Sentencing 101Drug and Gun Guidelines

Gun case

• This was an offense charged under 18 U.S.C. 922(g)(3)• Refer to the Appendix of the guidelines to determine the applicable

guideline section

USSC Guidelines, Appendix A • 18 U.S.C. § 879 2A6.1• 18 U.S.C. § 880 2B1.1• 18 U.S.C. § 892 2E2.1• 18 U.S.C. § 893 2E2.1• 18 U.S.C. § 894 2E2.1• 18 U.S.C. § 911 2B1.1, 2L2.2• 18 U.S.C. § 912 2J1.4• 18 U.S.C. § 913 2J1.4• 18 U.S.C. § 914 2B1.1• 18 U.S.C. § 915 2B1.1• 18 U.S.C. § 917 2B1.1• 18 U.S.C. § 922(a)-(p) 2K2.1• 18 U.S.C. § 922(q) 2K2.5• 18 U.S.C. § 922(r)-(w) 2K2.1• 18 U.S.C. § 922(x)(1) 2K2

Section 2K2.1

• Almost always the guideline for gun cases, but check the appendix to be sure

• Unique guideline because criminal history impacts the base offense level

• So before we can do the guidelines, we have to look at his criminal history

The Pretrial Report

• Valuable tool, because clearly and concisely sets out criminal history• BUT NOT ALWAYS ACCURATE• Use casenet to see if your client has any prior convictions not

reported on the PTS report (https://www.courts.mo.gov/casenet/base/welcome.do)

• Ask your client where he has ever been arrested or gone to court• Including municipal court!

GET RECORDS

• Always, always, always ask for records from the court where your client has been convicted

• You need to review the charging document and the commitment form in EVERY CASE

• How else you can verify dates of convictions (sometimes clients are convicted AFTER the federal offense occurred.)

• How else can you verify exact nature of charges?• How else can you verify exact sentence? (Your client may not always

remember accurately, and the pretrial/probation officer isn’t always right either)

Our client’s criminal history

• In this case, the pretrial report (page 1 of the “discovery”) is accurate• Client has two pending cases (Clay County, and KCMO municipal) • Client has no prior convictions

OPPORTUNITY TO GIVE ADVICE

• This client was released on bond. If your client is released on bond, advise him not to plead guilty to the pending cases.

• Although new convictions can’t be used to increase his base offense level under 2K2.1 (because they won’t be considered priorconvictions), they can be used to increase his criminal history

• Reach out to the client’s state or municipal court lawyer to make sure he/she understands the importance of not having a finding of guilt on pending cases until the federal case is done

• Can’t avoid a finding of guilt? Then avoid sentencing. At least those cases will be no more than one point each if client hasn’t been sentenced.

Back to 2K2.1 to determine the base offense level• Our client doesn’t have any prior convictions, so he will not have an enhanced

punishment based on that reason.

• BUT THERE ARE OTHER EVIL GROUNDS TO INCREASE THE BASE OFFENSE LEVEL

2K2.1(a)(4)

• 2k2.1• (a) Base Offense Level (Apply the Greatest)• …

• (4) 20, if—• (A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a

crime of violence or a controlled substance offense; or• (B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine; or (II) firearm

that is described in 26 U.S.C. § 5845(a); and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense; (II) is convicted under 18 U.S.C. § 922(d); or (III) is convicted under 18 U.S.C.§ 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm orammunition to a prohibited person;

…

Did you see the high capacity magazine enhancement?• Discovery page 7

The High Capacity Magazine Enhancement

• Stinks• Fight it. The lack of empirical data to support this enhancement makes it ripe for

an attack that could result in a downward variance• Sample pleading: United States v. Hughley, 14-CR-224 (WDMO), Document 40.

(sentencing memo and several attachments)• The guideline does contain this enhancement, so it’s not necessarily an objection.

You are asking for a downward variance because the guideline is bad. • This is similar to the variance you might ask for because certain drugs receive

such greater sentences than other drugs.

Guideline calculations

• Base offense level 20 (2K2.1(a)(4))

Specific Offense Characteristics

• Usually bad news, but not always• Opportunity to advocate

• 2K2.1(b)(2) says you can get a reduced based offense level if the firearms were possessed solely for lawful sporting purposes or collection

• This does happen and you should see if you can get this to apply to your client• Won’t work here because base offense level under 2K2.1(a)(4) is excluded (as is just

about any enhanced base offense level)• Our client doesn’t have much argument that he possessed the guns for lawful sporting

purposes or collection.

Specific Offense Characteristics

• Go through every option at 2K2.1(b) to see if anything applies to your client.

• Often seen:• Number of guns enhancement (anything more than 2)• Destructive Devices (includes sawed off shotguns)

MOST COMMON ENHANCEMENTSStolen gunObliterated serial number“In connection with” another felony offense

The Stolen Gun Enhancement

• Your client does not have to know it was stolen. If the gun has been reported stolen, you get the enhancement.

