Sentencing

The Court affirmed the district court’s order sentencing the defendant to consecutive terms of imprisonment for violating his supervised release. Even though the district court had initially imposed concurrent terms of imprisonment and supervised release, the Guidelines allow a sentencing court to impose consecutive or concurrent sentences following the revocation of supervised release.

The Court affirmed the defendant’s sentence. The district court did not err by holding that the Guidelines recommend consecutive maximum sentences for each count of conviction where the Guidelines range (life imprisonment) exceeds the statutory maximum for each count.

The Court held that officers’ warrantless two-day seizure of the defendant’s cell phone, based on evidence the defendant had sexually exploited a minor, was not permissible under Terry but was justified by probable cause and exigent circumstances. The Court also held that the sentencing court did not engage in double-counting by enhancing the defendant’s offense level for conduct involving a visual depiction of sexual acts and engaging in a pattern of prohibited sexual activities.

The Court affirmed a restitution order under § 2259 as to 8 of 9 child pornography victims, holding that the district court was not required to disaggregate the victims’ losses among the abusers, producers, distributors, and possessors of the images before determining an individual defendant’s restitution obligation. The Court held that the court sufficiently considered proximate causation and the defendant’s relative role as a possessor. The Court also held that one victim had not provided any evidence regarding her losses or the defendant’s causal relationship to those losses.

The Court affirmed the defendant’s sentence for child pornography after his offense level was enhanced based on his distribution of child pornography while he was in Jamaica. The Court held that a sentencing court may properly consider extraterritorial conduct if it is otherwise relevant conduct under the Guidelines.

The district court declined to group the convictions together and the Court affirmed on appeal. While U.S.S.G. § 3D1.2 provides that “all counts involving substantially the same harm shall be grouped together into a single Group,” Faulker had failed to show that: a) the counts were based on the same act or transaction, b) the counts involved “substantially the same harm,” c) the charged offense was already accounted for under the Guidelines provision governing the principal offense, and d) the offense level was not determined on a loss amount or other “measure of aggregate harm.”

On appeal, the Court held that the sentencing court applied the wrong legal standard under U.S.S.G. § 2G2.2(b)(5), which enhances a defendant’s sentence if the offense involves sexual activity with a minor between the ages of 12 and 16 “if the perpretrator was at least four years older than the minor. The district court erred by merely subtracting the victim’s age from the defendant’s without respect to how old each of them actually were at the time of the sexual contact.

Sitting en banc, the Fifth Circuit held that the Commission’s commentary and Application Notes cannot be read into the text of a Guidelines provision and that the Commission’s use of commentary to add elements and definitions to Guidelines provisions “deserves no deference.” Since § 4B1.2, the provisions enhancing the sentencing range for career offenders, does not, by its own text, include attempt crimes as “controlled substance offenses,” prior convictions for attempted crimes do not fall under § 4B1.2(b).

The Court held that payments made to a victim of a fraud scream can still be part of the loss amount if the payments were made “in furtherance of the scheme.”

The Court held that the district court lacked jurisdiction to revoke the defendant’s supervised release since the defendant was not served with a formal revocation notice until after he had served the rest of his term of supervised release in custody while awaiting the revocation proceeding. The Court also rejected the Government’s argument that the defendant’s supervised release term was tolled once he was detained with two months left in the term.