July 25, 2018
By John Roberts, Esq.
Arseneault & Fassett, LLP
The United States Sentencing Commission has issued a report which examines the use and impact of increased penalties for drug offenders who have prior felony drug convictions. Entitled Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders, the Report provides statistics and findings which are vitally important to defendants facing federal drug charges.
A person convicted of a drug felony in federal court qualifies for a “851 enhancement” if he has one or more previous felony drug convictions — in either federal or state court. When applied, the 851 enhancement increases the mandatory minimum or statutory maximum penalty that the defendant faces. For example, the 5-year mandatory minimum that applies to some federal convictions can be increased to a 10-year mandatory prison sentence with an enhancement due to a single prior felony conviction. In other cases, a 20-year statutory maximum can be enhanced to 30 years for one prior drug felony, and two or more prior drug felonies can cause a defendant to face mandatory life imprisonment without release.
To trigger the enhanced penalties, federal prosecutors must take the affirmative step of filing an “851 information.” Prosecutors also have the discretion to withdraw the information prior to sentencing. The Report found that, nationwide, prosecutors filed enhancement informations in approximately 12.5 percent cases in which defendants were eligible. The informations were later withdrawn in 22.5 percent of those cases.
The Report found that there is wide geographic variation in the extent to which U.S. attorneys filed enhancements or later withdrew them. In other words, an otherwise identical defendant could face vastly different outcomes depending on which federal district he found himself prosecuted in. This disparity is contrary to Congress’s intent in establishing the Commission and the Sentencing Guidelines, which among other things were meant to eliminate such unfair outcomes.
The Report also found that the enhancements have a disparate impact on black defendants. Even after accounting for the fact that black defendants comprise a disproportionate share of eligible defendants (making up only 24% of all trafficking defendants but 42% of those eligible for the enhancement), the enhancements were further disproportionately applied against black defendants at prosecutors’ “discretion.” More than 51% of defendants against whom the enhancements were filed were black, as were nearly 58% of defendants who received the enhancements without later relief. These troubling statistics should be brought to the attention of the sentencing judge as the basis for a downward departure or variance from the Sentencing Guidelines in every case where they could help the defendant.
The Report relies on data from the year 2016. It therefore does not factor in the Trump administration’s policy changes, beginning in 2017, which directed federal prosecutors to apply for the most severe enhancements for which defendants are qualified, replacing the Obama administration’s previous, more lenient policies. (See our previous blog on that subject here.) Therefore, worse news may be yet to come.
The findings revealed in the Report underscore the fact that any person charged with a drug crime – whether in federal or state court – should consult with an experienced criminal attorney who is familiar with the U.S. Sentencing Guidelines and the latest research on their application before making critical decisions about how best to defend their interests.
September 11, 2017
John Roberts, Esq.
Arseneault & Fassett, LLP
In United States v. Martin, No. 16-4289 (3d Cir. Aug. 15, 2017), the U.S. Court of Appeals for the Third Circuit held that a defendant who was determined to be a career offender was ineligible for a reduced sentence under a Sentencing Guidelines amendment. Martin pleaded guilty, pursuant to a plea agreement under Rule 11(c)(1)(C), to possession with intent to distribute more than 50 grams of crack cocaine. The plea agreement stipulated an advisory guideline range of 70 to 87 months imprisonment and a sentence of 87 months. Prior to sentencing, the Pre-Sentence Report determined that Martin was a career offender based on his criminal record, and accordingly that his advisory guideline range was 188-235 months. The sentencing court agreed with the PSR report but also accepted the R. 11(c)(1)(C) plea and imposed a sentence of 87 months pursuant to the agreement.
The U.S. Sentencing Commission later promulgated Amendment 782 to the Sentencing Guidelines, which retroactively lowered the offense levels for many drug quantities, including Martin’s. Martin filed a motion for a new sentence under 18 U.S.C. §3582(c)(2), which the District Court denied. Martin appealed to the Third Circuit, arguing that his guideline range was 70-87 months as per his plea agreement, which should have been lowered to 57-71 months under the Amendment. Martin’s appeal relied on Freeman v. United States, 564 U.S. 522 (2011), in which the Supreme Court held that a R. 11(c)(1)(C) plea was eligible for a sentence reduction under §3582 if the plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense.”
