Requirement
9-27.220 Grounds for Commencing or Declining Prosecution
9-27.230 Initiating and Declining Charges—Substantial Federal Interest
9-27.240 Initiating and Declining Charges—Prosecution in Another Jurisdiction
9-27.250 Non-Criminal Alternatives to Prosecution
9-27.260 Initiating and Declining Charges—Impermissible Considerations
9-27.270 Records of Prosecutions Declined
9-27.300 Selecting Charges—Charging Most Serious Offenses
9-27.320 Additional Charges
9-27.330 Pre-Charge Plea Agreements
9-27.400 Plea Agreements Generally
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9-27.420 Plea Agreements—Considerations to be Weighed
9-27.430 Selecting Plea Agreement Charges
9-27.440 Plea Agreements When Defendant Denies Guilt
9-27.450 Records of Plea Agreements
9-27.500 Offers to Plead Nolo Contendere—Opposition Except in Unusual Circumstances
9-27.520 Offers to Plead Nolo Contendere—Offer of Proof
9-27.530 Argument in Opposition of Nolo Contendere Plea
9-27.600 Entering into Non-prosecution Agreements in Return for Cooperation—Generally
Entering into Non-prosecution Agreements in Return for Cooperation—Considerations to be 9-27.620 Weighed
Entering into Non-prosecution Agreements in Return for Cooperation—Limiting the Scope of 9-27.630 Commitment
9-27.640 Agreements Requiring Assistant Attorney General Approval
9-27.641 Multi-District (Global) Agreement Requests
9-27.650 Records of Non-Prosecution Agreements
9-27.710 Participation in Sentencing—Generally
9-27.720 Establishing Factual Basis for Sentence
9-27.730 Conditions for Making Sentencing Recommendations
9-27.740 Consideration to be Weighed in Determining Sentencing Recommendations
9-27.745 Unwarranted Sentencing Departures by the Court
9-27.750 Disclosing Factual Material to Defense
9-27.760 Limitation on Identifying Uncharged Third-Parties Publicly
9-27.001 - Preface These principles of Federal prosecution provide to Federal prosecutors a statement of sound prosecutorial policies and practices for particularly important areas of their work. As such, it should promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the Federal criminal laws.
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The manner in which Federal prosecutors exercise their decision-making authority has far-reaching implications, both in terms of justice and effectiveness in law enforcement and in terms of the consequences for individual citizens. A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of the criminal laws to a particular set of circumstances—recognizing both that serious violations of Federal law must be prosecuted, and that prosecution entails profound consequences for the accused and the family of the accused whether or not a conviction ultimately results. Other prosecutorial decisions can be equally significant. Decisions, for example, regarding the specific charges to be brought, or concerning plea dispositions, effectively determine the range of sanctions that may be imposed for criminal conduct. The rare decision to consent to pleas of nolo contendere may affect the success of related civil suits for recovery of damages. Also, the government's position during the sentencing process will help assure that the court imposes a sentence consistent with the Sentencing Reform Act.
These principles of Federal prosecution have been designed to assist in structuring the decision-making process of attorneys for the government. For the most part, they have been cast in general terms with a view to providing guidance rather than to mandating results. The intent is to assure regularity without regimentation, to prevent unwarranted disparity without sacrificing necessary flexibility.
The availability of this statement of principles to Federal law enforcement officials and to the public serves two important purposes: ensuring the fair and effective exercise of prosecutorial responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case. The Principles provide convenient reference points for the process of making prosecutorial decisions; they facilitate the task of training new attorneys in the proper discharge of their duties; they contribute to more effective management of the government's limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of all United States Attorney's offices and between their activities and the Department's law enforcement priorities; they make possible better coordination of investigative and prosecutorial activity by enhan cing the understanding of investigating departments and agencies of the considerations underlying prosecutorial decisions by the Department; and they inform the public of the careful process by which prosecutorial decisions are made.
Important though these principles are to the proper operation of our Federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of those men and women who are selected to represent the public interest in the Federal criminal justice process. It is with their help that these principles have been prepared, and it is with their efforts that the purposes of these principles will be achieved.
These principles were originally promulgated by Attorney General Benjamin R. Civiletti on July 28, 1980. While they have since been updated to reflect changes in the law and current policy of the Department of Justice, the underlying message to Federal prosecutors remains unchanged.
9-27.110 - Purpose
A. The principles of Federal prosecution set forth herein are intended to promote the reasoned exercise of prosecutorial discretion by attorneys for the government with respect to:
1. Initiating and declining prosecution; 2. Selecting charges; 3. Entering into plea agreements; 4. Opposing offers to plead nolo contendere;
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5. Entering into non-prosecution agreements in return for cooperation; and 6. Participating in sentencing.
B. Comment. Under the Federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of Federal criminal law. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See, e.g., Oyler v. Boles, 368 U.S. 448 (1962); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965), cert. denied, 384 U.S. 906 (1966). This discretion exists by virtue of his/her status as a member of the Executive Branch, which is charged under the Constitution with ensuring that the laws of the United States be "faithfully executed." U.S. Const. Art. § 3.See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974).
Since Federal prosecutors have great latitude in making crucial decisions concerning enforcement of a nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration of justice in the Federal system, that all Federal prosecutors be guided by a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed, in discharging their prosecutorial responsibilities.
Although these principles deal with the specific situations indicated, they should be read in the broader context of the basic responsibilities of Federal attorneys: making certain that the general purposes of the criminal law—assurance of warranted punishment, deterrence of further criminal conduct, protection of the public from dangerous offenders, and rehabilitation of offenders—are adequately met, while making certain also that the rights of individuals are scrupulously protected.
[cited in USAM 9-2.031]
9-27.120 - Application
A. In carrying out criminal law enforcement responsibilities, each Department of Justice attorney should be guided by the principles set forth herein, and each United States Attorney and each Assistant Attorney General should ensure that such principles are communicated to the attorneys who exercise prosecutorial responsibility within his/her office or under his/her direction or supervision. B. Comment. It is expected that each Federal prosecutor will be guided by these principles in carrying out his/her criminal law enforcement responsibilities unless a modification of, or departure from, these principles has been authorized pursuant to USAM 9-27.140. See also Criminal Resource Manual 792 ("Incentives for Subjects and Targets of Criminal Investigations and Defendants in Criminal Cases to Provide Foreign Intelligence Information"). However, it is not intended that reference to these principles will require a particular prosecutorial decision in any given case. Rather, these principles are set forth solely for the purpose of assisting attorneys for the government in determining how best to exercise their authority in the performance of their duties.
[updated January 2007]
9-27.130 - Implementation
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A. Each United States Attorney (USA) and responsible Assistant Attorney General should establish internal office procedures to ensure:
1. That prosecutorial decisions are made at an appropriate level of responsibility, and are made consistent with these principles; and 2. That serious, unjustified departures from the principles set forth herein are followed by such remedial action, including the imposition of disciplinary sanctions, when warranted, as are deemed appropriate.
B. Comment. Each USA and each Assistant Attorney General responsible for the enforcement of Federal criminal law should supplement the guidance provided by the principles set forth herein by establishing appropriate internal procedures for his/her office. One purpose of such procedures should be to ensure consistency in the decisions within each office by regularizing the decision making process so that decisions are made at the appropriate level of responsibility. A second purpose, equally important, is to provide appropriate remedies for serious, unjustified departures from sound prosecutorial principles. The USA or Assistant Attorney General may also wish to establish internal procedures for appropriate review and documentation of decisions.
9-27.140 - Modifications or Departures
A. United States Attorneys (USA) may modify or depart from the principles set forth herein as necessary in the interests of fair and effective law enforcement within the district. Any significant modification or departure contemplated as a matter of policy or regular practice must be approved by the appropriate Assistant Attorney General and the Deputy Attorney General. B. Comment. Although these materials are designed to promote consistency in the application of Federal criminal laws, they are not intended to produce rigid uniformity among Federal prosecutors in all areas of the country at the expense of the fair administration of justice. Different offices face different conditions and have different requirements. In recognition of these realities, and in order to maintain the flexibility necessary to respond fairly and effectively to local conditions, each USA is specifically authorized to modify or depart from the principles set forth herein, as necessary in the interests of fair and effective law enforcement within the district. In situations in which a modification or departure is contemplated as a matter of policy or regular practice, the appropriate Assistant Attorney General and the Deputy Attorney General must approve the action before it is adopted.
[cited in USAM 9-27.120]
9-27.150 - Non-Litigability
A. The principles set forth herein, and internal office procedures adopted pursuant hereto, are intended solely for the guidance of attorneys for the government. They are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party to litigation with the United States. B. Comment. This statement of principles has been developed purely as matter of internal Departmental policy and is being provided to Federal prosecutors solely for their own guidance in performing their duties. Neither this statement of principles nor any internal procedures adopted by individual offices pursuant hereto creates any rights or benefits. By setting forth this fact explicitly, USAM 9-27.150 is intended to foreclose efforts to litigate the validity of prosecutorial actions alleged to be at variance with these principles or not in compliance with internal office
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procedures that may be adopted pursuant hereto. In the event that an attempt is made to litigate any aspect of these principles, or to litigate any internal office procedures adopted pursuant to these materials, or to litigate the applicability of such principles or procedures to a particular case, the United States Attorney concerned should oppose the attempt and should notify the Department immediately.
9-27.200 - Initiating and Declining Prosecution—Probable Cause Requirement
A. If the attorney for the government has probable cause to believe that a person has committed a Federal offense within his/her jurisdiction, he/she should consider whether to:
1. Request or conduct further investigation; 2. Commence or recommend prosecution; 3. Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction; 4. Decline prosecution and initiate or recommend pretrial diversion or other non-criminal disposition; or 5. Decline prosecution without taking other action.
B. Comment. USAM 9-27.220 sets forth the courses of action available to the attorney for the government once he/she has probable cause to believe that a person has committed a Federal offense within his/her jurisdiction. The probable cause standard is the same standard as that required for the issuance of an arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for a magistrate' s decision to hold a defendant to answer in the district court (See Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provis ions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a Federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well.
[cited in USAM 9-10.090; USAM 9-2.031; Tax Resource Manual 36]
9-27.220 - Grounds for Commencing or Declining Prosecution
A. The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless, in his/her judgment, prosecution should be declined because:
1. No substantial Federal interest would be served by prosecution; 2. The person is subject to effective prosecution in another jurisdiction; or 3. There exists an adequate non-criminal alternative to prosecution.
B. Comment. USAM 9-27.220 expresses the principle that, ordinarily, the attorney for the government should initiate or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence probably will be sufficient to obtain
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and sustain a conviction. Evidence sufficient to sustain a conviction is required under Rule 29(a), Fed. R. Crim. P., to avoid a judgment of acquittal. Moreover, both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact. In this connection, it should be noted that, when deciding whether to prosecute, the government attorney need not have in hand all the evidence upon which he/she intends to rely at trial: it is sufficient that he/she have a reasonable be lief that such evidence will be available and admissible at the time of trial. Thus, for example, it would be proper to commence a prosecution though a key witness is out of the country, so long as the witness's presence at trial could be expected with reasonable certainty.
The potential that—despite the law and the facts that create a sound, prosecutable case—the factfinder is likely to acquit the defendant because of the unpopularity of some factor involved in the prosecution or because of the overwhelming popularity of the defendant or his/her cause, is not a factor prohibiting prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt whether the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and desirable to commence or recommend prosecution and allow the criminal process to operate in accordance with its princip les.
Merely because the attorney for the government believes that a person's conduct constitutes a Federal offense and that the admissible evidence will be sufficient to obtain and sustain a conviction, does not mean that he/she necessarily should initiate or recommend prosecution: USAM 9-27.220 notes three situations in which the prosecutor may property decline to take action nonetheless: when no substantial Federal interest would be served by prosecution; when the person is subject to effective prosecution in another jurisdiction; and when there exists an adequate non-criminal alternative to prosecution. It is left to the judgment of the attorney for the government whether such a situation exists. In exercising that judgment, the attorney for the government should consult USAM 9-27.230, 9-27.240, or 9-27.250, as appropriate.
[cited in USAM 6-4.210; USAM 9-10.090; USAM 9-27.200; USAM 9-28.300]
9-27.230 - Initiating and Declining Charges—Substantial Federal Interest
A. In determining whether prosecution should be declined because no substantial Federal interest would be served by prosecution, the attorney for the government should weigh all relevant considerations, including:
1. Federal law enforcement priorities; 2. The nature and seriousness of the offense; 3. The deterrent effect of prosecution; 4. The person's culpability in connection with the offense; 5. The person's history with respect to criminal activity;
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6. The person's willingness to cooperate in the investigation or prosecution of others; and 7. The probable sentence or other consequences if the person is convicted.
B. Comment. USAM 9-27.230 lists factors that may be relevant in determining whether prosecution should be declined because no substantial Federal interest would be served by prosecution in a case in which the person is believed to have committed a Federal offense and the admissible evidence is expected to be sufficient to obtain and sustain a conviction. The list of relevant considerations is not intended to be all-inclusive. Obviously, not all of the factors will be applicable to every case, and in any particular case one factor may deserve more weight than it might in another case.
1. Federal Law Enforcement Priorities. Federal law enforcement resources and Federal judicial resources are not sufficient to permit prosecution of every alleged offense over which Federal jurisdiction exists. Accordingly, in the interest of allocating its limited resources so as to achieve an effective nationwide law enforcement program, from time to time the Department establishes national investigative and prosecutorial priorities. These priorities are designed to focus Federal law enforcement efforts on those matters within the Federal jurisdiction that are most deserving of Federal attention and are most likely to be handled effectively at the Federal level. In addition, individual United States Attorneys may establish their own priorities, within the national priorities, in order to concentrate their resources on problems of particular local or regional significance. In weighing the Federal interest in a particular prosecution, the attorney for the government s hould give careful consideration to the extent to which prosecution would accord with established priorities. 2. Nature and Seriousness of Offense. It is important that limited Federal resources not be wasted in prosecuting inconsequential cases or cases in which the violation is only technical. Thus, in determining whether a substantial Federal interest exists that requires prosecution, the attorney for the government should consider the nature and seriousness of the offense involved. A number of factors may be relevant. One factor that is obviously of primary importance is the actual or potential impact of the offense on the community and on the victim. The impact of an offense on the community in which it is committed can be measured in several ways: in terms of economic harm done to community interests; in terms of physical danger to the citizens or damage to public property; and in terms of erosion of the inhabitants' peace of mind and sense of security. In assessing the seriousness of the offense in these terms, the prosecutor may properly weigh such questions as whether the violation is technical or relatively inconsequential in nature and what the public attitude is toward prosecution under the circumstances of the case. The public may be indifferent, or even opposed, to enforcement of the controlling statute whether on substantive grounds, or because of a history of nonenforcement, or because the offense involves essentially a minor matter of private concern and the victim is not interested in having it pursued. On the other hand, the nature and circumstances of the offense, the identity of the offender or the victim, or t he attendant publicity, may be such as to create strong public sentiment in favor of prosecution. While public interest, or lack thereof, deserves the prosecutor's careful attention, it should not be used to justify a decision to prosecute, or to take other action, that cannot be supported on other grounds. Public and professional responsibility sometimes will require the choosing of a particularly unpopular course.
Economic, physical, and psychological considerations are also important in assessing the impact of the offense on the victim. In this connection, it is appropriate for the prosecutor to take into account such matters as the victim's age or health, and whether full or partial
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restitution has been made. Care should be taken in weighing the matter of restitution, however, to ensure against contributing to an impression that an offender can escape prosecution merely by returning the spoils of his/her crime.
3. Deterrent Effect of Prosecution. Deterrence of criminal conduct, whether it be criminal activity generally or a specific type of criminal conduct, is one of the primary goals of the criminal law. This purpose should be kept in mind, particularly when deciding whether a prosecution is warranted for an offense that appears to be relatively minor; some offenses, although seemingly not of great importance by themselves, if commonly committed would have a substantial cumulative impact on the community. 4. The Person's Culpability. Although the prosecutor has sufficient evidence of guilt, it is nevertheless appropriate for him/her to give consideration to the degree of the person's culpability in connection with the offenses, both in the abstract and in comparison with any others involved in the offense. If for example, the person was a relatively minor participant in a criminal enterprise conducted by others, or his/her motive was worthy, and no other circumstances require prosecution, the prosecutor might reasonably conclude that some course other than prosecution would be appropriate. 5. The Person's Criminal History. If a person is known to have a prior conviction or is reasonably believed to have engaged in criminal activity at an earlier time, this should, be considered in determining whether to initiate or recommend Federal prosecution. In this connection particular attention should be given to the nature of the person's prior criminal involvement, when it occurred, its relationship if any to the present offense, and whether he/she previously avoided prosecution as a result of an agreement not to prosecute in return for cooperation or as a result of an order compelling his/her testimony. By the same token, a person's lack of prior criminal involvement or his/her previous cooperation with the law enforcement officials should be given due consideration in appropriate cases. 6. The Person's Willingness to Cooperate. A person's willingness to cooperate in the investigation or prosecution of others is another appropriate consideration in the determination whether a Federal prosecution should be undertaken. Generally speaking, a willingness to cooperate should not by itself relieve a person of criminal liability. There may be some cases, however, in which the value of a person's cooperation clearly outweighs the Federal interest in prosecuting him/her. These matters are discussed more fully below, in connection with plea agreements and non-prosecution agreements in return for cooperation. 7. The Person's Personal Circumstances. In some cases, the personal circumstances of an accused may be relevant in determining whether to prosecute or to take other action. Some circumstances peculiar to the accused, such as extreme youth, advanced age, or mental or physical impairment, may suggest that prosecution is not the most appropriate response to his/her offense; other circumstances, such as the fact that the accused occupied a position of trust or responsibility which he/she violated in committing the offense, might weigh in favor of prosecution. 8. The Probable Sentence. In assessing the strength of the Federal interest in prosecution, the attorney for the government should consider the sentence, or other consequence, that is likely to be imposed if prosecution is successful, and whether such a sentence or other consequence would justify the time and effort of prosecution. If the offender is already subject to a substantial sentence, or is already incarcerated, as a result of a conviction for another offense, the prosecutor should weigh the likelihood that another conviction will result in a meaningful addition to his/her sentence, might otherwise have a deterrent effect, or is necessary to ensure that the offender's record accurately reflects the extent of his/her criminal conduct. For example, it might be desirable to commence a bail-jumping prosecution
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against a person who already has been convicted of another offense so that law enforcement personnel and judicial officers who encounter him/her in the future wil l be aware of the risk of releasing him/her on bail. On the other hand, if the person is on probation or parole as a result of an earlier conviction, the prosecutor should consider whether the public interest might better be served by instituting a proceeding for violation of probation or revocation of parole, than by commencing a new prosecution. The prosecutor should also be alert to the desirability of instituting prosecution to prevent the running of the statute of limitations and to preserve the availability of a basis for an adequate sentence if there appears to be a chance that an offender's prior conviction may be reversed on appeal or collateral attack. Finally, if a person previously has been prosecuted in another jurisdiction for the same offense or a closely related offense, the attorney for the government should consult existing departmental policy statements on the subject of "successive prosecution" or "dual prosecution," depending on whether the earlier prosecution w as Federal or nonfederal. See USAM 9-2.031 (Petite Policy). Just as there are factors that are appropriate to consider in determining whether a substantial Federal interest would be served by prosecution in a particular case, there are considerations that deserve no weight and should not influence the decision. These include the time and resources expended in Federal investigation of the case. No amount of investigative effort warrants commencing a Federal prosecution that is not fully justified on other grounds.
[cited in USAM 9-2.031; USAM 9-27.220]
9-27.240 - Initiating and Declining Charges—Prosecution in Another Jurisdiction
A. In determining whether prosecution should be declined because the person is subject to effective prosecution in another jurisdiction, the attorney for the government should weigh all relevant considerations, including:
1. The strength of the other jurisdiction's interest in prosecution; 2. The other jurisdictions ability and willingness to prosecute effectively; and 3. The probable sentence or other consequences if the person is convicted in the other jurisdiction.
B. Comment. In many instances, it may be possible to prosecute criminal conduct in more than one jurisdiction. Although there may be instances in which a Federal prosecutor may wish to consider deferring to prosecution in another Federal district, in most instances the choice will probably be between Federal prosecution and prosecution by state or local authorities. USAM 9-27.240 sets forth three general considerations to be taken into account in determining whether a person is likely to be prosecuted effectively in another jurisdiction: the strength of the jurisdiction's interest in prosecution; its ability and willingness to prosecute effectively; and the probable sentence or other consequences if the person is convicted. As indicated with respect to the considerations listed in paragraph 3, these factors are illustrative only, and the attorney for the government should also consider any others that appear relevant to his/her in a particular cas e.
1. The Strength of the Jurisdiction's Interest. The attorney for the government should consider the relative Federal and state characteristics of the criminal conduct involved. Some offenses, even though in violation of Federal law, are of particularly strong interest to the authorities of the state or local jurisdiction in which they occur, either because of the nature
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of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by state or local investigators, or some other circumstance. Whatever the reason, when it appears that the Federal interest in prosecution is less substantial than the interest of state or local authorities, consideration should be given to referring the case to those authorities rather than commencing or recommending a Federal prosecution.
2. Ability and Willingness to Prosecute Effectively. In assessing the likelihood of effective prosecution in another jurisdiction, the attorney for the government should also consider the intent of the authorities in that jurisdiction and whether that jurisdiction has the prosecutorial and judicial resources necessary to undertake prosecution promptly and effectively. Other relevant factors might be legal or evidentiary problems that might attend prosecution in the other jurisdiction. In addition, the Federal prosecutor should be alert to any local conditions, attitudes, relationships, or other circumstances that might cast doubt on the likelihood of the state or local authorities conducting a thorough and successful prosecution.
3. Probable Sentence Upon Conviction. The ultimate measure of the potential for effective prosecution in another jurisdiction is the sentence, or other consequence, that is likely to be imposed if the person is convicted. In considering this factor, the attorney for the government should bear in mind not only the statutory penalties in the jurisdiction and sentencing patterns in similar cases, but also, the particular characteristics of the offense or, of the offender that might be relevant to sentencing. He/she should also be alert to the possibility that a conviction under state law may, in some cases result in collateral consequences for the defendant, such as disbarment, that might not follow upon a conviction under Federal law.
[cited in USAM 5-11.113; USAM 9-27.220; USAM 9-28.1100]
9-27.250 - Non-Criminal Alternatives to Prosecution
A. In determining whether prosecution should be declined because there exists an adequate, non-criminal alternative to prosecution, the attorney for the government should consider all relevant factors, including:
1. The sanctions available under the alternative means of disposition; 2. The likelihood that an effective sanction will be imposed; and 3. The effect of non-criminal disposition on Federal law enforcement interests.
B. Comment. When a person has committed a Federal offense, it is important that the law respond promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be initiated. In recognition of the fact that resort to the criminal process is not necessarily the only appropriate response to serious forms of antisocial activity, Congress and state legislatures have provided civil and administrative remedies for many types of conduct that may also be subject to criminal sanction. Examples of such non-criminal approaches include civil tax proceedings; civil actions under the securities, customs, antitrust, or other regulatory laws; and reference of complaints to licensing authorities or to professional organizations such as bar associations. Another potentially useful alternative to prosecution in some cases is pretrial diversion. See USAM 9-22.000.
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Attorneys for the government should familiarize themselves with these alternatives and should consider pursuing them if they are available in a particular case. Although on some occasions they should be pursued in addition to the criminal law procedures, on other occasions they can be expected to provide an effective substitute for criminal prosecution. In weighing the adequacy of such an alternative in a particular case, the prosecutor should consider the nature and severity of the sanctions that could be imposed, the likelihood that an adequate sanction would in fact be imposed, and the effect of such a non-criminal disposition on Federal law enforcement interests. It should be noted that referrals for non-criminal disposition may not include the transfer of grand jury material unless an order under Rule 6(e), Federal Rules of Criminal Procedure, has been obtained. See United States v. Sells Engineering, Inc., 463 U.S. 418 (1983).
[cited in USAM 9-27.220; USAM 9-28.1100]
9-27.260 - Initiating and Declining Charges—Impermissible Considerations
A. In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be influenced by:
1. The person's race, religion, sex, national origin, or political association, activities or beliefs; 2. The attorney's own personal feelings concerning the person, the person's associates, or the victim; or 3. The possible affect of the decision on the attorney's own professional or personal circumstances.
B. Comment. USAM 9-27.260 sets forth various matters that plainly should not influence the determination whether to initiate or recommend prosecution or take other action. They are listed here not because it is anticipated that any attorney for the government might allow them to affect his/her judgment, but in order to make clear that Federal prosecutors will not be influenced by such improper considerations. Of course, in a case in which a particular characteristic listed in subparagraph (1) is pertinent to the offense (for example, in an immigration case the fact that the offender is not a United States national, or in a civil rights case the fact that the victim and the offender are of different races), the provision would not prohibit the prosecutor from considering it for the purpose intended by the Congress.
[cited in USAM 8-3.300]
9-27.270 - Records of Prosecutions Declined
A. Whenever the attorney for the government declines to commence or recommend Federal prosecution, he/she should ensure that his/her decision and the reasons therefore are communicated to the investigating agency involved and to any other interested agency, and are reflected in the office files. B. Comment. USAM 9-27.270 is intended primarily to ensure an adequate record of disposition of matters that are brought to the attention of the government attorney for possible criminal prosecution, but that do not result in Federal prosecution. When prosecution is declined in serious cases on the understanding that action will be taken by other authorities, appropriate steps should be taken to ensure that the matter receives their attention and to ensure coordination or follow-up.
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9-27.300 - Selecting Charges—Charging Most Serious Offenses
Prosecutors are reminded that when a defendant commits an armed bank robbery or other crime of violence or drug trafficking crime, appropriate charges include 18 U.S.C. § 924 (c).
A. Except as provided in USAM 9-27.330 (precharge plea agreements), once the decision to prosecute has been made, the attorney for the government should charge, or should recommend that the grand jury charge, the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction. If mandatory minimum sentences are also involved, their effect must be considered, keeping in mind the fact that a mandatory minimum is statutory and generally overrules a guideline. The "most serious" offense is generally that which yields the highest range under the sentencing guidelines.
However, a faithful and honest application of the Sentencing Guidelines is not incompatible with selecting charges or entering into plea agreements on the basis of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purposes of the Federal criminal code, and maximize the impact of Federal resources on crime. Thus, for example, in determining "the most serious offense that is consistent with the nature of the defendant's conduct that is likely to result in a sustainable conviction," it is appropriate that the attorney for the government consider, inter alia, such factors as the Sentencing Guideline range yielded by the charge, whether the penalty yielded by such sentencing range (or potential mandatory minimum charge, if applicable) is proportional to the seriousness of the defendant's conduct, and whether the charge achieves such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation. Note that these factors may also be considered by the attorney for the government when entering into plea agreements. USAM 9-27.400.
To ensure consistency and accountability, charging and plea agreement decisions must be made at an appropriate level of responsibility and documented with an appropriate record of the factors applied.
B. Comment. Once it has been determined to initiate prosecution, either by filing a complaint or an information, or by seeking an indictment from the grand jury, the attorney for the government must determine what charges to file or recommend. When the conduct in question consists of a single criminal act, or when there is only one applicable statute, this is not a difficult task. Typically, however, a defendant will have committed more than one criminal act and his/her conduct may be prosecuted under more than one statute. Moreover, selection of charges may be complicated further by the fact that different statutes have different proof requirements and provide substantially different penalties. In such cases, considerable care is required to ensure selection of the proper charge or charges. In addition to reviewing the concerns that prompted the decision to prosecute in the first instance, particular attention should be given to the need to ensure that the prosecution will be both fair and effective.
At the outset, the attorney for the government should bear in mind that at trial he/she will have to produce admissible evidence sufficient to obtain and sustain a conviction or else the government will suffer a dismissal. For this reason, he/she should not include in an information or recommend in an indictment charges that he/she cannot reasonably expect to prove beyond a reasonable doubt by legally sufficient evidence
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at trial.
In connection with the evidentiary basis for the charges selected, the prosecutor should also be particularly mindful of the different requirements of proof under different statutes covering similar conduct. For example, the bribe provisions of 18 U.S.C. § 201 require proof of "corrupt intent," while the '"gratuity" provisions do not. Similarly, the "two witness" rule applies to perjury prosecutions under 18 U.S.C. § 1621 but not under 18 U.S.C. § 1623.
As stated, a Federal prosecutor should initially charge the most serious, readily provable offense or offenses consistent with the defendant's conduct. Charges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned in an effort to arrive at a bargain that fails to reflect the seriousness of the defendant's conduct.
USAM 9-27.300 expresses the principle that the defendant should be charged with the most serious offense that is encompassed by his/her conduct and that is readily provable. Ordinarily, as noted above this will be the offense for which the most severe penalty is provided by law and the guidelines. Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum is the more serious. This principle provides the framework for ensuring equal justice in the prosecution of Federal criminal offenders. It guarantees that every defendant will start from the same position, charged with the most serious criminal act he/she commits. Of course, he/she may also be charged with other criminal acts (as provided in USAM 9-27.320), if the proof and the government's legitimate law enforcement objectives warrant additional charges .
Current drug laws provide for increased maximum, and in some cases minimum, penalties for many offenses on the basis of a defendant's prior criminal convictions. See, e.g., 21 U.S.C. §§ 841 (b)(1)(A),(B), and (C), 848(a), 960 (b)(1), (2), and (3), and 962. However, a court may not impose such an increased penalty unless the United States Attorney has filed an information with the court, before trial or before entry of a plea of guilty, setting forth the previous convictions to be relied upon 21 U.S.C. § 851.
Every prosecutor should regard the filing of an information under 21 U.S.C. § 851 concerning prior convictions as equivalent to the filing of charges. Just as a prosecutor must file a readily provable charge, he or she must file an information under 21 U.S.C. § 851 regarding prior convictions that are readily provable and that are known to the prosecutor prior to the beginning of trial or entry of plea. The only exceptions to this requirement are where: (1) the failure to file or the dismissal of such pleadings would not affect the applicable guideline range from which the sentence may be imposed; or (2) in the context of a negotiated plea, the United States Attorney, the Chief Assistant United States Attorney, the senior supervisory Criminal Assistant United States Attorney or within the Department of Justice, a Section Chief or Office Director has approved the negotiated agreement. The reasons for such an agreement must be set forth in writing. Such a reason might include, for example, that the United States Attorney's office is particularly overburdened, the case would be time-consuming to try, and proceeding to trial would significantly reduce the total number of cases
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disposed of by the office. The permissible agreements within this context include: (1) not filing an enhancement; (2) filing an enhancement which does not allege all relevant prior convictions, thereby only partially enhancing a defendant's potential sentence; and (3) dismissing a previously filed enhancement.
A negotiated plea which uses any of the options described in this section must be made known to the sentencing court. In addition, the sentence which can be imposed through the negotiated plea must adequately reflect the seriousness of the offense.
[cited in USAM 9-27.400; USAM 9-28.1200; USAM 9-100.020]
9-27.320 - Additional Charges
A. Except as hereafter provided, the attorney for the government should also charge, or recommend that the grand jury charge, other offenses only when, in his/her judgement, additional charges:
1. Are necessary to ensure that the information or indictment:
a. Adequately reflects the nature and extent of the criminal conduct involved; and b. Provides the basis for an appropriate sentence under all the circumstances of the case; or
2. Will significantly enhance the strength of the government's case against the defendant or a codefendant.
B. Comment. It is important to the fair and efficient administration of justice in the Federal system that the government bring as few charges as are necessary to ensure that justice is done. The bringing of unnecessary charges not only complicates and prolongs trials, it constitutes an excessive—and potentially unfair—exercise of power. To ensure appropriately limited exercises of the charging power, USAM 9-27.320 outlines three general situations in which additional charges may be brought: (1) when necessary adequately to reflect the nature and extent of the criminal conduct involved; (2) when necessary to provide the basis for an appropriate sentence under all the circumstances of the case; and (3) when an additional charge or charges would significantly strengthen the case against the defendant or a codefendant.
1. Nature and Extent of Criminal Conduct. Apart from evidentiary considerations, the prosecutor's initial concern should be to select charges that adequately reflect the nature and extent of the criminal conduct involved. This means that the charges selected should fairly describe both the kind and scope of unlawful activity; should be legally sufficient; should provide notice to the public of the seriousness of the conduct involved; and should negate any impression that, after committing one offense, an offender can commit others with impunity. 2. Basis for Sentencing. Proper charge selection also requires consideration of the end result of successful prosecution—the imposition of an appropriate sentence under all the circumstances of the case. In order to achieve this result, it ordinarily should not be necessary to charge a person with every offense for which he/she, may technically be liable (indeed, charging every such offense may in some cases be perceived as an unfair attempt to induce a guilty plea). What is important is that the person be charged in such a manner that, if he/she is convicted, the court may impose an appropriate sentence. Under the sentencing guidelines, if the offense actually charged bears a true relationship with the defendant's conduct, an appropriate guideline sentence will follow. However, the prosecutor
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must take care to be sure that the charges brought allow the guidelines to operate properly. For instance, charging a significant participant in a major drug conspiracy only with u sing a communication facility would result in a sentence which, even if it were the maximum possible under the charged offense, would be artificially low given the defendant's actual conduct. 3. Effect on the Government's Case. When considering whether to include a particular charge in the indictment or information, the attorney for the government should bear in mind the possible effects of inclusion or exclusion of the charge on the government's case against the defendant or a codefendant. If the evidence is available, it is proper to consider the tactical advantages of bringing certain charges. For example, in a case in which a substantive offense was committed pursuant to an unlawful agreement, inclusion of a conspiracy count is permissible and may be desirable to ensure the introduction of all relevant evidence at trial. Similarly, it might be important to include a perjury or false statement count in an indictment charging other offenses, in order to give the jury a complete picture of the defendant's criminal conduct. Failure to include appropriate charges for which the proof is sufficient may not only result in the exclusion, of relevant evidence, but ma y impair the prosector's ability to prove a coherent case, and lead to jury confusion as well. In this connection, it is important to remember that, in multi-defendant cases, the presence or absence of a particular charge against one defendant may affect the strength of the case against another defendant. In short, when the evidence exists, the charges should be structured so as to permit proof of the strongest case possible without undue burden on the administration of justice.
[cited in USAM 6-4.210; USAM 9-27.300]
9-27.330 - Pre-Charge Plea Agreements Before filing or recommending charges pursuant to a precharge plea agreement, the attorney for the government should consult the plea agreement provisions of USAM 9-27.430, thereof, relating to the selection of charges to which a defendant should be required to plead guilty.
[cited in USAM 9-27.300]
9-27.400 - Plea Agreements Generally
A. The attorney for the government may, in an appropriate case, enter into an agreement with a defendant that, upon the defendant's plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, he/she will move for dismissal of other charges, take a certain position with respect to the sentence to be imposed, or take other action. Plea agreements, and the role of the courts in such agreements, are addressed in Chapter Six of the Sentencing Guidelines. See also USAM 9-27.300 which discusses the individualized assessment by prosecutors of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purposes of the Federal criminal code, and maximize the impact of Federal resources on crime. B. Comment. USAM 9-27.400 permits, in appropriate cases, the disposition of Federal criminal charges pursuant to plea agreements between defendants and government attorneys. Such negotiated dispositions should be distinguished from situations in which a defendant pleads guilty or nolo contendere to fewer than all counts of an information or indictment in the absence of any agreement with the government. Only the former type of disposition is covered by the provisions of USAM 9-27.400 et seq.
