Sentencing

The Sentencing Commission has released FY25 Q3 data showing immigration cases driving the docket (35.7%), with drugs (25.6%) and firearms (12.3%) next, while overall variances from the Guidelines hold at 32% and government-sponsored reductions (5K1.1; fast-track pleas) make up a little over 15%. Median sentences span 6 months for immigration, 70 for drug trafficking, and 41 for firearms, with high-severity categories (CP, sexual abuse, murder) posting triple-digit medians. Regional differences have emerged, with border districts leaning on fast-track and imposing more within-Guideline-range sentences.

The Ninth Circuit vacated a felon-in-possession sentence after holding that Oregon’s aggravated unlawful use of a weapon statute does not qualify as a “crime of violence” under the Guidelines.

This case raises the question: When does the “felon-in-possession” statute not apply to felons? The Eleventh Circuit held that 18 U.S.C. § 922(g)(1) applies only to prior felonies punishable by over one year of actual imprisonment, not probation or other consequences, and it vacated the defendant’s conviction for an Alabama Class D felony where the defendant was not subject to any actual prison time based on his specific circumstances. While the statute of conviction authorized over a year of prison for some defendants in certain cases, the panel held that courts considering a prior conviction under 922(g)(1) must apply a “defendant-specific” interpretation and not an “offense-specific” one.

The Third Circuit vacated Josey’s sentence for failing to update his sex-offender registration after moving interstate, holding that the district court erred in counting defendant’s prior sentences that were imposed over ten years prior to the “commencement of the instant offense.” The court held that the district court could not rely on the commentary to the Guidelines to begin counting the 10-year period from the date of the defendant’s relevant conduct, here a separate sentence for failure to register under state law, and instead had to count the 10-year period only from the specific offense of conviction.

The Second Circuit affirmed convictions of a veterinarian and salesperson for manufacturing and distributing undetectable performance-enhancing drugs to racehorse trainers, rejecting arguments that the FDCA’s enhanced penalty provision applies only to fraud against consumers. The court also held that FDCA seizure provisions do not authorize criminal forfeiture and vacated the $25 million restitution and forfeiture orders.

The Eleventh Circuit affirmed convictions arising from a check-cashing and mail-theft scheme, rejected a Dubin challenge to the defendant’s conviction for aggravated identity theft, vacated the “sophisticated means” enhancement for lack of defendant-specific conduct, and vacated restitution tied to the defendant’s pre-participation conduct.

In a sentencing appeal, the Tenth Circuit vacated a 60-month upward-variance sentence for attempted bulk-cash smuggling as substantively unreasonable, citing reliance on a material misstatement and inadequate treatment of sentencing-disparity evidence. The district court’s sentence was an outlier in light of national sentencing data and relied on a false belief that the defendant had been on bond during the offense.

In a drug-conspiracy appeal, the Tenth Circuit affirmed the conviction but vacated the sentence after finding the district court’s drug-quantity estimate relied on unreliable confidential-source hearsay. The court rejected a due-process challenge to an in-chambers evidentiary ruling and held any Rule 404(b) error harmless.

In a plea-agreement appeal, the Tenth Circuit affirmed the rejection of a Rule 11(c)(1)(C) agreement but held that the district court abused its discretion in subsequently rejecting a charge bargain plea agreement, citing deference to prosecutorial charging discretion.

In a habeas appeal concerning First Step Act credits, the Ninth Circuit held that earned time credits may be applied to reduce the length of a supervised release term, reversed the district court’s dismissal, and remanded for recalculation and transmission of credits to probation.