The Second Circuit in a detailed per curiam opinion took the uncommon step of reversing the district court on two separate bases – procedural error and substantive error. However, the government’s victory may just be fleeting as the Second Circuit provided the district court with sufficient guidance to impose a probationary sentence again if it so desires on remand.Procedural Unreasonableness The Second Circuit found that the district court committed procedural error by failing to consider the six factors set forth in 18 U.S.C. § 3553(a). The appellate court explained the role of a district court generally.

”The core of Thomas’s argument was that the child pornography Guidelines results in an illegal sentencing scheme that results in disparate sentences. With its enactment of 18 U.S.C. § 3553(a), Congress explicitly said that Federal criminal sentences should be sufficient but not greater than necessary and must “avoid unwarranted sentence disparities.”Because the Guidelines recommended range in some child pornography cases exceed that for a child rapist or a second-degree murderer, Congress’s admonition in § 3553(a) is not being heeded.The First Circuit was not in the least receptive to this argument which, the court said, “fundamentally misrepresents the role of the guidelines in the sentencing process.

In Watts v. United States, the Second Circuit (Livingston, Parker, Park) issued an unpublished summary order that affirmed Michael Watts’ convictions for his role in a pump-and-dump scheme, and agreed with the government that his sentence of one year and one day was substantively unreasonable.[1] The panel engaged in a close analysis of the relevant facts and the 18 U.S.C. § 3553(a) factors, and took issue with the district court’s evaluation of the case, remanding the case to the district court for resentencing.BackgroundAccording to the evidence at trial and the government’s allegations, between 2014 and 2016, Watts conspired with his co-defendants to inflate the share price of Hydrocarb Energy Corporation (“HECC”) through an illegal scheme using false and fraudulent sales pitches and high-pressure, manipulative tactics to get investors, often elderly people, to purchase inflated stock. Watts and the others ran a “boiler room” operation to effectuate this scheme, paying the boiler room participants half of his proceeds to line up victims to his pump-and-dump scheme. Watts’ own personal fortune was invested in HECC and when HECC’s failure became inevitable, and Watts used the scheme to sell his shares as quickly as he could. Following a jury trial in 2019, Watts was convicted of conspiracy to commit securities fraud in violation of 18 U.S.C. § 371; conspiracy to

In general, it is a safe bet to say that unless there is a signed proffer agreement with the prosecutor that provides express limitations on how the witness’s statement can be used in the future, the witness (and their attorney) is in potentially dangerous territory.Reasonableness of the Sentence and Judge Pooler’s DissentWhile the panel agreed in rejecting Kourani’s ineffective assistance of counsel claim (because his right to counsel had not yet attached at the time of the FBI interviews), jury instruction claim (because he asked for an instructions that “we have never held . . . a district court is required to issue”) and sufficiently of the evidence claim (because the Circuit found there was sufficient evidence), the panel issued a divided opinion as to the reasonableness of Kourani’s 40-year sentence.Kourani challenged his sentence as procedurally and substantively unreasonable on the ground that the district court violated 18 U.S.C. § 3553(a)(6), the statute that directs courts to avoid sentencing disparities, and that it was based on erroneous factual findings. Kourani pointed to cases in which defendants received sentences of 15-20 years of imprisonment and argued that his 40-year sentence was unfairly excessive.

The Fifth Circuit Court of Appeals recently joined the First, Sixth, Seventh, and Tenth Circuits in holding that a sentencing judge has the discretion absent a “5K11 motion” to consider a defendant’s cooperation in determining whether to impose a downward departure of the Guidelines recommended sentence. In fact, these circuits have held that a sentencing court’s failure to recognize its discretion to consider a defendant’s cooperation under 18 U.S.C. § 3553(a) is a significant procedural error. In a 2013 report, Families Against Mandatory Minimums (FAMM) said the Justice Safety Valve Act of 2013 would amend § 3553(a) to give judges the authority to sentence offenders below the minimum if those “sentences do not fulfill the goals of punishment listed in § 3553(a).