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Negotiated plea dispositions are explicitly sanctioned by Rule 11(e)(1), Fed. R. Crim. P., which provides that:
The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:
A. Move for dismissal of other charges; or B. Make a recommendation, or agree not to oppose, the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or C. Agree that a specific sentence is the appropriate disposition of the case.
Three types of plea agreements are encompassed by the language of USAM 9-27.400, agreements whereby in return for the defendant's plea to a charged offense or to a lesser or related offense, other charges are dismissed ("charge agreements"); agreements pursuant to which the government takes a certain position regarding the sentence to be imposed ("sentence agreements"); and agreements that combine a plea with a dismissal of charges and an undertaking by the prosecutor concerning the government's position at sentencing ("mixed agreements").
Once prosecutors have indicted, they should not find themselves bargaining about charges which they have determined are readily provable and reflect the seriousness of the defendant's conduct. Charge agreements envision dismissal of counts in exchange for a plea. As with the indictment decision, the prosecutor should seek a plea to the most serious readily provable offense charged. Should a prosecutor determine in good faith after indictment that, as a result of a change in the evidence or for another reason (e.g., a need has arisen to protect the identity of a particular witness until he or she testifies against a more significant defendant), a charge is not readily provable or that an indictment exaggerates the seriousness of an offense or offenses, a plea bargain may reflect the prosecutor's reassessment. There should be documentation, however, in a case in which charges originally brought are dropped.
The language of USAM 9-27.400 with respect to sentence agreements is intended to cover the entire range of positions that the government might wish to take at the time of sentencing. Among the options are: taking no position regarding the sentence; not opposing the defendant's request; requesting a specific type of sentence (e.g., a fine or probation), a specific fine or term of imprisonment, or not more than a specific fine or term of imprisonment; and requesting concurrent rather than consecutive sentences. Agreement to any such option must be consistent with the guidelines.
There are only two types of sentence bargains. Both are permissible, but one is more complicated than the other. First, prosecutors may bargain for a sentence that is within the specified United States Sentencing Commission's guideline range. This means that when a guideline range is 18 to 24 months, the prosecutor has discretion to agree to recommend a sentence of 18 to 20 months rather than to argue for a sentence at the top of the range. Such a plea does not require that the actual sentence range be determined in advance. The plea agreement may have wording to the effect that once the range is determined by the
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court, the United States will recommend a low point in that range. Similarly, the prosecutor may agree to recommend a downward adjustment for acceptance of responsibility if he or she concludes in good faith that the defendant is entitled to the adjustment. Second, the prosecutor may seek to depart from the guidelines. This is more complicated than a bargain invo lving a sentence within a guideline range. Departures are discussed more generally below.
Department policy requires honesty in sentencing; Federal prosecutors are expected to identify for the court departures when they agree to support them. For example, it would be improper for a prosecutor to agree that a departure is in order, but to conceal the agreement in a charge bargain that is presented to a court as a fait accompli so that there is neither a record of nor judicial review of the departure.
Plea bargaining, both charge bargaining and sentence bargaining, must honestly reflect the totality and seriousness of the defendant's conduct and any departure to which the prosecutor is agreeing, and must be accomplished through appropriate guideline provisions.
The basic policy is that charges are not to be bargained away or dropped, unless the prosecutor has a good faith doubt as to the government's ability readily to prove a charge for legal or evidentiary reasons. There are, however, two exceptions.
First, if the applicable guideline range from which a sentence may be imposed would be unaffected, readily provable charges may be dismissed or dropped as part of a plea bargain. It is important to know whether dropping a charge may affect a sentence. For example, the multiple offense rules in Part D of Chapter 3 of the guidelines and the relevant conduct standard set forth in Sentencing Guideline 1B1.3(a)(2) will mean that certain dropped charges will be counted for purposes of determining the sentence, subject to the statutory maximum for the offense or offenses of conviction. It is vital that Federal prosecutors understand when conduct that is not charged in an indictment or conduct that is alleged in counts that are to be dismissed pursuant to a bargain may be counted for sentencing purposes and when it may not be. For example, in the case of a defendant who could be charged with five bank robberies, a decision to charge only one or to dismiss four counts pursuant to a bar gain precludes any consideration of the four uncharged or dismissed robberies in determining a guideline range, unless the plea agreement included a stipulation as to the other robberies. In contrast, in the case of a defendant who could be charged with five counts of fraud, the total amount of money involved in a fraudulent scheme will be considered in determining a guideline range even if the defendant pleads guilty to a single count and there is no stipulation as to the other counts.
Second, Federal prosecutors may drop readily provable charges with the specific approval of the United States Attorney or designated supervisory level official for reasons set forth in the file of the case. This exception recognizes that the aims of the Sentencing Reform Act must be sought without ignoring other, critical aspects of the Federal criminal justice system. For example, approvals to drop charges in a particular case might be given because the United States Attorney's office is particularly over-burdened, the case would be time-consuming to try, and proceeding to trial would significantly reduce the total number of cases disposed of by the office.
In Chapter 5, Part K of the Sentencing Guidelines, the Commission has listed departures that may be considered by a court in imposing a sentence. Moreover, Guideline 5K2.0
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recognizes that a sentencing court may consider a ground for departure that has not been adequately considered by the Commission. A departure requires approval by the court. It violates the spirit of the guidelines and Department policy for prosecutor to enter into a plea bargain which is based upon the prosecutor's and the defendant's agreement that a departure is warranted, but that does not reveal to the court the existence of the departure and thereby afford the court an opportunity to reject it.
The Commission has recognized those bases for departure that are commonly justified. Accordingly, before the government may seek a departure based on a factor other than one set forth in Chapter 5, Part X, approval of the United States Attorney or designated supervisory officials is required. This approval is required whether or not a case is resolved through a negotiated plea.
Section 5K1.1 of the Sentencing Guidelines allows the United States to file a pleading with the sentencing court which permits the court to depart below the indicated guideline, on the basis that the defendant provided substantial assistance in the investigation or prosecution of another. Authority to approve such pleadings is limited to the United States Attorney, the Chief Assistant United States Attorney, and supervisory criminal Assistant United States Attorneys, or a committee including at least one of these individuals. Similarly, for Department of Justice attorneys, approval authority should be vested in a Section Chief or Office Director, or such official's deputy, or in a committee which includes at least one of these individuals.
Every United States Attorney or Department of Justice Section Chief or Office Director shall maintain documentation of the facts behind and justification for each substantial assistance pleading. The repository or repositories of this documentation need not be the case file itself. Freedom of Information Act considerations may suggest that a separate form showing the final decision be maintained.
The procedures described above shall also apply to Motions filed pursuant to Rule 35(b), Federal Rules of Criminal Procedure, where the sentence of a cooperating defendant is reduced after sentencing on motion of the United States. Such a filing is deemed for sentencing purposes to be the equivalent of a substantial assistance pleading.
The concession required by the government as part of a plea agreement, whether it be a "charge agreement," a "sentence agreement," or a "mixed agreement," should be weighed by the responsible government attorney in the light of the probable advantages and disadvantages of the plea disposition proposed in the particular case. Particular care should be exercised in considering whether to enter into a plea agreement pursuant to which the defendant will enter a nolo contendere plea. As discussed in USAM 9-27.500 and USAM 9-16.000, there are serious objections to such pleas and they should be opposed unless the responsible Assistant Attorney General concluded that the circumstances are so unusual that acceptance of such a plea would be in the public interest.
[updated September 2000] [cited in USAM 9-16.300; USAM 9-16.320; USAM 9-27.300; USAM 9-28.1300]
9-27.420 - Plea Agreements—Considerations to be Weighed
A. In determining whether it would be appropriate to enter into a plea agreement, the attorney for the government should weigh all relevant considerations, including:
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1. The defendant's willingness to cooperate in the investigation or prosecution of others; 2. The defendant's history with respect to criminal activity; 3. The nature and seriousness of the offense or offenses charged; 4. The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct; 5. The desirability of prompt and certain disposition of the case; 6. The likelihood of obtaining a conviction at trial; 7. The probable effect on witnesses; 8. The probable sentence or other consequences if the defendant is convicted; 9. The public interest in having the case tried rather than disposed of by a guilty plea; 10. The expense of trial and appeal; 11. The need to avoid delay in the disposition of other pending cases; and 12. The effect upon the victim's right to restitution.
B. Comment. USAM 9-27.420 sets forth some of the appropriate considerations to be weighed by the attorney for the government in deciding whether to enter into a plea agreement with a defendant pursuant to the provisions of Rule 11(e), Fed. R. Crim. P. The provision is not intended to suggest the desirability or lack of desirability of a plea agreement in any particular case or to be construed as a reflection on the merits of any plea agreement that actually may be reached; its purpose is solely to assist attorneys for the government in exercising their judgement as to whether some sort of plea agreement would be appropriate in a particular case. Government attorneys should consult the investigating agency involved and the victim, if appropriate or required by law, in any case in which it would be helpful to have their views concerning the relevance of particular factors or the weight they deserve.
1. Defendant's Cooperation. The defendant's willingness to provide timely and useful cooperation as part of his/her plea agreement should be given serious consideration. The weight it deserves will vary, of course, depending on the nature and value of the cooperation offered and whether the same benefit can be obtained without having to make the charge or sentence concession that would be involved in a plea agreement. In many situations, for example, all necessary cooperation in the form of testimony can be obtained through a compulsion order under 18 U.S.C.§§ 6001-6003. In such cases, that approach should be attempted unless, under the circumstances, it would seriously interfere with securing the person's conviction. If the defendant's cooperation is sufficiently substantial to justify the filing of a 5K1.1 Motion for a downward departure, the procedures set out in USAM 9-27.400(B) shall be followed. 2. Defendant's Criminal History. One of the principal arguments against the practice of plea bargaining is that it results in leniency that reduces the deterrent impact of the law and leads to recidivism on the part of some offenders. Although this concern is probably most relevant in non-federal jurisdictions that must dispose of large volumes of routine cases with inadequate resources, nevertheless it should be kept in mind by Federal prosecutors, especially when dealing with repeat offenders or "career criminals." Particular care should be taken in the case of a defendant with a prior criminal record to ensure that society's need for protection is not sacrificed in the process of arriving at a plea disposition. In this connection, it is proper for the government attorney to consider not only the defendant's past, but also facts of other criminal involvement not resulting in conviction. By the same token, of course, it is also proper to consider a defendant's absence of past criminal involvement and his/her past cooperation with law enforcement officials. Note that 18 U.S.C.§ 924(e), as well as Sentencing Guidelines 4B1.1 and 4B1.4 address "career criminals" and "armed career
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criminals." 18 U.S.C. § 3559(c)—the so-called "three strikes" statute—addresses serious violent recidivist offenders. The application of these provisions to a particular case may affect the plea negotiation posture of the parties. 3. Nature and Seriousness of Offense Charged. Important considerations in determining whether to enter into a plea agreement may be the nature and seriousness of the offense or offenses charged. In weighing those factors, the attorney for the government should bear in mind the interests sought to be protected by the statute defining the offense (e.g., the national defense, constitutional rights, the governmental process, personal safety, public welfare, or property), as well as nature and degree of harm caused or threatened to those interests and any attendant circumstances that aggravate or mitigate the seriousness of the offense in the particular case. 4. Defendant's Attitude. A defendant may demonstrate apparently genuine remorse or contrition, and a willingness to take responsibility for his/her criminal conduct by, for example, efforts to compensate the victim for injury or loss, or otherwise to ameliorate the consequences of his/her acts. These are factors that bear upon the likelihood of his/her repetition of the conduct involved and that may properly be considered in deciding whether a plea agreement would be appropriate. Sentencing Guideline 3E1.1 allows for a downward adjustment upon acceptance of responsibility by the defendant. It is permissible for a prosecutor to enter a plea agreement which approves such an adjustment if the defendant otherwise meets the requirements of the section. It is particularly important that the defendant not be permitted to enter a guilty plea under circumstances that will allow him/her later to proclaim lack of culpability or even complete innocence. Such consequences can be avoided only if the court and the public are adequately informed of the nature and scope of the illegal activity and of the defendant's complicity and culpability. To this end, the attorney for the government is strongly encouraged to enter into a plea agreement only with the defendant's assurance that he/she will admit, the facts of the offense and of his/her culpable participation therein. A plea agreement may be entered into in the absence of such an assurance, but only if the defendant is willing to accept without contest a statement by the government in open court of the facts it could prove to demonstrate his/her guilt beyond a reasonable doubt. Except as provided in USAM 9-27.440, the attorney for the government should not enter into a plea agreement with a defendant who admits his/her guilt but disputes an essential element of the government's case.
5. Prompt Disposition. In assessing the value of prompt disposition of a criminal case, the attorney for the government should consider the timing of a proffered plea. A plea offer by a defendant on the eve of trial after the case has been fully prepared is hardly as advantageous from the standpoint of reducing public expense as one offered months or weeks earlier. In addition, a last minute plea adds to the difficulty of scheduling cases efficiently and may even result in wasting the prosecutorial and Judicial time reserved for the aborted trial. For these reasons, governmental attorneys should make clear to defense counsel at an early stage in the proceedings that, if there are to be any plea discussions, they must be concluded prior to a certain date well in advance of the trial date. See USSG § 3E1.1(b)(1). However, avoidance of unnecessary trial preparation and scheduling disruptions are not the only benefits to be gained from prompt disposition of a case by means of a guilty plea. Such a disposition also saves the government and the court the time and expense of trial and appeal. In addition, a plea agreement facilitates prompt imposition of sentence, thereby promoting the overall goals of the criminal justice system. Thus, occasionally it may be appropriate to enter into a plea agreement even after the usual time
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for making such agreements has passed. 6. Likelihood of Conviction. The trial of a criminal case inevitably involves risks and uncertainties, both for the prosecution and for the defense. Many factors, not all of which can be anticipated, can affect the outcome. To the extent that these factors can be identified, they should be considered in deciding whether to accept a plea or go to trial. In this connection, the prosecutor should weigh the strength of the government's case relative to the anticipated defense case, bearing in mind legal and evidentiary problems that might be expected, as well as the importance of the credibility of witnesses. However, although it is proper to consider factors bearing upon the likelihood of conviction in deciding whether to enter into a plea agreement, it obviously is improper for the prosecutor to attempt to dispose of a case by means of a plea agreement if he/she is not satisfied that the legal standards for guilt are met. 7. Effect on Witnesses. Attorneys for the government should bear in mind that it is often burdensome for witnesses to appear at trial and that sometimes to do so may cause them serious embarrassment or even place them in jeopardy of physical or economic retaliation. The possibility of such adverse consequences to witnesses should not be overlooked in determining whether to go to trial or attempt to reach a plea agreement. Another possibility that may have to be considered is revealing the identity of informants. When an informant testifies at trial, his/her identity and relationship to the government become matters of public record. As a result, in addition to possible adverse consequences to the informant, there is a strong likelihood that the informant's usefulness in other investigations will be seriously diminished or destroyed. These are considerations that should be discussed with the investigating agency involved, as well as with any other agencies known to have an interest in using the informant in their investigations. 8. Probable Sentence. In determining whether to enter into a plea agreement, the attorney for the government may properly consider the probable outcome of the prosecution in terms of the sentence or other consequences for the defendant in the event that a plea agreement is reached. If the proposed agreement is a "sentence agreement" or a "mixed agreement," the prosecutor should realize that the position he/she agrees to take with respect to sentencing may have a significant effect on the sentence that is actually imposed. If the proposed agreement is a "charge agreement," the prosecutor should bear in mind the extent to which a plea to fewer or lesser offenses may reduce the sentence that otherwise could be imposed. In either event, it is important that the attorney for the government be aware of the need to preserve the basis for an appropriate sentence under all the circumstances of the case. Thorough knowledge of the Sentencing Guidelines, any applicable statutory minim um sentences, and any applicable sentence enhancements is clearly necessary to allow the prosecutor to accurately and adequately evaluate the effect of any plea agreement. 9. Trial Rather Than Plea. There may be situations in which the public interest might better be served by having a case tried rather than by having it disposed of by means of a guilty plea. These include situations in which it is particularly important to permit a clear public understanding that "justice is done" through exposing the exact nature of the defendant's wrongdoing at trial, or in which a plea agreement might be misconstrued to the detriment of public confidence in the criminal justice system. For this reason, the prosecutor should be careful not to place undue emphasis on factors which favor disposition of a case pursuant to a plea agreement. 10. Expense of Trial and Appeal. In assessing the expense of trial and appeal that would be saved by a plea disposition, the attorney for the government should consider not only such monetary costs as juror and witness fees, but also the time spent by judges, prosecutors, and law enforcement personnel who may be needed to testify or provide other assistance at trial. In this connection, the prosecutor should bear in mind the complexity of the case, the
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number of trial days and witnesses required, and any extraordinary expenses that might be incurred such as the cost of sequestering the jury. 11. Prompt Disposition of Other Cases. A plea disposition in one case may facilitate the prompt disposition of other cases, including cases in which prosecution might otherwise be declined. This may occur simply because prosecutorial, judicial, or defense resources will become available for use in other cases, or because a plea by one of several defendants may have a "domino effect," leading to pleas by other defendants. In weighing the importance of these possible consequences, the attorney for the government should consider the state of the criminal docket and the speedy trial requirements in the district, the desirability of handling a larger volume of criminal cases, and the work loads of prosecutors, judges, and defense attorneys in the district.
[cited in USAM 9-28.1300]
9-27.430 - Selecting Plea Agreement Charges
A. If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges:
1. That is the most serious readily provable charge consistent with the nature and extent of his/her criminal conduct; 2. That has an adequate factual basis; 3. That makes likely the imposition of an appropriate sentence and order of restitution, if appropriate, under all the circumstances of the case; and 4. That does not adversely affect the investigation or prosecution of others.
B. Comment. USAM 9-27.430 sets forth the considerations that should be taken into account in selecting the charge or charges to which a defendant should be required to plead guilty once it has been decided to dispose of the case pursuant to a plea agreement. The considerations are essentially the same as those governing the selection of charges to be included in the original indictment or information. See USAM 9-27.300.
1. Relationship to Criminal Conduct. The charge or charges to which a defendant pleads guilty should be consistent with the defendant's criminal conduct, both in nature and in scope. Except in unusual circumstances, this charge will be the most serious one, as defined in USAM 9-27.300. This principle governs the number of counts to which a plea should be required in cases involving different offenses, or in cases involving a series of familiar offenses. Therefore the prosecutor must be familiar with the Sentencing Guideline rules applicable to grouping offenses (Guideline 3D) and to relevant conduct (USSG § 1B1.3) among others. In regard to the seriousness of the offense, the guilty plea should assure that the public record of conviction provides an adequate indication of the defendant's conduct. With respect to the number of counts, the prosecutor should take care to assure that no impression is given that multiple offenses are li kely to result in no greater a potential penalty than is a single offense. The requirement that a defendant plead to a charge, that is consistent with the nature and extent of his/her criminal conduct is not inflexible. Although cooperation is usually acknowledged through a Sentencing Guideline 5K1.1 filing, there may be situations involving cooperating defendants in which considerations such as those discussed in USAM 9-27.600, take precedence. Such situations should be approached cautiously, however. Unless the government has strong corroboration for the cooperating defendant's testimony, his/her credibility may be subject to successful impeachment if he/she
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is permitted to plead to an offense that appears unrelated in seriousness or scope to the charges against the defendants on trial. It is also doubly important in such situations for the prosecutor to ensure that the public record of the plea demonstrates, the full extent of the defendant's i nvolvement in the criminal activity, giving rise to the prosecution. 2. Factual Basis. The attorney for the government should also bear in mind the legal requirement that there be a factual basis for the charge or charges to which a guilty plea is entered. This requirement is intended to assure against conviction after a guilty plea of. a person who is not in fact guilty. Moreover, under Rule 11(f) of the Fed. R. Crim. P., a court may not enter a judgment upon a guilty plea "without making such inquiry as shall satisfy it that, there is a factual basis for the plea." For this reason, it is essential that the charge or charges selected as the subject of a plea agreement be such as could be prosecuted independently of the plea under these principles. However, as noted, in cases in which Alford or nolo contendere pleas are tendered, the attorney for the government may wish to make a stronger factual showing. In such cases there may remain some doubt as to the defendant's guilt even after the entry of his/her plea. Consequently, in order to a void such a misleading impression, the government should ask leave of the court to make a proffer of the facts available to it that show the defendant's guilt beyond a reasonable doubt. In addition, the Department's policy is only to stipulate to facts that accurately represent the defendant's conduct. If a prosecutor wishes to support a departure from the guidelines, he or she should candidly do so and not stipulate to facts that are untrue. Stipulations to untrue facts are unethical. If a prosecutor has insufficient facts to contest a defendant's effort to seek a downward departure or to claim an adjustment, the prosecutor can say so. If the presentence report states facts that are inconsistent with a stipulation in which a prosecutor has joined, the prosecutor should object to the report or add a statement explaining the prosecutor's understanding of the facts or the reason for the stipulation.
Recounting the true nature of the defendant's involvement in a case will not always lead to a higher sentence. Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others and the government agrees that self-incriminating information so provided will not be used against the defendant, Sentencing Guideline 1B1.8 provides that the information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement. The existence of an agreement not to use information should be clearly reflected in the case file, the applicability of Guideline 1B1.8 should be documented, and the incriminating information must be disclosed to the court or the probation officer, even though it may not be used in determining a guideline sentence. Note that such information may still be used by the court in determining whether to depart from the guidelines and the extent of the departure. See US SG § 1B1.8.
3. Basis for Sentencing. In order to guard against inappropriate restriction of the court's sentencing options, the plea agreement should provide adequate scope for sentencing under all the circumstances of the case. To the extent that the plea agreement requires the government to take a position with respect to the sentence to be imposed, there should be little danger since the court will not be bound by the government's position. When a "charge agreement" is involved, however, the court will be limited to imposing the maxim term authorized by statue as well as the Sentencing Guideline range for the offense, to which the guilty plea is entered. Thus, as noted in USAM 9-27.320 above the prosecutor should take care to avoid a "charge agreement" that would unduly restrict the court's sentencing authority. In this connection, as in the initial selection of charges, the prosecutor should take
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into account the purposes of sentencing, the penalti es provided in the applicable statutes (including mandatory minimum penalties), the gravity of the offense, any aggravating or mitigating factors, and any post conviction consequences to which the defendant may be subject. In addition, if restitution is appropriate under the circumstances of the case, the plea agreement should specify the amount of restitution. See 18 U.S.C. § 3663 et seq.; 18 U.S.C. §§ 2248, 2259, 2264 and 2327; United States v. Arnold, 947 F.2d 1236, 1237-38 (5th Cir. 1991); and USAM 9-16.320. 4. Effect on Other Cases. In a multiple-defendant case, care must be taken to ensure that the disposition of the charges against one defendant does not adversely affect the investigation or prosecution of co-defendants. Among the possible adverse consequences to be avoided are the negative jury appeal that may result when relatively less culpable defendants are tried in the absence of a more culpable defendant or when a principal prosecution witness appears to be equally culpable as the defendants but has been permitted to plead to a significantly less serious offense; the possibility that one defendant's absence from the case will render useful evidence inadmissible at the trial of co-defendants; and the giving of questionable exculpatory testimony on behalf of the other defendants by the defendant who has pled guilty.
9-27.440 - Plea Agreements When Defendant Denies Guilt
A. The attorney for the government should not, except with the approval of the Assistant Attorney General with supervisory responsibility over the subject matter, enter into a plea agreement if the defendant maintains his/her innocence with respect to the charge or charges to which he/she offers to plead guilty. In a case in which the defendant tenders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty. See also USAM 9-16.015, which discusses the approval requirement. B. Comment. USAM 9-27.440 concerns plea agreements involving "Alford" pleas—guilty pleas entered by defendants who nevertheless claim to be innocent. In North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme Court held that the Constitution does not prohibit a court from accepting a guilty plea from a defendant who simultaneously maintains his/her innocence, so long as the plea is entered voluntarily and intelligently and there is a strong factual basis for it. The Court reasoned that there is no material difference between a plea of nolo contendere, where the defendant does not expressly admit his/her guilt, and a plea of guilty by a defendant who affirmatively denies his/her guilt. Despite the constitutional validity of Alford pleas, such pleas should be avoided except in the most unusual circumstances, even if no plea agreement is involved and the plea would cover all pending charges. Such pleas are particularly undesirable when entered as part of an agreement with the government. Involvement by attorneys for the government in the inducement of guilty pleas by defendants who protest their innocence may create an appearance of prosecutorial overreaching. As one court put it, "the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail." See United States v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971). Consequently, it is preferable to have a jury resolve the factual and legal dispute between the government and the defendant, rather than have government attorneys encourage defendants to plead guilty under circumstances that the public might regard as questionable or unfair. For this reason, government attorneys should not enter into Alford plea agreements, without the approval of the responsible Assistant Attorney General. Apart from refusing to enter into a plea agreement, however, the degree to which the Department can express its opposition to Alford pleas may be limited. Although
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a court may accept a proffered plea of nolo contendere "only after due consideration of the views of the parties and the interest of the public in the effective administration of justice" (Rule 11 (b), Fed. R. Crim. P.), at least one court has concluded that it is an abuse of discretion to refuse to accept a guilty plea "solely because the defendant does not admit the alleged facts of the crime." United States v. Gaskins, 485 F.2d 1046, 1048 (D.C. Cir. 1973);see United States v. Bednarski, supra; United States v. Boscoe, 518 F.2d 95 (1st Cir. 1975). Nevertheless, government attorneys can and should discourage Alford pleas by refusing to agree to terminate prosecutions where an Alford plea is proffered to fewer than all of the charges pending. As is the case with guilty pleas generally, if such a plea to fewer than all the charges is tendered and accepted over the government's objection, the attorney for the government should proceed to trial on any remaining charges not barred on double jeopardy grounds unless the United States Attorney or in cases handled by Departmental attorneys, the responsible Assistant Attorney General, approves dismissal of those charges.
Government attorneys should also take full advantage of the opportunity afforded by Rule 11(f) of the Fed. R. Crim. P. in an Alford case to thwart the defendant's efforts to project a public image of innocence. Under Rule 11(f) of the Fed. R. Crim. P. the court must be satisfied that there is "a factual basis" for a guilty plea. However, the Rule does not require that the factual basis for the plea be provided only by the defendant. See United States v. Navedo, 516 F.2d 29 (2d Cir. 1975); Irizarry v. United States, 508 F.2d 960 (2d Cir. 1974); United States v. Davis, 516 F.2d 574 (7th Cir. 1975). Accordingly, attorneys for the government in Alford cases should endeavor to establish as strong a factual basis for the plea as possible not only to satisfy the requirement of Rule 11(f) Fed. R. Crim. P., but also to minimize the adverse effects of Alford pleas on public perceptions of the administration of justice.
[updated September 2006] [cited in USAM 6-4.330; USAM 9-28.1300]
9-27.450 - Records of Plea Agreements
A. All negotiated plea agreements to felonies or to misdemeanors negotiated from felonies shall be in writing and filed with the court. B. Comment. USAM 9-27.450 is intended to facilitate compliance with Rule 11 of the Federal Rules of Criminal Procedure and to provide a safeguard against misunderstandings that might arise concerning the terms of a plea agreement. Rule 11(e) (2), Fed. R. Crim. P., requires that a plea agreement be disclosed in open court (except upon a showing of good cause in which case disclosure may be made in camera), while Rule 11(e)(3) Fed. R. Crim. P. requires that the disposition provided for in the agreement be embodied in the judgment and sentence. Compliance with these requirements will be facilitated if the agreement has been reduced to writing in advance, and the defendant will be precluded from successfully contesting the terms of the agreement at the time he/she pleads guilty, or at the time of sentencing, or at a later date. Any time a defendant enters into a negotiated plea, that fact and the conditions of the agreement should also be maintained i n the office case file. Written agreements will facilitate efforts by the Department or the Sentencing Commission to monitor compliance by prosecutors with Department policies and the guidelines. Documentation may include a copy of the court transcript at the time the plea is taken in open court.
There shall be within each office a formal system for approval of negotiated pleas. The approval authority shall be vested in at least a supervisory criminal Assistant United States Attorney, or a supervisory attorney of a litigating division in the Department of Justice, who will have the responsibility of assessing the appropriateness of the plea
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agreement under the policies of the Department of Justice pertaining to pleas. Where certain predictable fact situations arise with great frequency and are given identical treatment, the approval requirement may be met by a written instruction from the appropriate supervisor which describes with particularity the standard plea procedure to be followed, so long as that procedure is otherwise within Departmental guidelines. An example would be a border district which routinely deals with a high volume of illegal alien cases daily.
The plea approval process will be part of the office evaluation procedure.
The United States Attorney in each district, or a supervisory representative, should, if feasible, meet regularly with a representative of the district's Probation Office for the purpose of discussing guideline cases.
9-27.500 -Offers to Plead Nolo Contendere—Opposition Except in Unusual Circumstances
A. The attorney for the government should oppose the acceptance of a plea of nolo contendere unless the Assistant Attorney General with supervisory responsibility over the subject matter concludes that the circumstances of the case are so unusual that acceptance of such a plea would be in the public interest. See USAM 9-16.010, which discusses the approval requirement. B. Comment. Rule 11(b) of the Federal Rules of Criminal Procedure, requires the court to consider "the views of the parties and the interest of the public in the effective administration of justice" before it accepts a plea of nolo contendere. Thus it is clear that a criminal defendant has no absolute right to enter a nolo contendere plea. The Department has long attempted to discourage the disposition of criminal cases by means of nolo pleas. The basic objections to nolo pleas were expressed by Attorney General Herbert Brownell, Jr. in a Departmental directive in 1953.
One of the factors which has tended to breed contempt for Federal law enforcement in recent times has been the practice of permitting as a matter of course in many criminal indictments the plea of nolo contendere. While it may serve a legitimate purpose in a few extraordinary situations and where civil litigation is also pending, I can see no justification for it as an everyday practice, particularly where it is used to avoid certain indirect consequences of pleading guilty, such as loss of license or sentencing as a multiple offender. Uncontrolled use of the plea has led to shockingly low sentences and insignificant fines which are not deterrent to crime. As a practical matter it accomplished little that is useful even where the Government has civil litigation pending. Moreover, a person permitted to plead nolo contendere admits his guilt for the purpose of imposing punishment for his acts and yet, for all other purposes, and as far as the public is concerned, persists in th is denial of wrongdoing. It is no wonder that the public regards consent to such a plea by the Government as an admission that it has only a technical case at most and that the whole proceeding was just a fiasco.
For these reasons, government attorneys have been instructed for many years not to consent to nolo pleas except in the most unusual circumstances, and to do so then only with Departmental approval. Federal prosecutors should oppose the acceptance of a nolo plea, unless the responsible Assistant Attorney General concludes that the circumstances are so unusual that acceptance of the plea would be in the public interest.
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[updated September 2006] [cited in USAM 6-2.000; USAM 6-4.320; USAM 9-28.1300]
9-27.520 - Offers to Plead Nolo Contendere—Offer of Proof
A. In any case in which a defendant seeks to enter a plea of nolo contendere, the attorney for the government should make an offer of proof of the facts known to the government to support the conclusion that the defendant has in fact committed the offense charged. See also USAM 9-16.010. B. Comment. If a defendant seeks to avoid admitting guilt by offering to plead nolo contendere, the attorney for the government should make an offer of proof of the facts known to the government to support the conclusion that the defendant has in fact committed the offense charged. This should be done even in the rare case in which the government does not oppose the entry of a nolo plea. In addition, as is the case with respect to guilty pleas, the attorney for the government should urge the court to require the defendant to admit publicly the facts underlying the criminal charges. These precautions should minimize the effectiveness of any subsequent efforts by the defendant to portray himself/herself as technically liable perhaps, but not seriously culpable.
9-27.530 - Argument in Opposition of Nolo Contendere Plea
A. If a plea of nolo contendere is offered over the government's objection, the attorney for the government should state for the record why acceptance of the plea would not be in the public interest; and should oppose the dismissal of any charges to which the defendant does not plead nolo contendere. B. Comment. When a plea of nolo contendere is offered over the government's objection, the prosecutor should take full advantage of Rule 11(b), Federal Rules of Criminal Procedure, to state for the record why acceptance of the plea would not be in the public interest. In addition to reciting the facts that could be proved to show the defendant's guilt, the prosecutor should bring to the court's attention whatever arguments exist for rejecting the plea. At the very least, such a forceful presentation should make it clear to the public that the government is unwilling to condone the entry of a special plea that may help the defendant avoid legitimate consequences of his/her guilt. If the nolo plea is offered to fewer than all charges, the prosecutor should also oppose the dismissal of the remaining charges.
[cited in USAM 6-4.320]
9-27.600 - Entering into Non-prosecution Agreements in Return for Cooperation—Generally
A. Except as hereafter provided, the attorney for the government may, with supervisory approval, enter into a non-prosecution agreement in exchange for a person's cooperation when, in his/her judgment, the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective. B. Comment.
1. In many cases, it may be important to the success of an investigation or prosecution to obtain the testimonial or other cooperation of a person who is himself/herself implicated in the criminal conduct being investigated or prosecuted. However, because of his/her involvement, the person may refuse to cooperate on the basis of his/her Fifth Amendment privilege against compulsory self-incrimination. In this situation, there are several possible
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approaches the prosecutor can take to render the privilege inapplicable or to induce its waiver.
a. First, if time permits, the person may be charged, tried, and convicted before his/her cooperation is sought in the investigation or prosecution of others. Having already been convicted himself/herself, the person ordinarily will no longer have a valid privilege to refuse to testify and will have a strong incentive to reveal the truth in order to induce the sentencing judge to impose a lesser sentence than that which otherwise might be found appropriate. b. Second, the person may be willing to cooperate if the charges or potential charge against him/her are reduced in number or degree in return for his/her cooperation and his/her entry of a guilty plea to the remaining charges. An agreement to file a motion pursuant to Sentencing Guideline 5K1.1 or Rule 35 of the Federal Rules of Criminal Procedure after the defendant gives full and complete cooperation is the preferred method for securing such cooperation. Usually such a concession by the government will be all that is necessary, or warranted, to secure the cooperation sought. Since it is certainly desirable as a matter of policy that an offender be required to incur at least some liability for his/her criminal conduct, government attorneys should attempt to secure this result in all appropriate cases, following the principles set forth in USAM 9-27.430 to the extent practicable. c. The third method for securing the cooperation of a potential defendant is by means of a court order under 18 U.S.C. §§ 6001-6003. Those statutory provisions govern the conditions under which uncooperative witnesses may be compelled to testify or provide information notwithstanding their invocation of the privilege against compulsory self incrimination. In brief, under the so-called "use immunity" provisions of those statutes, the court may order the person to testify or provide other information, but neither his/her testimony nor the information he/she provides may be used against him/her, directly or indirectly, in any criminal case except a prosecution for perjury or other failure to comply with the order. Ordinarily, these "use immunity" provisions should be relied on in cases in which attorneys for the government need to obtain sworn testimony or the production of information before a grand jury or at trial, and in which there is reason to believe that the person will refuse to testify or provide the information on the basis of his/her privilege against compulsory self-incrimination. See USAM 9-23.000. Offers of immunity and immunity agreements should be in writing. Consideration should be given to documenting the evidence available prior to the immunity offer. d. Finally, there may be cases in which it is impossible or impractical to employ the methods described above to secure the necessary information or other assistance, and in which the person is willing to cooperate only in return for an agreement that he/she will not be prosecuted at all for what he/she has done. The provisions set forth hereafter describe the conditions that should be met before such an agreement is made, as well as the procedures recommended for such cases.
