Sentencing

The Federal Docket

United States v. Farley (10th Cir. June 2022)

The Tenth Circuit remanded a defendant for re-sentencing after holding that the district court clearly erred in calculating the guidelines and determining a sentence. The district court had rejected the parties recommended sentence, noting it would have had to depart “10 levels” to get there, where the court only would have had to depart one level. Since the court relied on that error in sentencing the defendant substantially above the recommended sentence, the error was reversible, and the Court remanded for re-sentencing.

United States v. Merrell, et al (9th Cir. June 2022)

The Ninth Circuit affirmed petitioner’s new sentences that were imposed after petitioners won a 2255 motion based on the First Step Act’s changes to 18 USC 924(c), a statute which carries a mandatory minimum of five years, consecutive to any other sentence imposed, and previously carried a minimum of 25 years for any subsequent convictions. Congress amended 924(c) so that “subsequent convictions” would not include 924(c) counts in a single indictment, and the Ninth Circuit held that the petitioners could be re-sentenced under the new version of the law since their original sentences had previously been vacated and were thus considered void.

Sentencing Commission publishes report on recidivism rates for former inmates in BOP programs

The U.S. Sentencing Commission has published a report titled Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010. The report studies the recidivism rates of former inmates who participated in some of the BOP’s programs, such as the Resident Drug Abuse Treatment Program, Occupational Education Programs, and Federal Prison Industries jobs. Among other things, the report reflects that inmates who completed drug treatment programs while in custody had a relatively lower rate of re-offending.

United States v. Stines (11th Cir. May 2022)

In a matter of first impression, the Eleventh Circuit affirmed a defendant’s sentence for illegally exporting firearms. The Court concluded that the lower offense level under USSG 2M5.2(a)(2) did not apply since the defendant’s offense involved more than 2 firearms, where the defendant had exported enough firearm parts to assemble two guns and enough spare parts to service additional firearms.

United States v. Arellanes-Portillo (10th Cir. May 2022)

The Tenth Circuit vacated a defendant’s sentence after finding that the district court plainly erred in applying a role enhancement. The district court had enhanced the defendant’s guidelines for his money laundering offense based on relevant conduct for his drug offense, which was plainly not allowed under USSG 2S1.1 Application Note 2(C).

United States v. Vargas (5th Cir. May 2022)

The Fifth Circuit affirmed a defendant’s sentence as a career offender based on his prior convictions. The defendant argued that his prior convictions did not count as “controlled substances” under the Guidelines since the Guidelines themselves do not include inchoate drug offenses like attempt and conspiracy–only the commentary to the Guidelines does. The Fifth Circuit deepened a circuit split by holding that the commentary are still binding on courts notwithstanding the Supreme Court’s recent decision in Kisor v. Wilkie.

United States v. Gardner (11th Cir. May 2022)

The Eleventh Circuit affirmed a defendant’s ACCA-enhanced sentence. While the defendant’s three prior convictions under Alabama law were punishable by less than ten years under Alabama’s sentencing guidelines, the Court relied on the statutory maximum of over 10 years for those convictions in holding that they were “serious drug offenses” under the ACCA.

White House Announces Executive Order on “Advancing Effective, Accountable Policing and Criminal Justice Practices”

On May 25, 2022, President Biden issued an executive order aimed at creating new policies to promote trust in law enforcement, while holding officers accountable for misconduct, and improving the conditions of inmates in federal detention facilities. The order does a number of things, including increasing funding for investigating and prosecuting civil rights violations, improving law enforcement training, restricting no-knock warrants, and implementing the First Step Act to improve conditions in detention facilities and increase eligibility for early release.

United States v. Stoglin (5th Cir. May 2022)

The Fifth Circuit vacated a defendant’s sentence after holding that the district court improperly enhanced the sentence under 18 USC 3559(c). The Court concluded that the defendant’s prior convictions for aggravated assault under Texas law were not convictions for a “serious violent felony” under 3559(c) because a defendant need only act “recklessly” to be convicted.

United States v. Morehouse (4th Cir. May 2022)

The Fourth Circuit vacated a defendant’s sentence after finding that the sentencing court improperly applied the enhancement for distributing child sexual exploitation materials in exchange for valuable consideration. In doing so, the Court overruled its prior holding based on the pre-2016 Guidelines Manual and held that the enhancement only applies if there is a “two-sided exchange.”

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