The Act was designed to produce a more even-handed determinate sentencing scheme. To accomplish this legislative objective, the Act imposed an absolute duty on federal district court judges to consider each of the seven sentencing factors set forth in 18 U.S.C. § 3553(a), required federal judges to accept the U.S. Sentencing Guidelines as mandatory, and abolished the federal parole system as well. The end result of the Act, however, quickly proved to be even more draconian than hodgepodge sentencing practices it had replaced.

U.S. v. Huskey, --- F.3d ----, 2007 WL 2702447 (10th Cir. Sept. 18, 2007)Defendant, who pleaded guilty to 2 counts of trafficking over 50 grams of meth and was sentenced to 2 consecutive life terms under 21 U.S.C. § 841(b)(1)(A), challenged his sentence on 3 grounds: one of his priors should not have been counted as a previous drug felony; mandatory minimum sentences conflict with the statutory command to trial judges to consider the factors set out in 18 U.S.C. § 3553(a) in arriving at their sentencing decisions; and the sentence is cruel and unusual punishment in violation of the 8th Amendment.1. Not plain error to determine Defendant’s prior Kansas attempted cocaine possession is a countable prior drug conviction even though the attempt statute was general and applied to any felony offense and not just drug offenses.

Memo further lays out impermissible considerations for prosecutors when determining whether to commence a prosecution. Notably, it informs them that “[c]harges may not be filed, nor the option of filing charges raised, simply to exert leverage to induce a plea.” While certain corporate defendants have the ability to pay massive fines in order to avoid the uncertainty that accompanies defending against a federal prosecution, the Garland Memo dissuades prosecutors from filing charges solely to reap the benefits of a likely settlement.Overall, recognizing a multitude of options at the charging stage coupled with the power of the modern-day sentencing regime, the Garland Memo provides that charging decisions must be informed by an individualized assessment of all the facts and circumstances that a particular case presents. It is perhaps unsurprising that Attorney General Garland, a former federal judge well familiar with the factors which must ultimately be considered at sentencing under 18 U.S.C. § 3553(a), has signaled to prosecutors they should conduct a holistic analysis of a defendant at the earliest possible stages of prosecution. By its very nature, this comprehensive approach may provide the more sophisticated white collar defendant, often a first-time offender, with additional tools for negotiation.Plea AgreementsThe Garland Memo makes clear that plea agreements shall be subject to “the same fundamental considerations described above for charging decisions” and reemphasizes that charges cannot be filed for the purpose of exerting leverage to induce a plea. Awareness of this mandate will likely prove helpful to white collar defendants attempting to engage in reasoned pretrial negotiations, who will be empowered, when necessary, to remind prosecutors that overly aggressive charging decisions which do not serve the ends of justice are contrary to departmental guidance. Districts and litigating divisions will also be required to promulgate written guidance stating the standard eleme

Compassionate release was grant to Ebbers because of his age (78 years) and deteriorating health. Ebbers died on February 2, 2020.Provisions of the First Step At (ACT), § 3582(c)(1)(A)(i), signed into law on December 21, 2018 by President Trump, allows for compassionate release due to terminal illness.Interpreting the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), the U.S. Sentencing Guidelines, 1B1.13 (p.s.), comment. (n.1(A)(i)), recognized before the Act that became law that the “compelling and extraordinary reasons” necessary to secure a sentence reduction included “a terminal illness (one with an end of life trajectory)” such as metastatic cancer, though no “specific prognosis of life expectancy” was required.The problem inherent in compassionate leave requests is that the district court enjoys unfettered discretion in whether to grant the request.

The answer, of course, is unilateral prosecutorial discretion to choose which charge to pursue. And we can do little about that, since the only avenue below a mandatory minimum in this context is cooperation and a motion under 18 USC 3553(e). Those are rare in CP cases.But the Commission recognized that the inconsistency in charging practices could cause “unwarranted disparities,” something that Congress has directed the Commission and sentencing courts to avoid, under 18 USC § 3553(a)(6).