It is important to note that these provisions apply only if the case involves an agreement with a person who might otherwise be prosecuted. If the person reasonably is viewed only as a potential witness rather than a potential defendant, and the person is willing to cooperate, there is no need to consult these provisions.
USAM 9-27.600 describes three circumstances that should exist before government attorneys enter into non-prosecution agreements in return for cooperation: the unavailability
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or ineffectiveness of other means of obtaining the desired cooperation; the apparent necessity of the cooperation to the public interest; and the approval of such a course of action by an appropriate supervisory official
2. Unavailability or Ineffectiveness of Other Means. As indicated above, non-prosecution agreements are only one of several methods by which the prosecutor can obtain the cooperation of a person whose criminal involvement makes him/her a potential subject of prosecution. Each of the other methods—seeking cooperation after trial and conviction, bargaining for cooperation as part of a plea agreement, and compelling cooperation under a "use immunity" order—involves prosecuting the person or at least leaving open the possibility of prosecuting him/her on the basis of independently obtained evidence. Since these outcomes are clearly preferable to permitting an offender to avoid any liability for his/her conduct, the possible use of an alternative to a non-prosecution agreement should be given serious consideration in the first instance. Another reason for using an alternative to a non-prosecution agreement to obtain cooperation concerns the practical advantage in terms of the person's credibility if he/she testifies at trial. If the person already has been convicted, either after trial or upon a guilty plea, for participating in the events about which he/she testifies, his/her testimony is apt to be far more credible than if it appears to the trier of fact that he/she is getting off "scot free." Similarly, if his/her testimony is compelled by a court order, he/she cannot properly be portrayed by the defense as a person who has made a "deal" with the government and whose testimony is, therefore, suspect; his/her testimony will have been forced from him/her, not bargained for.
In some cases, however, there may be no effective means of obtaining the person's timely cooperation short of entering into a non-prosecution agreement. The person may be unwilling to cooperate fully in return for a reduction of charges, the delay involved in bringing him/her to trial might prejudice the investigation or prosecution in connection with which his/her cooperation is sought and it may be impossible or impractical to rely on the statutory provisions for compulsion of testimony or production of evidence. One example of the latter situation is a case in which the cooperation needed does not consist of testimony under oath or the production of information before a grand jury or at trial. Other examples are cases in which time is critical, or where use of the procedures of 18 U.S.C. §�-6003 would unreasonably disrupt the presentation of evidence to the grand jury or the expeditious development of an investigation, or where compliance with the statute of limitat ions or the Speedy Trial Act precludes timely application for a court order.
Only when it appears that the person's timely cooperation cannot be obtained by other means, or cannot be obtained effectively, should the attorney for the government consider entering into a non-prosecution agreement.
3. Public Interest. If he/she concludes that a non-prosecution agreement would be the only effective method for obtaining cooperation, the attorney for the government should consider whether, balancing the cost of foregoing prosecution against the potential benefit of the person's cooperation, the cooperation sought appears necessary to the public interest. This "public interest" determination is one of the conditions precedent to an application under 18 U.S.C. § 6003 for a court order compelling testimony. Like a compulsion order, a non-prosecution agreement limits the government's ability to undertake a subsequent prosecution of the witness. Accordingly, the same "public interest" test should be applied in this situation as well. Some of the considerations that may be relevant to the application of
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this test are set forth in USAM 9-27.620. 4. Supervisory Approval. Finally, the prosecutor should secure supervisory approval before entering into a non-prosecution agreement. Prosecutors working under the direction of a United States Attorney must seek the approval of the United States Attorney or a supervisory Assistant United States Attorney. Departmental attorneys not supervised by a United States Attorney should obtain the approval of the appropriate Assistant Attorney General or his/her designee, and should notify the United States Attorney or Attorneys concerned. The requirement of approval by a superior is designed to provide review by an attorney experienced in such matters, and to ensure uniformity of policy and practice with respect to such agreements. This section should be read in conjunction with USAM 9-27.640, concerning particular types of cases in which an Assistant Attorney General or his/her designee must concur in or approve an agreement not to prosecute in ret urn for cooperation.
9-27.620 - Entering into Non-prosecution Agreements in Return for Cooperation—Considerations to be Weighed
A. In determining whether, a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including:
1. The importance of the investigation or prosecution to an effective program of law enforcement; 2. The value of the person's cooperation to the investigation or prosecution; and 3. The person's relative culpability in connection with the offense or offenses being investigated or prosecuted and his/her history with respect to criminal activity.
B. Comment. This paragraph is intended to assist Federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest. The considerations listed here are not intended to be all-inclusive or to require a particular decision in a particular case. Rather they are meant to focus the decision-maker's attention on factors that probably will be controlling in the majority of cases.
1. Importance of Case. Since the primary function of a Federal prosecutor is to enforce the criminal law, he/she should not routinely or indiscriminately enter into non-prosecution agreements, which are, in essence, agreements not to enforce the law under particular conditions. Rather, he/she should reserve the use of such agreements for cases in which the cooperation sought concerns the commission of a serious offense or in which successful prosecution is otherwise important in achieving effective enforcement of the criminal laws. The relative importance or unimportance of the contemplated case is therefore a significant threshold consideration. 2. Value of Cooperation. An agreement not to prosecute in return for a person's cooperation binds the government to the extent that the person carries out his/her part of the bargain. See Santobello v. New York 404 U.S. 257 (1971); Wade v. United States, 112 S. Ct. 1840 (1992). Since such an agreement forecloses enforcement of the criminal law against a person who otherwise may be liable to prosecution, it should not be entered into without a clear understanding of the nature of the quid pro quo and a careful assessment of its probable value to the government. In order to be in a position adequately to assess the potential value of a person's cooperation, the prosecutor should insist on an "offer of proof"
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or its equivalent from the person or his/her attorney. The prosecutor can then weigh the offer in terms of the investigation or prosecution in connection with which cooperation is sought. In doing so, he/she should consider such questions as whether the cooperation will in fact be forthcoming, whether the testimony or other information provided will be credible, whether it can be corroborated by other evidence, whether it will materially assist the investigation or prosecution, and whether substantially the same benefit can be obtained from someone else without an agreement not to prosecute. After assessing all of these factors, together with any others that may be relevant, the prosecutor can judge the strength of his/her case with and without the person's cooperation, and determine whether it may be in the public interest to agree to forego prosecution under the circumstances. 3. Relative Culpability and Criminal History. In determining whether it may be necessary to the public interest to agree to forego prosecution of a person who may have violated the law in return for that person's cooperation, it is also important to consider the degree of his/her apparent culpability relative to others who are subjects of the investigation or prosecution as well as his/her history of criminal involvement. Of course, ordinarily it would not be in the public interest to forego prosecution of a high-ranking member of a criminal enterprise in exchange for his/her cooperation against one of his/her subordinates, nor would the public interest be served by bargaining away the opportunity to prosecute a person with a long history of serious criminal involvement in order to obtain the conviction of someone else on less serious charges. These are matters with regard to which the attorney for the government may find it helpful to consult with the investigating agenc y or with other prosecuting authorities who may have an interest in the person or his/her associates.
It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. §§ 6001-6003 or has escaped prosecution by virtue of an agreement not to prosecute. The information regarding compulsion orders may be available by telephone from the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations of the Criminal Division.
[updated October 2010]
9-27.630 - Entering into Non-prosecution Agreements in Return for Cooperation—Limiting the Scope of Commitment
A. In entering into a non-prosecution agreement, the attorney for the government should, if practicable, explicitly limit the scope of the government's commitment to:
1. Non-prosecution based directly or indirectly on the testimony or other information provided; or 2. Non-prosecution within his/her district with respect to a pending charge, or to a specific offense then known to have been committed by the person.
B. Comment. The attorney for the government should exercise extreme caution to ensure that his/her non-prosecution agreement does not confer "blanket" immunity on the witness. To this end, he/she should, in the first instance, attempt to limit his/her agreement to non-prosecution based on the testimony or information provided. Such an "informal use immunity" agreement has two advantages over an agreement not to prosecute the person in connection with a particular transaction: first, it preserves the prosecutor's option to prosecute on the basis of independently obtained evidence if it later appears that the person's criminal involvement was more serious than it originally appeared to
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be; and second, it encourages the witness to be as forthright as possible since the more he/she reveals the more protection he/she will have against a future prosecution. To further encourage full disclosure by the witness, it should be made clear in the agreement that the government's forbearance from prosecution is conditioned upon the witness's testimony or production of information being complete and truthful, and that failure to testify truthfully may result in a perjury prosecution.
Even if it is not practicable to obtain the desired cooperation pursuant to an "informal use immunity" agreement, the attorney for the government should attempt to limit the scope of the agreement in terms of the testimony and transactions covered, bearing in mind the possible effect of his/her agreement on prosecutions in other districts.
It is important that non-prosecution agreements be drawn in terms that will not bind other Federal prosecutors or agencies without their consent. Thus, if practicable, the attorney for the government should explicitly limit the scope of his/her agreement to non-prosecution within his/her district. If such a limitation is not practicable and it can reasonably be anticipated that the agreement may affect prosecution of the person in other districts, the attorney for the government contemplating such an agreement shall communicate the relevant facts to the Assistant Attorney General with supervisory responsibility for the subject matter. United States Attorneys may not make agreements which prejudice civil or tax liability without the express agreement of all affected Divisions and/or agencies. See also 9-16.000 et seq. for more information regarding plea agreements.
Finally, the attorney for the government should make it clear that his/her agreement relates only to non-prosecution and that he/she has no independent authority to promise that the witness will be admitted into the Department's Witness Security program or that the Marshal's Service will provide any benefits to the witness in exchange for his/her cooperation. This does not mean, of course, that the prosecutor should not cooperate in making arrangements with the Marshal's Service necessary for the protection of the witness in appropriate cases. The procedures to be followed in such cases are set forth in USAM 9-21.000.
9-27.640 - Agreements Requiring Assistant Attorney General Approval
A. The attorney for the government should not enter into a non-prosecution agreement in exchange for a person's cooperation without first obtaining the approval of the Assistant Attorney General with supervisory responsibility over the subject matter, or his/her designee, when:
1. Prior consultation or approval would be required by a statute or by Departmental policy for a declination of prosecution or dismissal of a charge with regard to which the agreement is to be made; or 2. The person is:
a. A high-level Federal, state, or local official; b. An official or agent of a Federal investigative or law enforcement agency; or c. A person who otherwise is, or is likely to become of major public interest.
B. Comment. USAM 9-27.640 sets forth special cases that require approval of non-prosecution agreements by the responsible Assistant Attorney General or his/her designee. Subparagraph (1) covers cases in which existing statutory provisions and departmental policies require that, with
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respect to certain types of offenses, the Attorney General or an Assistant Attorney General be consulted or give his/her approval before prosecution is declined or charges are dismissed. For example, see USAM 6-4.245 (tax offenses); USAM 9-41.010 (bankruptcy frauds); USAM 9-90.020 (internal security offenses); (see USAM 9-2.400 for a complete listing of all prior approval and consultation requirements). An agreement not to prosecute resembles a declination of prosecution or the dismissal of a charge in that the end resu lt in each case is similar: a person who has engaged in criminal activity is not prosecuted or is not prosecuted fully for his/her offense. Accordingly, attorneys for the government should obtain the approval of the appropriate Assistant Attorney General, or his/her designee, before agreeing not to prosecute in any case in which consultation or approval would be required for a declination of prosecution or dismissal of a charge.
Subparagraph (2) sets forth other situations in which the attorney for the government should obtain the approval of an Assistant Attorney General, or his/her designee, of a proposed agreement not to prosecute in exchange for cooperation. Generally speaking, the situations described will be cases of an exceptional or extremely sensitive nature, or cases involving individuals or matters of major public interest. In a case covered by this provision that appears to be of an especially sensitive nature, the Assistant Attorney General should, in turn, consider whether it would be appropriate to notify the Attorney General or the Deputy Attorney General.
9-27.641 - Multi-District (Global) Agreement Requests
A. No district or division shall make any agreement, including any agreement not to prosecute, which purports to bind any other district(s) or division without the express written approval of the United States Attorney(s) in each affected district and/or the Assistant Attorney General of the Criminal Division.
The requesting district/division shall make known to each affected district/division the following information:
A. 1. The specific crimes allegedly committed in the affected district(s) as disclosed by the defendant. (No agreement should be made as to any crime(s) not disclosed by the defendant.) 2. Identification of victims of crimes committed by the defendant in any affected district, insofar as possible. 3. The proposed agreement to be made with the defendant and the applicable Sentencing Guideline range.
See USAM 9-16.030 for a discussion of the requirement for consultation with investigative agencies and victims regarding pleas.
[cited in USAM 9-28.1000]
9-27.650 - Records of Non-Prosecution Agreements
A. In a case in which a non-prosecution agreement is reached in return for a person's cooperation, the attorney for the government should ensure that the case file contains a memorandum or other written record setting forth the terms of the agreement. The memorandum or record should be signed or initialed by the person with whom the agreement is made or his/her attorney. B. Comment. The provisions of this section are intended to serve two purposes. First, it is important to
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have a written record in the event that questions arise concerning the nature or scope of the agreement. Such questions are certain to arise during cross-examination of the witness, particularly if the existence of the agreement has been disclosed to defense counsel pursuant to the requirements of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). The exact terms of the agreement may also become relevant if the government attempts to prosecute the witness for some offense in the future. Second, such a record will facilitate identification by government attorneys (in the course of weighing future agreements not to prosecute, plea agreements, pre-trial diversion, and other discretionary actions) of persons whom the government has agreed not to prosecute.
The principal requirements of the written record are that it be sufficiently detailed that it leaves no doubt as to the obligations of the parties to the agreement, and that it be signed or initialed by the person with whom the agreement is made and his/her attorney, or at least by one of them.
9-27.710 - Participation in Sentencing—Generally
A. During the sentencing phase of a Federal criminal case, the attorney for the government should assist the sentencing court by:
1. Attempting to ensure that the relevant facts are brought to the court's attention fully and accurately; and 2. Making sentencing recommendations in appropriate cases.
B. Comment. Sentencing in Federal criminal cases is primarily the function and responsibility of the court. This does not mean, however, that the prosecutor's responsibility in connection with a criminal case ceases upon the return of a guilty verdict or the entry of a guilty plea; to the contrary, the attorney for the government has a continuing obligation to assist the court in its determination of the sentence to be imposed. The prosecutor must be familiar with the guidelines generally and with the specific guideline provisions applicable to his or her case. In discharging these duties, the attorney for the government should, as provided in USAM 9-27.720 and 9-27.750, endeavor to ensure the accuracy and completeness of the information upon which the sentencing decisions will be based. In addition, as provided in USAM 9-27.730, in appropriate cases the prosecutor should offer recommendations with respect to the sentence to be imposed.
9-27.720 - Establishing Factual Basis for Sentence
A. In order to ensure that the relevant facts are brought to the attention of the sentencing court fully and accurately, the attorney for the government should:
1. Cooperate with the Probation Service in its preparation of the presentence investigation report; 2. Review material in the presentence investigation report; 3. Make a factual presentation to the court when:
a. Sentence is imposed without a presentence investigation and report; b. It is necessary to supplement or correct the presentence investigation report; c. It is necessary in light of the defense presentation to the court; or d. It is requested by the court; and
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4. Be prepared to substantiate significant factual allegations disputed by the defense.
B. Comment.
The relevant information can be communicated orally, or by making portions of the case file available to the probation officer, or by submitting a sentencing memorandum or other written presentation for inclusion in the presentence report. Whatever method he/she uses, however, the attorney for the government should bear in mind that since the report will be shown to the defendant and defense counsel, care should be taken to prevent disclosures that might be harmful to law enforcement interests.
1. Cooperation with Probation Service. To begin with, if sentence is to be imposed following a presentence investigation and report, the prosecutor should cooperate with the Probation Service in its preparation of the presentence report for the court. Under Rule 32(b), Federal Rules of Criminal Procedure, the report should contain information about the history and characteristics of the defendant, including any prior criminal record, financial condition, and any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in the correctional treatment of the defendant. While much of this information may be available to the Probation Service from sources other than the government, some of it may be obtainable only from prosecutorial or investigative files to which probation officers do not have access. For this reason, it is important that the attorney for the government respond promptly to Probation Service requests by providing the reque sted information whenever possible. The attorney for the government should also recognize the occasional desirability of volunteering information to the Probation Service especially in a district where the Probation Office is overburdened. Doing so may be the best way to ensure that important facts about the defendant come to its attention. In addition, the prosecutor should be particularly alert to the need to volunteer relevant information to the Probation Service in complex cases, since it cannot be expected that probation officers will obtain a full understanding of the facts of such cases simply by questioning the prosecutor or examining his/her files. 2. Review of Presentence Report. Before the sentencing hearing, the prosecutor should always review the presentence report, which is prepared pursuant to Rule 32, Federal Rules of Criminal Procedure. Not only must the prosecutor be satisfied that the report is factually accurate, he or she must also pay attention to the initial determination of the base offense level. Further, the prosecutor must also consider all adjustments reflected in the report, as well as any recommendations for departure made by the probation office. These adjustments and potential departures can have a profound effect on the defendant's sentence. As advocates for the United States, prosecutors should be prepared to argue concerning those adjustments (and, if necessary, departures allowed by the guidelines) in order to arrive at a final result which adequately and accurately describes the defendant's conduct of offense, criminal history, and other factors related to sentencing. 3. Factual Presentation to Court. In addition to assisting the Probation Service with its presentence investigation, the attorney for the government may find it necessary in some cases to make a factual presentation directly to the court. Such a presentation is authorized by Rule 32(c), Federal Rules of Criminal Procedure, which requires the court to "afford counsel for the defendant and for the Government an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence." The need to address the court concerning the facts relevant to sentencing may arise in four situations: (a) when sentence is imposed without a presentence investigation and report; (b) when necessary to correct or supplement the presentence report; (c) when necessary in light
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of the defense presentation to the court; and (d) when requested by the court.
a. Furnishing Information in Absence of Presentence Report. Rule 32(b), Federal Rules of Criminal Procedure, authorizes the imposition of sentence without a presentence investigation and report, if the court finds that the record contains sufficient information to permit the meaningful exercise of sentencing authority under 18 U.S.C. § 3553. Imposition of sentence pursuant to this provision usually occurs when the defendant has been found guilty by the court after a non-jury trial, when the case is relatively simple and straightforward, when the defendant has taken the stand and has been cross-examined, and when it is the court's intention not to impose a prison sentence. In such cases, and any others in which sentence is to be imposed without benefit of a presentence investigation and report (such as when a report on the defendant has recently been prepared in connection with another case), it may be particularly important that the attorney for the governme nt take advantage of the opportunity afforded by Rule 32(c), Federal Rules of Criminal Procedure, to address the court, since there will be no later opportunity to correct or supplement the record. Moreover, even if government counsel is satisfied that all facts relevant to the sentencing decision are already before the court, he/she may wish to make a factual presentation for the record that makes clear the government's view of the defendant, the offense, or both. b. Correcting or Supplementing Presentence Report. The attorney for the government should bring any significant inaccuracies or omissions to the Court's attention at the sentencing hearing, together with the correct or complete information. c. Responding to Defense Assertions. Having read the presentence report before the sentencing hearing the defendant or his/her attorney may dispute specific factual statements made therein. More likely, without directly challenging the accuracy of the report, the defense presentation at the hearing may omit reference to the derogatory information in the report while stressing any favorable information and drawing all inferences beneficial to the defendant. Some degree of selectivity in the defense presentation is probably to be expected, and will be recognized by the court. There may be instances, however, in which the defense presentation, if not challenged, will leave the court with a view of the defendant or of the offense significantly different from that appearing in the presentence report. If this appears to be a possibility, the attorney for the government may respond by correcting factual errors in the defense presentation, pointing out facts and inferences, igno red by the defense, and generally reinforcing the objective view of the defendant and his/her offense as expressed in the presentence report. d. Responding to Court's Requests. There may be occasions when the court will request specific information from government counsel at the sentencing hearing (as opposed to asking generally whether the government wishes to be heard). When this occurs, the attorney for the government should, of course, furnish the requested information if it is readily available and no prejudice to law enforcement interests is likely to result from its disclosure.
4. Substantiation of Disputed Facts. In addition to providing the court with relevant factual material at the sentencing hearing when necessary, the attorney for the government should be prepared to substantiate significant factual allegations disputed by the defense. This can be done by making the source of the information available for cross examination or if there is good cause for nondisclosure of his/her identity, by presenting the information as hearsay
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and providing other guarantees of its reliability, such as corroborating testimony by others. SeeUnited States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978).
9-27.730 - Conditions for Making Sentencing Recommendations The prosecutor should bear in mind the attitude of the court toward sentencing recommendations by the government, and should weigh the desirability of maintaining a clear separation of judicial and prosecutorial responsibilities against the likely consequences of making no recommendation. If the prosecutor has good reason to anticipate the imposition of a sanction that would be unfair to the defendant or inadequate in terms of society's needs, he/she may conclude that it would be in the public interest to attempt to avert such an outcome by offering a sentencing recommendation. For example, if the case is one in which the Sentencing Guidelines allow but do not require the imposition of a term of imprisonment, the imposition of a term of imprisonment plainly would be inappropriate, and the court has requested the government's view, the prosecutor should not hesitate to recommend or agree to the imposition of probation. On the other hand, if the responsible government attorney be lieves that a term of imprisonment is plainly warranted and that, under all the circumstances, the public interest would be served by making a recommendation to that effect, he/she should make such a recommendation even though the court has not invited it. Recognizing, however, that the primary responsibility for sentencing lies with the judiciary, government attorneys should avoid routinely taking positions with respect to sentencing, reserving their recommendations instead for those unusual cases in which the public interest warrants an expression of the government's view.
In connection with sentencing recommendations, the prosecutor should also bear in mind the potential value in some cases of the imposition of innovative conditions of probation if consistent with the Sentencing Guidelines. For example, in a case in which a sentencing recommendation would be appropriate and in which it can be anticipated that a term of probation will be imposed, the responsible government attorney may conclude that it would be appropriate to recommend, as a specific condition of probation, that the defendant participate in community service activities, or that he/she desist from engaging in a particular type of business.
A. The attorney for the government should make a recommendation with respect to the sentence to be imposed when:
1. The terms of a plea agreement so require it; 2. The public interest warrants an expression of the government's view concerning the appropriate sentence.
B. Comment. USAM 9-27.730 describes two situations in which an attorney for the government should make a recommendation with respect to the sentence to be imposed: when the terms of a plea agreement require it, and when the public interest warrants an expression of the government's view concerning the appropriate sentence. The phrase "make a recommendation with respect to the sentence to be imposed" is intended to cover tacit recommendations (i.e., agreeing to the defendant's request or not opposing the defendant's request) as well as explicit recommendations for a specific type of sentence (e.g., probation or a fine), for a specific condition of probation, a specific fine, or a specific term of imprisonment; and for concurrent or consecutive sentences.
The attorney for the government should be guided by the circumstances of the case and the wishes of the court concerning the manner and form in which sentencing recommendations are made. If the government's position with respect to the sentence to be imposed is related to a plea agreement with the defendant, that position must be
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made known to the court at the time the plea is entered. In other situations, the government's position might be conveyed to the probation officer, orally or in writing, during the presentence investigation; to the court in the form of a sentencing memorandum filed in advance of the sentencing hearing; or to the court orally at the time of the hearing.
1. Recommendations Required by Plea Agreement. ule 11(e)(1), Federal Rules of Criminal Procedure, authorizing plea negotiations, implicitly permits the prosecutor, pursuant to a plea agreement, to make a sentence recommendation, agree not to oppose the defendant's request for a specific sentence, or agree that a specific sentence is the appropriate disposition of the case. If the prosecutor has entered into a plea agreement calling for the government to take a certain position with respect to the sentence to be imposed, and the defendant has entered a guilty plea in accordance with the terms of the agreement, the prosecutor must perform his/her part of the bargain or risk having the plea invalidated. Machibroda v. United States, 368 U.S. 487, 493 (1962); Santobello v. United States, 404 U.S. 257, 262 (1971). 2. Recommendations Reflecting Defendant's Cooperation. Section 5K1.1 of the Sentencing Guidelines provides that, upon motion by the government, a court may depart below the guidelines to reflect a defendant's cooperation. Title 18 U.S.C. § 3553(e) permits the court to impose a sentence below an otherwise applicable statutory minimum sentence upon motion of the government based upon a defendant's cooperation in the investigation or prosecution of another. The Supreme Court held in Melendez v. United States, 116 S.Ct. 2057 (1996) that a district court may not reduce a sentence below the statutory mandatory minimum based on a motion pursuant to 5K1.1 unless the government specifically sought a reduction in the mandatory minimum. See also Fed. R. Crim. P. Rule 35(b). 3. Recommendations Warranted by the Public Interest. From time to time, unusual cases may arise in which the public interest warrants an expression of the government's view concerning the appropriate sentence, irrespective of the absence of a plea agreement. In some such cases, the court may invite or request a recommendation by the prosecutor, while in others the court may not wish to have a sentencing recommendation from the government. In either event, whether the public interest requires an expression of the government's view concerning the appropriate sentence in a particular case is a matter to be determined with care, preferably after consultation between the prosecutor handling the case and his/her supervisor—the United States Attorney or a Supervisory Assistant United States Attorney, or the responsible Assistant Attorney General or his/her designee.
9-27.740 - Consideration to be Weighed in Determining Sentencing Recommendations
A. Consideration to be Weighed in Determining Sentencing
1. If the prosecutor makes a recommendation as to the sentence to be imposed within the applicable guideline range determined by the court, the prosecutor should consider the various purposes of sentencing, as noted below. 2. If the prosecutor makes a recommendation as to a sentence to be imposed after the court grants a motion for downward departure under Sentencing Guideline 5K1.1, the prosecutor should also consider the timeliness of the cooperation, the results of the cooperation, and the nature and extent of the cooperation when compared to other defendants in the same or similar cases in that district.
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B. Comment. The Sentencing Reform Act was enacted to eliminate unwarranted disparity in sentencing. Both judicial discretion and the scope of prosecutorial recommendations have been limited, in those cases in which no departure is made from the applicable guideline range. The prosecutor, however, still has a significant role to play in making appropriate recommendations in cases involving either a sentence within the applicable range or a departure. In making a sentencing recommendation, the prosecutor should bear in mind that, by offering a recommendation, he/she shares with the court the responsibility for avoiding unwarranted sentence disparities among defendants with similar backgrounds who have been found guilty of similar conduct. Applicable Sentencing Purposes. The attorney for the government should consider the seriousness of the defendant's conduct, and his/her background and personal circumstances, in light of the four purposes or objectives of the imposition of criminal sanctions:
1. To deter the defendant and others from committing crime; 2. To protect the public from further offenses by the defendant; 3. To assure just punishment for the defendant's conduct; and 4. To promote the correction and rehabilitation of the defendant. The attorney for the government should recognize that not all of these objectives may be relevant in every case and that, for a particular offense committed by a particular offender, one of the purposes, or a combination of purposes, may be of overriding importance. For example, in the case of a young first offender who commits a minor, non-violent offense, the primary or sole purpose of sentencing might be rehabilitation. On the other hand, the primary purpose of sentencing a repeat violent offender might be to protect the public, and the perpetrator of a massive fraud might be sentenced primarily to deter others from engaging in similar conduct.
9-27.745 - Unwarranted Sentencing Departures by the Court
A. If the court is considering a departure for a reason not allowed by the guidelines, the prosecutor should resist. B. Comment. The prosecutor, with Departmental approval, may appeal a sentence which is unlawful or in violation of the Sentencing Guidelines. 18 U.S.C. § 3742(b). If such a sentence is imposed, the Appellate Section of the Criminal Division should be promptly notified so that an appeal can be considered.
9-27.750 - Disclosing Factual Material to Defense
A. The attorney for the government should disclose to defense counsel, reasonably in advance of the sentencing hearing, any factual material not reflected in the presentence investigation report that he/she intends to bring to the attention of the court. B. Comment. Due process requires that the sentence in a criminal case be based on accurate information. See, e.g., Moore v. United States, 571 F.2d 179, 182-84 (3d Cir. 1978). Accordingly, the defense should have access to all material relied upon by the sentencing judge, including memoranda from the prosecution (to the extent that considerations of informant safety permit), as well as sufficient time to review such material and an opportunity to present any refutation that can be mustered. See, e.g., United States v. Perri, 513 F.2d 572, 575 (9th Cir. 1975); United States v. Rosner, 485 F.2d 1213, 1229-30 (2d Cir. 1973), cert. denied, 417 U.S. 950 (1974); United States v. Robin, 545 F.2d 775 (2d Cir. 1976). USAM 9-27.750 is intended to facilitate satisfaction of these requirements by providing the defendant with notice of information not contained in the
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presentence report that the government plans to bring to the attention of the sentencing court.
9-27.760 - Limitation on Identifying Uncharged Third-Parties Publicly In all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties. In the context of public plea and sentencing proceedings, this means that, in the absence of some significant justification, it is not appropriate to identify (either by name or unnecessarily-specific description), or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue. In the unusual instance where identification of an uncharged third-party wrongdoer during a plea or sentencing hearing is justified, the express approval of the United States Attorney or his designee should be obtained prior to the hearing absent exigent circumstances. See USAM 9-16.500. In other less predictable contexts, federal prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged third- parties. With respect to bills of particulars that identify unindicted co-conspirators, prosecutors generally should seek leave to file such documents under seal. Prosecutors shall comply, however, with any court order directing the public filing of a bill of particulars.
As a series of cases make clear, there is ordinarily "no legitimate governmental interest served" by the government's public allegation of wrongdoing by an uncharged party, and this is true "[r]egardless of what criminal charges may . . . b[e] contemplated by the Assistant United States Attorney against the [third- party] for the future." In re Smith, 656 F.2d 1101, 1106-07 (5th Cir. 1981). Courts have applied this reasoning to preclude the public identification of unindicted third-party wrongdoers in plea hearings, sentencing memoranda, and other government pleadings. See Finn v. Schiller, 72 F.3d 1182 (4th Cir. 1996); United States v. Briggs, 513 F.2d 794 (5th Cir. 1975); United States. v Anderson, 55 F.Supp.2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 743 (D.N.J. 1998); see also USAM 9-11.130.
In all but the unusual case, any legitimate governmental interest in referring to uncharged third-party wrongdoers can be advanced through means other than those condemned in this line of cases. For example, in those cases where the offense to which a defendant is pleading guilty requires as an element that a third-party have a particular status (e.g., 18 U.S.C. § 203(a)(2)), the third-party can usually be referred to generically ("a Member of Congress"), rather than identified specifically ("Senator Jones"), at the defendant's plea hearing. Similarly, when the defendant engaged in joint criminal conduct with others, generic references ("another individual") to the uncharged third-party wrongdoers can be used when describing the factual basis for the defendant's guilty plea. When referring to the uncharged third party, the use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used.
[updated December 2014]
‹ 9-24.000 - Requests For Special Confinement up 9-28.000 - Principles of Federal Prosecution Of Conditions Business Organizations ›
41 of 41 4/25/2016 3:27 PM Sample Plea Agreements from WDNY, SDNY
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v. 12-CR-
CALVIN BRAINARD,
Defendant.
PLEA AGREEMENT
The defendant, CALVIN BRAINARD, and the United States Attorney for the Western District of New York (hereinafter "the government") hereby enter into a plea agreement with the terms and conditions as set out below.
I. THE PLEA AND POSSIBLE SENTENCE
1. The defendant agrees to waive indictment and to plead guilty to a one-count Information charging a violation of Title 18,
United States Code, Sections 2 and 1343 (aiding and abetting wire fraud affecting a financial institution), for which the maximum possible sentence is a term of imprisonment of 30 years, a fine of
$1,000,000, a mandatory $100 special assessment and a term of supervised release of up to 5 years. The defendant understands that the penalties set forth in this paragraph are the maximum penalties that can be imposed by the Court at sentencing. 2. The defendant understands that, if it is determined that the defendant has violated any of the terms or conditions of supervised release, the defendant may be required to serve in prison all or part of the term of supervised release, up to 3 years without credit for time previously served on supervised release.
As a consequence, in the event the defendant is sentenced to the maximum term of incarceration, a prison term imposed for a violation of supervised release may result in the defendant serving a sentence of imprisonment longer than the statutory maximum set forth in Paragraph 1 of this agreement.
II. ELEMENTS AND FACTUAL BASIS
3. The defendant understands the nature of the offense set forth in paragraph 1 of this agreement and understands that if this case proceeded to trial, the government would be required to prove beyond a reasonable doubt the following elements of the crime:
a. The defendant helped Mary Brainard commit wire fraud affecting a financial institution; and
b. The defendant intended to help Mary Brainard commit wire fraud affecting a financial institution.
-2- FACTUAL BASIS
4. The defendant and the government agree to the following facts, which form the basis for the entry of the plea of guilty including relevant conduct:
General Background Facts
a. Defendant is an attorney and mortgage broker licensed in the State of New York. Defendant and his wife, Mary Brainard, owned and operated a mortgage brokerage business known as BMC Capital.
b. Mary Brainard, through BMC Capital, brokered mortgage refinancing loans for various clients. The mortgage loans were funded by federally-insured banks. A material condition for each such refinancing mortgage loan was that the refinanced loan proceeds first would be applied to pay off the existing mortgage and lien on the property.
c. Defendant acted as the settlement agent for the lending banks, and received the refinancing loan proceeds into his attorney trust account at Community Bank N.A. in Seneca Falls, New York.
Offense Conduct
d. In 2009, R.I. and V.I., hired Mary Brainard, doing business as BMC Capital, to refinance an existing mortgage held by Bank of America. Mary Brainard arranged to obtain the refinancing from SunTrust Mortgage, Inc., a financial institution in Portsmouth, New Hampshire. Defendant was the settlement agent for the transaction.
e. The refinancing transaction closed on December 21, 2009, and Suntrust Mortgage wire transferred approximately $102,469.28 from New Hampshire into defendant’s attorney trust account in New York. In order to pay off R.I.’s and V.I.’s existing mortgage, defendant wrote check no. 3274 from his attorney trust account in the approximate amount of $95,208.85, payable to BAC Home Loans Servicing LP,
-3- III. SENTENCING GUIDELINES
5. The defendant understands that the Court must consider but is not bound by the Sentencing Guidelines (Sentencing Reform
Act of 1984).
BASE OFFENSE LEVEL
6. The government and the defendant agree that Guideline §
2B1.1(a)(1) applies to the offense of conviction and provides for a base offense level of 7.
SPECIFIC OFFENSE CHARACTERISTICS U.S.S.G. CHAPTER 2 ADJUSTMENTS
7. The government and the defendant agree that the following specific offense characteristic does apply:
a. the 8 level increase pursuant to Guidelines § 2B1.1(b)(1)(E) (loss more than $70,000).
U.S.S.G. CHAPTER 3 ADJUSTMENTS
8. The government and the defendant agree that the following adjustments to the base offense level do apply:
a. The 2 level decrease pursuant to Guidelines § 3B1.2 (minor participant in criminal activity).
-5- ADJUSTED OFFENSE LEVEL
9. Based on the foregoing, it is the understanding of the government and the defendant that the adjusted offense level for the offense of conviction is 13.
