Sixth Circuit

The Sixth Circuit affirmed the convictions of two defendants charged with operating a large cyber fraud scheme involving fake car auctions on ebay, stolen identities, and cryptocurrency. The Court vacated their sentences, however, after finding that they erroneously received an enhancement for receiving stolen property and being in the business of receiving and selling stolen property, since the enhancement does not apply to defendants who sell property they themselves stole. The Court held that the enhancement for production or trafficking of unauthorized access devices did apply, however, even though the defendants were already being sentenced for aggravated identity theft.

The Sixth Circuit vacated a defendant’s sentence. The defendant had received two sentences for possession of a firearm by a convicted felon and by a domestic violence misdemeanant. The Court held that these two convicted should have been merged for sentencing since they were based on one act of possession.

The Sixth Circuit affirmed a defendant’s conviction and sentence. The Court held that the district court did not err in using the future-tense in instructing the jury on the elements of RICO, since the conspiracy charge criminalized the agreement to form a racketeering enterprise, even if the enterprise has not been formed yet. The Court also affirmed the two-level enhancement for maintaining a premise for drug distribution, holding that the defendant could be held accountable for a co-defendant’s maintenance of a premise that was part of a jointly undertaken criminal activity.

The Sixth Circuit reversed a district court’s denial of a habeas petition asserting that the defendant was no longer an armed career criminal under Johnson v. US. A conviction for burglary under Tennessee law is not categorically a crime of violence where a defendant can commit the crime after entering a dwelling or building lawfully.

Limiting the discretion district courts have grant motions for compassionate release or sentence reductions, the Sixth Circuit held that a district court cannot base a finding of “extraordinary and compelling reasons” on non-retroactive changes in the law or facts that existed when the defendant was sentenced, even taken together.

The Sixth Circuit vacated a defendant’s sentence based on the sentencing court’s impermissible double counting when calculating the guidelines range. The defendant was subject to enhancements for causing injuries while fleeing a bank robbery, but the court erred in applying these enhancements to other, unrelated bank robberies.

The Sixth Circuit held that the disparity between a defendant’s actual sentence and the sentence that he or she would have received if the First Step Act’s amendments applied can, along with other factors, constitute extraordinary and compelling reasons warranting a sentence reduction.

The Sixth Circuit affirmed a defendant’s sentence which was enhanced based on a prior felony conviction under Tennessee law involving marijuana. The Court held that the sentencing court erred in enhancing the defendant’s sentence based on that conviction because the Tennessee law at issue included hemp under the definition of marijuana, while hemp was distinguishable and legal under federal law. Therefore, the Tennessee conviction was not a “controlled substance offense” under the Guidelines. However, since the defendant had only objected generally at sentencing and did not articulate grounds for his objection, plain error review applied, and the sentencing court’s error here were not clear or obvious given the complexity of the issue.

The Sixth Circuit reversed a defendant’s conviction for conspiracy to distribute where the defendant had only contacted the leader of a DTO and given him a sample of heroin. The Court held that “the mere transfer of drugs,” including a buyer-seller transaction, was standing alone insufficient to establish an agreement to further distribute drugs.

The Sixth Circuit reversed a defendant’s sentence for possession of unauthorized access devices because the loss amount had been based on Guidelines commentary mandating that a minimum loss amount of $500 had to be added for every unauthorized access device. The Court held that the commentary improperly expanded the text of 2B1.1, not merely interpreting it.