• But be mindful and get reports: If the gun had been returned to the owner and it was no longer considered a stolen gun, then you shouldn’t get this enhancement.

Altered or Obliterated Serial Number

• Your client does not have to be responsible for the damage to the serial number

• Opportunity to advocate:• If there’s more than one place where the serial number is on the gun, and

only one is altered or obliterated, argue that this enhancement does not apply

• If they were able to restore the serial number, argue that this enhancement does not apply

Did you see the obliterated serial number enhancement?

Discovery page 7

Guideline Calculations

• Base offense level 20• Obliterated Serial Number +4

“In connection with” another felony offense

• This does not mean “at the same time as.” • The firearm or ammunition must have facilitated or had the potential of

facilitating another felony offense. (Application note 14)• Use your application notes• Note 14, (B) Application When Other Offense is Burglary or Drug Offense.—Subsections

(b)(6)(B) and (c)(1) apply (i) in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary; and (ii) in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In these cases, application of subsections (b)(6)(B) and, if the firearm was cited in the offense of conviction, (c)(1) is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense, respectively.

“In connection with” another felony offense

• Use application note 14(B) to distinguish your facts from the sort of case in which USSC thinks this enhancement should apply. Especially distinguish the use of this enhancement when all the client had was personal use drugs. That’s not a drug trafficking offense as suggested in the application note.

• Use common sense to argue. How does a gun or ammunition facilitate a tampering offense?

• There’s bad caselaw out there. The “other” offense can be the state offense of unlawful use of a weapon. Fight anyway.

Watch for cross-references

• 2K2.1(c) calls for a cross reference to a different, more harsh guideline if the gun or ammunition was used to facilitate that offense.

• This is never good. We are talking about cross references to murder, assault, etc.

• Be aware of this possibility. It’s a good reason to try to get a binding plea agreement.

Chapter Three

• After you finish with 2K2.1 you go to Chapter Three to see if any enhancements or reductions apply.

• Commonly seen enhancements in gun cases:• 3C1.1 Obstructing or Impeding the Administration of Justice

• Providing false information during the investigation• 3C1.2 Reckless Endangerment During Flight

• Opportunity to advocate: The false information was not meant to impede the investigation and really didn’t. The flight did not really endanger anyone.

Chapter Three

• There are lots of potential enhancements, and a few beneficial possibilities, in Chapter Three. You should review each section of this Chapter every time you do guidelines calculations.

Chapter Three

• Acceptance of Responsibility• This is generally seen as the benefit of pleading guilty. (Note that your client

does not have to plead guilty to get this reduction, and sometimes can lose this reduction even if he does plead guilty.)

• Client admits what he has done and accepts responsibility for his conduct: -2• The admission is usually in the form of the plea. If you try to do an Alford plea, you

aren’t admitting• Opportunity to advocate: If your client gets in trouble while on bond (using drugs)

probation will try to take away acceptance. If the bond violations occurred before guilty plea, you should argue that the plea wiped the slate clean and is evidence of his acceptance of responsibility.

• If the offense level is more than 16 you get a third point off -1

Guideline Calculations

• Base offense level 20• Altered or obliterated serial number +4• Acceptance of Responsibility -3• Total offense level = 21

Criminal History

• This one was easy. There is no criminal history.• Criminal History Category is I

Guideline Calculations

• Base offense level 20• Serial number +4• Acceptance -3• Total is 21• Criminal History I

• Offense Level 21 at Category I = 37-46 months

Sentencing Factors

• This client was 18 years old at the time of the offense. He and his brother (19 years old) were extremely close, having basically raised themselves after their mother died of a brain aneurysm.

• We put on evidence from grandma (letter and photos) about what a “mama’s boy” the client was, and how he never really recovered from his mother’s death

• Also put on evidence that when he and brother went to live with dad, they were treated differently and worse than their step-siblings. They felt like they were imposing by moving in with that family.

• Client was homeless at the time of his arrest (did you see that in the discovery?)

Sentencing Factors

• Client followed his older brother everywhere. Brother had a criminal history.

• Client was about to come in to a trust fund from a medical malpractice suit after mom’s death so we had a financial foundation which would enable him to go to school, have a place to live, etc.

• We filed the anti-high capacity magazine memo and exhibits.

The Reveal

• Guideline range 37-46 months

• Client received 18 months

The Drug Case

• Check out this Indictment.• This former SAUSA charged every imaginable count. That’s his prosecutorial

signature. (Thank God he’s a former SAUSA.)

Figure out your guideline sections

• Counts 1-5 are all drug counts: 2D1.1• Counts 6 & 7 are 924(c) counts: 2K2.4• Counts 8 & 9 are 922(g) counts: 2K2.1

• Thankfully, this is a Sentencing 101 program. We aren’t going to talk about the grouping rules in Chapter 3 here. This client pled guilt to Counts 5 and 6.