ACCEPTANCE OF RESPONSIBILITY
10. At sentencing, the government agrees not to oppose the recommendation that the Court apply the two (2) level downward adjustment of Guidelines § 3E1.1(a) (acceptance of responsibility), which would result in a total offense level of
11.
CRIMINAL HISTORY CATEGORY
11. It is the understanding of the government and the defendant that the defendant's criminal history category is I.
The defendant understands that if the defendant is sentenced for, or convicted of, any other charges prior to sentencing in this action the defendant's criminal history category may increase.
The defendant understands that the defendant has no right to withdraw the plea[s] of guilty based on the Court’s determination of the defendant’s criminal history category.
-6- GUIDELINES' APPLICATION, CALCULATIONS AND IMPACT
12. It is the understanding of the government and the defendant that, with a total offense level of 11 and criminal history category of I, the defendant's sentencing range would be a term of imprisonment of 8 to 14 months, a fine of $2,000 to
$20,000 and a period of supervised release of 2 to 5 years.
Notwithstanding this, the defendant understands that at sentencing the defendant is subject to the maximum penalties set forth in paragraph 1 of this agreement.
13. The government and the defendant agree to the correctness of the calculation of the Sentencing Guidelines range set forth above. The government and the defendant, however, reserve the right to recommend a sentence outside the Sentencing
Guidelines range. This paragraph reserves the right to the government and the defendant to bring to the attention of the
Court all information deemed relevant to a determination of the proper sentence in this action.
14. The defendant understands that the Court is not bound to accept any Sentencing Guidelines calculations recommended by either party and the defendant will not be entitled to withdraw the plea of guilty based on the sentence imposed by the Court.
-7- IV. STATUTE OF LIMITATIONS
15. In the event the defendant’s plea of guilty is withdrawn, or conviction vacated, either pre- or post-sentence, by way of appeal, motion, post-conviction proceeding, collateral attack or otherwise, the defendant agrees that any charges dismissed pursuant to this agreement shall be automatically reinstated upon motion of the government and further agrees not to assert the statute of limitations as a defense to any other criminal offense involving or related to fraud which is not time barred as of the date of this agreement. This waiver shall be effective for a period of six months following the date upon which the withdrawal of the guilty plea or vacating of the conviction becomes final.
V. GOVERNMENT RIGHTS AND RESERVATIONS
16. The defendant understands that the government has reserved the right to:
a. provide to the Probation Office and the Court all the information and evidence in its possession that the government deems relevant concerning the defendant's background, character and involvement in the offense charged, the circumstances surrounding the charge and the defendant's criminal history;
-8- b. respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government;
c. advocate for a specific sentence, including the amount of restitution and/or fine and the method of payment;
d. modify its position with respect to any sentencing recommendation or sentencing factor under the Guidelines including criminal history category, in the event that subsequent to this agreement the government receives previously unknown information regarding the recommendation or factor; and
e. oppose any application for a downward departure or sentence outside the Guidelines range made by the defendant.
17. At sentencing, the government will move to dismiss the
Criminal Complaint pending against the defendant under
Magistrate's No. 11-MJ-4133.
VI. RESTITUTION AND FINANCIAL PENALTY PROVISIONS
18. The defendant understands that the Court must require restitution to be paid to the victims in the amounts to be determined by the Court as part of the sentence pursuant to
Sentencing Guidelines § 5E1.1 and Title 18, United States Code,
Section 3663A.
-9- 19. The defendant agrees to disclose fully and completely all assets in which the defendant either has any property interest or over which the defendant exercises control, directly or indirectly, including those held by a spouse, nominee or other third party. The defendant agrees to make complete financial disclosure to the United States by truthfully executing a sworn financial statement by the deadline set by the United States, or if no deadline is set, no later than two weeks prior to the date of sentencing. The defendant agrees to authorize the release of all financial information requested by the United States, including, but not limited to, executing authorization forms for the United States to obtain tax information, bank account records, credit history, and social security information. The defendant agrees to discuss or answer any questions by the United
States relating to the defendant's complete financial disclosure.
The defendant will submit to an examination under oath and/or a polygraph examination conducted by an examiner selected by the
U.S. Attorney’s Office on the issue of the defendant’s financial disclosures and assets, if deemed necessary by the U.S.
Attorney’s Office. The defendant certifies that the defendant has made no transfer of assets in contemplation of this prosecution for the purpose of evading or defeating financial obligations that are created by the agreement and/or that may be imposed upon the defendant by the Court. In addition, the
-10- defendant promises that the defendant will make no such transfers
in the future.
20. The defendant agrees that any financial records and
information provided by the defendant to the Probation Office,
before or after sentencing, may be disclosed to the United States
Attorney’s Office for use in the collection of any unpaid
financial obligation.
21. The defendant understands and agrees that the Court, at the time of sentencing, may order that all monetary penalties imposed at that time (including any fine, restitution, or special assessment imposed in accordance with the terms and conditions of this plea agreement) are to be due and payable in full immediately and subject to immediate enforcement by the United
States. The defendant understands and acknowledges that any schedule of payments imposed by the Court at the time of sentencing is merely a minimum schedule of payments and does not, in any way, limit those methods available to the United States to enforce the judgment.
-11- VII. APPEAL RIGHTS
22. The defendant understands that Title 18, United States
Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, knowingly waives the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section III, ¶ 12, above, notwithstanding the manner in which the Court determines the sentence. In the event of an appeal of the defendant's sentence by the government, the defendant reserves the right to argue the correctness of the defendant's sentence.
23. The defendant understands that by agreeing to not collaterally attack the sentence, the defendant is waiving the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant’s sentence.
24. The government waives its right to appeal any component of a sentence imposed by the Court which falls within or is greater than the sentencing range for imprisonment, a fine and
-12- supervised release set forth in Section III, ¶ 12, above, notwithstanding the manner in which the Court determines the sentence. However, in the event of an appeal from the defendant's sentence by the defendant, the government reserves its right to argue the correctness of the defendant's sentence.
VIII. TOTAL AGREEMENT AND AFFIRMATIONS
25. This plea agreement represents the total agreement between the defendant, CALVIN BRAINARD, and the government.
There are no promises made by anyone other than those contained in this agreement. This agreement supersedes any other prior agreements, written or oral, entered into between the government and the defendant.
WILLIAM J. HOCHUL, JR. United States Attorney Western District of New York
BY: JOHN J. FIELD Assistant U.S. Attorney
Dated: March ___, 2013
-13- I have read this agreement, which consists of 14 pages. I have had a full opportunity to discuss this agreement with my attorney, Edward Z. Menkin, Esq. I agree that it represents the total agreement reached between myself and the government. No promises or representations have been made to me other than what is contained in this agreement. I understand all of the consequences of my plea of guilty. I fully agree with the contents of this agreement. I am signing this agreement voluntarily and of my own free will.
______CALVIN BRAINARD EDWARD Z. MENKIN, ESQ. Defendant Attorney for defendant
DATED: March ___, 2013 DATED: March ___, 2013
-14- Sample Guidelines Estimate Charts SAMPLE GUIDELINES ANALYSIS TEMPLATES:
It is suggested that this exercise be done at your earliest opportunity (and then repeated as often as required as discovery evolves).
[Note that it is helpful that each iteration is dated in order to give you a sense of how and when prospects have changed]
It helps you clarify in your own mind what is achievable and the form itself can serve as a basis to help the client see and understand what they are looking at.
The form is also helpful when it is time to create a Sentencing Memorandum. [TEMPLATE FROM JIMMY A. DRUG CASE]
Best case scenario (very unlikely, but possible) (Only achievable if the Government makes a §5K1.1/ §3553(e) departure Motion & does not file a 21 U.S.C. §851 Notice alleging prior convictions) —
USSG§ Sentencing Factors §841(b)(1)(B)
[Statutory sentence range (21 U.S.C. Min.: 10 yrs. §841(b)(1)(B)(ii)(II)] Max: 40. §2D1.1(a)( (a) Base Offense Level (from Drug Quantity Table 5) §2D1.1(c)(7) – >500g but <2Kg of cocaine 26 (b) Specific Offense Characteristics (NONE) 0 §3B1.2 (b) (b) If the defendant was a minor participant in any -2 criminal activity, decrease by 2 levels. Minor Participant.— Subsection (b) applies to a defendant described in Application Note 3(A) who is less culpable than most other participants, but whose role could not be described as minimal. §3E1.1 Acceptance of Responsibility -3 Total Offense Level 21 13 Criminal History Points ======> 21 Category VI (77-96 mos)
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] Scenario #2 (possible) (Only achievable if the Government makes a §5K1.1/ §3553(e) departure Motion & does not file a 21 U.S.C. §851 Notice alleging prior convictions) —
USSG§ Sentencing Factors §841(b)(1)(B) [Statutory sentence range (21 U.S.C. Min.: 10 §841(b)(1)(B)(ii)(II)] yrs. Max: 40 §2D1.1(a)(5 (a) Base Offense Level (from Drug Quantity Table ) §2D1.1(c)(7) – >500g but <2Kg of cocaine 26 (b) Specific Offense Characteristics (NONE) 0 §3E1.1 Acceptance of Responsibility -3 Total Offense Level 23 13 Criminal History Points ======> 23 Category VI (92-115 mos)
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] Worst Case Scenario #3 (possible) (If the Government does NOT make a §5K1.1/ §3553(e) departure Motion but also does NOT file a 21 U.S.C. §851 Notice alleging prior convictions) —
USSG§ Sentencing Factors §841(b)(1)(B) [Statutory sentence range (21 U.S.C. §841(b)(1)(B)(ii)(II)] Min.: 10 yrs. Max: LIFE. §2D1.1(a)(5) (a) Base Offense Level (from Drug Quantity Table §2D1.1(c)(7) – >500g but <2Kg of cocaine 26 §4B1.1(b) Chapter Four Enhancement: the defendant has at least two 37 prior felony convictions for controlled substance offenses. Since the instant offense is a controlled substance offense and the defendant was 18 years or older at the time of its commission, the defendant is a Career Offender within the meaning of U.S.S.G. §4B1.1. Pursuant to §4B1.1(b), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table shall apply. In this case, the offense level from the table is greater.
§3E1.1 Acceptance of Responsibility -3 §4A1.1/§4B 13 Criminal History Points ======> Category VI 34 1.1 (262-327 mos)
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] United States v. Brian N. Estimated Guidelines Sentence [CALCULATED: October 6, 2014]
USSG§ Sentencing Factors Threatening or Harassing Communications; Hoaxes; False Liens. Max:: 5 yrs.
[Statutory sentence range (18 U.S.C. §1038(a) §2A6.1. (a) Base Offense Level: 12
(b) Specific Offense Characteristics §2A6.1(b)(1) If the offense involved any conduct evidencing an intent to carry out such threat, +6 increase by 6 levels. §2A6.1(b)(2) If (A) the offense involved more than two threats . . . increase by 2 levels. +2
§3E1.1 Acceptance of Responsibility -3 17 (24-30 mos)
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] United States v. Brian N. Estimated Guidelines Sentence [CALCULATED: December 2, 2014]
USSG§ Sentencing Factors Threatening or Harassing Communications; Hoaxes; False Liens. Max:: 5 yrs.
[Statutory sentence range (18 U.S.C. §1038(a) §2A6.1. (a) Base Offense Level: 12
(b) Specific Offense Characteristics §2A6.1(b)(1) If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels. §2A6.1(b)(2) If (A) the offense involved more than two threats . . . increase by 2 levels. +2 §2A6.1(b)(4) (4) If the offense resulted in (A) substantial disruption of public, governmental, or +4 business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.
§3E1.1 Acceptance of Responsibility -3 15 (18-24 mos) United States v. Brian N.
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] Estimated Guidelines Sentence [CALCULATED: December 2, 2014]
USSG§ Sentencing Factors Threatening or Harassing Communications; Hoaxes; False Liens. Max:: 5 yrs.
[Statutory sentence range (18 U.S.C. §1038(a) §2A6.1. (a) Base Offense Level: 12
(b) Specific Offense Characteristics §2A6.1(b)(1) If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels. §2A6.1(b)(2) If (A) the offense involved more than two threats . . . increase by 2 levels. +2 §2A6.1(b)(4) (4) If the offense resulted in (A) substantial disruption of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.
§3E1.1 Acceptance of Responsibility -2 12 (10-16 mos)
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] United States v. Brian N. Estimated Guidelines Sentence [CALCULATED: December 2, 2014]
USSG§ Sentencing Factors Threatening or Harassing Communications; Hoaxes; False Liens. Max:: 5 yrs.
[Statutory sentence range (18 U.S.C. §1038(a) §2A6.1. (a) Base Offense Level: 12
(b) Specific Offense Characteristics §2A6.1(b)(1) If the offense involved any conduct evidencing an intent to carry out such threat, 6 increase by 6 levels. §2A6.1(b)(2) If (A) the offense involved more than two threats . . . increase by 2 levels. +2 §2A6.1(b)(4) (4) If the offense resulted in (A) substantial disruption of public, governmental, or +4 business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.
§3E1.1 Acceptance of Responsibility -3 21 (37-46 mos)
United States v. ______– Estimated Guidelines Sentences [CALCULATED: January 27, 2010] Sample Cooperation Agreement
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA ) Criminal No. 5:15-CR-217 (GTS) ) v. ) Addendum to Plea Agreement ) re: Cooperation EDDIE MARTINEZ-FIGUEROA, ) ) ) Defendant. )
The United States of America, by and through its counsel of record, the United States
Attorney for the Northern District of New York, and defendant Eddie Martinez-Figueroa
(hereinafter “the defendant”), by and through the defendant’s counsel of record, hereby enter into
the following Addendum to the Plea Agreement in connection with the disposition of criminal charges against the defendant. The parties hereby agree that the plea agreement between the parties consists of both the Plea Agreement and this Addendum to the Plea Agreement.
The defendant’s failure to fully comply with the terms of this Addendum to the Plea
Agreement shall constitute a breach of both the Plea Agreement and this Addendum. If the defendant breaches either the Plea Agreement or this Addendum, the government will have the right, in its sole discretion, to void this agreement, in whole or in part, in addition to all of the remedies for breach described in the Plea Agreement. For example, a breach by the defendant of one or more of the defendant’s obligations set out in the Plea Agreement or this Addendum will
absolve the government of any obligation to move for a downward departure or to dismiss a
charging information.
A. The Defendant’s Obligations and Rights
1. The defendant will cooperate fully with the United States Attorney’s Office and
law enforcement agencies that the United States Attorney’s Office designates, in any manner
requested, in any criminal investigation.
2. The defendant will truthfully disclose all information with respect to the activities
of the defendant and others about all matters that the United States Attorney’s Office and law enforcement agencies designated by this Office inquire.
3. The defendant will testify truthfully and completely before the grand jury and/or at any trial or other proceeding with respect to any matters about which the defendant may be questioned.
4. The defendant will, at all times, give complete, truthful, and accurate information
and testimony. The defendant will not attempt to protect any person who has been involved in
criminal activity, nor will the defendant falsely implicate anyone in criminal activity. The
defendant will not minimize, exaggerate, or conceal the criminal conduct of the defendant or any
other person.
5. The defendant will not reveal the defendant’s cooperation or any information with
respect to any related investigation or prosecution to anyone other than the defendant’s attorney,
without the prior consent of the United States Attorney’s Office.
6. The defendant and the government agree that there is a compelling need to
maintain the confidentiality of the defendant’s cooperation, this Addendum, and the terms set out
in this Addendum based on concerns about the safety of the defendant and, in some cases, the
safety of other persons, the viability of one or more ongoing investigations, and for other
purposes. As a result, the defendant requests that the government safeguard such confidentiality,
2
including by choosing not to file or make mention of this Addendum or its terms in court and
agrees that both the defendant and the government should do so. The defendant waives (gives
up) any and all rights to have this addendum publicly filed with the court and to have the court, at the time of his guilty plea, notify him and/or make inquiry about the terms of this addendum to
the plea agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure. The
defendant also waives any and all rights to have described in the presentence report and/or in any
documents filed publicly in connection with sentencing his efforts to provide or his actual
provision of cooperation. The defendant further waives his right under 18 USC § 3553(c) to
have the sentencing court state in open court the specific reason for any sentence within or
outside the guideline imprisonment range or below any applicable statutory minimum to the
extent such reason involves any cooperation or assistance provided by the defendant. The
defendant agrees to not take any steps that would interfere with or undercut in any way efforts to
maintain the confidentiality of the defendant’s cooperation, this Addendum, and the terms set out
in this Addendum. However, the defendant retains the right to notify any court responsible for
sentencing the defendant of information favorable to the defendant, including the terms of this
Addendum and the defendant’s efforts to comply with the terms of this Addendum. The
defendant agrees that any such notice to a court will occur in sealed filings and/or in camera
proceedings unless the government agrees to public disclosure of the defendant’s cooperation.
7. The defendant is entitled to have an attorney present at any session during which
the defendant provides testimony, information, or other cooperation to the United States
Attorney’s Office or any designated law enforcement agency pursuant to this agreement. The
defendant hereby waives the right to have an attorney present at such sessions unless and until
3
the defendant or the defendant’s attorney informs the Assistant United States Attorney or designated law enforcement agent that the attorney’s presence is desired.
8. The defendant consents to adjournments of sentencing pending the completion of the defendant’s cooperation, as determined to be necessary by the United States Attorney’s
Office.
9. The defendant will not violate any federal, state, or local law or condition of release or supervision imposed by the Court between the time the defendant signs this
Addendum and the date of sentencing.
10. Any self-incriminating statements the defendant makes while cooperating pursuant to this Addendum may not be introduced by the government in its case-in-chief against the defendant in a further criminal prosecution except in (i) a prosecution for perjury, making a false statement, or obstruction of justice; (ii) a prosecution for any crime of violence or act of terrorism; or (iii) any prosecution of the defendant permitted under this agreement as a result of the defendant’s failure to comply with the terms of the Plea Agreement and this Addendum.
Further, such self-incriminating information will not be used in determining the applicable
Sentencing Guidelines range, pursuant to U.S.S.G. §1B1.8.
B. The Government’s Obligations
1. At or before sentencing, the United States Attorney’s Office will advise the Court of the nature and extent of the cooperation and assistance provided by the defendant pursuant to this Addendum to the Plea Agreement. If the United States Attorney’s Office determines, in its sole discretion, that the defendant has provided "substantial assistance" in the investigation or prosecution of one or more other persons who have committed offenses, it may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a downward
4
departure pursuant to either or both U.S.S.G. §5K1.1 and/or 18 U.S.C. § 3553(e); or (ii) move to dismiss one or more charging informations the government has filed pursuant to 21 U.S.C. § 851 concerning the defendant’s conviction for one or more felony drug offenses that trigger enhanced penalty provisions in Title 21 of the United States Code, in any case in which the government has filed such information(s). However, the United States Attorney's Office does not promise or guarantee that it will make such motion(s) for departure or to dismiss. Whether and how to credit any proffered cooperation and assistance is within the sole discretion of the United States
Attorney’s Office.
2. In deciding whether the defendant has provided “substantial assistance” warranting a motion for a downward departure under U.S.S.G. §5K1.1 and/or 18 U.S.C. §
3553(e) or a motion to dismiss allegations concerning one or more felony drug convictions, the
United States Attorney’s Office may consider any fact that, in its sole discretion, it deems relevant, including facts known at the time of the execution of this plea agreement.
3. However, the decision of the United States Attorney’s Office whether to make a motion for a downward departure or to dismiss drug conviction allegations will not be affected in in any way by a grand jury’s decision whether to return an indictment or a jury’s verdict at trial.
Thus, the defendant will not be rewarded in any way for a grand jury’s decision to return an indictment or a trial jury’s decision to return a guilty verdict. Similarly, the defendant will not be denied the benefit of such motion(s) merely because a grand jury decides not to return an indictment or a trial jury decides not to return a guilty verdict or cannot return any verdict.
4. If the sentencing of the defendant is conducted before the defendant has, in the judgment of the United States Attorney’s Office, completed cooperation, the United States
Attorney’s Office may, in its sole discretion, decline to make a motion for a downward departure
5
or to dismiss drug conviction allegations and defer its determination as to whether the defendant
has provided “substantial assistance” warranting a motion for a downward departure under Fed.
R. Crim. P. 35(b) for up to one year after sentencing.
5. Should the United States Attorney’s Office decide to make a motion for
downward departure pursuant to either or both U.S.S.G. §5K1.1 and/or 18 U.S.C. § 3553(e), its
recommendation as to the extent of such a departure is a matter within the sole discretion of the
United States Attorney.
6. Even if a motion for departure is made by the United States Attorney’s Office,
based upon the defendant's perceived "substantial assistance," the final decision as to how much,
if any, reduction in sentence is warranted because of that assistance rests solely with the
sentencing Court, subject to any statutory minimum penalty, which will limit the extent of any
departure in the event the United States Attorney’s Office, in its sole discretion, declines to make
a motion for a downward departure under 18 U.S.C. § 3553(e). Further, even if the United States
Attorney’s Office makes a motion to dismiss an information concerning felony drug conviction,
the defendant may still be subject to a statutory minimum term of imprisonment that will limit
the sentencing Court’s discretion to impose sentence.
C. Release of the Defendant (if applicable)
1. If the defendant is released pending sentencing, the defendant shall comply with
all the conditions set by the Court concerning release, including but not limited to those requiring
the defendant not to possess any firearm or weapon, not to use any controlled substance, to sign a
bond and/or post money and/or property as security, and to report as directed to the United States
Probation Office; and shall comply with the direction given to the defendant by the Probation
Officer or Pretrial Services Officer assigned to the defendant’s case; and will:
6
a. Contact DEA Special Agent Anthony Hart every day at an agreed upon
time, or such other time as directed.
b. Submit at any time to examination under oath and/or a polygraph
examination conducted by an examiner selected by the United States Attorney’s Office or an agency it designates on issues relating to the defendant’s cooperation, compliance with the conditions of release, and/or compliance with the conditions of this Addendum to the Plea
Agreement, if such is deemed necessary by the United States Attorney’s Office.
c. Obtain at the defendant’s expense, actively maintain, and keep on the defendant’s person a cellular telephone with enabled GPS (global positioning system) to allow law enforcement officers to locate the defendant at all times during the course of the defendant’s
cooperation.
d. Not travel outside the Northern District of New York without the
knowledge and consent of the United States Attorney’s Office.
2. If the defendant violates any condition of release or of the Plea Agreement or this
Addendum to the Plea Agreement, the defendant consents to revocation of the defendant’s
release.
This Addendum to the Plea Agreement, to become effective, must be signed by all of the
parties listed below.
RICHARD S. HARTUNIAN United States Attorney
Carla Freedman Date Assistant United States Attorney Bar Roll No. 514723
7
The Defendant acknowledges that he/she has read each of the provisions of this Addendum with the assistance of counsel and understands its provisions.
Eddie Martinez-Figueroa Date Defendant
Edward Menkin Date Attorney for Defendant Bar Roll No.
8
Rule 11 Waiver Form (NOT FOR CIRCULATION OR GENERAL DISTRIBUTION) Waiver of Rule 11 Right to Open Court Discussion and Record of the Defendant's Cooperation or Assistance
The Defendant understands, agrees, and requests that any cooperation or assistance the Defendant provides not be mentioned in open court on the record, and that the following procedure be followed, to minimize any risk of jeopardizing the safety of the Defendant or the family and/or friends of the Defendant by revealing the Defendant's cooperation or assistance to others: a. Neither this Waiver nor any Cooperation Agreement will be filed, though a courtesy copy will be provided to the Court; b. There will be no reference to or mention of this Waiver, any Cooperation Agreement, or the Defendant's cooperation or assistance in court or on the record at the time of the guilty plea; c. At the time of sentencing, information concerning any cooperation or assistance provided by the Defendant will not be included in sentencing memoranda or other filed documents, but furnished to the Court via a confidential letter submitted to the courtroom Deputy Clerk. At the sentencing hearing, there will be no reference to or mention of any cooperation or assistance provided by the Defendant or the nature of any resulting downward departure motion. d. Any reference to, mention of, or discussion of any cooperation or assistance provided by the Defendant that involves the Court will occur in camera, unless the Defendant revokes this waiver by notifying the Court that the Defendant desires to refer to, mention, or discuss in court cooperation or assistance provided by the Defendant. If the Defendant desires a public hearing in open court regarding any cooperation or assistance provided by the Defendant, the Defendant will be afforded that opportunity. e. The Statement of Reasons will include the decision by the Court on any motion by the United States for a downward departure pursuant to U.S.S.G. ' 5K1.1 or 18 U.S.C. ' 3553(e), and the reason the Court authorized the use of this procedure. (The Statement of Reasons is confidential and not generally available to the public, but is part of the Court's official file and record and is available and provided to appellate courts). The following documents will be attached to the Statement of Reasons: this Waiver; any confidential letters submitted by the parties and considered by the Court concerning any cooperation or assistance provided by the Defendant; and any transcript of any in camera reference to, mention of, or discussion of any cooperation or assistance provided by the Defendant. f. If the Defendant revokes this waiver by notifying the Court that the Defendant desires to refer to, mention, or discuss in court cooperation or assistance provided by the Defendant, or otherwise obtains a public hearing in open court regarding any cooperation or assistance provided by the Defendant, the procedure spelled out above will not be followed and standard procedures will apply, including those pertaining to the filing of documents.
Case No: Case Name:
Defendant:
Defendant: Date:
Defense Counsel: Date: United States v. Richardson U.S. v. Richardson, 521 F.3d 149 (2008)
KeyCite Yellow Flag - Negative Treatment Declined to Extend by U.S. v. Cook, D.C.Cir., February 12, 2010 521 F.3d 149 United States Court of Appeals, Second Circuit.
UNITED STATES of America, Appellant, v. Kasha RICHARDSON, Defendant, Carol Dominguez, Defendant-Appellee.
Docket No. 05-7005-cr. | Argued: June 22, 2007. | Decided: Feb. 15, 2008. | Amended: March 20, 2008.
Synopsis Background: Defendant was convicted pursuant to her plea of guilty before the United States District Court for the Northern District of New York, David N. Hurd, J., of conspiracy to distribute cocaine and sentenced to 464 days’ imprisonment, or approximately 7% of the statutory mandatory minimum. Government appealed sentence.
Holdings: The Court of Appeals, Miner, Circuit Judge, held that:
[1] sentence was procedurally unreasonable, given inability to determine whether departure relied on Sentencing Guideline or statute governing motions for substantial assistance, and
[2] sentence was substantively unreasonable due to court’s failure to make adequate findings.
Vacated and remanded.
West Headnotes (12)
[1] Sentencing and Punishment Operation and Effect of Guidelines in General
Procedural reasonableness requires Court of Appeals to examine whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other statutory sentencing factors. 18 U.S.C.A. § 3553(a).
3 Cases that cite this headnote
[2] Sentencing and Punishment Factors or Purposes in General
Review of sentence for substantive reasonableness requires that Court of Appeals consider only whether the length
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
U.S. v. Richardson, 521 F.3d 149 (2008)
of the sentence is reasonable in light of the statutory sentencing factors. 18 U.S.C.A. § 3553(a).
Cases that cite this headnote
[3] Criminal Law Judgment, Sentence, and Punishment
Courts of Appeals may presume that a sentence that is imposed within the Guidelines range is reasonable, but the presumption is not binding. U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.
Cases that cite this headnote
[4] Criminal Law Review De Novo
Review of a district court’s interpretation of the Sentencing Guidelines is de novo. U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.
5 Cases that cite this headnote
[5] Criminal Law Sentencing
Clearly erroneous standard applies when reviewing a district court’s findings of fact in imposing sentence. 18 U.S.C.A. § 3553(a); U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.
5 Cases that cite this headnote
[6] Sentencing and Punishment Remorse, Acceptance of Responsibility, and Cooperation Sentencing and Punishment Remorse, Cooperation, Assistance
A motion under Sentencing Guidelines for departure based on substantial assistance authorizes the sentencing court to depart below the applicable advisory guideline range, while a motion under sentencing statute to allow sentence below statutory minimum based on substantial assistance permits the court to sentence below a statutory minimum. 18 U.S.C.A. § 3553(e); U.S.S.G. § 5K1.1, p.s., 18 U.S.C.A.
12 Cases that cite this headnote
[7] Sentencing and Punishment Sufficiency
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
U.S. v. Richardson, 521 F.3d 149 (2008)
Sentence that reflected departure of approximately 93% from statutory minimum sentence of 20 years’ imprisonment for conspiracy to distribute cocaine was procedurally unreasonable in absence of explanation regarding method employed in reaching reduced sentence; government had made substantial assistance motion, which was silent as to whether it was based on Guidelines substantial assistance provision or statute permitting substantial assistance departures below statutory minimum sentences. 18 U.S.C.A. § 3553(e); U.S.S.G. § 5K1.1, p.s., 18 U.S.C.A.
3 Cases that cite this headnote
[8] Sentencing and Punishment Sufficiency
Sentence that reflected departure of approximately 93% from statutory minimum sentence of 20 years’ imprisonment for conspiracy to distribute cocaine was substantively unreasonable where court did not state reasons for imposition of sentence and factual findings in presentence report (PSR) provided inadequate support for sentence imposed. 18 U.S.C.A. §§ 3553(c), 3553(e); Comprehensive Drug Abuse Prevention and Control Act of 1970, § 401(b)(1)(A), 21 U.S.C.A. § 841(b)(1)(A).
3 Cases that cite this headnote
[9] Sentencing and Punishment Operation and Effect of Guidelines in General
Where statutory mandatory minimum sentence exceeds the applicable advisory Guidelines range, the Court must set the Guidelines sentence at the statutorily required minimum. U.S.S.G. § 5G1.1(b), p.s., 18 U.S.C.A.
6 Cases that cite this headnote
[10] Sentencing and Punishment Necessity of Motion by Government
Departure below statutory mandatory minimum sentence may only occur upon government motion for departure under statute allowing sentences below mandatory minimum in cases of substantial assistance. 18 U.S.C.A. § 3553(e); U.S.S.G. § 5K1.1, p.s., 18 U.S.C.A.
4 Cases that cite this headnote
[11] Sentencing and Punishment Remorse, Cooperation, Assistance
When the advisory Sentencing Guidelines sentence ends up as the statutory minimum, both the decision to depart below that sentence and the maximum permissible extent of departure below the statutory minimum may be based
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
U.S. v. Richardson, 521 F.3d 149 (2008)
only on substantial assistance to the government and on no other mitigating considerations. 18 U.S.C.A. § 3553(e).
17 Cases that cite this headnote
[12] Sentencing and Punishment Remorse, Cooperation, Assistance
Factors set forth in Sentencing Guideline governing motions for Guidelines departure based upon substantial assistance are instructive in determining maximum permissible extent of a departure below statutory minimum sentence, pursuant to government motion made under statute allowing substantial assistance departures. 18 U.S.C.A. § 3553(e); U.S.S.G. § 5K1.1, p.s., 18 U.S.C.A.
7 Cases that cite this headnote
Attorneys and Law Firms
*151 Brenda K. Sannes, Assistant United States Attorney, for Glenn T. Suddaby, United States Attorney for the Northern District of New York (John M. Katko, Assistant United States Attorney, of counsel), Syracuse, NY, for appellant.
Craig P. Schlanger, Syracuse, NY, for defendant-appellant Carol Dominguez.
Before: MINER, SACK, and HALL, Circuit Judges.
Opinion
MINER, Circuit Judge:
Appellant United States of America (the “Government”) appeals from a judgment of conviction and sentence for conspiracy to distribute cocaine and cocaine base entered in the United States District Court for the Northern District of New York (Hurd, J.) against defendant-appellee Carol Dominguez (“Dominguez”) insofar as the sentence of 464 days reflects a departure of approximately 93% from the statutory minimum sentence of 240 months. The District Court determined that the Government’s motion for a downward departure based on Dominguez’ assistance to the Government enabled it to exercise discretion, apparently informed by a variety of specified and unspecified factors, to impose a sentence it deemed “fair and reasonable under the circumstances.”
On appeal, the Government contends that the starting point for a reduced sentence is the statutory minimum sentence, that the only factors to be considered in this case are those relating to Dominguez’ cooperation, that the District Court erred in failing to put forth sufficient reasons to justify the departure, and that the extent of the departure was unreasonable in any *152 event. Dominguez responds that the District Court did use the statutory minimum as a point of departure, properly considered sentencing factors other than cooperation, imposed a reasonable non-Guidelines sentence, and adequately stated its reasons for imposing the sentence. For the reasons given below, we vacate, remand, and articulate the appropriate methodology to be employed in resentencing Dominguez.
BACKGROUND
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
U.S. v. Richardson, 521 F.3d 149 (2008)
By a Superseding Indictment filed on September 23, 2004, the Government charged Dominguez, along with fifteen co-defendants, with knowingly and intentionally conspiring to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, all in violation of 21 U.S.C. § 846. According to the Indictment, the conspiracy began “in or about January 2002, the exact date being unknown,” and continued up to the date of the Indictment, September 23, 2004. The loci of the conspiracy were said to be in Oneida County, in the Northern District of New York, and elsewhere. Because Dominguez was convicted previously for a felony narcotics violation, the Government invoked against her in the Indictment and in an Information filed on January 7, 2005 the enhanced penalty provisions of 21 U.S.C. §§ 841(b)(1)(A) and 851. Pursuant to these provisions, Dominguez was subject to a mandatory minimum sentence of imprisonment of twenty years.
The charges against Dominguez and her co-conspirators arose from the operation of a large-scale cocaine distribution ring centered in the city of Rome, New York. Members of the conspiracy obtained large quantities of cocaine and cocaine base (crack) from suppliers in New York City and then transported the drugs in bulk quantities to Rome. There, the drugs were broken down into smaller quantities and prepared for later distribution. Members of the conspiracy then saw to the distribution of the repackaged narcotics throughout New York’s Mohawk Valley, including the areas in and around the cities of Utica and Rome in Oneida County.
On April 7, 2005, Dominguez executed a written plea agreement (the “Agreement”) with the United States Attorney for the Northern District of New York, agreeing to enter a plea of guilty to the conspiracy charged in the Indictment. In the Agreement, Dominguez admitted to a “personal relationship with co-[conspirator] Kasha Richardson,” who was named as a defendant in the same Indictment. She also admitted that she “conducted drug trafficking activity with [Richardson] on a regular basis” and revealed that “[o]n occasion, [she] would hold or store crack cocaine, cocaine powder and drug-related proceeds for Richardson at her residence.” The Agreement included a clause providing that “[t]he quantity of controlled substances involved in this conspiracy and attributable to [Dominguez] included between 50 and 150 grams of a mixture or substance containing a detectable amount of cocaine base (crack) and an unknown quantity of cocaine.”
In exchange for Dominguez’ agreement to enter a guilty plea, the United States Attorney stipulated, inter alia, that Dominguez’ criminal history category could not be “definitively determined prior to the completion of the presentence investigation”; that the quantity of controlled drug substances attributable to Dominguez established a criminal offense level of 32, “without consideration of information provided by the Defendant which is protected by U.S.S.G. § 1B1.8”; that the United States Attorney would recommend a downward departure of three levels based upon Dominguez’ continued acceptance of responsibility *153 and the prompt entry of a plea of guilty; and that “[t]here are no facts and circumstances which would warrant an upward or downward departure from the applicable Sentencing Guidelines range in this case.” The parties to the Agreement acknowledged that “[t]he sentence to be imposed upon the Defendant is within the sole discretion of the sentencing Court, subject to the statutory maximum penalties set forth above and the provisions of the Sentencing Reform Act and the United States Sentencing Guidelines promulgated thereunder.”
