Sentencing

The Fifth Circuit held that the de novo standard of review applies to a district court’s determination regarding a defendant’s eligibility under the First Step Act, but that the abuse-of-discretion standard applies to the district court’s decision whether to actually reduce the defendant’s sentence.

The Court held that selling body armor is not sufficient to warrant an enhancement for “using” body armor under U.S.S.G. § 3B1.5, which enhances a defendant’s offense level if the defendant used body armor though “active employment in a manner to protect the person from gunfire” or “as a means of bartering.” The Court held that the definition of bartering applies to trading goods without the use of money.

The Court held that the sentencing court committed plain error by applying the general-fraud Guidelines under U.S.S.G. § 2B1.1 because the defendant’s mail fraud conviction also established a visa fraud offense specifically covered under U.S.S.G. § 2L2.1, the Guideline for visa fraud.

Among other rulings on other issues, the Court reversed the defendant’s conviction for bankruptcy fraud, holding that the income from his second religious temple, opened after the first temple filed a petition for bankruptcy and providing the same services as the first temple, did not constitute post-petition property of the first temple’s estate since the temples otherwise operated as two separate entities and the government did not try to pierce the corporate veil.

The Court held that the district court did not err by allowing the Government to withdraw its Rule 35 motion, as the plea agreement giving the Government discretion to file a motion for a sentence reduction also gave the Government discretion to later withdraw such a motion.

The Court vacated the defendant’s sentence and ordered that he be re-sentenced in front of another judge, holding that the Government breached the plea agreement when it argued for a sentence within the Guidelines range that was calculated by the sentencing court and that was higher than the range anticipated by the plea agreement. The plea agreement obligated the Government to argue for a sentence within the range based on the parties’ stipulations in the plea agreement.

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.