• 2K2.4 tells us that Chapters Three and Four don’t apply to 924(c) counts. So all we have to do is the guidelines for Count 5.

• Sorry if you were hoping for a grouping tutorial. Stay tuned for another program!

Guidelines for 924(c) Count

• 924(c) carries a minimum sentence of 5 years (or more depending on the allegations) and a maximum of life.

• The guideline IS the minimum term of imprisonment.

• So in our case, the guideline range is 60 months.

Count Five

• Possession with Intent to Distribute Cocaine Base• Class C felony: no mandatory minimum; 20 year max• Guideline Section 2D1.1

2D1.1

• This guideline punishes for a single count, all the conduct that can possibly be lumped in with (related to) that count.

• The benefit of pleading to a single count is to avoid consecutive sentences, or mandatory minimum sentences.

• The benefit is not necessarily to enjoy a guideline based ONLY on that count

• Opportunity to advocate• Try to get a plea agreement that does limit the guideline exposure. Will your

prosecutor agree that the only amount which is “readily provable” and which should be attributed to your client is the amount from the single count of conviction?

2D1.1

• In order to determine the base offense level, you have to know the type and quantity of drugs.

• If you don’t already have lab reports, and you think they might hurt you, get in there without lab reports and then argue that late disclosure is unfair.

• This is an issue when we are talking about drugs where the purity level makes a difference

• In this case, we do have lab reports

2D1.1 (Lab reports)

• Buy A• 8.8243 g marijuana• .7940 g cocaine base

• Buy B• 3.2932 g marijuana

• Buy C• 1.2712 g cocaine base

• Search Warrant• 20.6986 g levamisole and cocaine base

• And $1258

Drug Quantity Calculations• Money recovered can be converted to drugs• Opportunity to advocate

• If your client was selling more than one type of drug, the money should be converted to the least damaging drug.

• If your client was arrested with money not long after a sale, argue that the money is the money from the sale, so converting it would be double counting (doesn’t work if the sale was with marked bills)

• If your client was working a real job or had some other legitimate source of income, argue that the money isn’t from the sale of drugs and should not be converted at all

• Conversion is only supposed to happen when the amount of drugs recovered does not fairly estimate the drug quantity involved in the case. Argue that the amount recovered does sufficiently reveal the depth of the client’s involvement in trafficking.

Drug Calculations

• When more than one type of drug is involved, everything gets converted to marijuana.

• In this case, we had so little marijuana, we knew it wasn’t going to make a difference in the calculations. We just stuck with the cocaine base that was sold and recovered during the search.

• Total cocaine base: 22.7639 g • Government agreed not to try to convert money.

Guideline Calculations

• Base offense level 22• Although they recovered guns, no gun enhancement because client

pled to a 924(c) count• Acceptance of responsibility -3• Total offense level: 19

Criminal History Calculation

• Chapter Four• The pretrial report was not complete in this case• Prior: trafficking drugs in the second degree

• Sentenced to 10 years/SES/3 years probation. Did the 120 day callback.• Two points because he served 120 days and the rest of his sentence was suspended

• NOTE that if the client is PAROLED after 120 days, then he gets the points for the entire sentence. The key here is that the remainder of his sentence was suspended.

• Client also had a municipal conviction for DWR.• Sentenced to probation: 1 point

Criminal History Score

• Total number of points: 3• Criminal History Category: II

• A word of advice• When doing calculations for a client, err on the side of caution. Many

municipal court convictions are going to be one point convictions, and you can only count four of those. Tell your client the range assuming he has four one-point convictions too, even if you really don’t know whether he does.

Guideline Calculations

• Base offense level 22• Acceptance -3• Total offense level 19• Offense level 19 at Criminal History Category II = 33-41 months ON COUNT

5• PLUS 60 months consecutive on Count 6 Total range: 93-101 months• Opportunity to advocate: this client has a minimal criminal history and had

really made some positive changes in his life. (This case was not filed right away.) Argue for a downward variance on Count 5 because you can’t avoid that consecutive 60 months on Count 6. A total sentence of 60 months + 1 day is sufficient but not greater than necessary to meet the statutory goals of sentencing.

The Reveal

• This client was facing a total guideline range of 93-101 months.• He received 27 months on Count 5 and 60 months consecutive on

Count 6• Total sentence: 87 months.

• We were disappointed but recognized it could have been much worse. Happily, we were able to get one 924(c) count dismissed so that immediately reduced his exposure.

• A below guideline range in this case was good.

Summary

• Read the guidelines every single time• Use the application notes to help you when you can. Even when they

are bad, you can try to distinguish them.• Make creative arguments. You may lose the argument/objection, but

you have advocated for your client in a way that may help at the ultimate sentencing.

• Don’t accept probation or the government’s word for anything. GET RECORDS.