In a presentence investigation report (“PSR”) prepared on July 27, 2005 and revised on September 29, 2005, the Northern District Probation Office calculated Dominguez’ offense level at 25 after crediting her with adjustments for her mitigating role and acceptance of responsibility. With respect to criminal history, the PSR noted that Domiguez was sentenced in Oneida County Court on November 13, 2000 to a term of probation of five years after being convicted for fifth degree criminal possession of a controlled substance with intent to sell. As a result of Dominguez’ past conviction, one point was added to her criminal history score. Dominguez’ criminal history score was further increased by two points because she was on probation when she committed the instant offense. Accordingly, the report established a total of three criminal history points, resulting in a criminal history category of II.
Invoking the sentencing table at U.S.S.G. Chapter 5, Part A, the PSR identified a Guidelines range of 63-78 months, based on the foregoing calculations. Citing U.S.S.G. § 5G1.1(b) (mandatory minimum sentence is Guideline Sentence where greater than maximum of applicable Guidelines range), the PSR observed that the offense of conviction carried a minimum term of twenty years and that the Guidelines sentence therefore would be 240 months. An addendum to the PSR noted that a sentencing conference was waived, that neither the defense counsel nor the Government had any objections to the Guidelines calculations contained in the report, and that several minor revisions with regard to Dominguez’ personal history were made at the request of defense counsel.
A sentencing memorandum (the “Memorandum”) was filed on behalf of Dominguez on November 13, 2005. In the
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
U.S. v. Richardson, 521 F.3d 149 (2008)
Memorandum, counsel for Dominguez pointed out that, as of the day scheduled for sentencing, November 16, 2005, his client would have been confined for a total of 464 days in federal custody. Arguing that Dominguez had made good use of her time and had maintained a “positive attitude” toward post-arrest rehabilitation during her confinement at the Montgomery County Correctional Facility, counsel noted that she had applied for enrollment in academic programs, obtained a job in the jail laundry, and started a women’s group focused on making better life choices. Attached to the Memorandum were fourteen letters of support from family, members of the community, and former co-workers.
As summarized by counsel, the letters submitted “show [Dominguez] to be a responsible, hard-working, capable and generous person with an excellent employment record and the benefit of a close family and network of friends who have stood by her, and will continue to stand by her so as to help her stay ‘straight’ when she returns home.” The Memorandum concluded by requesting the court, inter alia, to establish a Guidelines sentence based on an offense level of 25 and a criminal history category of II in accordance with the presentence investigation report; to impose a sentence less than that *154 provided by the Guidelines range in consideration of the factors recommended in 18 U.S.C. § 3553(a); and to at least impose a sentence of imprisonment at the low end of the Guidelines range.
On November 14, 2005, the Government filed its sentencing memorandum (the “Government’s Memorandum”), under seal, adopting the Guidelines sentencing range set forth in the presentence investigation report. The Government’s Memorandum included motions for downward departure pursuant to § 5K1.1, United States Sentencing Guidelines, and for a sentence below the statutory minimum pursuant to 18 U.S.C. § 3553(e), based on Dominguez’ cooperation with authorities after her arrest. The nature, extent, and usefulness of that cooperation were set forth at some length in the Government’s Memorandum. The Government began its calculation of a recommended sentence by noting that the indicated Guidelines sentence is the statutory mandatory minimum of twenty years (240 months) as provided in U.S.S.G. § 5G1.1(b).
Applying a criminal offense level of 36 and a criminal history category of II for a result that encompasses 240 months (210-262 months), the Government subtracted three levels for Dominguez’ cooperation to arrive at a level of 33, yielding a sentencing range of 151-188 months. The Government contended that a sentence within this range “would be reasonable and appropriate based upon all of the relevant sentencing factors.” United States Sentencing Mem. at 8. “[O]bject[ing] to the imposition of a sentence below this Guidelines range,” the Government argued that “[a]ll of the relevant factors that might be considered under 18 U.S.C. § 3553(a) in imposing the sentence in this case have been taken into account by the Sentencing Guidelines.” Id.
Dominguez filed a Supplemental Memorandum, under seal, on November 14, 2005, responding in the main to the Government’s motions for a downward departure and for a sentence below the statutory minimum. Reviewing the considerations for downward departure set forth in U.S.S.G. § 5K1.1, counsel for Dominguez argued that the assistance rendered by his client fulfilled every consideration enumerated, including the risk of injury to Dominguez or her family. Def. Supp. Mem. at 1-2. Accordingly, counsel argued that a downward departure from the Sentencing Guidelines of more than the three levels recommended by the Government was warranted. Id. at 2. Counsel also argued that no term of supervised release was necessary and urged departure from the specified minimum term of supervised release. Id.
Sentencing proceedings were conducted in open court on November 16, 2005. Dominguez and counsel for the Government at that time advised the court that they had no “objections to the factual accuracy” of the presentence investigation report. The court thereupon adopted the factual statements in the report, made the report part of the record, and directed the report to be placed under seal. The court next ascertained that counsel had no objections to the probation officer’s application of the Sentencing Guidelines and therefore found that the Guidelines range was 63-78 months, “but with the mandatory minimum, the Guideline range [sic] is two hundred and forty months.”
Continuing with the sentencing proceeding, the court granted the motions made by the Government under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, and stated that “[t]herefore, the mandatory minimum is no longer applicable.” The court then heard from Dominguez’ mother and a former employer, both of whom spoke to her *155 good qualities and recommended leniency. Dominguez’ counsel then spoke on her behalf, noting that a number of her family and friends were present in the courtroom and that a number of letters speaking to her good character previously were submitted to the court. He next reviewed the goals of sentencing set forth in 18 U.S.C. § 3553(a) and asked the court to examine those goals and “find [that] a sentence of less than forty-six months, would be, as we said, sufficient, and certainly not greater than necessary to accomplish the purposes of sentencing.” In support of his sentencing request, counsel characterized his client as “well on her
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way to rehabilitation,” with many positive influences in her life and “definite and positive plans for the future.”
Dominguez briefly addressed the court and said that she was “very sorry for the actions that I have chosen in my life.” She expressed gratitude to her family and friends and apologized for the problems she had caused them in the past. She stated: “And I know if given the chance again, I would make the right decisions. And I want to make the right decisions.”
Responding to the arguments made on behalf of Dominguez, the Assistant United States Attorney representing the Government argued that counsel for Dominguez improperly calculated the Guidelines range at 26 minus the three-level downward departure.1 According to the Government, the three-level departure should have been taken from the 240 months required by the mandatory minimum sentence. Conceding that Dominguez was remorseful and that she had great support from her family, the Government argued that the extent of her participation and her prior conviction were pertinent factors to be considered. Counsel for the Government “ask[ed] the [c]ourt to resist the urge to go well below the appropriate [G]uideline range because there are factors that come into this case which indicates [sic] that she should have learned her lesson, and she did not.” As to Dominguez’ cooperation, counsel for the Government stated to the court: “I absolutely did not need her, but we did it anyway, and we gave her a break in that regard.” He indicated that her participation in criminal activity was greater than reflected in the charge that was made.
Addressing Dominguez, the District Judge said: “I don’t find that your involvement is substantial as [the attorney for the Government] indicate[d], but you were involved.” Without the Government’s motion for departure based on cooperation, the District Judge indicated that a twenty-year sentence would be required and he “would have absolutely no discretion” in the matter. The District Judge advised Dominguez as follows: “Now that the motion has been made, I have discretion to sentence you as to what I feel would be fair and reasonable under the circumstances.” After warning Dominguez of the consequences of further wrongdoing, the court stated as follows: “I have reviewed and considered all the pertinent information including but not limited to the presentence investigation report, submissions by counsel, the factors outlined in 18 U.S.C. Section 3553 and the sentencing guidelines.”
The court thereupon sentenced Dominguez to a term of 464 days, the time already served in pre-trial confinement. The court imposed an eight-year term of supervised release and required Dominguez *156 to participate in a substance abuse program and to perform community service.
Following the imposition of sentence, counsel for the Government made the following inquiry: “Is there a certain calculation the [c]ourt used to reach that sentence or just basically time[ ] served based on all the circumstances of the case?” The court responded: “Based on all the circumstances in the case and the motion by the government, this is the [c]ourt’s sentence.” Counsel for the Government thereupon “ma[d]e [his] objection for the record.”
By checking the appropriate boxes on a standard pre-printed form, filed under seal, with headings entitled “Statement of Reasons,” and attached to the written judgment of conviction and sentence, the District Court indicated: that it “adopt[ed] the presentence investigation report without change”; that it determined that the mandatory minimum sentence did not apply on account of substantial assistance in accordance with 18 U.S.C. § 3553(e); that the court departed from the advisory Guidelines range for reasons authorized by the Sentencing Guidelines Manual; and that the sentence imposed departs below the advisory Guideline range based on the Government’s § 5K1.1 motion relating to substantial assistance.
ANALYSIS
[1] [2] [3] [4] [5] We are constrained to review sentences for reasonableness. See United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our review encompasses both the procedural and substantive aspects of reasonableness in the sentencing context. See United States v. Crosby, 397 F.3d 103, 114 (2d Cir.2005). Procedural reasonableness requires us to examine whether the district court properly “(a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). As to substantive reasonableness, our review requires that we consider only whether the length of the sentence is reasonable in light of the § 3553(a) factors. Crosby, 397 F.3d at 113-15. Courts of appeals may presume that a sentence that is imposed within the Guidelines range is reasonable, but © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
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the presumption is not binding. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007). Our review of a district court’s interpretation of the Sentencing Guidelines is de novo, and we apply the clearly erroneous standard when evaluating a district court’s findings of fact. United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005).
The sentencing factors set out in 18 U.S.C. § 3553(a), with which we are concerned in our review of both procedural and substantive reasonableness, are as follows:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentence available;
*157 (4) the kinds of sentence and the sentencing range established for-
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code ...; and
....
(5) any pertinent policy statement-
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28 ...;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
In the case before us, Dominguez is subject to a congressionally mandated minimum sentence of twenty years, since the punitive statute to which she is subject calls for a statutory minimum period of incarceration of twenty years to life. See 21 U.S.C. § 841(b)(1)(A). Although the Government in its brief on appeal characterizes Dominguez’ cooperation as “modest,” its motions for downward departure describe fairly extensive assistance to the authorities on her part. These motions brought into play the provisions of both U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Section 3553(e) provides:
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
18 U.S.C. § 3553(e).
In the wake of Booker, the second sentence of the foregoing provision must be read to require application of the Sentencing Guidelines in an advisory, rather than in a mandatory, capacity. Cf. United States v. Castillo, 460 F.3d 337, 353-54 (2d
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Cir.2006) (holding that in context of “safety valve” statute, 18 U.S.C. § 3553(f), which allows for downward departure from statutory minimum sentence when certain criteria principally relating to the nature of the offense and prior criminal conduct are met, Guidelines sentence need not be imposed, and defendant “may instead receive the benefit of the advisory Guidelines regime”).
A distinction must be made between motions for departure under the provisions of U.S.S.G. § 5K1.1 and motions for a sentence reduction to a level below the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e). U.S.S.G. § 5K1.1 provides:
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
*158 (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
[6] The distinction between the two provisions relating to substantial assistance is properly stated as follows: “A motion under § 5K1.1 authorizes the sentencing court to depart below the applicable advisory guideline range in determining the advisory guideline sentence, and a § 3553(e) motion permits the court to sentence below a statutory minimum.” United States v. Williams, 474 F.3d 1130, 1131 (8th Cir.2007) (quoting Melendez v. United States, 518 U.S. 120, 128-29, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996)).
[7] [8] In the absence of any explanation by the District Court regarding the method employed in applying the two pertinent provisions relating to assistance, we are unable to say whether the sentence imposed on Dominguez was procedurally reasonable. Nor are we able to discern, on the basis of the record made on sentencing in open court, whether a sentence of 464 days-a substantial departure from the advisory Guidelines sentence, and a 93% reduction from the mandatory minimum of 240 months-was substantively reasonable.
The District Court merely stated that it was taking into account “all the pertinent information including but not limited to the presentence investigation report, submissions by counsel, the factors outlined in 18 U.S.C. Section 3553 and the sentencing guidelines.” When counsel for the Government inquired as to the court’s method of “calculation,” the court responded: “Based on all the circumstances in the case and the motion by the government, this is the [c]ourt’s sentence.” In the context of this case, it seems to us that the District Court did not satisfy its obligation to “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). The PSR is no substitute, because the factual findings in the report provided inadequate support for the sentence imposed. See United States v. Carter, 489 F.3d 528, 539-40 (2d Cir.2007).
[9] In light of the foregoing, remand for resentencing is indicated. The procedure to be followed by the District Court in resentencing Dominguez is as follows. The District Court must first ascertain the appropriate Guideline range. Because, as it appears has already been calculated, the mandatory minimum sentence, here 240 months, exceeds the applicable Guidelines range, the Court must set the Guidelines sentence at the statutorily required minimum. Such a procedure is required by U.S.S.G. § 5G1.1(b), which provides: “Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum will be the guideline sentence.”2
*159 [10] Where the statutory minimum sentence becomes the Guidelines sentence, and in the absence of any other motions
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for upward or downward departure, a government motion to depart below the Guidelines pursuant to U.S.S.G. § 5K1.1 is, as a practical matter, superfluous. While § 5K1.1 provides guidance to the sentencing court regarding factors to consider in calculating a below-mandatory-minimum departure, it does not, in and of itself, authorize a district court to depart below a statutory minimum-such a departure may only occur pursuant to a government motion made under 18 U.S.C. § 3553(e). See Melendez v. United States, 518 U.S. 120, 124-26, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996) (holding that a motion pursuant to U.S.S.G. § 5K1.1 does not authorize a court to depart below a statutory minimum and that for a court to do so requires a motion complying with the requirements set out in 18 U.S.C. § 3553(e)).
[11] When, as here, the Guidelines sentence ends up as the statutory minimum, both the decision to depart and the maximum permissible extent of this departure below the statutory minimum may be based only on substantial assistance to the government and on no other mitigating considerations. See 18 U.S.C. § 3553(e) (providing “defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense” as singular ground for departing below statutory minimum); see also United States v. Desselle, 450 F.3d 179, 182 (5th Cir.2006), cert. denied, 549 U.S. 1179, 127 S.Ct. 1148, 166 L.Ed.2d 993 (Jan. 22, 2007) (“We ... join the majority of circuits in holding that the extent of a ... § 3553(e) departure must be based solely on assistance related concerns.”); United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir.2007) (“Where a court has authority to sentence below a statutory minimum only by virtue of a government motion under § 3553(e), the reduction below the statutory minimum must be based exclusively on assistance-related considerations.”); United States v. Auld, 321 F.3d 861, 867 (9th Cir.2003) (“[I]n fixing a substantial assistance departure..[t]he district court may not, however, consider factors unrelated to the defendant’s assistance.”). In arriving at a final sentence, of course, the district court may consider other factors in determining whether to grant the full extent of the departure permitted by § 3553(e).
[12] Although by itself § 5K1.1 may not be used to effectuate a departure below a statutory minimum sentence, its factors are instructive in determining the maximum permissible extent of a departure below the statutory minimum pursuant to § 3553(e). See Melendez, 518 U.S. at 129, 116 S.Ct. 2057 (“Section 5K1.1(a) may guide the district court when it selects a sentence below the statutory minimum.”); see also United States v. Pillow, 191 F.3d 403, 407 (4th Cir.1999) (“[T]he district court should use the factors listed in § 5K1.1(a)(1)-(5) as its guide when it selects a sentence below the statutorily required minimum sentence.”).
The case before us must be remanded for imposition of a sentence in accordance with the procedure described above. Only then can we begin to decide whether a below-statutory minimum sentence does not fall beneath a level “reflect [ing] ... [Dominguez’] substantial assistance in the investigation or prosecution of another *160 person who has committed an offense.” 18 U.S.C. § 3553(e). Moreover, we expect that on remand the District Court, in making any appropriate reduction for substantial assistance, will adequately articulate in open court and in its written order of judgment a statement of reasons for the sentence imposed. See 18 U.S.C. § 3553(c); United States v. Sindima, 488 F.3d 81, 85 (2d Cir.2007). The reasons thus given will enable us to determine whether any reduction for substantial assistance below the statutory minimum was excessive or unreasonable. See United States v. Saenz, 428 F.3d 1159, 1164-65 (8th Cir.2005).
CONCLUSION
For the foregoing reasons, we vacate the sentence and remand for resentencing consistent with this opinion.
All Citations
521 F.3d 149
Footnotes
1 Counsel for the Government apparently misspoke at the sentencing hearing; counsel for Dominguez argued that the Guidelines range was 25 minus the three-level downward departure recommended by the Government.
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2 The Guidelines Sentencing Range is determined in a series of steps prescribed by U.S.S.G. § 1B1.1(a)-(g), including identification of the conduct and the corresponding offense level, followed by application of appropriate adjustments related to victim, role, obstruction of justice, and acceptance of responsibility; identification of the defendant’s criminal history category and any applicable adjustments to the offense level; and, finally, reference to the Sentencing Table in U.S.S.G. Ch. 5, Pt. A to find the intersection of the offense level so determined (vertical axis) and the criminal history category (horizontal axis) so found. The intersection thus ascertained displays in the Sentencing Table a Sentencing Range. Where, as here, the statutory minimum sentence of imprisonment exceeds the span of months of imprisonment encompassed within the range so identified, the minimum sentence becomes the Guidelines sentence.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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United States v. Ming He U.S. v. Ming He, 94 F.3d 782 (1996)
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by U.S. v. Kovac, 10th Cir.(Kan.), December 3, 2001 94 F.3d 782 United States Court of Appeals, Second Circuit.
UNITED STATES of America, Appellee, v. MING HE, also known as Tony Jai, Defendant–Appellant. No. 544, Docket 95–1331.
| Argued Dec. 1, 1995. | Decided Sept. 3, 1996.
Defendant who had pleaded guilty to racketeering after entering into cooperation agreement with government appealed from judgment of the United States District Court for the Eastern District of New York, Reena Raggi, J., that imposed five-year sentence on him. The Court of Appeals, Cardamone, Circuit Judge, held that: (1) defendant could seek appellate review of prosecutor's allegedly inadequate motion for downward departure under Sentencing Guidelines; (2) defendant, as cooperating witness, was entitled to have counsel present at prosecutor's debriefing interview; (3) neither defendant nor his attorney implicitly waived that right; (4) sentencing of defendant after denial of that right was not harmless error; and (5) on remand, reassignment of case to different judge was not required.
Vacated and remanded.
Attorneys and Law Firms
*785 Susan R. Necheles, New York City (Goldman & Hafetz, New York, New York, of counsel), for Defendant–Appellant.
Margaret Giordano, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, David C. James, Leslie R. Caldwell, Assistant United States Attorneys, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee. Before CARDAMONE and CALABRESI, Circuit Judges and NICKERSON,*District Judge.
Opinion
CARDAMONE, Circuit Judge:
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Ming He (defendant or appellant) appeals from a June 8, 1995 judgment filed in the United States District Court for the Eastern District of New York (Raggi, J.) that imposed a five year prison sentence on him. Defendant, who had entered into a cooperation agreement with the government, asserts that, when fixing his sentence, the trial court relied on impermissible factors, derived from his debriefing by the prosecution. Because his counsel was not given advance notice of the debriefing sessions, she was not in attendance. On appeal, Ming He contends the Sixth Amendment entitles him to the assistance of counsel during debriefing and since he did not waive that right, the government was obliged to respect it.
In the Eastern District it is standard practice for a cooperating defendant to be interviewed by the prosecutor without his counsel being present. Since the conduct of a debriefing session ordinarily is neither standardized nor governed by set rules, a cooperating witness may in fact provide much useful assistance but may fail to “come clean” with every piece of information relevant to the investigation or prosecution of other offenders. Such a failure—real or perceived—may cause the prosecutor to decide against requesting a more lenient sentence for defendant or, as here, to disparage defendant's cooperation.
When the power to authorize the sentencing court to make a downward departure—in order to reward a cooperating witness who has rendered substantial assistance—was vested in the prosecutor, a change occurred in the dynamics of sentencing. Formerly, this power was lodged in a neutral judge, but now it resides initially in the hands of the prosecutor, an interested party in a criminal proceeding. Such a change in authority has the potential to tilt this aspect of a criminal prosecution unfairly in favor of the government. This potential for unfair treatment is troubling. Many view a cooperating witness as a betrayer or informer; unquestionably, such a person is not generally held in high regard. But the fairness of our system of criminal justice may best be seen in its treatment of those individuals held in low esteem. To create in the interest of fairness a more level playing field and for those other reasons we set forth in the discussion that follows, we think when a cooperating witness is debriefed he is entitled to the assistance of counsel.
Therefore, while we do not reach or decide appellant's constitutional argument, the government's standard practice in this district of conducting debriefing interviews outside the presence of counsel is inconsistent, in our view, with the fair administration of criminal justice. Consequently, we exercise our supervisory authority to bring it to an end, and vacate the judgment in the instant case and remand for resentencing.
BACKGROUND
Ming He, also known as “Tony Jai,” is a 27–year old permanent United States resident who holds Chinese citizenship. On September 26, 1994 he pled guilty to one count of racketeering, in violation of 18 U.S.C. § 1962. According to the presentence report, the racketeering count was predicated on two racketeering acts, one a conspiracy to extort money from restaurants and other *786 businesses in violation of 18 U.S.C. § 1951, and the other a conspiracy to commit arson in violation of N.Y. Penal Law §§ 150.10 and 105.15. Defendant engaged in these criminal acts as a member of the “Tung On Gang,” an illegal criminal enterprise operating primarily in New York City's Chinatown.
Prior to pleading guilty, Ming He had served briefly—after an arrest on gambling charges in December 1993—as an
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informant for the Bureau of Alcohol, Tobacco and Firearms. When it became evident to the government that his involvement in the Tung On Gang went well beyond the gambling activities he had originally acknowledged, defendant and his counsel entered into extensive negotiations with the government. These negotiations led to defendant's guilty plea.
At the time of entering his plea, defendant also signed a seven page cooperation agreement with the United States Attorney for the Eastern District of New York. His counsel, Susan R. Necheles, Esq., represented him in the negotiations and she and defendant both signed the agreement. In it defendant promised to “provide truthful, complete and accurate information” and to “cooperate fully” with the Eastern District prosecutor. More specifically, he agreed to be debriefed concerning his criminal activities, to give the government any relevant materials in his possession, and to keep the fact of his cooperation confidential. Defendant also waived his right to object to having an indictment filed against him and agreed to have his sentencing adjourned until his cooperation was complete.
In return for these promises, the government promised to file a motion pursuant to U.S.S.G. § 5K1.1 in which it would acknowledge defendant's cooperation and recommend to the sentencing court that it downwardly depart from the range otherwise fixed by the Sentencing Guidelines. The agreement stated that the government's “determination of whether the defendant has cooperated fully and provided substantial assistance, and [its] assessment of the value, truthfulness, completeness and accuracy of the cooperation, shall be binding upon him.” The instrument further noted that “[n]o promises, agreements or conditions have been entered into other than those set forth in this agreement, and none will be entered into unless memorialized in writing and signed by all of the parties.”
In the end, the prosecution did not believe defendant had cooperated fully and, even though it made a § 5K1.1 motion, it disparaged Ming He's assistance. The prosecutor detailed defendant's initial reluctance to acknowledge his role in a murder conspiracy and his effort to minimize his criminal involvement. In light of these concerns regarding defendant's cooperation, the prosecution did not call him to be a witness at the multi-defendant restaurant extortion and racketeering trial.
Defense counsel took exception to the prosecutor's comments. Her chief complaint was that the prosecutor improperly failed to notify her that the government was debriefing the defendant. Defense counsel explained that her client's meetings with the prosecutor were held without her permission and outside her presence. She said that had she been present at the debriefings she could have reduced her client's anxiety and resultant confusion, ensured that he understood what was being asked of him, and counseled him to answer the questions more fully. Defense counsel further objected to the government's attempt to penalize Ming He for a supposed lack of candor when responding to the prosecutor's questioning outside the presence of his own counsel.
At the sentencing hearing the prosecutor stated that her failure to give notice to defendant's lawyer was routine, adding that every witness or potential witness in the case was debriefed without counsel being present because that was “standard practice” in the Eastern District prosecutor's office. The sentencing court found the practice unremarkable. Insisting that it is her practice to attend her clients' debriefings, defense counsel strongly objected to the trial court's reliance on the government's description of the sessions. The trial court characterized counsel's practice as “unusual,” commenting that most lawyers are uninterested in attending their clients' debriefing sessions. The district judge did not think it necessary for counsel to be at her client's side after he *787 entered into a cooperation agreement, because all
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that was expected of him at the debriefing was that he tell the truth.
Ming He's apparent lack of candor—reflected in the negative tone of the § 5K1.1 motion—obviously affected the district court's decision on the length of defendant's prison term. Defendant was given a term of 60 months, only marginally less than the Guidelines range of 63–78 months. In deciding not to downwardly depart further, the sentencing court relied explicitly on defendant's evasiveness at the debriefings. It described him as not very cooperative and said that his lies and minimizations obviously compromised his availability as a prosecution witness, even on those events where the government believed his information was valuable. From the sentence thus imposed, Ming He appeals.
DISCUSSION
I Appealability of Sentence
[1] [2] Congress limited a defendant's right to appellate review of his final sentence to a few specific instances: when a sentence is imposed in violation of law; resulted from an incorrect application of the Sentencing Guidelines; is heavier than the upper range of the applicable sentence specified in the Guidelines; or is for an offense not found in the Guidelines. 18 U.S.C. § 3742(a). We have read this statute to mean that when a sentence is based on a demonstrable error of law or some other impermissible consideration, it is reviewable. See United States v. Colon, 884 F.2d 1550, 1553 (2d Cir.) (interpreting § 3742(a)(1)), cert. denied sub nom. Papathanasion v. United States, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). A sentencing court's refusal to depart downwardly, see, e.g., United States v. Ekhator, 17 F.3d 53, 55 (2d Cir.1994), and the extent of departure granted upon the government's § 5K1.1 motion, see, e.g., United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (per curiam), generally are not appealable.
[3] However, when a prosecutor's refusal to make a § 5K1.1 motion is animated by an unconstitutional or other impermissible motive, or where there is government misconduct or bad faith, United States v. Gonzalez, 970 F.2d 1095, 1103 (2d Cir.1992), a defendant is entitled to relief. See Wade v. United States, 504 U.S. 181, 185–86, 112 S.Ct. 1840, 1843–44, 118 L.Ed.2d 524 (1992). Because a defendant may challenge the government's refusal to make a § 5K1.1 motion when the refusal is premised on an impermissible consideration, it follows, a fortiori, that a defendant is also entitled to point out the inadequacy of such a motion, see United States v. Gangi, 45 F.3d 28, 31 (2d Cir.1995), and the sentence that results from an alleged impermissible motive or from misconduct is susceptible to appellate review.
II Debriefing Interview
A. Guidelines Section 5K1.1
The government's practice of relying on the interviewing of informers is an old one, recognized in the common law, where it was called “approvement.” See 4 William Blackstone, Commentaries *324. The government has always
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solicited the help of cooperating witnesses to prosecute its cases, see, e.g., Whiskey Cases, 99 U.S. 594, 595, 25 L.Ed. 399 (1878); United States v. Locascio, 6 F.3d 924, 930, 948 (2d Cir.1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1646, 128 L.Ed.2d 365 (1994), and cert. denied sub nom. Gotti v. United States, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994), and these witnesses, in turn, have traditionally been shown leniency at sentencing. See Whiskey Cases, 99 U.S. at 595 (“[S]uch a party, if called and examined by the public prosecutor ..., will not be prosecuted for the same offence, provided it appears that he acted in good faith and that he testified fully and fairly.”). Cooperating witnesses provide important information for ongoing investigations and often furnish the most damaging testimony against the accused at trial, see, e.g., Locascio, 6 F.3d at 930, that which is key to winning convictions, see, e.g., United States v. Gambino, 59 F.3d 353, 363 (2d Cir.1995). While the public benefits from the conviction of the guilty, the cooperating witness, by providing “inside” information about his past criminal activities, receives an opportunity to have his sentence reduced.
*788 A crucial part of the process by which a cooperating witness gives information and assistance to the government and is in turn promised a reward at sentencing is the debriefing session. The usefulness to the prosecutor of the defendant's cooperation in debriefing usually determines whether the government will make a § 5K1.1 motion. In order to appreciate the stakes involved at such an interview, we analyze the impact and utility of § 5K1.1 motions on sentencing.
The Sentencing Guidelines obviously have altered the way the sentencing process works, see United States v. Colon, 905 F.2d 580, 588 (2d Cir.1990), and the effect on the cooperating witness scenario is no exception. Under the Guidelines, a § 5K1.1 letter allows the district court one of the few opportunities it has to depart downwardly from the Sentencing Guidelines' somewhat rigid grid. Most significant, of course, is the fact that the United States Attorney must first make a motion for § 5K1.1 relief. Only after a motion is made can the district court consider such factors as the usefulness, truthfulness, timeliness, and extent of the cooperating witness's assistance, and any injury or danger suffered by the witness and his family as a result of such assistance. See U.S.S.G. § 5K1.1. These factors are weighed by the sentencing judge, but only in determining what the “appropriate reduction” in the cooperating witness's sentence should be. Id.
Before the promulgation of § 5K1.1, district judges, not prosecutors, had discretion to decide whether to reduce a sentence based on a defendant's assistance. Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1712 (1992). Under the Guidelines this sentencing power—of such great moment to a cooperating witness—was transferred from the sentencing court to the prosecutor. See United States v. Reina, 905 F.2d 638, 641 (2d Cir.1990). An amendment to empower district judges to act sua sponte was proposed, see 57 Fed.Reg. 90, 112 (1992) (proposed January 2, 1992), but never enacted.
While prosecutors are “uniquely fit” to decide whether substantial assistance has been rendered, United States v. Huerta, 878 F.2d 89, 93 (2d Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 845, 107 L.Ed.2d 839 (1990), it is equally true that a sentencing court is particularly well-positioned—because of its experience—to evaluate the moral worthiness, contrition, and rehabilitation of a defendant. Gonzalez, 970 F.2d at 1103; see also United States v. Agu, 949 F.2d 63, 65 (2d Cir.1991), cert. denied, 504 U.S. 942, 112 S.Ct. 2279, 119 L.Ed.2d 205 (1992). Even so, a downward departure for a cooperating witness may not be granted sua sponte by a trial court. See U.S.S.G. § 5K1.1; Wade, 504 U.S. at 185, 112 S.Ct. at 1843–44; see also Donald P. Lay, Rethinking the Guidelines: A Call For Cooperation, 101 Yale L.J. 1755, 1770 (1992).
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Prosecutors have made use of this discretionary power as a tool in managing their heavy caseloads and the increased reliance on cooperation agreements is a part of this trend. Graham Hughes, Agreements For Cooperation In Criminal Cases, 45 Vand. L.Rev. 1, 2–4, 68 (1992). Yet, the absence of any “visible standards to guide the prosecutor's exercise of discretion,” see Freed, supra, at 1711–12, has made the transfer of authority from judges to prosecutors especially troubling. The Supreme Court has noted that “the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.” Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978). But cf. United States v. Rexach, 896 F.2d 710, 714 (2d Cir.) (noting that cooperation agreement limits the government's discretion because of its implied obligation of good faith and fair dealing), cert. denied, 498 U.S. 969, 111 S.Ct. 433, 112 L.Ed.2d 417 (1990); Huerta, 878 F.2d at 93 (perceiving no danger of prosecutorial wrongdoing in determining whether defendant has rendered “substantial assistance”).
[4] [5] [6] [7] As “the equivalent of legislative rules adopted by federal agencies,” Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993), the Guidelines have the force of law, and courts are obliged to enforce them accordingly. Nor may judges interfere with the prosecutor's*789 decision either to make or not to make a § 5K1.1 motion, as prosecutorial discretion is traditionally exclusive and absolute. See United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L.Ed. 196 (1869). Of course, there are constitutional limits upon the prosecutor's exercise of her authority. See United States v. Resto, 74 F.3d 22, 26 (2d Cir.1996). Judges have an obligation to exercise supervision over the administration of criminal justice in federal courts, a responsibility that “implies the duty of establishing and maintaining civilized standards of procedure and evidence.” McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943).
The decision to move for a downward departure for substantial assistance rests in the exclusive discretion of federal prosecutors. Courts, in order to balance this broad executive discretion, must be especially vigilant to preserve a cooperating witness's procedural rights. By exercising supervisory authority in this area, we place a check on the prosecutor's discretion and reduce the danger of prosecutorial over-reaching in what is essentially a relationship tilted heavily towards the government. While we are foreclosed from requiring the government to acknowledge substantial assistance where it honestly believes that such assistance has not been provided, we can take steps to protect the cooperating witness in the debriefing interview.
B. Role of Counsel
A consideration of the role that a defense attorney can play in debriefing demonstrates why we believe a cooperating witness should be entitled, if he chooses, to bring his attorney to such a session. The government believes counsel's role to be minimal because the defendant need only answer questions truthfully. If he answers truthfully, the government avers, defendant need not fear any negative consequences. Were truth-telling all that is involved in debriefing, counsel's presence concededly would add little to the process because the lawyer's role would amount to nothing more than admonishing her client to “tell the truth.”
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Essentially, the prosecutor's position is that a debriefing session is a minor event and that defense counsel would of necessity be limited to giving advice principally about matters of fact. Although we do not reach the underlying question of whether the Sixth Amendment has been violated, we nonetheless find the relationship between that Amendment and the facts-law distinction—implicitly alluded to by the government—instructive in the present case. The Sixth Amendment's drafters “envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in ‘matters of law,’ and eschewing any responsibility for ‘matters of fact.’ ” United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967). The Framers sought to abolish this theoretically unsound facts-law distinction, realizing that it artificially distinguished between two inextricably linked aspects of preparing a defense. See id.
We guarantee the right to counsel to save the defendant from “falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered.” United States v. Bennett, 409 F.2d 888, 900 (2d Cir.) (Friendly, J.), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969). If such traps are in fact present, they come clothed in both factual and legal colors. While it is true that the government's questions are aimed at facilitating its own trial preparation rather than “trapping” a cooperating witness, the potential obviously exists for the statements to be used later against the defendant. Thus, counsel has a role to play, even in interviews covering essentially factual matters.
Because the government's understanding of the defense attorney's role is cramped, we decline to adopt it. Counsel can assist her client at a debriefing session in several important ways. First, a lawyer can explain the government's questions while also keeping her client calm. Some defendants are not sophisticated or intelligent enough to grasp a question's purport and may blurt out unthinking answers because the interview process intimidates them. A cooperating *790 witness walks a swaying tightrope. On the one hand, if he hopes to help himself, he must provide truthful information that will help the government. On the other hand, the witness must exercise some care because he is providing information to the government about his former criminal conspirators, people who may be predisposed to commit violence against him or his family because he is trading information to obtain leniency for himself.
Second, a lawyer can keep her client focused on the fact that while he is seeking the assistance and protection of the government, that entity does not share the defendant's interests even after the execution of a cooperation agreement. Since sentencing is adjourned until defendant's side of the bargain has been performed, the defendant's rights have not been fully adjudicated and the government remains the cooperating witness's adversary. Third, in this setting, a defense attorney might help resolve potential disagreements between the government and the defendant and assist the defendant in clarifying his answers to ensure they are complete and accurate.
