Saturday, September 18, 2010

PC World

United States v. Ahders, No. 09-4093-cr (2d Cir. September 16, 2010) (Katzmann, Hall, Chin, CJJ) (per curiam)

In this latest per curiam, the court vacated a long sentence imposed for producing child pornography, because the district court did not make adequate findings on a sentencing enhancement.

Steven Ahders pled guilty to a single production count that alleged he victimized a “male minor,” his step-son. Ahders had also abused two of the boy’s friends, however, and at sentencing the court “grouped” the other children into his Guidelines calculations, even though that conduct was not charged. The circuit rejected Ahders’ argument that this was error. The relevant Guideline, § 2G2.1, expressly provides that if the abuse involved more than one minor the court should treat each child as if a separate count of conviction.

However, the court agreed with Ahders that the district court did not adequately explain its application of the four-level enhancement for possessing material depicting “sadistic or masochistic” conduct. The court could only impose the enhancement if it found that either the offense of conviction or its relevant conduct involved sadomasochistic material. The problem here was that, although the record suggested three possible grounds for the enhancement, the district court did not make adequate findings on any of them.

First, while Ahders took pictures of his step-son that would qualify, the district court did not appear to rely on those particular images in applying the enhancement. A second possible ground related to the relevant conduct, but Ahders disputed some of those facts and the district court did not resolve them. A third possible ground for the enhancement - and the one the district court seems to have relied on - involved Ahders’ possession of sadomasochistic images that he did not produce. No circuit has yet resolved the question of when possessing sadomasochistic images is relevant conduct to the production of child pornography, and here the district court made no specific findings on the point. The circuit proposed a long list of possible factors that the district court might look to on remand, and sent the case back so that the district court could clarify its basis for imposing the enhancement.

Sunday, September 12, 2010

Summary Summary

As summer draws to a close, here are two more summary orders of interest.

In United States v. Reap, No. 06-5793-cr (2d Cir. August 30, 2010), the court notes that it is an open question in the circuit whether 18 U.S.C. § 922(g)(1) requires proof that the defendant knew that he had a prior felony conviction.

In United States v. Goodwin, No. 09-2019-cr (2d Cir. September 9, 2010), the district court erroneously applied the four-level enhancement for possessing a firearm "in connection with" another felony offense by relying on a "fact not supported by record evidence." The court rejected the defendant's request for a remand with instructions not to impose the enhancement, instead opting for an "open ended" remand because "the facts relating to whether the enhancement might apply are unclear."

Sunday, September 05, 2010

PC World

United States v. Epstein, No. 09-4025-cr (2d Cir. September 3, 2010) (Miner, Cabranes, Straub, CJJ) (per curiam)

In United States v. Merced - argued and won by our favorite blogger - the circuit held that prior terms of imprisonment for supervised release violations counted toward, and limited, the statutory maximums contained in 18 U.S.C. § 3583(e)(3). Congress “fixed” Merced in 2003's PROTECT Act. This per curiam holds that the amended statute applies where the underlying offense occurred after the enactment of the new legislation.

Defendant Epstein received a twenty-four month violation sentence, but argued that the district court was obligated to credit him for a prior twelve-month violation sentence. This would have been required under the old statute, per Merced. But the amended statute “eliminate[s] the credit for terms of imprisonment resulting from prior revocations.” This outcome is clearly dictated by the change to the statute, which now indicates that the prescribed statutory maximum sentences apply “on any such revocation.”

While the PROTECT Act legislation as a whole would seem to apply only to sex offenders, there is nothing in the amendment to § 3583(e)(3) that limits the amendment in this way. Similarly, while Epstein made a strong policy argument against what Merced called “an endless cycle of consecutive terms of imprisonment and supervised release based on a single underlying offense,” the clear language of the statute left the court with no choice.

Max Facto

United States v. Ortiz, No. 08-2648-cr (2d Cir. September 1, 2010) (Newman, Pooler, CJJ, Rakoff, DJ)

Closing a an open question, the here court holds that the use of a more onerous guideline that is promulgated after the date of the offense can violate the Ex Post Facto Clause. But it also concludes that in this particular case there was no ex post facto violation.

At Ortiz’ sentencing for firearms and narcotics offenses, the district court used the amended guideline for an obliterated serial number - the Sentencing Commission had increased the enhancement from two to four levels - even though that amendment was adopted after the date of his offense. On appeal, for the first time, he argued that this violated the Ex Post Facto Clause.

The circuit noted that there is a circuit split on whether the retrospective application of a harsher, but non-mandatory, guideline implicates the Ex Post Facto Clause. It then adopted the D.C. Circuit’s standard, under which there can be an ex post facto violation if the defendant can show that using the amended guideline “created a substantial risk that” the sentence would be more severe. The court found this standard to be “faithful to Supreme Court jurisprudence explaining that the Clause protects against a post-offense change that ‘creates a significant risk' of increasing the punishment.” But this standard does not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense”; it merely recognizes that there may be circumstances “where an amended Guidelines can influence a sentence that violates the Ex Post Facto Clause.”

Here, the “substantial risk” standard does not benefit Ortiz. He received a sentence well below the bottom of the sentencing range, thus there was “no risk at all” that the sentencing judge would have imposed an even lower sentence had she applied the unamended guideline.


Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used in that district.”

This result is dictated by the language of § 1028A itself, which makes it a crime to commit identity theft “during and in relation to any” enumerated felony offense. Indeed, the Supreme Court has held that the nearly identical language of 18 U.S.C. § 924(c)(1), which makes it a crime to use or carry a firearm “during and in relation to any crime of violence,” allows venue to lie in any district in which venue is appropriate for the underlying crime of violence.

The same outcome is required here. The underlying bank fraud was “committed in all of the places that any part of it took place. Thus, for venue purposes it does not matter that" Barrie only committed identity theft in other districts. He did so “during and in relation to” a bank fraud that took place in the Southern District, and that was sufficient.

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PC World

United States v. Pfaff, No. 09-1702-cr (2d Cir. August 27, 2010)(Jacobs, Winter, McLaughlin, CJJ) (per curiam)

Apprendi rears its head once again in this latest per curiam, this time with respect to a fine.

A jury convicted John Larson, one of the defendants in the KPMG tax shelter case, of twelve counts of tax evasion under 26 U.S.C. 7201, but did not make a finding as to the pecuniary loss Larson caused or the gain he derived from the conduct. At sentencing, the district judge found a “gross pecuniary loss” of more than $100 million. Since 18 U.S.C. § 3571(d) authorizes a fine of up to twice the loss, the judge determined that the statutory maximum fine would be more than $200 million. The court ultimately imposed a $6 million fine.

While no Larson made no Apprendi objection, the circuit found plain error and vacated the fine. Section 3571(b) establishes a maximum fine of $250,000 per felony count of conviction. Section 3571(d), however, allows an alternative fine of up to twice the gain or loss resulting from the offense. But this alternative provision implicates Apprendi, since “any fact that increases the penalty ... beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The “statutory maximum” for Apprendi purposes is the maximum sentence that a judge can impose based solely on the facts reflected in the jury verdict or admitted by the defendant.

Accordingly, absent a jury finding as to loss or gain, Larson’s statutory maximum fine was $250,000 for each of the twelve counts, or $3 million. By fining him more than that based on its own loss finding, the district court violated Apprendi.

Nor is a different outcome required by the cases holding that Apprendi does not apply to restitution or forfeiture calculations. Unlike those financial penalties, criminal fines are subject to statutory maximums. Thus, when a jury does not make a finding as to pecuniary gain or loss, the statute’s default maximums “cap the amount a district court may fine the defendant.”

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