The Court distinguished Martin’s case from Freeman, which did not involve the question of career offender status. It cited cases from two other Circuits, United States v. Leonard, 844 F.3d 102 (2d Cir. 2016), and United States v. Pleasant, 704 F.3d 808 (9th Cir. 2013), both of which held that when a court accepts a R. 11(c)(1)(C) plea, it effectively grants a departure or variance from an otherwise applicable Guideline sentence. Those cases comport with Third Circuit cases finding that “applicable guideline ranges” prior to Guideline Amendments to be career offender ranges. Thus the Court held that the “applicable guideline range” in Martin’s case was the career offender range, 188-235 months. Because that range had not been lowered by an Amendment to the Guidelines, the Court ruled, Martin was ineligible for a sentence reduction pursuant to §3582(c)(2).
September 5, 2017
John Roberts, Esq.
Arseneault & Fassett, LLP
In United States v. Ferriero, No. 15-4064 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit upheld the convictions of a former county Democratic party chairman for violations of the Travel Act, the Racketeering Influenced and Corrupt Organizations (RICO) Act, and wire fraud. The defendant had a contract with a vendor of emergency notification services to receive commissions for business that he was able to generate from municipalities. Defendant then introduced high-ranking officials from several towns to the vendor and encouraged them to do business while failing to disclose that he stood to gain financially.
Defendant argued on appeal that his conviction under the Travel Act, 18 U.S.C. §1952, should be overturned because the Government failed to prove that by violating New Jersey’s bribery statute he agreed “to undermine the integrity of the towns’ processes in considering whether to purchase the [vendor’s] product,” relying on United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). The Court disagreed, reasoning that Dansker applied that additional requirement to a previous version of the bribery statute which has since been repealed and replaced. The Court found that the current version of the statute, N.J.S.A. 2C:27-2, is more narrow than the previous one, and thus does not require the additional element. The Court held that the evidence was sufficient to support defendant’s violation of 2C:27-2 and his conviction under the Travel Act.
Likewise, the Court upheld the defendant’s conviction under RICO, 18 U.S.C. §1962(c). Defendant argued that there was insufficient evidence of a “nexus” between the business of the “enterprise” (the party organization) and the pattern of racketeering (bribery). The Court concluded that a sufficient nexus did exist, because the party organization hosted networking events for vendors and municipal officials, and it was the defendant’s practice, if not his official duty, to advise municipal officials on hiring vendors. The Court held that a rational juror could conclude that the pattern of bribery was one means by which the defendant conducted party business.
Finally, the defendant appealed his conviction for wire fraud, 18 U.S.C. §1343. Ferriero argued that an email which his business partner sent in response to a municipal official’s inquiry about who owned the vendor was truthful as far as it went, and that omission of Ferriero’s financial interest did not qualify as a “false representation.” The Court disagreed, holding that in context the email withheld “critical qualifying information.” The Court held that “whether a representation is false or fraudulent is a contextual inquiry that a jury is particularly well-suited to assess,” given the jury’s first-hand access to witness testimony. In this case, a rational jury could find that the omission of critical information alone was sufficient to support a conviction. Thus the Court rejected Ferriero’s appeal and upheld his conviction in its entirety.
August 28, 2017
John Roberts, Esq.
Arseneault & Fassett, LLP
In United States v. Chapman, No. 16-1810 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit held that mailing threatening communications, in violation of 18 U.S.C. §876(c), qualifies as a “crime of violence” for purposes of determining career offender status under the U.S. Sentencing Guidelines. Violations of §876(c) are punishable by up to five years imprisonment generally, or up to ten years if directed against a federal judge or federal law enforcement official. Chapman had been convicted of two prior violations of §876(c), first after he mailed a letter threatening to kill President George W. Bush, and then after mailing a letter which threatened a federal judge and court staff. After violating the terms of his supervised release following his second conviction, Chapman sent another threatening letter to the federal prosecutor who was handling Chapman’s revocation. After pleading guilty, Chapman was deemed a career offender based on his three convictions under §876(c).
Chapman argued that mailing threatening communications was not a crime of violence because it did not require “violent physical force.” The Court applied a categorical approach to the question, comparing only the elements of the statute against the guideline and disregarding the particular facts of Chapman’s offenses. By this method, if the statute has the same element as the guideline, or defines the offense more narrowly, then a violation counts toward career offender status. If the statute defines offense conduct more broadly, then career status is not implicated. The Sentencing Guidelines define the predicate “crime of violence” as including any offense punishable by more than one year imprisonment that has as an element the “threatened use of physical force against another.” The statute prohibits communications “containing  any threat to injure the person of the addresses or of another.” The Court noted the Supreme Court’s interpretation of “physical force” as “violent force” and reasoned that the common definition of “injure” implicates “physical force.” Therefore, the violations of §876(c) qualify toward career offender status. By its holding, the Court brought the Third Circuit into alignment with the First, Second, Eighth, and D.C. Circuits.