Hence, counsel's role could prove to be considerably more important than simply advising her client to tell the truth. The government was in a position to impose grave penalties on Ming He if his assistance turned out to be incomplete or dishonest. For example, it had the power to set aside the cooperation agreement and withdraw its acceptance of his plea, re-indict him on additional charges, and use his statements at the debriefing against him—both directly and indirectly—in a new criminal proceeding. According to the cooperation agreement, a breach by defendant amounted to a waiver of defendant's Fifth Amendment privilege against self-incrimination. We think these constitutional ramifications of the debriefing session serious, and their seriousness strongly supports the appellant's insistence that he have the aid of counsel when the government interviews him.
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Fourth, defense counsel can serve as a potential witness at sentencing to the fact that her client fully performed the promise he made to the government. This reconstruction of the debriefing interview at sentencing—were the district court to hold an evidentiary hearing—is analogous to the role defense counsel plays in avoiding prejudice at a lineup identification. See Wade, 388 U.S. at 236–37, 87 S.Ct. at 1937–38. While the district court must take the government's assessment of the defendant's cooperation into consideration when deciding whether or not to downwardly depart, when setting the sentence the trial court ordinarily evaluates defendant's assistance independently. See U.S.S.G. § 5K1.1.
This particular potential benefit of counsel is not a factor in the case at bar because the cooperation agreement requires Ming He to accept the government's description of his assistance, that is, its “assessment of the value, truthfulness, completeness and accuracy of the cooperation, shall be binding upon him.” Thus, even had defense counsel been present at the debriefings, defendant would have been bound by the government's ultimate assessment of his assistance. However, despite that contractual limitation, counsel's presence might have affected the government's own assessment of defendant's performance; defense counsel's presence surely would have increased defendant's confidence and candor and thereby given the government a reason to present a more favorable description of his assistance.
Moreover, it should be remembered that the government attorney conducting a debriefing is both the defendant's prosecutor and the person who decides whether or not to make a § 5K1.1 motion, a motion that has a critical effect on the amount of time defendant will serve in prison. Most significantly, the refusal by the government to make such a motion is ordinarily unreviewable. The special nature of a § 5K1.1 motion demonstrates that the government debriefing interview is crucial to a cooperating witness. To send a defendant into this perilous setting without his attorney is, we think, inconsistent with the fair administration of justice.
C. Lawyer-Client Relationship
One further notion strengthens our belief that cooperating witnesses should be given the opportunity to bring counsel to debriefing *791 interviews. “Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect.” Patterson v. Illinois, 487 U.S. 285, 290 n. 3, 108 S.Ct. 2389, 2393 n. 3, 101 L.Ed.2d 261 (1988) (citing Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985)). In Moulton, 474 U.S. at 176, 106 S.Ct. at 487, the Supreme Court concluded that while the Sixth Amendment is not violated whenever the state obtains incriminating statements from a defendant, “knowing exploitation by the State of an opportunity to confront the accused without counsel being present is ... a breach of the State's obligation not to circumvent the right to the assistance of counsel.” In the case at hand, in which appellant was a cooperating witness, he was also a defendant represented by counsel. During the debriefing interview, the government, acting consistently with the spirit and the letter of the Sixth Amendment and with the fair administration of justice, should have actively facilitated that representation.
We have previously outlined what a prosecutor should do when communicating with represented parties. In United States v. Pinto, 850 F.2d 927, 934 (2d Cir.), cert. denied sub nom. Vence v. United States, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143, and cert. denied sub nom. Castano v. United States, 488 U.S. 932, 109 S.Ct. 323, 102 L.Ed.2d 341 (1988), appellants challenged a prosecutor's conduct because she questioned Mecolta, a convicted prisoner. Mecolta's testimony was sought by the government for use at a subsequent trial; but in giving such testimony Mecolta subjected himself to the possibility of further prosecution for crimes unrelated to his prior conviction. Although the prosecutor
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arranged for the district court to appoint a lawyer to represent Mecolta, she nevertheless went ahead and questioned him outside the attorney's presence and without the attorney's consent, thereby nullifying the very safeguard she had so carefully arranged.Id. at 931. We thought such behavior, particularly in light of Code of Professional Responsibility DR 7–104(A)(1), was ethically questionable. Id. at 934–35. The prosecutor had contended in Pinto that she had no obligation to ensure Mecolta's counsel's presence when she questioned him because he was “only a witness.” Id. at 935 (emphasis in original). In our view this “only a witness” argument was specious. Mecolta was, we found, a potential defendant whose testimony might compromise his Fifth Amendment rights, a circumstance of which the prosecutor was well aware. Id.
The present facts are quite similar. Ming He was a potential witness who was also a defendant, and the prosecutor knew he was represented by counsel. And, certain statements by this potential witness could have led to a waiver of his Fifth Amendment immunity and near-certain prosecution. Although we thought that the conduct in Pinto was “unseemly,” we found no constitutional or ethical violation. Id. This was partly because Mecolta himself did not raise a claim; the issue before us concerned the prosecutor's right to Mecolta's testimony. See id. at 934.
Today we deal with the case hypothetically noted in Pinto. The controversy before us squarely concerns what protections are to be accorded a cooperating witness who is represented by counsel. Both cases originated in the same district, and, though we characterized the prosecutor's conduct in Pinto as “unseemly,” the hint to make some sort of change apparently was not acted upon. Instead, the government's conduct in this case, we are told, is not a rare occurrence but “standard practice.” This “standard practice,” while it may or may not pass constitutional muster, is one that should be abandoned. We have previously given “clear warnings,” United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir.1972) (explaining that clear warnings must be followed by prosecutorial action), to prosecutors regarding their dealings with represented witnesses. In light of the government's failure to heed Pinto 's “should not” admonition, we cannot yet again rely on precatory words but must use the unmistakable word “vacate.” See United States v. Oshatz, 912 F.2d 534, 541 (2d Cir.1990) (noting the hazards of non-compliance with our hortatory comments), cert. denied, 500 U.S. 910, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991).
*792 D. Supervisory Authority Exercised
[8] [9] [10] With this background in mind, we turn to the merits of the case at hand. A federal court, “guided by considerations of justice,” McNabb, 318 U.S. at 341, 63 S.Ct. at 613, may exercise its supervisory powers to formulate procedural rules not mandated by the Constitution. See United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). Were this a case arising out of our habeas corpus jurisdiction, see 28 U.S.C. § 2254, in which we assess the constitutionality of a state proceeding, we would have to decide the constitutional claim if squarely raised. However, our authority to review procedures used in federal courts is not limited solely to ascertaining whether they are constitutionally valid. See McNabb, 318 U.S. at 340, 63 S.Ct. at 612–13.
[11] It is our task to supervise the administration of justice in the federal courts, and to that end we must ensure that fair standards of procedure are maintained. See id. Our supervisory authority extends to sentencing, United States v. Perez, 904 F.2d 142, 148 (2d Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 270, 112 L.Ed.2d 226 (1990), and cert. denied sub nom. Garcia v. United States, 498 U.S. 1124, 111 S.Ct. 1085, 112 L.Ed.2d 1189 (1991), particularly when we are dealing with a procedure for which a uniform practice is called for. See United States v. Coke, 404 F.2d 836, 845 (2d
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Cir.1968) (in banc ) (Friendly, J.). Other courts have found that exercise of supervisory authority is appropriate when needed to guarantee the defendant a fair sentencing proceeding. See United States v. Herrera–Figueroa, 918 F.2d 1430, 1434 (9th Cir.1990). Similarly, a fair proceeding must not be influenced by improperly based disparaging comments (such as those used here) in the government's § 5K1.1 motion.
[12] Thus, we may require lower courts to adhere to procedures deemed desirable as a matter of sound judicial practice even though the procedures may not be directed either by statute or the Constitution. See United States v. Jacobs, 547 F.2d 772, 776 (2d Cir.1976), cert. granted, 431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d 254 (1977), and cert. dismissed, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978). On occasion, and we think this is one, we must act to secure rights even though they may not be guaranteed by the Constitution when we are persuaded a procedure followed in a trial court is wrong. See Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); In Re N.D.N.Y. Grand Jury Subpoena (United States v. Grand Jury Witness ), 811 F.2d 114, 118 (2d Cir.1987).
Of course, our supervisory authority is not a form of free-floating justice, untethered to legal principle. Attempts by courts, for example, to use the otherwise broad supervisory authority as a substitute for Fourth Amendment jurisprudence, which adequately safeguards against unlawful searches and seizures, have been rejected. United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 2446, 65 L.Ed.2d 468 (1980). However, Payner did not paint with a broad brush. It did not purport to “limit the traditional scope of the supervisory power,” nor did it “render that power ‘superfluous.’ ” Id. at 736 n. 8, 100 S.Ct. at 2447 n. 8. Payner simply rejected reliance on supervisory power as a substitute for the Fourth Amendment. We too have recognized that courts cannot “fashion their own ‘sub-constitutional’ limitations on the conduct of law enforcement agents.” United States v. Myers, 692 F.2d 823, 847 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 2438, 77 L.Ed.2d 1322 (1983); see also United States v. Lau Tung Lam, 714 F.2d 209, 210 (2d Cir.), cert. denied, 464 U.S. 942, 104 S.Ct. 359, 78 L.Ed.2d 322 (1983) (explaining that supervisory power over DEA conduct in a sting operation is “extremely limited”).
This particular exercise of supervisory power is not an encroachment on the conduct of executive branch officials, that is, we are not attempting to govern the conduct of federal agents whose task is to investigate and prevent criminal activity. See N.D.N.Y. Grand Jury Subpoena, 811 F.2d at 118. Rather, we are enforcing our general supervisory authority over members of the bar of this Court, lawyers who are at the same time United States attorneys, see United States v. Hammad, 858 F.2d 834, 837 (2d Cir.1988), cert. denied, *793 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990), and directing the district courts not to further this practice relied on by a federal prosecutor. Because this subject is within the traditional role of the Court, it does not run afoul of Payner.
The federal prosecutor, by establishing a standard practice which created what we think are serious constitutional questions, raised a red flag that attracted our attention. There is a broad presumption that the right to counsel attaches in this sort of setting—a confrontational, post-indictment interview by the government. See Patterson, 487 U.S. at 290, 108 S.Ct. at 2393 (explaining that “there can be no doubt” that a right to counsel exists in post-indictment government interviews).
When the Ninth Circuit exercised its supervisory authority to allow defendants to have counsel in probation interviews, it explained that “whenever important interests of a defendant are at stake, the defendant is entitled to be represented by a lawyer.” Herrera–Figueroa, 918 F.2d at 1436. In addition, there are strong rules that protect the sanctity of the
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lawyer-client relationship. We made plain in Pinto that a federal prosecutor meeting with a represented party outside of his attorney's presence is a practice we disfavor. See Bank of Nova Scotia v. United States, 487 U.S. 250, 259, 108 S.Ct. 2369, 2375–76, 101 L.Ed.2d 228 (1988) (indicating that exercise of supervisory authority might be predicated on prosecutorial misconduct spanning several cases and raising question about process's fundamental fairness); United States v. Brito, 907 F.2d 392, 394 (2d Cir.1990). Whatever may be the constitutionality of the standard practice challenged in the instant case, it is in our opinion inconsistent with the fair administration of criminal justice.
Consequently, in the exercise of our supervisory authority, we rule that cooperating witnesses are entitled to have counsel present at debriefings, unless they explicitly waive such assistance.
III Waiver Considerations
[13] A defendant is not required to invite counsel to accompany him to a debriefing session, nor is the government prevented from conditioning a cooperation agreement on the defendant's waiver of this protection. In short, defense counsel's assistance is waivable. See Faretta v. California, 422 U.S. 806, 832, 835, 95 S.Ct. 2525, 2539–40, 45 L.Ed.2d 562 (1975).
[14] The government asserts—in the context of refuting Ming He's contention that he had a constitutionally guaranteed right to counsel—that Ming He waived any claim to be represented by counsel in the debriefings. Although the cooperation agreement does waive several rights and protections, it does not explicitly waive defendant's right to counsel. And, since the agreement expressly disclaims the existence of any “promises, agreements or conditions” other than those expressly included, the government may only urge that defendant implicitly waived a right to counsel, either by not asking for counsel to be present or because counsel failed to ascertain the specific times and locations of the debriefings and to appear at those times and places.
The government maintains that Ming He waived his right to counsel, relying on United States v. Cortes, 922 F.2d 123, 127–28 (2d Cir.1990), and Colon, 905 F.2d at 588. Such a view misapprehends the purport of those holdings. In those cases, which concerned the absence of counsel at probation interviews, we ruled that a right-to-counsel argument was waived because of a failure to object or otherwise preserve the issue for appeal. See Colon, 905 F.2d at 588 (“Colon has waived this argument”); Cortes, 922 F.2d at 128 (noting the defendant's failure to “raise his Sixth Amendment objection in the district court” and finding Colon “controlling”). The facts are to the contrary in the case at bar, in which defense counsel twice objected to the government's meetings with the defendant outside her presence, first in a letter to the district court and again at the sentencing hearing.
[15] [16] In addition, the fact that appellant's attorney knew her client would be debriefed sometime, but failed to take the initiative to learn the details of time and place, does not establish waiver. The government's affirmative obligation to respect and preserve *794 an accused's election to retain counsel requires it to do more than simply refrain from preventing counsel from being present to assist her client. See Moulton, 474 U.S. at 170–71, 106 S.Ct. at 484–85. Instead, it directs the state to take reasonable steps to facilitate such contact.
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[17] [18] [19] [20] Here there is no implied waiver. As in the context of the right to counsel, a waiver is valid only when “it can be shown from the record that the waiver was made knowingly and intelligently,” United States v. Purnett, 910 F.2d 51, 54–55 (2d Cir.1990), and we must “indulge in every reasonable presumption against waiver,” Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). Silence standing alone is not enough. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966) (discussing waiver of Fifth Amendment right to counsel); see also Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962) (“Presuming waiver from a silent record is impermissible.”). Only if silence is joined with some showing that defendant, having comprehended his rights, nonetheless thereafter followed a course of conduct suggesting an abandonment of his entitlement to counsel, may an implied waiver be found. See North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); United States v. Auen, 864 F.2d 4, 5 (2d Cir.1988) (per curiam). Even in such circumstances a defendant's relinquishment may not be presumed; the prosecution is required to prove it. Butler, 441 U.S. at 373, 99 S.Ct. at 1757. Here, defendant's silence and his participation in the debriefing sessions did not constitute waiver. More than a failure to request counsel and subsequent conversations with the prosecutor pursuant to a cooperation agreement are required to find waiver in the debriefing context.
[21] [22] For purposes of clarity, it is helpful to explain precisely what is required. Defendant and his counsel should be given reasonable notice of the time and place of the scheduled debriefing so that counsel might be present. A cooperating witness's failure to be accompanied by counsel at debriefing may later be construed as a waiver, providing defendant and counsel have had notice so that the consequences of counsel's failure to attend could be explained to defendant. Cf. Auen, 864 F.2d at 5 (holding that defendant's failure to obtain counsel, despite opportunities to do so, implied a waiver of counsel); United States v. Weninger, 624 F.2d 163, 167 (10th Cir.) (holding that stubborn failure to hire attorney after being told disadvantages constituted waiver of counsel at trial), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). Alternatively, waiver can be set forth expressly in the cooperation agreement. Since the issue is not before us, we express no view on the precise extent of what can be waived or the form that such a waiver might take.
[23] Moreover, when a defendant is sentenced—unless he specifically alleges that he was denied the assistance of counsel and asks for a hearing on this subject—the issue is waived. This is akin to our rule that a defendant must claim that the prosecutor acted in bad faith before a sentencing court will entertain challenges to the government's decision not to move for a downward departure for substantial assistance under § 5K1.1. See United States v. Khan, 920 F.2d 1100, 1106 (2d Cir.1990), cert. denied, 499 U.S. 969, 111 S.Ct. 1606, 113 L.Ed.2d 669 (1991).
In sum, what the government may not do is what it did here—conduct debriefing interviews without giving reasonable advance notice to the defendant, through his attorney, in order to permit him to be represented if he so chooses. A cooperation agreement is not a waiver of all of a cooperating witness's rights and protections. As stated earlier, and as this case demonstrates, the “cooperating witness is not a strong candidate for sympathy.” Hughes, supra, at 40. Such a witness often will receive a lighter sentence than his criminal activity merits. Nonetheless, however one may appraise a cooperating witness's moral worth, we are concerned that by preventing a witness from bringing his attorney to a debriefing interview, the government is expanding its discretion in a way unauthorized by the Guidelines. By not providing the witness in this case the opportunity to bring his retained counsel, the government *795 tipped the balance in its dealings with a cooperating witness in a way that is “unseemly,” Pinto, 850 F.2d at 935.
[24] Further, since the district court explicitly relied on defendant's lack of candor, its sentencing error was not
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harmless. Plainly, this factor influenced the sentencing court's selection of the sentence. See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120–21, 117 L.Ed.2d 341 (1992) (holding remand required where consideration of impermissible factors affected length of sentence). Reading the entire record leads us additionally to reject the government's contention that resentencing is unnecessary because the negative comments in the government's § 5K1.1 letter might have been based entirely on defendant's conduct before signing the cooperation agreement and might therefore have constituted a source independent of the alleged illegality. Hence, since defendant was sentenced in violation of law, his sentence must be vacated. See 18 U.S.C. § 3742(f)(1).
IV Remand For Resentencing
[25] [26] Defendant requests that the case, upon remand for resentencing, go before a different judge. This is only done where special circumstances warrant it, that is, where we are persuaded that the original judge would have substantial difficulty in putting out of her mind her previously expressed views, or where reassignment is advisable to preserve the appearance of justice. United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (in banc) (per curiam). No special circumstances here suggest reassignment before a different judge and we decline therefore to take such action.
[27] Of course, on remand, the government cannot withdraw its § 5K1.1 motion, as that action under the circumstances would be a violation of defendant's due process rights protected by the Fifth Amendment. Cf. Blackledge v. Perry, 417 U.S. 21, 28–29, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974) (holding that “it was not constitutionally permissible for the State to respond to [defendant's] invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo ”).
Finally, as we have already concluded that defendant should be resentenced, his additional contention that he should be resentenced due to a potential violation of the prosecutor's ethical obligations under either DR 7–104 of the Model Code of Professional Responsibility or the newly promulgated federal regulation on this subject, 28 C.F.R. pt. 77 (1995), need not be addressed.
CONCLUSION
Accordingly, we vacate the judgment appealed insofar as it imposed sentence on defendant and remand to the district court for it to resentence defendant reconsidering the remarks made in the § 5K1.1 motion disparaging defendant's cooperation which derive from whatever occurred during the debriefing sessions at which he was not represented by counsel.
All Citations
94 F.3d 782
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 U.S. v. Ming He, 94 F.3d 782 (1996)
Footnotes
* Hon. Eugene H. Nickerson, Senior United States District Judge for the Eastern District of New York, sitting by designation.
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 “One of These Crimes is Not Like the Other” A Hypothetical-Based Exploration of the Categorical Approach after Johnson v. United States, 135 S.Ct. 2551 (2015)
James P. Egan
CONTENTS
Guideline Amendments (4B1.2, 2L1.2)
Statutory Language (ACCA, 18 U.S.C. § 1101, 18 U.S.C. § 16)
Categorical Approach Flowchart
Categorical Approach Diagram
Hypotheticals
Johnson Powerpoint (Fall 2015)
Amendment to the Sentencing Guidelines
January 21, 2016
Effective Date August 1, 2016
This document contains unofficial text of an amendment to the Guidelines Manual submitted to Congress, and is provided only for the convenience of the user. Official text of the amendment can be found on the Commission’s website at www.ussc.gov and will appear in a forthcoming edition of the Federal Register.
TABLE OF CONTENTS
AMENDMENT PAGE NO.
1. “CRIME OF VIOLENCE” AND RELATED ISSUES ...... 1
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. § 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).
The Commission specified an effective date of August 1, 2016 for the amendment listed above and included in this document.
ii AMENDMENT: “CRIME OF VIOLENCE” AND RELATED ISSUES
Reason for Amendment: This amendment is a result of the Commission’s multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal). As part of this study, the Commission considered feedback from the field, including conducting a roundtable discussion on these topics and considering the varying case law interpreting these statutory and guideline definitions. In particular, the Commission has received extensive comment, and is aware of numerous court opinions, expressing a view that the definition of “crime of violence” is complex and unclear. The amendment is informed by this public comment and case law, as well as the Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015), regarding the statutory definition of “violent felony” in 18 U.S.C. § 924(e) (commonly referred to as the “Armed Career Criminal Act” or “ACCA”). While not addressing the guidelines, that decision has given rise to significant litigation regarding the guideline definition of “crime of violence.” Finally, the Commission analyzed a range of sentencing data, including a study of the sentences relative to the guidelines for the career offender guidelines. See U.S. Sent’g Comm’n, Quick Facts: Career Offenders (Nov. 2015) (highlighting the decreasing rate of within range guideline sentences (27.5% in fiscal year 2014), which has been coupled with increasing rates of government (45.6%) and non-government sponsored below range sentences (25.9%)).
The amendment makes several changes to the definition of “crime of violence” at §4B1.2 (Definitions of Terms Used in Section 4B1.1), which, prior to this amendment, was defined as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that
• has as an element the use, attempted use, or threatened use of physical force against the person of another (“force clause” or “elements clause”), see §4B1.2(a)(1); • is murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or involves the use of explosives (“enumerated offenses”), see §4B1.2(a)(2) and comment. (n.1); or • otherwise involves conduct that presents a serious potential risk of physical injury to another (“residual clause”), see §4B1.2(a)(2).
The “crime of violence” definition at §4B1.2 is used to trigger increased sentences under several provisions in the Guidelines Manual, the most significant of which is §4B1.1 (Career Offender). See also §§2K1.3, 2K2.1, 2S1.1, 4A1.1(e), 7B1.1. The career offender guideline implements a directive to the Commission set forth at 28 U.S.C. § 994(h), which in turn identifies offenders for whom the guidelines must provide increased punishment. Tracking the criteria set forth in section 994(h), the Commission implemented the directive by identifying a defendant as a career offender if (1) the defendant was at least eighteen years old at the time he or she committed the instant offense of conviction; (2) the instant offense is a felony that is a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Where these criteria are met, the directive at section 994(h), and therefore §4B1.1, provides for significantly higher sentences under the guidelines, such that the guideline range is “at or near the maximum [term of imprisonment] authorized.” Commission data shows that application of §4B1.1 resulted in an increased final offense level, an increased Criminal History Category, or both for 91.3 percent of defendants sentenced under the career offender guideline in fiscal year 2014. See U.S. Sent’g Comm’n, Quick Facts: Career Offenders (Nov. 2015) (46.3% of career offenders received an increase in both final offense level (from an average of 23 levels to 31 levels) and criminal history category (from an average of category IV
1 to category VI); 32.6% had just a higher final offense level (from an average of 23 levels to 30 levels); and 12.4% had just a higher Criminal History Category (from an average of category IV to category VI)).
Residual Clause
First, the amendment deletes the “residual clause” at §4B1.2(a)(2). Prior to the amendment, the term “crime of violence” in §4B1.2 included any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In Johnson, the Supreme Court considered an identical residual clause relating to the statutory definition of “violent felony” in the Armed Career Criminal Act. The Court held that using the “residual clause” to classify an offense as a “violent felony” violated due process because the clause was unconstitutionally vague. See Johnson, 135 S. Ct. at 2563. While the Supreme Court in Johnson did not consider or address the sentencing guidelines, significant litigation has ensued regarding whether the Supreme Court’s holding in Johnson should also apply to the residual clause in §4B1.2. Compare United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting the argument that the residual clause in §4B1.2 is unconstitutionally vague in light of Johnson) and United States v. Wilson, 622 F. App’x 393, 405 n.51 (5th Cir. 2015) (in considering the applicability of Johnson, noting “[o]ur case law indicates that a defendant cannot bring a vagueness challenge against a Sentencing Guideline”), with United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (finding that previous circuit precedent holding that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson); United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding that that the residual clause of §4B1.2(a)(2) is void for vagueness); United States v. Harbin, 610 F. App’x 562 (6th Cir. 2015) (finding that defendant is entitled to the same relief as offenders sentenced under the residual clause of the ACCA); and United States v. Townsend, __ F. App’x __, 2015 WL 9311394, at *4 (3d Cir. Dec. 23, 2015) (remanding for resentencing in light of the government’s concession that, pursuant to Johnson, the defendant should not have been sentenced as a career offender).
The Commission determined that the residual clause at §4B1.2 implicates many of the same concerns cited by the Supreme Court in Johnson, and, as a matter of policy, amends §4B1.2(a)(2) to strike the clause. Removing the residual clause has the advantage of alleviating the considerable application difficulties associated with that clause, as expressed by judges, probation officers, and litigants. Furthermore, removing the clause will alleviate some of the ongoing litigation and uncertainty resulting from the Johnson decision.
List of Enumerated Offenses
With the deletion of the residual clause under subsection (a)(2), there are two remaining components of the “crime of violence” definition – the “elements clause” and the “enumerated offenses clause.” The “elements clause” set forth in subsection (a)(1) remains unchanged by the amendment. Thus, any offense under federal or state law, punishable by imprisonment for a term exceeding one year, qualifies as a “crime of violence” if it has as an element the use, or attempted use, or threatened use of physical force against the person of another. Importantly, such an offense may, but need not, be specifically enumerated in subsection (a)(2) to qualify as a crime of violence.
The “enumerated offense clause” identifies specific offenses that qualify as crimes of violence. In applying this clause, courts compare the elements of the predicate offense of conviction with the elements of the enumerated offense in its “generic, contemporary definition.” As has always been the case, such offenses qualify as crimes of violence regardless of whether the offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another. While most of the offenses on the enumerated list under §4B1.2(a)(2) remain the same, the amendment does revise the list in a number of ways to focus on the most dangerous repeat offenders. The revised list is based on the
2 Commission’s consideration of public hearing testimony, a review of extensive public comment, and an examination of sentencing data relating to the risk of violence in these offenses and the recidivism rates of career offenders. Additionally, the Commission’s revisions to the enumerated list also consider and reflect the fact that offenses not specifically enumerated will continue to qualify as a crime of violence if they satisfy the elements clause.
As amended, the enumerated offenses include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). For easier application, all enumerated offenses are now included in the guideline at §4B1.2; prior to the amendment, the list was set forth in both §4B1.2(a)(2) and the commentary at Application Note 1.
Manslaughter, which is currently enumerated in Application Note 1, is revised to include only voluntary manslaughter. While Commission analysis indicates that it is rare for involuntary manslaughter to be identified as a predicate for the career offender guideline, this change provides that only voluntary manslaughter should be considered. This is also consistent with the fact that involuntary manslaughter generally would not have qualified as a crime of violence under the “residual clause.” See Begay v. United States, 553 U.S. 137 (2008) (limiting crimes covered by the ACCA residual clause to those roughly similar in kind and degree of risk posed as the enumerated offenses, which typically involve “purposeful, violent, and aggressive conduct”).
The amendment deletes “burglary of a dwelling” from the list of enumerated offenses. In implementing this change, the Commission considered that (1) burglary offenses rarely result in physical violence, (2) “burglary of a dwelling” is rarely the instant offense of conviction or the determinative predicate for purposes of triggering higher penalties under the career offender guideline, and (3) historically, career offenders have rarely been rearrested for a burglary offense after release. The Commission considered several studies and analyses in reaching these conclusions.
First, several recent studies demonstrate that most burglaries do not involve physical violence. See Bureau of Justice Statistics, National Crime Victimization Survey, Victimization During Household Burglary (Sept. 2010) (finding that a household member experienced some form of violent victimization in 7% of all household burglaries from 2003 to 2007); Richard S. Culp et al., Is Burglary a Crime of Violence? An Analysis of National Data 1998-2007, at 29 (2015), available at https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf (concluding that 7.6% of burglaries between 1998 and 2007 resulted in actual violence or threats of violence, while actual physical injury was reported in only 2.7% of all burglaries); see also United States Department of Justice, Federal Bureau of Investigation, Uniform Crime Report, Crime in the United States (2014) (classifying burglary as a “property crime” rather than a “violent crime”). Second, based upon an analysis of offenders sentenced in fiscal year 2014, the Commission estimates that removing “burglary of a dwelling” as an enumerated offense in §4B1.2(a)(2) will reduce the overall proportion of offenders who qualify as a career offender by less than three percentage points. The Commission further estimates that removing the enumerated offense would result in only about five percent of offenders sentenced under USSG §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) receiving a lower base offense level than would currently apply. Finally, a Commission analysis of recidivism rates for career offenders released during calendar years 2004 through 2006 indicates that about five percent of such offenders were rearrested for a burglary offense during the eight years after their release.
In reaching this conclusion, the Commission also considered that courts have struggled with identifying a uniform contemporary, generic definition of “burglary of dwelling.” In particular, circuits have disagreed regarding whether the requirement in Taylor v. United States, 495 U.S. 575, 598 (1990), that
3 the burglary be of a “building or other structure” applies in addition to the guidelines’ requirement that the burglary be of a “dwelling.” Compare United States v. Henriquez, 757 F.3d 144, 148-49 (4th Cir. 2014); United States v. McFalls, 592 F.3d 707 (6th Cir. 2010); United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) with United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013); United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006); United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009); United States v. McClenton, 53 F.3d 584 (3d Cir. 1995); United States v. Graham, 982 F.2d 315 (8th Cir. 1992).
Although “burglary of a dwelling” is deleted as an enumerated offense, the amendment adds an upward departure provision to §4B1.2 to address the unusual case in which the instant offense or a prior felony conviction was any burglary offense involving violence that did not otherwise qualify as a “crime of violence.” This departure provision allows courts to consider all burglary offenses, as opposed to just burglaries of a dwelling, and reflects the Commission’s determination that courts should consider an upward departure where a defendant would have received a higher offense level, higher Criminal History Category, or both (e.g., where the defendant would have been a career offender) if such burglary had qualified as a “crime of violence.”
Finally, the amendment adds offenses that involve the “use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or an explosive material as defined in 18 U.S.C. § 841(c)” to the enumerated list at §4B1.2(a)(2). This addition is consistent with long-standing commentary in §4B1.2 categorically identifying possession of a firearm described in 26 U.S.C. § 5845(a) as a “crime of violence,” and therefore maintains the status quo. The Commission continues to believe that possession of these types of weapons (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) inherently presents a serious potential risk of physical injury to another person. Additionally, inclusion as an enumerated offense reflects Congress’s determination that such weapons are inherently dangerous and, when possessed unlawfully, serve only violent purposes. See also USSG App. C, amend. 674 (eff. Nov. 1, 2004) (expanding the definition of “crime of violence” in Application Note 1 to §4B1.2 to include unlawful possession of any firearm described in 26 U.S.C. § 5845(a)).
Enumerated Offense Definitions
The amendment also adds definitions for the enumerated offenses of forcible sex offense and extortion. The amended guideline, however, continues to rely on existing case law for purposes of defining the remaining enumerated offenses. The Commission determined that adding several new definitions could result in new litigation, and that it was instead best not to disturb the case law that has developed over the years.
As amended, “forcible sex offense” includes offenses with an element that consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. Consistent with the definition in §2L1.2 (Unlawfully Entering or Remaining in the United States), this addition reflects the Commission’s determination that certain forcible sex offenses which do not expressly include as an element the use, attempted use, or threatened use of physical force against the person of another should nevertheless constitute “crimes of violence” under §4B1.2. See also USSG App. C, amend. 722 (eff. Nov. 1, 2008) (clarifying the scope of the term “forcible sex offense” as that term is used in the definition of “crime of violence” in §2L1.2, Application Note 1(B)(iii)).
The new commentary also provides that the offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c), or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. This
4 addition makes clear that the term “forcible sex offense” in §4B1.2 includes sexual abuse of a minor and statutory rape where certain specified elements are present.
“Extortion” is defined as “obtaining something of value from another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.” Under case law existing at the time of this amendment, courts generally defined extortion as “obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats” based on the Supreme Court’s holding in United States v. Nardello, 393 U.S. 286, 290 (1969) (defining “extortion” for purposes of the Hobbs Act). Consistent with the Commission’s goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrows the generic definition of extortion by limiting the offense to those having an element of force or an element of fear or threats “of physical injury,” as opposed to non-violent threats such as injury to reputation.
Departure Provision at §4B1.1
Finally, the amendment adds a downward departure provision in §4B1.1 for cases in which one or both of the defendant’s “two prior felony convictions” is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.
An offense (whether a “crime of violence” or a “controlled substance offense”) is deemed to be a “felony” for purposes of the career offender guideline if it is punishable by imprisonment for a term exceeding one year. This definition captures some state offenses that are punishable by more than a year of imprisonment, but are in fact classified by the state as misdemeanors. Such statutes are found, for example, in Colorado, Iowa, Maryland, Massachusetts, Michigan, Pennsylvania, South Carolina, and Vermont.
The Commission determined that the application of the career offender guideline where one or both of the defendant’s “two prior felony convictions” is an offense that is classified as a misdemeanor may result in a guideline range that substantially overrepresents the seriousness of the defendant’s criminal history or substantially overstates the seriousness of the instant offense. While recognizing the importance of maintaining a uniform and consistent definition of the term “felony” in the guidelines, the Commission determined that it is also appropriate for a court to consider the seriousness of the prior offenses (as reflected in the classification assigned by the convicting jurisdiction) in deciding whether the significant increases under the career offender guideline are appropriate. Such consideration is consistent with the structure used by Congress in the context of the Armed Career Criminal Act. See 18 U.S.C. § 921(a)(20) (providing, for purposes of Chapter 44 of Title 18, that “crime punishable by imprisonment for a term exceeding one year” does not include a State offense classified as a misdemeanor and punishable by two years or less). It is also consistent with the court’s obligation to account for the “nature and circumstances of the offense and the history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1).
Amendment:
§4B1.2. Definitions of Terms Used in Section 4B1.1
(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
5
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, burglary of a dwelling, arson, or extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
(b) The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
(c) The term “two prior felony convictions” means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere.
Commentary Application Notes:
1. Definitions.—For purposes of this guideline—
“Crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.
“Forcible sex offense” includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.
“Extortion” is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
6 “Crime of violence” does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a). Where the instant offense of conviction is the unlawful possession of a firearm by a felon, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an increase in offense level if the defendant had one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal) will apply.
Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. § 841(c)(1)) is a “controlled substance offense.”
Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a “crime of violence”.
Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. § 843(a)(6)) is a “controlled substance offense.”
Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. § 856) is a “controlled substance offense” if the offense of conviction established that the underlying offense (the offense facilitated) was a “controlled substance offense.”
Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. § 843(b)) is a “controlled substance offense” if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a “controlled substance offense.”
A violation of 18 U.S.C. § 924(c) or § 929(a) is a “crime of violence” or a “controlled substance offense” if the offense of conviction established that the underlying offense was a “crime of violence” or a “controlled substance offense”. (Note that in the case of a prior 18 U.S.C. § 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under §4A1.2 (Definitions and Instructions for Computing Criminal History).)
“Prior felony conviction” means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).
2. Offense of Conviction as Focus of Inquiry.—Section 4B1.1 (Career Offender) expressly provides that the instant and prior offenses must be crimes of violence or controlled substance offenses of which the defendant was convicted. Therefore, in determining whether an offense is a crime of violence or controlled substance for the purposes of §4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of inquiry.
