Sentencing

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.

The Court held that the defendant had waived his right to appeal through his plea agreement with the Government despite the Government joining his objection to the district court that the sentence imposed was unreasonable.

Citing other circuits, the Eleventh Circuit held for the first time that the application of § 4B1.5(b)(1) does not require multiple victims and can be applied to a defendant who engages in a pattern of prohibited sexual conduct with the same minor.

United States v. Alicia Norman, et al, No. 17-3070 (D.C.C. June 11, 2019) ISSUES: Criminal Procedure, Pleas, Ineffective Assistance of Counsel, Sentencing Guidelines On an appeal from a bribery and marijuana distribution case, the Court rejected the defendants’ numerous allegations of error except to the extent it held that one of the defendant’s had raised […]

The Court affirmed the defendants’ convictions and sentences, holding that 1) the statute of limitations did not bar prosecution since subsequent DNA testing implicated the defendant, 2) a non-testifying co-defendant’s hearsay statements implicating the defendant were admissible as non-testimonial since the co-defendant had no reason to believe the statements would serve as a substitute for testimony, 3) there were no evidentiary errors and the evidence was sufficient to convict, 4) the prosecutor’s comment in closing that there was no other explanation for defendants’ DNA at the crime scene was not a comment on the defendant’s decision not to testify, and 5) the sentencing court properly applied an enhancement for “using” a weapon.

The Court affirmed the defendants’ convictions, holding, among other things, that there was probable cause to justify warrantless search of the defendant’s vehicle where officers could tie the vehicle to identity fraud, the defendant’s repeated use of an access device to obtain benefits reflected knowledge that the access device belonged to a real person, the government was allowed to use a detective as an expert witness on common slang terms in identity fraud cases, and the district court properly applied a firearm enhancement.

The Court denied the petitioner’s request for a rehearing en banc, leaving in place the rule in In re Griffin that provisions of the Sentencing Guidelines cannot be challenged as void-for-vagueness and that the Supreme Court’s rule in Johnson is not retroactively applicable to career-offender sentences imposed either under the advisory or mandatory version of the Guidelines.