3. Applicability of §4A1.2.—The provisions of §4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under §4B1.1.
7
4. Upward Departure for Burglary Involving Violence.—There may be cases in which a burglary involves violence, but does not qualify as a “crime of violence” as defined in §4B1.2(a) and, as a result, the defendant does not receive a higher offense level or higher Criminal History Category that would have applied if the burglary qualified as a “crime of violence.” In such a case, an upward departure may be appropriate.
* * *
§4B1.1. Career Offender
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
(b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender’s criminal history category in every case under this subsection shall be Category VI.
Offense Statutory Maximum Offense Level*
(1) Life 37 (2) 25 years or more 34 (3) 20 years or more, but less than 25 years 32 (4) 15 years or more, but less than 20 years 29 (5) 10 years or more, but less than 15 years 24 (6) 5 years or more, but less than 10 years 17 (7) More than 1 year, but less than 5 years 12.
*If an adjustment from §3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment.
(c) If the defendant is convicted of 18 U.S.C. § 924(c) or § 929(a), and the defendant is determined to be a career offender under subsection (a), the applicable guideline range shall be determined as follows:
(1) If the only count of conviction is 18 U.S.C. § 924(c) or § 929(a), the applicable guideline range shall be determined using the table in subsection (c)(3).
(2) In the case of multiple counts of conviction in which at least one of the counts is a conviction other than a conviction for 18 U.S.C. § 924(c) or § 929(a), the guideline range shall be the greater of—
(A) the guideline range that results by adding the mandatory minimum consecutive penalty required by the 18 U.S.C. § 924(c) or § 929(a) count(s) to the minimum and the maximum of the otherwise applicable guideline range determined for the count(s) of conviction other than the 18 U.S.C. § 924(c) or § 929(a) count(s); and
8
(B) the guideline range determined using the table in subsection (c)(3).
(3) Career Offender Table for 18 U.S.C. § 924(c) or § 929(a) Offenders
§3E1.1 Reduction Guideline Range for the 18 U.S.C. § 924(c) or § 929(a) Count(s)
No reduction 360-life 2-level reduction 292-365 3-level reduction 262-327.
Commentary Application Notes:
1. Definitions.—“Crime of violence,” “controlled substance offense,” and “two prior felony convictions” are defined in §4B1.2.
2. “Offense Statutory Maximum”.—“Offense Statutory Maximum,” for the purposes of this guideline, refers to the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense, including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant’s prior criminal record (such sentencing enhancement provisions are contained, for example, in 21 U.S.C. § 841(b)(1)(A), (B), (C), and (D)). For example, in a case in which the statutory maximum term of imprisonment under 21 U.S.C. § 841(b)(1)(C) is increased from twenty years to thirty years because the defendant has one or more qualifying prior drug convictions, the “Offense Statutory Maximum” for that defendant for the purposes of this guideline is thirty years and not twenty years. If more than one count of conviction is of a crime of violence or controlled substance offense, use the maximum authorized term of imprisonment for the count that has the greatest offense statutory maximum.
3. Application of Subsection (c).—
(A) In General.—Subsection (c) applies in any case in which the defendant (i) was convicted of violating 18 U.S.C. § 924(c) or § 929(a); and (ii) as a result of that conviction (alone or in addition to another offense of conviction), is determined to be a career offender under §4B1.1(a).
(B) Subsection (c)(2).—To determine the greater guideline range under subsection (c)(2), the court shall use the guideline range with the highest minimum term of imprisonment.
(C) “Otherwise Applicable Guideline Range”.—For purposes of subsection (c)(2)(A), “otherwise applicable guideline range” for the count(s) of conviction other than the 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a) count(s) is determined as follows:
(i) If the count(s) of conviction other than the 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a) count(s) does not qualify the defendant as a career offender, the otherwise applicable guideline range for that count(s) is the guideline range determined using: (I) the Chapter Two and Three offense level for that count(s); and (II) the appropriate criminal history category determined under §§4A1.1 (Criminal History Category) and 4A1.2 (Definitions and Instructions for Computing Criminal History).
9 (ii) If the count(s) of conviction other than the 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a) count(s) qualifies the defendant as a career offender, the otherwise applicable guideline range for that count(s) is the guideline range determined for that count(s) under §4B1.1(a) and (b).
(D) Imposition of Consecutive Term of Imprisonment.—In a case involving multiple counts, the sentence shall be imposed according to the rules in subsection (e) of §5G1.2 (Sentencing on Multiple Counts of Conviction).
(E) Example.—The following example illustrates the application of subsection (c)(2) in a multiple count situation:
The defendant is convicted of one count of violating 18 U.S.C. § 924(c) for possessing a firearm in furtherance of a drug trafficking offense (5 year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(B) (5 year mandatory minimum, 40 year statutory maximum). Applying subsection (c)(2)(A), the court determines that the drug count (without regard to the 18 U.S.C. § 924(c) count) qualifies the defendant as a career offender under §4B1.1(a). Under §4B1.1(a), the otherwise applicable guideline range for the drug count is 188-235 months (using offense level 34 (because the statutory maximum for the drug count is 40 years), minus 3 levels for acceptance of responsibility, and criminal history category VI). The court adds 60 months (the minimum required by 18 U.S.C. § 924(c)) to the minimum and the maximum of that range, resulting in a guideline range of 248-295 months. Applying subsection (c)(2)(B), the court then determines the career offender guideline range from the table in subsection (c)(3) is 262-327 months. The range with the greatest minimum, 262-327 months, is used to impose the sentence in accordance with §5G1.2(e).
4. Departure Provision for State Misdemeanors.—In a case in which one or both of the defendant’s “two prior felony convictions” is based on an offense that was classified as a misdemeanor at the time of sentencing for the instant federal offense, application of the career offender guideline may result in a guideline range that substantially overrepresents the seriousness of the defendant’s criminal history or substantially overstates the seriousness of the instant offense. In such a case, a downward departure may be warranted without regard to the limitation in §4A1.3(b)(3)(A).
Background: Section 994(h) of Title 28, United States Code, mandates that the Commission assure that certain “career” offenders receive a sentence of imprisonment “at or near the maximum term authorized.” Section 4B1.1 implements this directive, with the definition of a career offender tracking in large part the criteria set forth in 28 U.S.C. § 994(h). However, in accord with its general guideline promulgation authority under 28 U.S.C. § 994(a)-(f), and its amendment authority under 28 U.S.C. § 994(o) and (p), the Commission has modified this definition in several respects to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate and to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct . . . .” 28 U.S.C. § 991(b)(1)(B). The Commission’s refinement of this definition over time is consistent with Congress’s choice of a directive to the Commission rather than a mandatory minimum sentencing statute (“The [Senate Judiciary] Committee believes that such a directive to the Commission will be more effective; the guidelines development process can assure consistent and rational implementation for the Committee’s view that substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers.” S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983)).
Subsection (c) provides rules for determining the sentence for career offenders who have been convicted of 18 U.S.C. § 924(c) or § 929(a). The Career Offender Table in subsection (c)(3) provides a sentence at or near the statutory maximum for these offenders by using guideline ranges that correspond to criminal history category VI and offense level 37 (assuming §3E.1.1 (Acceptance of Responsibility) does not apply), offense
10 level 35 (assuming a 2-level reduction under §3E.1.1 applies), and offense level 34 (assuming a 3-level reduction under §3E1.1 applies).
* * *
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This document collects the amendments to the sentencing guidelines, policy statements, and commentary, in the unofficial, “reader-friendly” form in which they were made available at the Commission’s public meeting on April 15, 2016. As with all amendments on which a vote to promulgate has been made but not yet officially submitted to Congress and the Federal Register, authority to make technical and conforming changes may be exercised and motions to reconsider may be made. Once submitted to Congress and the Federal Register, official text of the amendments will be posted on the Commission’s website at www.ussc.gov and will be available in a forthcoming edition of the Federal Register, and an updated “reader-friendly” version of the amendments will be posted on the Commission's website at www.ussc.gov. TABLE OF CONTENTS
AMENDMENT
1. MISCELLANEOUS
2. COMPASSIONATE RELEASE
3. CONDITIONS OF PROBATION AND SUPERVISED RELEASE
4. ANIMAL FIGHTING
5. CHILD PORNOGRAPHY CIRCUIT CONFLICTS
6. IMMIGRATION
The Commission specified an effective date of November 1, 2016, for the amendments listed above. Background: This section includes the most serious immigration offenses covered under the Immigration Reform and Control Act of 1986.
(B) Illegal Reentry
Synopsis of the Proposed Amendment: This part of the proposed amendment is also informed by the Commission’s recent report on offenders sentenced under §2L1.2 (Unlawfully Entering or Remaining in the United States). See United States Sentencing Commission, Illegal Reentry Offenses (2015), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and- surveys/immigration/2015_Illegal-Reentry-Report.pdf.
The key findings from the report include—
the average sentence for illegal reentry offenders was 18 months; all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; and 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions.
The statutory penalty structure for illegal reentry offenses is based on whether the defendant had a criminal conviction before he or she was deported. The offense of illegal reentry, set forth in 8 U.S.C. § 1326, applies to defendants who previously were deported from, or unlawfully remained in, the United States. Specifically, the statutory maximum term of imprisonment is—
two years, in general (see 8 U.S.C. § 1326(a)); but 10 years, if the defendant was deported after sustaining (A) three misdemeanor convictions involving drugs or crimes against the person, or both, or (B) one felony conviction (see 8 U.S.C. § 1326(b)(1)); or 20 years, if the defendant was deported after sustaining an “aggravated felony” — a term that covers a range of offense types, listed in 8 U.S.C. § 1101(a)(43), that includes such different offense types as murder and tax evasion (see 8 U.S.C. § 1326(b)(2)).
The penalty structure of the guideline is similar to the statutory penalty structure. The guideline provides a base offense level of 8 and a tiered enhancement based on whether the defendant had a criminal conviction before he or she was deported. Specifically, the enhancement is—
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4 levels, for (A) three misdemeanor convictions for crimes of violence or drug trafficking offenses, or (B) any felony (see §2L1.2(b)(1)(D),(E)); 8 levels, for an “aggravated felony” (see §2L1.2(b)(1)(C)); 12 levels, for a felony drug trafficking offense for which the sentence imposed was 13 months or less (see §2L1.2(b)(1)(B)); and 16 levels, for specific types of felonies: a drug trafficking offense for which the sentence imposed was more than 13 months, a crime of violence, a firearms offense, a child pornography offense, a national security or terrorism offense, a human trafficking offense, or an alien smuggling offense (see §2L1.2(b)(1)(A)).
The penalties in the illegal reentry statute apply based on the criminal convictions the defendant had before he or she was deported, regardless of the age of the prior conviction. Likewise, until 2011, the enhancements in §2L1.2 applied regardless of the age of the prior conviction. In 2011, the Commission revised the guideline to provide that the 16- and 12-level enhancements would be reduced to 12 and 8 levels, respectively, if the conviction was too remote in time (too “stale”) to receive criminal history points under the timing limits set forth in Chapter Four (Criminal History and Criminal Livelihood). See USSG App. C, Amend. 754 (effective Nov. 1, 2011). The other enhancements continue to apply regardless of the age of the prior conviction (i.e., without regard to whether the conviction receives criminal history points). See §2L1.2, comment. (n.1(C)).
Part B of the proposed amendment amends §2L1.2 to lessen the emphasis on pre-deportation convictions by providing new enhancements for more recent, post-reentry convictions and a corresponding reduction in the enhancements for past, pre-deportation convictions. The enhancements for these convictions would be based on the sentence imposed rather than on the type of offense (e.g., “crime of violence”) — in other words, the proposed amendment eliminates the use of the “categorical approach” for predicate felony convictions in §2L1.2. Also, the proposed amendment accounts for prior convictions for illegal reentry separately from other types of convictions.
First, the proposed amendment provides at subsection (b)(1) a new tiered enhancement based on prior convictions for illegal reentry offenses under 8 U.S.C. § 1253, § 1325(a), or § 1326. It provides that if there is a conviction for a felony that is an illegal reentry offense, the enhancement is 4 levels. If there are two or more convictions for misdemeanors under §1325(a), the enhancement is 2 levels. The proposed amendment permits prior convictions to be considered under subsection (b)(1) only if they receive criminal history points under Chapter Four.
Second, the proposed amendment changes how §2L1.2 accounts for pre-deportation convictions (other than an illegal reentry offense) — basing them not on the type of offense (e.g., “crime of violence”) but on the length of the sentence imposed for a felony conviction. The proposed amendment incorporates these new enhancements in subdivisions (A) through (D) at subsection (b)(2). Specifically, if the defendant had a felony conviction and the sentence imposed was five years or more, an enhancement of 10 levels would apply. If the defendant had a felony conviction and the sentence imposed was two years or more, an enhancement of 8 levels would apply. If the defendant had a felony conviction and the sentence imposed exceeded one year and one month, an enhancement of 6 levels would apply. If the defendant had a conviction for any other felony offense, an enhancement of 4 levels would apply. Finally, an enhancement of 2 levels would apply if the defendant had three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses. If more than one of these enhancements apply, the court is instructed to apply the greatest. The proposed amendment permits prior convictions to be considered under subsection (b)(2) only if they receive criminal history points under Chapter Four.
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Third, to account for post-reentry criminal activity, the proposed amendment inserts a new subsection (b)(3) to provide a tiered enhancement for a defendant who engaged in criminal conduct resulting in a conviction for one or more offenses after the defendant was ordered deported or ordered removed from the United States for the first time. The structure of the new subsection (b)(3) parallels the proposed changes to subsection (b)(2), both in the sentence length required and the level of enhancement to be applied. As with subsection (b)(2), prior convictions would be considered under subsection (b)(2) only if they receive criminal history points under Chapter Four.
Fourth, the proposed amendment revises the definition of “crime of violence” to bring it into parallel with the definition of “crime of violence” provided in the recently amended 4B1.2 (Definitions of Terms Used in Section 4B1.1), effective August 1, 2016. See United States Sentencing Commission, Notice of Submission to Congress Of Amendment to the Sentencing Guidelines Effective August 1, 2016, 81 Fed. Reg. 4741 (Jan. 27, 2016).
Fifth, the proposed amendment revises the definition of “sentence imposed” to provide that revocations of probation, parole, or supervised release count towards the initial sentence length, regardless of when the revocation occurred.
Sixth, the proposed amendment adds a new provision clarifying the use of predicate offenses for cases in which the sentences for an illegal reentry offense and another felony offense were imposed at the same time. The new Application Note instructs the court to use both offenses: the illegal reentry offense in determining the appropriate enhancement under subsection (b)(1), and the other felony offense in determining the appropriate enhancement under subsection (b)(3).
Finally, the proposed amendment revises the departure provision based on seriousness of a prior conviction.
Proposed Amendment:
§2L1.2. Unlawfully Entering or Remaining in the United States
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points;
8 (B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels if the conviction receives criminal history points under Chapter Four or by 8 levels if the conviction does not receive criminal history points;
(C) a conviction for an aggravated felony, increase by 8 levels;
(D) a conviction for any other felony, increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.
Commentary
Statutory Provisions: 8 U.S.C. § 1325(a) (second or subsequent offense only), 8 U.S.C. § 1326. For additional statutory provision(s), see Appendix A (Statutory Index).
Application Notes:
1. Application of Subsection (b)(1).—
(A) In General.—For purposes of subsection (b)(1):
(i) A defendant shall be considered to be deported after a conviction if the defendant has been removed or has departed the United States while an order of exclusion, deportation, or removal was outstanding.
(ii) A defendant shall be considered to be deported after a conviction if the deportation was subsequent to the conviction, regardless of whether the deportation was in response to the conviction.
(iii) A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction.
(iv) Subsection (b)(1) does not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.
(B) Definitions.—For purposes of subsection (b)(1):
(i) “Alien smuggling offense” has the meaning given that term in section 101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)(N)).
(ii) “Child pornography offense” means (I) an offense described in 18 U.S.C. § 2251, § 2251A, § 2252, § 2252A, or § 2260; or (II) an offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States.
9 (iii) “Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
(iv) “Drug trafficking offense” means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
(v) “Firearms offense” means any of the following:
(I) An offense under federal, state, or local law that prohibits the importation, distribution, transportation, or trafficking of a firearm described in 18 U.S.C. § 921, or of an explosive material as defined in 18 U.S.C. § 841(c).
(II) An offense under federal, state, or local law that prohibits the possession of a firearm described in 26 U.S.C. § 5845(a), or of an explosive material as defined in 18 U.S.C. § 841(c).
(III) A violation of 18 U.S.C. § 844(h).
(IV) A violation of 18 U.S.C. § 924(c).
(V) A violation of 18 U.S.C. § 929(a).
(VI) An offense under state or local law consisting of conduct that would have been an offense under subdivision (III), (IV), or (V) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.
(vi) “Human trafficking offense” means (I) any offense described in 18 U.S.C. § 1581, § 1582, § 1583, § 1584, § 1585, § 1588, § 1589, § 1590, or § 1591; or (II) an offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States.
(vii) “Sentence imposed” has the meaning given the term “sentence of imprisonment” in Application Note 2 and subsection (b) of §4A1.2 (Definitions and Instructions for Computing Criminal History), without regard to the date of the conviction. The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release, but only if the revocation occurred before the defendant was deported or unlawfully remained in the United States.
(viii) “Terrorism offense” means any offense involving, or intending to promote, a “Federal crime of terrorism”, as that term is defined in 18 U.S.C. § 2332b(g)(5).
(C) Prior Convictions.—In determining the amount of an enhancement under subsection (b)(1), note that the levels in subsections (b)(1)(A) and (B) depend on whether the conviction receives criminal
10 history points under Chapter Four (Criminal History and Criminal Livelihood), while subsections (b)(1)(C), (D), and (E) apply without regard to whether the conviction receives criminal history points.
2. Definition of “Felony”.—For purposes of subsection (b)(1)(A), (B), and (D), “felony” means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.
3. Application of Subsection (b)(1)(C).—
(A) Definitions.—For purposes of subsection (b)(1)(C), “aggravated felony” has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated felony.
(B) In General.—The offense level shall be increased under subsection (b)(1)(C) for any aggravated felony (as defined in subdivision (A)), with respect to which the offense level is not increased under subsections (b)(1)(A) or (B).
4. Application of Subsection (b)(1)(E).—For purposes of subsection (b)(1)(E):
(A) “Misdemeanor” means any federal, state, or local offense punishable by a term of imprisonment of one year or less.
(B) “Three or more convictions” means at least three convictions for offenses that are not treated as a single sentence pursuant to subsection (a)(2) of §4A1.2 (Definitions and Instructions for Computing Criminal History).
5. Aiding and Abetting, Conspiracies, and Attempts.—Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.
6. Computation of Criminal History Points.—A conviction taken into account under subsection (b)(1) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History).
7. Departure Based on Seriousness of a Prior Conviction.—There may be cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction. In such a case, a departure may be warranted. Examples: (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for possessing or transporting a quantity of a controlled substance that exceeds a quantity consistent with personal use, an upward departure may be warranted. (B) In a case in which the 12-level enhancement under subsection (b)(1)(A) or the 8-level enhancement in subsection (b)(1)(B) applies but that enhancement does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction, an upward departure may be warranted. (C) In a case in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted.
8. Departure Based on Time Served in State Custody.—In a case in which the defendant is located by immigration authorities while the defendant is serving time in state custody, whether pre- or post- conviction, for a state offense, the time served is not covered by an adjustment under §5G1.3(b) and, accordingly, is not covered by a departure under §5K2.23 (Discharged Terms of Imprisonment). See §5G1.3(a). In such a case, the court may consider whether a departure is appropriate to reflect all or part of the time served in state custody, from the time immigration authorities locate the defendant until
11 the service of the federal sentence commences, that the court determines will not be credited to the federal sentence by the Bureau of Prisons. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense.
Such a departure should be considered only in cases where the departure is not likely to increase the risk to the public from further crimes of the defendant. In determining whether such a departure is appropriate, the court should consider, among other things, (A) whether the defendant engaged in additional criminal activity after illegally reentering the United States; (B) the seriousness of any such additional criminal activity, including (1) whether the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon (or induced another person to do so) in connection with the criminal activity, (2) whether the criminal activity resulted in death or serious bodily injury to any person, and (3) whether the defendant was an organizer, leader, manager, or supervisor of others in the criminal activity; and (C) the seriousness of the defendant’s other criminal history.
9. Departure Based on Cultural Assimilation.—There may be cases in which a downward departure may be appropriate on the basis of cultural assimilation. Such a departure should be considered only in cases where (A) the defendant formed cultural ties primarily with the United States from having resided continuously in the United States from childhood, (B) those cultural ties provided the primary motivation for the defendant’s illegal reentry or continued presence in the United States, and (C) such a departure is not likely to increase the risk to the public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court should consider, among other things, (1) the age in childhood at which the defendant began residing continuously in the United States, (2) whether and for how long the defendant attended school in the United States, (3) the duration of the defendant’s continued residence in the United States, (4) the duration of the defendant’s presence outside the United States, (5) the nature and extent of the defendant’s familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States, (6) the seriousness of the defendant’s criminal history, and (7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.
§2L1.2. Unlawfully Entering or Remaining in the United States
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
(1) (Apply the Greater) If the defendant committed the instant offense after sustaining—
(A) a conviction for a felony that is an illegal reentry offense, increase by 4 levels; or
(B) two or more convictions for misdemeanors under 8 U.S.C. § 1325(a), increase by 2 levels.
(2) (Apply the Greatest) If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained—
(A) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was five years or more, increase by 10 levels;
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(B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels;
(C) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed exceeded one year and one month, increase by 6 levels;
(D) a conviction for any other felony offense (other than an illegal reentry offense), increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 2 levels.
(3) (Apply the Greatest) If, at any time after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct resulting in—
(A) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was five years or more, increase by 10 levels;
(B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels;
(C) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed exceeded one year and one month, increase by 6 levels;
(D) a conviction for any other felony offense (other than an illegal reentry offense), increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 2 levels.
Commentary
Statutory Provisions: 8 U.S.C. § 1253, § 1325(a) (second or subsequent offense only), § 1326. For additional statutory provision(s), see Appendix A (Statutory Index).
Application Notes:
1. In General.—
(A) “Ordered Deported or Ordered Removed from the United States for the First Time”.—For purposes of this guideline, a defendant shall be considered “ordered deported or ordered removed from the United States” if the defendant was ordered deported or ordered removed from the United States based on a final order of exclusion, deportation, or removal, regardless of whether the order was in response to a conviction. “For the first time” refers to the first time the defendant was ever the subject of such an order.
13 (B) Offenses Committed Prior to Age Eighteen.—Subsections (b)(1), (b)(2) and (b)(3) do not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.*
2. Definitions.—For purposes of this guideline:
“Crime of violence” means any of the following offenses under federal, state, or local law: murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c), or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. “Forcible sex offense” includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. “Extortion” is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.
“Drug trafficking offense” means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.**
“Felony” means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.**
“Illegal reentry offense” means (A) an offense under 8 U.S.C. § 1253 or § 1326, or (B) a second or subsequent offense under 8 U.S.C. § 1325(a).
“Misdemeanor” means any federal, state, or local offense punishable by a term of imprisonment of one year or less.**
“Sentence imposed” has the meaning given the term “sentence of imprisonment” in Application Note 2 and subsection (b) of §4A1.2 (Definitions and Instructions for Computing Criminal History). The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release.
3. Criminal History Points.—For purposes of applying subsections (b)(1), (b)(2), and (b)(3), use only those convictions that receive criminal history points under §4A1.1(a), (b), or (c). In addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and (b)(3)(E), use only those convictions that are counted separately under §4A1.2(a)(2).
The provision marked with an asterisk (*) currently appears in note 1(A)(iv). The proposed amendment only renumbers the provision without making substantive changes to the text.
The definitions marked with double asterisks (*) currently appear in the commentary scattered throughout the application notes. The proposed amendment places these definitions without substantive changes as part of new application note 2.
14 A conviction taken into account under subsection (b)(1), (b)(2), or (b)(3) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History).
4. Cases in Which Sentences for An Illegal Reentry Offense and Another Felony Offense were Imposed at the Same Time.—There may be cases in which the sentences for an illegal reentry offense and another felony offense were imposed at the same time and treated as a single sentence for purposes of calculating the criminal history score under §4A1.1(a), (b), and (c). In such a case, use the illegal reentry offense in determining the appropriate enhancement under subsection (b)(1), if it independently would have received criminal history points. In addition, use the prior sentence for the other felony offense in determining the appropriate enhancement under subsection (b)(3), if it independently would have received criminal history points.
5. Departure Based on Seriousness of a Prior Offense.—There may be cases in which the offense level provided by an enhancement in subsection (b)(2) or (b)(3) substantially understates or overstates the seriousness of the conduct underlying the prior offense, because (A) the length of the sentence imposed does not reflect the seriousness of the prior offense; (B) the prior conviction is too remote to receive criminal history points (see §4A1.2(e)); or (C) the time actually served was substantially less than the length of the sentence imposed for the prior offense. In such a case, a departure may be warranted.
6. Departure Based on Time Served in State Custody.—In a case in which the defendant is located by immigration authorities while the defendant is serving time in state custody, whether pre- or post- conviction, for a state offense, the time served is not covered by an adjustment under §5G1.3(b) and, accordingly, is not covered by a departure under §5K2.23 (Discharged Terms of Imprisonment). See §5G1.3(a). In such a case, the court may consider whether a departure is appropriate to reflect all or part of the time served in state custody, from the time immigration authorities locate the defendant until the service of the federal sentence commences, that the court determines will not be credited to the federal sentence by the Bureau of Prisons. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense.
Such a departure should be considered only in cases where the departure is not likely to increase the risk to the public from further crimes of the defendant. In determining whether such a departure is appropriate, the court should consider, among other things, (A) whether the defendant engaged in additional criminal activity after illegally reentering the United States; (B) the seriousness of any such additional criminal activity, including (1) whether the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon (or induced another person to do so) in connection with the criminal activity, (2) whether the criminal activity resulted in death or serious bodily injury to any person, and (3) whether the defendant was an organizer, leader, manager, or supervisor of others in the criminal activity; and (C) the seriousness of the defendant’s other criminal history.***
7. Departure Based on Cultural Assimilation.—There may be cases in which a downward departure may be appropriate on the basis of cultural assimilation. Such a departure should be considered only in cases where (A) the defendant formed cultural ties primarily with the United States from having resided continuously in the United States from childhood, (B) those cultural ties provided the primary motivation for the defendant’s illegal reentry or continued presence in the United
The application notes marked with three asterisks (***) appear in the current guideline at the end of the commentary. The proposed amendment only renumbers these notes without making substantive changes to the text.
15 States, and (C) such a departure is not likely to increase the risk to the public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court should consider, among other things, (1) the age in childhood at which the defendant began residing continuously in the United States, (2) whether and for how long the defendant attended school in the United States, (3) the duration of the defendant’s continued residence in the United States, (4) the duration of the defendant’s presence outside the United States, (5) the nature and extent of the defendant’s familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States, (6) the seriousness of the defendant’s criminal history, and (7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.***
The application notes marked with three asterisks (***) appear in the current guideline at the end of the commentary. The proposed amendment only renumbers these notes without making substantive changes to the text.
16 ACCA (18 U.S.C. § 924(e)) Statutory Language
(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection--
(A) the term “serious drug offense” means--
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C) the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
8 U.S.C. § 1101 Aggravated Felony for Enhancement for Illegal Reentry under 8 U.S.C. 1326
(43) The term “aggravated felony” means-- (A) murder, rape, or sexual abuse of a minor; (B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18); (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title); (D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; (E) an offense described in-- (i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or (iii) section 5861 of Title 26 (relating to firearms offenses); (F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at3 least one year; (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at3 least one year; (H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom); (I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography); (J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; (K) an offense that-- (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); (L) an offense described in-- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18; (ii) section 3121 of Title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 3121 of Title 50 (relating to protecting the identity of undercover agents); (M) an offense that-- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; (N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter4 (O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; (P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; (R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; (S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; (T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and (U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
18 U.S.C. § 16 Crime of Violence
The term “crime of violence” means-- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
CATEGORICAL APPROACH FLOWCHART As Applied to ACCA (18 U.S.C. § 924(e)) and Sentencing Guidelines (2K1.3, 2K2.1, 2L1.2, 2S1.1, 4A1.1, 4B1.1, 4B1.2, 7B1.1)1
Does the offense arguably contain an element the use, attempted use, or threatened use of physical force against the person of another?
No, Proceed to Enumerated Yes, Proceed to Force Clause Analysis Offense Clause Analysis Does the force element – determined through modified categorical approach if necessary – contained in the statue require violent force, i.e., “strong physical General Three-Step Enumerated Offense Analysis force” that is “capable of causing physical injury or 1. Define the generic offense(s) to which the predicate 2 pain” to another person, not just unwanted touching or offense may be similar. 3 2. Define the scope of the predicate offense. physical injury? 3. Compare the predicate to determine whether No Yes predicate offense is a generic offense. Statue does Does the least of the acts not satisfy criminalized by the force clause. Does the whole, undivided predicate offense fit within Proceed to predicate statute require the scope of conduct proscribed by the generic offense? Enumerated violent force?4 Offense Yes Analysis No No Yes
Maybe, Predicate Statue does Predicate Leads to Appears predicate triggers not satisfy offense does divisibility could be committed sentencing force clause. Is the violent force Analysis not trigger in a way that falls enhancement Proceed to w/in generic offense directed solely against sentencing Enumerated because predicate Offense another person, not enhancement contains language some of which Analysis including property? might be generic offense No Statue does Yes 3 not satis fy Does offense set out alternative elements? force clause. Proceed to No Yes Enumerated Is the force intentional Offense and not reckless or Analysis Offense is divisible and court can use modified negligent? Offense is indivisible categorical approach, i.e., examine Shepard and not documents to determine which offenses the No Yes generic Statue does defendant committed. not satisfy force clause. Is the prior conviction for Proceed to Enumerated an attempted offense? Do the Shepard documents necessarily establish Offense with certainty that the defendant committed one of Analysis the divisible offenses? No Yes
No Yes Predicate falls within Is the attempt element Proceed to next Predicate question the force connected to the violent clause offense does No force and not just some not trigger Statue does other element of the sentencing not satisfy enhancement force clause. offense? Proceed to Enumerated Does the offense identified using the modified Offense Yes categorical approach fall squarely within the scope Analysis created by the elements of the generic offense? Predicate No falls within Yes the force clause
Predicate Predicate triggers offense does sentencing not trigger enhancement sentencing enhancement
1 A similar analysis is conducted for offenses under 18 U.S.C. § 924(c)(3) and offenses that rely on 18 U.S.C. § 16. However, neither of these statutes has an enumerated offense clause. So, assuming the residual clause of each statute is found to be void for vagueness, the analysis is limited to the force clause. 2 There is an apparent split in the circuits as to how the generic offense is defined. See United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (claiming the First, Seventh, Eighth, and Tenth Circuits adopt a plain-language approach, relying on common meaning of terms as stated in legal and other well- accepted dictionaries, the Fifth, Ninth and Eleventh use that approach to non-common law offenses, but rely on common law when defining traditional offenses, and the D.C. and Third Circuits use a multi-source approach, looking to common law, MPC, and state law definitions). There is reason to question the Fifth Circuit’s distinctions and its interpretation of Taylor and other Supreme Court cases. In any case, it appears the Second Circuit has not yet addressed this analytical question. 3 The Supreme Court just granted certiorari in Mathis v. United States, No 15-6092, to decide whether a statute that contains alternative means is divisible, or whether alternative means or methods must be charged and proven beyond a reasonable doubt before the statute may be deemed divisible. For example, the Court will decide whether a statute is divisible simply because it defines burglary as unlawful entry into a house or boat, or whether it is divisible only if a prosecutor must charge and a jury must find beyond a reasonable doubt that the burglary involved a house or boat. 3 Johnson v. United States, 559 U.S. 133 (2010). 4 “[F]ocus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’” Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)). CATEGORICAL APPROACH
Generic Offense Predicate Offense (Includes offenses identified in ACCA and Sentencing Guidelines)
Compare elements and ways elements can be satisfied in predicate offense with the elements of the generic offense Boundaries of whole, undivided Boundaries defined by federal case Predicate only falls within generic offense offense defined by statutory law. In the absence of controlling case law, boundaries defined by if all acts, including the least of the acts definitions, case law, and jury common law, majority of state law, defined, fall within boundaries of generic instructions. Model Penal Code, Treatises, and offense Dictionaries.1 Offense consists of elements and The comparison is the same particular ways elements can be whether done between the whole, satisfied.
undivided predicate offense and the generic offense or between the divided predicate offense and the generic offense
If statute is divisible, proceed to modified categorical
Identify which divided offense the Shepard documents necessarily establish Each divided offense is defined using the same materials that define the whole, undivided offense, i.e., the statutory definitions, case law, and jury instructions
1 There is an apparent split in the circuits as to how the generic offense is defined. See United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (claiming the First, Seventh, Eighth, and Tenth Circuits adopt a plain-language approach, relying on common meaning of terms as stated in legal and other well-accepted dictionaries, the Fifth, Ninth and Eleventh use that approach to non-common law offenses, but rely on common law when defining traditional offenses, and the D.C. and Third Circuits use a multi-source approach, looking to common law, MPC, and state law definitions). There is reason to question the Fifth Circuit’s distinctions and its interpretation of Taylor and other Supreme Court cases. In any case, it appears the Second Circuit has not yet addressed this analytical question.
2 The Supreme Court just granted certiorari in Mathis v. United States, No 15-6092, to decide whether a statute that contains alternative means is divisible, or whether alternative means or methods must be charged and proven beyond a reasonable doubt before the statute may be deemed divisible. For example, the Court will decide whether a statute is divisible simply because it defines burglary as unlawful entry into a house or boat, or whether it is divisible only if a prosecutor must charge and a jury must find beyond a reasonable doubt that the burglary involved a house or boat.
Hypotheticals
1. Defendant is charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g). What impact will his prior conviction under Fla. Stat. § 784.03(1)(a) have on his sentence? Fla. Stat. § 784.03(1)(a) criminalizes battery when a person either:
(1) actually and intentionally touches or strikes another person against the will of the other; or (2) intentionally causes bodily harm to another person.
2. Defendant is charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g). What impact will his prior conviction under California Penal Code § 207(a) have on his sentence? California Penal Code § 207(a) criminalizes attempted kidnapping when a person:
Forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county.
3. Defendant is charged with distribution of cocaine under 21 U.S.C. § 841(a). What impact will his prior conviction under N.Y. Penal Law § 140.20 have on his sentence? N.Y. Penal law § 140.20 criminalizes burglary in the third degree when a defendant knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
In N.Y. Penal Law 140.00, “building” is defined at follows:
In addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.
4. Defendant is charged with illegal reentry under 8 U.S.C. § 1326. What impact will his prior conviction under N.Y. Penal Law 120.05(2) have on his sentence? Section 120.05(2) is defined as assault in the second degree with “intent to cause physical injury to another person, [the defendant] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”
JOHNSON V. UNITED STATES 135 S.CT. 2551 (2015)
James P. Egan, Esq., FPD - NDNY CONTEXT
Whether an offense (usually a prior conviction) falls within a certain category CONTEXT
In most instances, whether an offense is of a certain type will matter for purposes of sentencing CONCEPTS
■ categorical + modified categorical approach
■ divisible v. indivisible offenses
■ generic offenses OVERVIEW
I. Pre-Johnson
II. Summary of Johnson
III. Implications:
A Armed Career Criminal Act
B. Career Offender
C. U.S.S.G. §§ 2K2.1, 7B1.1
D. 18 U.S.C. § 16(b)
E. 18 U.S.C. § 924(c) ACCA
Armed Career Criminal Act, 18 U.S.C. § 924(e)
Triggers 15-year MM when a defendant has three prior convictions for a “violent felony” or “serious drug offense” ACCA The term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. VIOLENT FELONY three ways
. Force Clause: Offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
. Enumerated Offenses Clause: Burglary, Arson, Extortion, or Use of Explosives
. Residual Clause: Offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” CATEGORICAL APPROACH
Forget what you think you know about the underlying conduct CATEGORICAL APPROACH
Courts look only to the fact that the defendant has been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.
Taylor v. United States, 495 U.S. 575, 600 (1990) CATEGORICAL APPROACH
A court assesses whether a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”
Begay v. United States, 553 U.S. 137, 141 (2008) CATEGORICAL APPROACH
Are the statute’s elements the same as or narrower than the elements of the generic federal offense? CATEGORICAL APPROACH
“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.”
Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)) CATEGORICAL APPROACH
Put alternatively
If “most innocent conduct” or “full range of conduct” covered by the statute does not match these definitions, prior cannot qualify as “violent felony.”
United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012). CATEGORICAL APPROACH
Caveat
“[F]ocus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’”
Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)) MODIFIED CATEGORICAL APPROACH
“[H]elps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction.”
Descamps v. United States, 133 S.Ct. 2276, 2283 (2013) MODIFIED CATEGORICAL APPROACH
■ Only applies when statute is divisible
■ If statute is indivisible, only apply categorical approach
■ Modified Categorical Approach is a form of the categorical approach. MODIFIED CATEGORICAL APPROACH
■ Elements v. Means
■ Does not depend on phrasing of the statute
■ Analyze state law MODIFIED CATEGORICAL APPROACH
“Imagine a statute that criminalizes assault with ‘a gun or an axe.’ A federal law imposes penalties only for defendants previously convicted of ‘gun offenses.’ If state law makes clear that a defendant can be found guilty only if all twelve jurors agree that the defendant used a gun or if all twelve jurors agree the defendant used an axe, the statute has alternative elements and is divisible. The court may then apply the modified categorical approach to determine whether the defendant was accused and convicted of using a gun or an axe. If, however, the defendant can be convicted with six jurors believing the defendant used a gun and six jurors believing the defendant used an axe, the statute lists alternative means and is indivisible.”
Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. Aug. 17, 2015) MODIFIED CATEGORICAL APPROACH
If statute is divisible, the modified categorical approach permits a court to review certain documents and records to determine which offense the defendant was convicted of.
Shepard v. United States, 125 S.Ct. 1254 (2004) MODIFIED CATEGORICAL APPROACH
Shepard documents
■ Charging documents ■ Jury instructions ■ Formal rulings at bench trial ■ Written plea agreement ■ Plea colloquy ■ “Explicit factual findings by the trial judge to which the defendant assented.” Residual Clause
Offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” RESIDUAL CLAUSE
Four Supreme Court decisions
. James (2007), attempted burglary, YES
. Begay (2008), DUI, NO
. Chambers (2009), escape by failing to report, NO
. Sykes (2011), attempt to elude, YES BEFORE JOHNSON
Prior offense categorically fall within residual clause when the elements of the offense in the ordinary case:
1. Present risk of injury at similar level to enumerated offenses (generic burglary, arson, extortion, use of explosives), AND
2. Require purposeful, violent, and aggressive conduct. JOHNSON
Residual Clause is Void for Vagueness why? ■ DENIES FAIR NOTICE TO DEFENDANTS
■ INVITES ARBITARY ENFORCEMENT Uncertainty of ordinary case inquiry
■ How do you estimate risk when no one knows the ordinary case of a crime? Is it gut instinct, common sense, statistics, google search?
■ How do you determine quantum of risk? The enumerated offenses are not sufficient guide. Uncertainty of ordinary case inquiry
“By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”
Johnson, 135 S.Ct. at 2558. Johnson kills precedent
■ James (attempted burglary)
■ Sykes (attempt to elude) IMPLICATIONS What’s left of the ACCA?
1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or
2. Enumerated offenses: burglary, arson, extortion, use of explosives (determined by generic definition). FORCE CLAUSE
VERY FEW OFFENSES FALL WITHIN THE FORCE CLAUSE FORCE CLAUSE
Four key issues:
1. Requires “violent force,” not “unwanted touching” 2. Force must be directed against a person, not property 3. Requires the use of force, not merely the causation of physical injury. 4. Force must be intentional, not reckless or negligent FORCE CLAUSE
Pointer
Many of the best force clause cases have been litigated under U.S.S.G. 2L1.2. FORCE CLAUSE
Force = Violent Force FORCE CLAUSE
“Violent Force” means “strong physical force” that is “capable of causing physical injury or pain” to another person. Johnson v. United States, 559 U.S. 133 (2010) FORCE CLAUSE
Examples of “Unwanted touching” or “offensive touching”:
■ Assault or Battery – Johnson, 559 U.S. 133 (Florida); United States v. Holloway, 630 F.3d 252 (1st Cir. 2011) (Massachusetts); United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (Maryland).
■ Resisting arrest – United States v. Aparico-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc) (Maryland); United States v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (Arizona); United States v. Almenas, 553 F.3d 27 (1st Cir. 2009) (Massachusetts).
■ Battery on a law enforcement officer; Battery on pregnant woman. – United States v. Carthorne, 726 F.3d 503 )(4th Cir. 2013) (Virginia); United States v. Braun, __ F.3d __, 2015 WL 5201729 (11th Cir. 2015) (Florida) FORCE CLAUSE
Don’t be deceived by labels:
Sometimes offense will have element labeled “force or violence,” but that does not mean it has element of ACCA “violent force.” FORCE CLAUSE
Examples:
■ California battery. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (“force or violence” defined by case law to include “offensive touching”).
■ D.C. robbery. United States v. In re Sealed, 548 F.3d 1085 (D.C. 2008) (“force or violence” defined by statute to include purse- snatching offenses: “sudden or stealthy seizure or snatching”) – Note: same argument excludes similar offenses, such as “larceny from the person” or “pickpocketing” FORCE CLAUSE Kidnapping / False Imprisonment: “physical restraint” does not automatically equal “physical force”
■ Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th 2012) (California kidnapping does not satisfy force clause because restraint can be accomplished through “any means of instilling fear”)
■ United States v. Gonzalez-Perez, 472 F.3d 1158 (11th Cir. 2012) (Florida false imprisonment does not satisfy force clause because restraint can be accomplished “secretly”)
■ United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (Model Penal Code definition of kidnapping does not require force because it covers kidnapping by trickery or deceit) FORCE CLAUSE
Offenses based on absence of legally valid consent do not qualify under the force clause.
– Statutory Rape ■ United States v. Rangel-Castaneda, 709 F.3d 373 (4th Cir. 2013) (Tennessee aggravated statutory rape); United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (Vermont statutory rape)
– Involuntary or Incompetent Consent ■ United States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina second-degree rape of victim who is “mentally disabled, mentally incapacitated, or physically helpless”)
If “force” is an element, look for state case law extending the provision to “constructive force” situations. FORCE CLAUSE
Property v. Person
Force, even violent, against property does not qualify under ACCA force clause.
Examples: Hobbs Act robbery includes threatening to injure one’s property. That automatically disqualifies Hobbs Act robbery from qualifying under the force clause.
Maryland robbery also includes threatening fear of injury to property; therefore, cannot qualify. Douglas v. State, 9 Md. App. 647 (Md. Ct. Spec. App. 1970); Giles v. State, 8 Md. App. 721 (Md. Ct. Spec. App. 1970).
North Carolina conviction for discharging firearm into occupied building does not qualify because it is force against property – not a person. United States v. Edgar Parral-Dominguez, No. 14-4546 (4th Cir. July 23, 2015). FORCE CLAUSE
Using Force v. Causing Injury
Offenses with elements requiring physical injury, serious physical injury, or even death do not equal “violent force.”
This is true because physical injury and dearth can result without use of strong physical force by: - poisoning, - laying a trap, - exposing someone to hazardous chemicals, - standing guard while confederate injures another, - locking someone in car on a hot day, - starving someone to death, neglecting a child, etc. - placing a barrier in front of a car, which causes an accident - leaving an unconscious person in middle of road FORCE CLAUSE Using Force v. Causing Injury
Examples of Assault Offenses
■ Texas aggravated assault requiring intentionally causing physical injury. United States v. Zuniga-Soto, 527 F.3d 1110, 1125 n.3 (10th Cir. 2008).
■ Connecticut assault requiring intentionally causing physical injury. Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003)
■ Colorado assault requiring defendant to cause bodily injury using a deadly weapon. United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005).
■ New Jersey aggravated assault requiring a defendant to cause significant bodily injury. United States v. Martinez-Flores, 720 F.3d 293, 299 (5th Cir. 2013).
■ Arizona aggravated assault requiring defendant to cause serious bodily injury and use deadly weapon with attempt to cause injury. United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012). FORCE CLAUSE
Using Force v. Causing Injury
Threat Offenses that do NOT Count:
■ United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) (terroristic threats: threatening an act that results in serious bodily injury or death).
Child Abuse Offenses that do NOT Count:
■ United States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (child abuse resulting in physical injury); United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (causing physical injury to a child).
Manslaughter Offenses that do NOT Count:
■ United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015) (Florida manslaughter). FORCE CLAUSE
Using Force v. Causing Injury
Examples of offenses that MAY NOT count as violent, continued:
- Murder - Robbery (because can be done by putting in fear of injury) - Robbery with a dangerous weapon (dangerous weapon can be poison, mace, or tear gas) - Carjacking (can be done by putting in fear of injury) - Possession of a dangerous weapon with intent to injure. - Sexual offenses requiring actual or threat of physical injury. FORCE CLAUSE
Using Force v. Causing Injury
Examples of offenses that do NOT count as violent, continued:
Federal crimes: Hobbs Act robbery, Bank robbery, VICAR, Carjacking, Murder, Assault
■ All can be accomplished by putting someone in fear of physical injury or actually causing physical injury or death, but violent force not required. FORCE CLAUSE
Intentional v. Reckless Conduct
All offenses must require intentional use of violent force or intentional threat of violent force; reckless mens rea will not suffice.
■ See Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006) (assault requiring defendant to recklessly cause serious physical injury using a deadly weapon); United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011) (combining holdings of Johnson and Leocal to find aggravated assault requiring defendant to recklessly cause serious bodily injury is not violent felony). FORCE CLAUSE
Intentional v. Reckless Conduct
Argue that even if some intent exists, a crime satisfies the force clause only if it specifically requires an intent to use or threaten violent force.
■ See Flores-Lopez v. Holder, 685 F.3d 857, 863 (9th Cir. 2012); Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011); United States v. Coronado, 603 F.3d 706 (9th Cir. 2010) (intentionally discharging a firearm in a negligent manner that creates a risk of injury or death); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013). FORCE CLAUSE
Intentional v. Reckless Conduct
Threats:
Argue intimidation/putting someone in fear of bodily injury does not equal intentional threat if statute does not require defendant to have intent to put another in fear of bodily injury. See United States v. King, 979 F.2d 801, 803 (10th Cir. 1992) (threat under force clause “means both an intent to use force and a communication of that threat”). FORCE CLAUSE
Intentional v. Reckless Conduct
Threats:
Example of statute that does not qualify: Federal bank robbery, which can be committed without proof of intent to intimidate, even though specific intent to steal must exist - United States v. Yockel, 320 F.3d 818 (8th Cir. 2003); United States v. Kelley, 412 F.3d 1240 (11th Cir. 2005); United States v. Woodrup, 86 F.3d 359 (4th Cir. 1996). FORCE CLAUSE
Adverse Second Circuit cases that are now vulnerable: ■ United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (Attempted N.Y. Robbery, because can be committed even if gun is merely possessed and never brandished) ■ United States v. Brown, 52 F.3d 415, 426 (2d Cir. 1995) (same) ■ United States v. Walker, 442 F.3d 787, 788 (2d Cir. 2006) (“To (attempt to) cause physical injury by means of a deadly weapon or dangerous instrument is necessarily to (attempt to) use ‘physical force,’ on any reasonable interpretation of that term, and necessarily creates ‘a serious potential risk of physical injury to another.’”) (fails to appreciate that assault can be accomplished without any force). ACCA Enumerated Offenses ENUMERATED OFFENSES
MUST BE GENERIC ENUMERATED OFFENSES
Generic Burglary: 3 elements
1. unlawful entry or remaining
■ California first degree burglary, Descamps v. United States, 133 S. Ct. 2276 (2013).
2. in a building (not in a vehicle, boat, or telephone booth)
■ Maryland first degree burglary, United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014); Oregon first & second degree burglary, United States v. Mayer, 560 F.3d 948 (9th Cir. 2009); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc)
3. with intent to commit a crime
■ Maryland fourth degree burglary, United States v. Martin, 753 F.3d 485 (4th Cir. 2014) FINAL ACCA ISSUE
Conspiracies and Attempts Conspiracy Offenses
■ Never qualifies under the force clause or as an enumerated offense. United States v. White, 571 F.3d 365 (4th Cir. 2009); United States v. Fell, 511 F.3d 1035 (10th Cir. 2007); United States v. Gore, 636 F.3d 728 (5th Cir. 2011); United States v. King, 979 F.2d, 801, 803 (10th Cir. 1992); United States v. Gonzalez-Ruiz, 794 F.3d 832 (7thCir. 2015) (post-Johnson finding conspiracy to commit armed robbery not violent felony).
Attempt Offenses
■ Do not qualify as an enumerated offense. United States v. James, 550 U.S. 192 (2007) (attempted burglary is not burglary)
■ Qualify under force clause if (1) the object of the attempt satisfies the force clause and (2) the attempt statute requires a “substantial step.” United States v. James, 550 U.S. 192 (2007); United States v. Gonzalez- Monterroso, 745 F.3d 1237 (9th Cir. 2014). CAREER OFFENDERS CAREER OFFENDERS
Enhancement applies if defendant’s current offense is a “crime of violence” or “controlled substance offense” and defendant has two prior convictions for “crime of violence” or “controlled substance offense.” CAREER OFFENDERS
“Crime of violence” - Three-Part Definition (U.S.S.G. §§ 4B1.1, 4B1.2)
■ Force Clause: offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
■ Enumerated offenses: burglary of a dwelling, arson, extortion, use of explosives.
■ Residual Clause: offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” CAREER OFFENDERS
Johnson should apply to render career offender residual clause (U.S.S.G. § 4B1.2(a)(2)) void for vagueness because it has identical language as that of ACCA residual clause in defining “crime of violence.” CAREER OFFENDERS
Following Johnson, the S.Ct. GVR’d several Career-Offender cases, and some circuits have already indicated that Johnson applies: United States v. Darden, 2015 WL 4081065 (6th Cir. July 6, 2015); United States v. Collins, _F.3d _, 2015 WL 4997455 (6th Cir. Aug. 24, 2015); United States v. Goodwin, 2015 WL 5167789 (10th Cir. Sept. 4, 2015) (assumed without deciding); United States v. Ramirez, __ F.3d_, 2015 WL 5011965 (7th Cir. 2015)(same); United States v. Benavides, 2015 WL 5574264 (9th Cir. Sept. 23, 2015) (same); United States v. Herring, No. 14-3194 (2d Cir. Sept. 9, 2015) (same) CAREER OFFENDERS
Government is now conceding that Johnson applies to the career offender residual clause, and even conceding plain error on direct appeal where issue was not preserved at sentencing. See United States v. Pagan-Soto, No. 13-2243 (1st Cir. Aug. 11, 2015); United States v. Zhang, No. 13-3410 (2d Cir. Aug. 13, 2015); United States v. Talmore, No. 13-10650 (9th Cir. Aug. 17, 2015); United States v. Lee, No. 13- 10507 (9th Cir. Aug. 17, 2015); United States v. Smith, No. 14-2216 (10th Cir. Aug. 20, 2015). CAREER OFFENDERS
Beware: Some cases hold that guidelines can’t be unconstitutionally void: United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012); United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).
But these cases should no longer be good law in light of Peugh v. United States, 133 S. Ct. 2072 (2013), which found advisory guidelines are subject to Ex Post Clause rooted in notice and arbitrary enforcement principles. CAREER OFFENDERS
Instant Offenses
Be Careful: Make Johnson challenge to instant federal offense as well as priors. If instant offense does not qualify as “crime of violence” under Johnson, then can’t be career offender no matter what the priors are. CAREER OFFENDERS
What’s left of the Career Offender provision?
Almost the same as ACCA:
1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or
2. Enumerated offenses: burglary of a dwelling, arson, extortion, use of explosives (determined by generic definition).
Again, if “most innocent conduct” or “full range of conduct” covered by the statute does not match these definitions, prior cannot qualify as “crime of violence.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012). CAREER OFFENDERS
Be careful with commentary enumerated offenses
The commentary to U.S.S.G. § 4B1.2 lists numerous enumerated offenses that do not appear in text: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, and extortionate extension of credit.
This commentary cannot expand the text of the guideline because it is not a freestanding exception. United States v. Shell, __ F.3d__, 2015 WL 3644036 (4th Cir. 2015); United States v. Stinson, 508 U.S. 36 (1993); United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011).
This means that enumerated offenses in commentary can now only qualify as “crimes of violence” if they have an element of “violent force” against a person. CAREER OFFENDERS
Be Careful with commentary enumerated offenses
Under Shell (4th Cir.) and Stinson (S.Ct.), conspiracies and attempts can’t qualify as enumerated offenses because text of career offender guideline only includes completed enumerated offenses. Conspiracy and attempt only included in commentary.
Also, conspiracies noted in commentary can’t qualify under force clause because not included in text of force clause. However, attempts are included in text of force clause. Nonetheless, make sure attempt is generic, i.e., requires substantial step toward commission of crime. U.S.S.G. §§ 2K2.1 and 7B1.1
Same analysis as career offender, but it only applies to prior convictions not instant federal offense. 18 U.S.C. § 16(b)
Used for determining 8-level “aggravating felony” bump in U.S.S.G. § 2L1.2(b)(1)(C) and many other federal provisions. 18 U.S.C. § 16(b)
Crime of violence definition: two clauses
1. 18 U.S.C. § 16(a) – Force Clause
2. 18 U.S.C. § 16(b) – Residual Clause
Note: No Enumerated Offenses 18 U.S.C. § 16(b)
Crime of violence definition under residual clause
Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Argue that this is void for vagueness also because same categorical ordinary case inquiry applies here that was struck down in Johnson. See United States v. Avila, 770 F.3d 2014 (4th Cir. 2014); United States v. Keelan, 786 F.3d 865 (11th Cir. 2015); Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013). 18 U.S.C. § 16(b)
What’s left of 18 U.S.C. § 16(b)?
16(a) “crime of violence” force clause same as career offender/ACCA but has element of force against property:
Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or property of another.
But still must be violent force against property, not just injury to property – so, for example, Hobbs Act robbery, which can be violated by injury to property – even intangible property - does not qualify. 18 U.S.C. § 924(c)(3)(B)
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - [be sentenced to a certain number of years depending on the facts of the crime] . . . . 18 U.S.C. § 924(c)(3)(B)
Identical to 18 U.S.C. § 16, but looking at instant offense rather than prior conviction:
1. 18 U.S.C. § 924(c)(3)(A)– Force Clause
2. 18 U.S.C. § 924(c)(3)(B) – Residual Clause
Note: No Enumerated Offenses 18 U.S.C. § 924(c)(3)(B)
Crime of violence definition under residual clause
Same language as 18 U.S.C. § 16(b)
Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Argue that this clause is void for vagueness for same reasons noted under §16(b). Same categorical ordinary case inquiry applies to § 924(c)(3)(B).
See United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009); United States v. Amparo, 68 F.3d 1222 (9th Cir. 1995). What’s left of 18 U.S.C § 924(c)(3)?
Same as 18 U.S.C. § 16(a):
Force Clause (18 U.S.C. § 924(c)(3)(A)): Has an element the use, attempted use, or threatened use of physical force against a person, or property of another (But still must be violent force against property, not just injury to property).
Examples of underlying offenses that don’t fall under force clause for reasons previously noted: All conspiracies, Hobbs Act robbery, carjacking, kidnaping, bank robbery.
If “most innocent conduct” or “full range of conduct” covered by the statute does not match this definition, prior cannot qualify as “crime of violence.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).
Note: no enumerated offenses. RESOURCES
SAMPLE PLEADINGS:
WWW.SRC-PROJECT.ORG SPECIAL THANKS
Paresh Patel Staff Attorney, D. Maryland Crime Scene vs. Crime Lab
INV. TERRENCE J. MCGINN JUAN RODRIGUEZ ESQ. FEDERAL PUBLIC DEFENDERS OFFICE Crime Scene Processing
-NYS certified through DCJS
-120 hour, 3 week course and FTO
-Photography + Latents + all other disciplines
-Involves special trained police officers: aka evidence technicians
-yearly in-service training, personnel files Basic Crime Scene Needs -Good documentation
-Established through notes, reports
-Photography (still & video), Video
-Sketches, diagrams, maps, floor plans
- Existing videos Crime Scene -Thorough evidence collection
-Have steps been taken to prevent contamination?
-Do the evidence containers reflect preservation of the evidence?
-Are there Evidence markers in photos?
Point of Entry - Burglary Crime Scene processing Chain of custody Photography -Photography often provides errors committed by law enforcement.
-Quality photography can show tool marks or other minute details of the crime
-Any evidence collected ought to be marked and need rulers
Evidence Markers Photography
-standard procedures for crime scene photography include: overall, medium and close-up photos. -minor scenes often lack all three due to laziness or time constraints -all police departments use digital photography, 35mm is no longer -check meta-data for image file accuracy -remember that there may be several scenes which would constitute several different files when discovery is provided -photos of entire scene and body with injuries/wounds Specialized Photography
-Close-up or macro photography
-bloodstain pattern analysis
-footwear analysis
-latent finger prints Latent finger print on cinderblock
Wound? Ruler? Size?
Crime Lab Reporting
-crime lab scientists and or analysts do not respond to crime scenes -yes there is often overlap, but in Syracuse, does not occur. -be careful allowing testimony from lab personnel as it relates to the scene. They weren’t there. -Educational background if very important. Many blood spatter experts have no science background. -Bloodstain pattern analysis is a useful tool for an investigator, but requires scientific foundation in a courtroom. -not sure why discovery does not include the BEAST reports. DNA reports - can be confusing and you often need interpretation done by an expert, particularly when you have mixed profiles -look at the evidence collected by law enforcement and see how it relates to your theory of the crime. -why were fifteen blood swabs collected and only two analyzed? -what surfaces were they collected from? -what were the distances between the swabs and other evidence. -what were the injuries and how many were injured. -sometimes there is no blood collection, why? Broken Knife blade
Crime lab reports
- just report the results or findings -no need for personal opinion, especially if not based on science -lab reports should be science reports -often ME’s reports can be misleading based on opinion rather than fact -ME also has photography from every scene they attend -ME discovery is often overlooked -remember the ME deals with the body and crime scene is for those with specialized training.
Jeffrey Friedl's Image Metadata Viewer http://regex.info/exif.cgi
Jeffrey Friedl's Image Metadata Viewer (How to use)
[CLEAR IMAGE] Drag this button to your button bar, then From while on a page displaying an image, just Image URL: Exif Web click the button in the bar to view the From image's Exif data File You also might be interested in these Firefox extensions: Alan Raskin's Exif Viewer, which shows quite a bit of Basic Image Information information, and Ted Mielczarek's FxIF, which shows basic data only. Target file: IMG_2328.JPG Some of my other stuff · My Blog · Lightroom plugins · Pretty Photos Camera: Apple iPhone 6s Plus · “Photo Tech” Lens: iPhone 6s Plus back camera 4.15mm f/2.2 Shot at 4.2 mm
Exposure: Auto exposure, Program AE, 1/10 sec, f/2.2, ISO 80 Flash: Auto, Did not fire
Date: March 25, 2016 1:59:09PM (timezone not specified) (1 month, 2 days, 22 hours, 33 minutes, 13 seconds ago, assuming image timezone of US Pacific)
Location: Latitude/longitude: 42° 55' 42.3" North, 76° 36' 55.5" West ( 42.928408, -76.615403 )
Location guessed from coordinates: 1551 Clark Street Rd, Auburn, NY 13021, USA
Map via embedded coordinates at: Google, Yahoo, WikiMapia, OpenStreetMap, Bing (also see the Google Maps pane below)
Altitude: 186 meters (611 feet) Camera Pointing: West-southwest File: 640 × 480 JPEG 144,149 bytes (141 kilobytes)
Color WARNING: Color space tagged as sRGB, without an embedded color Encoding: profile. Windows and Mac browsers and apps treat the colors randomly. Images for the web are most widely viewable when in the sRGB color space and with an embedded color profile. See my Introduction to Digital-Image Color Spaces for more information.
Main JPG image displayed here at 70% width (49% the area of the original)
Click image to isolate; click this text to show histogram
1 of 3 4/28/2016 3:40 PM Jeffrey Friedl's Image Metadata Viewer http://regex.info/exif.cgi
Here's the full data:
EXIF — this group of metadata is encoded in 4,086 bytes ( 4.0k )
Camera Model Name iPhone 6s Plus Orientation Horizontal (normal) Software 9.1
Modify Date 2016:03:25 13:59:09 1 month, 2 days, 22 hours, 33 minutes, 13 seconds ago Y Cb Cr Positioning Centered Exposure Time 1/10 F Number 2.20 Exposure Program Program AE Exif Version 0221
Date/Time Original 2016:03:25 13:59:09 1 month, 2 days, 22 hours, 33 minutes, 13 seconds ago
Create Date 2016:03:25 13:59:09 1 month, 2 days, 22 hours, 33 minutes, 13 seconds ago Components Configuration Y, Cb, Cr, - Shutter Speed Value 1/10 Aperture Value 2.20 Brightness Value 11.21320495 Exif Image Size 4,032 × 3,024 Make Apple ISO 80 Exposure Compensation 0 Metering Mode Multi-segment Flash Auto, Did not fire Focal Length 4.2 mm Subject Area 2015 1511 2217 1330 Maker Note Apple (952 bytes binary data) Sub Sec Time Original 379 Sub Sec Time Digitized 379 Flashpix Version 0100 Color Space sRGB Sensing Method One-chip color area Scene Type Directly photographed Exposure Mode Auto White Balance Auto Focal Length In 35mm Format 29 mm Scene Capture Type Standard Lens Info 4.15mm f/2.2 Lens Make Apple Lens Model iPhone 6s Plus back camera 4.15mm f/2.2 GPS Latitude Ref North GPS Latitude 42.928408 degrees GPS Longitude Ref West GPS Longitude 76.615403 degrees GPS Altitude Ref Above Sea Level GPS Altitude 186.3110647 m GPS Time Stamp 17:59:09 GPS Speed Ref km/h GPS Speed 0 GPS Img Direction Ref True North GPS Img Direction 256.1954545 GPS Dest Bearing Ref True North GPS Dest Bearing 256.1954545 GPS Date Stamp 2016:03:25 1 month, 3 days, 12 hours, 32 minutes, 22 seconds ago GPS Horizontal Positioning Error 5 m Resolution 72 pixels/inch
2 of 3 4/28/2016 3:40 PM Jeffrey Friedl's Image Metadata Viewer http://regex.info/exif.cgi
MakerNotes
Apple 0x0001 4 Apple 0x0002 (60 bytes binary data) Run Time Flags Valid Run Time Value 82,237,149,004,625 Run Time Epoch 0 Run Time Scale 1,000,000,000 Apple 0x0004 1 Apple 0x0005 160 Apple 0x0006 166 Apple 0x0007 1 Apple 0x0008 -0.8153307393 0.05388766436 -0.5664692669 Apple 0x0009 4,627 Apple 0x000c 0.23046875 0.32421875 Apple 0x000d 7 Apple 0x000e 0 Apple 0x000f 2 Apple 0x0010 1 Apple 0x0011 E84C9B04-8F41-402D-8811-04D96E385398 Apple 0x0014 5
File — basic information derived from the file.
File Type JPEG MIME Type image/jpeg Exif Byte Order Big-endian (Motorola, MM) Encoding Process Baseline DCT, Huffman coding Bits Per Sample 8 Color Components 3 File Size 141 kB File Type Extension jpg Image Size 640 × 480 Y Cb Cr Sub Sampling YCbCr4:2:0 (2 2)
Composite This block of data is computed based upon other items. Some of it may be wildly incorrect, especially if the image has been resized.
GPS Latitude 42.928408 degrees N GPS Longitude 76.615403 degrees W GPS Altitude 186.3 m Above Sea Level Aperture 2.20
GPS Date/Time 2016:03:25 17:59:09Z 1 month, 3 days, 1 hour, 33 minutes, 13 seconds ago GPS Position 42.928408 degrees N, 76.615403 degrees W Megapixels 0.307 Run Time Since Power Up 22:50:37 Shutter Speed 1/10
Create Date 2016:03:25 13:59:09.379 1 month, 2 days, 22 hours, 33 minutes, 13 seconds ago
Date/Time Original 2016:03:25 13:59:09.379 1 month, 2 days, 22 hours, 33 minutes, 13 seconds ago Light Value 5.9 Scale Factor To 35 mm Equivalent 7.0 Circle Of Confusion 0.004 mm Field Of View 63.7 deg Focal Length 4.2 mm (35 mm equivalent: 29.0 mm) Hyperfocal Distance 1.82 m
This application uses Phil Harvey's most excellent Image::ExifTool library, version 10.10. Histograms created with ImageMagick. Jeffrey last modifed this viewer on March 13, 2016. Photos and data viewed with this service are not shared with anyone else, nor are they saved beyond the temporary period needed for the service to function.
3 of 3 4/28/2016 3:40 PM Criminal History Record Search - N.Y. State Courts https://www.nycourts.gov/apps/chrs/
Overview
INTRODUCTION
The New York State Office of Court Administration (OCA) provides a New York Statewide criminal history record search (CHRS) for a fee of $65.00. You can submit a CHRS request via our on-line Direct Access program or by mailing in a CHRS application form. The search criteria is strictly based on an exact match of Name and DOB (variations of Name or DOB are not reported). Background checks for companies are also part of the CHRS program. The search results are public records relating to open/pending and convictions in criminal cases originating from County/Supreme, City, Town and Village courts of all 62 counties. Sealed records are not disclosed. Town & Village criminal disposition data is limited (see CHRS FAQs ). The New York Statewide CHRS report has the following limitations and restrictions:
The report does not include Family, Civil, or Federal court case information.
The NY Statewide CHRS Report is based on an ‘exact match’ of Name and DOB. Any ‘variation’ of the individual’s Name and DOB is not considered a match.
The report is subject to non-disclosure of certain case dispositions due to NYS Office of Court Administration’s policies (e.g., Misdemeanor Redemption, non-criminal offense cases) or sealed records under NYS law.
Town Court and Village Court disposition data is not available for the period May 1991 through 2002. As of May 2007, all Town and Village Courts report to OCA. Town and Village disposition data from 2002 through 2007 is limited.
In accordance with the Youthful Offender Legislation CPL720.15(1), the NY Statewide CHRS report will not report pending criminal cases categorized as Youthful Offender Eligible.
Criminal cases ‘Transferred’ or ‘Removed’ (CPL 725) to Family Court are not reported.
Criminal disposition information which appears on the NYS CHRS Report is as complete and accurate as the ‘electronic data’ furnished to the NYS Office of Court Administration.
The NY Statewide CHRS report is not a nationwide background check.
The NY Statewide CHRS report is not an FBI background search check.
The report does not include case dispositions for ‘non-criminal offenses’ (e.g., Violations, Infractions).
The report does not include case dispositions for individuals whose only conviction was a single misdemeanor more than ten years prior to the date of request (Misdemeanor Redemption Policy) .
The results of the NYS / CHRS search is not certified.
In addition to the above and prior to submitting a CHRS application or conducting a search online, please take the time to read the CHRS FAQs section. The FAQs section provides additional information regarding the process, the search mechanism, how names are submitted, and other factors which we hope brings a better understanding of how this search process works.
As an FYI, the NYS OCA provides online access to various other court related data e.g., WebCivil Local, WebCivil Supreme, WebCrims, WebFamily, and WebHousing. Check our ‘e Courts’ page on the NYS Court’s website at www.nycourts.gov for additional information.
PROCEDURES
Procedure and related information is as follows:
1. Submit your request electronically by using our on-line Direct Access application. Requests submitted via the Direct Access application reporting ‘No Results Found’ are returned in Real Time. Check the Direct Access page for more information.
OR
2. Complete the Criminal History Record Search (CHRS) Application Form . Indicate name, address. phone number, and other related information of the person or company submitting the form.
1 of 2 4/28/2016 4:19 PM Criminal History Record Search - N.Y. State Courts https://www.nycourts.gov/apps/chrs/
3. Include the individual’s full name and date of birth you want searched. Applications with unclear or omitted information will be rejected. Each alias and each date of birth is counted as an additional search.
4. The results of this process are NOT certified and should not be confused with a "Certificate of Disposition" which can only be issued by the court of original jurisdiction.
5. CHRS results are verified, reviewed, amended, if necessary, and emailed to our customers the following business day - 9:00 A.M. to 5:00 P.M. Monday through Friday. Please note that the entire search request is withheld for review if one or more names result in a record.
6. Please read the CHRS FAQs for information relating to the accuracy and completeness of the CHRS Report.
PROGRAM FEE
The fee is $65.00 for Statewide search. Please make checks or money orders payable to the N.Y.S. Office of Court Administration. Cash will not be accepted. A $20.00 returned check charge will be imposed on items returned by the bank.
FILING INSTRUCTIONS
Applications may be mailed to, or filed in person weekdays 9:30 a.m. to 4:30 p.m., at:
NYS Office of Court Administration Office of Administrative Services Criminal History Record Search 25 Beaver Street (Room 840 - Front Desk) New York, NY 10004
Applications hand delivered are, in most cases, completed within the next business day.
Applications filed by mail must include a self-addressed postage paid envelope to receive the criminal history search results. Upon receipt these requests are also processed within the next business day.
PICK-UP INSTRUCTIONS
Hand delivered applications for subsequent pick up must include a self-addressed envelope indicating "Hold For Pick-Up." Blank application forms can be picked up at the same address listed above between the hours of 9:30 a.m. and 4:30 p.m.
CHRS RESULTS
The results of the search can be picked up, mailed (include a self-addressed stamped envelope) or emailed (include an email address on the application form.)
CHRS INQUIRIES
Inquiries regarding criminal disposition data should be directed to OCA's Criminal History Record Search Unit at (212) 428-2943 between the hours of 9:30 a.m. and 4:30 p.m.
Web page updated: December 2, 2014
2 of 2 4/28/2016 4:19 PM
Data bases to help in background investigations
Pay by Search Databases
Lexis Nexis/Accurint
TLOxp: Investigation and Risk
Statewide Criminal Records
Free Databases
Ecourts
Public Government Websites
(Crime Data, Incidents, Traffic and Parking Violations, Property and Tax Records,
Deeds, Liens, Building Permits, Hunting and Fishing Licenses, Professional Licenses)
Google, Pipl.com, WebMii (many other Internet related search services)
www.nydoctorprofile.com for doctor’s license and discipline info
http://regex.info/exif.cgi for metadata viewer
Google Maps, Bing Maps
http://www.op.nysed.gov/opsearches.htm#nme for licensing