1. Federal Sentencing Plano, TX

2. 2 www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov Alan Dorhoffer Deputy Director Office of Education and Sentencing Practice

3. @theusscgov www.ussc.gov helpline (202) 502-4545 pubaffairs@ussc.gov Commission Resources

4. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 4 Commission Update

5. 5 Commission Activities On January 9, 2015, the Commission voted to publish proposed guideline amendments for 2015. (available on www.ussc.gov) This year’s annual seminar will be held in New Orleans, September 16-18, 2015.

6. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 6 Sentencing Statistics

7. 7 Primary Offense Types National - FY 2013 SOURCE: 2013 Sourcebook of Federal Sentencing Statistics

8. 8 Primary Offense Types Eastern District of Texas - FY 2013 SOURCE: 2013 Sourcebook of Federal Sentencing Statistics

9. 9 Position of Sentences in Relation to Guideline Range National - FY 2013 Within Guideline Range 51.2% Above Guideline Range 2.1% Total Govt Below Guideline Range 27.9% §5K1.1 12.1% Non- Govt Below 18.7% §5K3.1 & Other Govt 15.8% (§5K3.1 = 10.6%) SOURCE: 2013 Sourcebook of Federal Sentencing Statistics

10. 10 Position of Sentences in Relation to Guideline Range Eastern District of Texas - FY 2013 Within Guideline Range 69.1% Above Guideline Range 3.2% Total Govt Below Guideline Range 22.4% §5K1.1 9.4% Non- Govt Below 5.3% §5K3.1 & Other Govt 13.0% SOURCE: 2013 Sourcebook of Federal Sentencing Statistics

11. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 11 Highlights of 2014 Guideline Amendments Effective November 1, 2014

12. 12 The “Drugs Minus 2” Guideline Amendment Reduces by two-levels the base offense levels applicable to most quantities on the Drug Quantity Table at §2D1.1 (Drugs) and on the quantity tables for chemicals at §2D1.11 (Listed Chemicals) Amendment 782 Effective November 1, 2014

13. 13 Example: §2D1.1 Drug Quantity Table Cocaine BOLS Pre & Post “Drugs Minus 2” Pre 11/1/2014 Level 38 Level 36 Level 34 Level 32 Level 30 Level 28 Level 26 Post 11/1/2014 450 KG 150 KG 50 KG 15 KG 5 KG 3.5 KG 2 KG 150 KG 50 KG 15 KG 5 KG 3.5 KG 2 KG 500 G

14. 14 Example: §2D1.1 Drug Quantity Table Cocaine BOLS Pre & Post “Drugs Minus 2” (cont.) 400 G 300 G 200 G 100 G 50 G 25 G < 25 G Pre 11/1/2014 Level 24 Level 22 Level 20 Level 18 Level 16 Level 14 Level 12 Post 11/1/2014 500 G 400 G 300 G 200 G 100 G 50 G < 50 G

15. 15 Retroactivity of the “Drugs Minus 2” Guideline Amendment Unanimous vote by Commission Adds a new Special Instruction at §1B1.10(e)(1) and a new Application Note 6

16. 16 New §1B1.10(e)(1) & App. Note 6 Special Instruction The court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later Amendment 788 to §1B1.10 (Policy Statement)

17. 17 Impact: Retroactivity of “Drugs Minus 2” Approximately 46,000 offenders will be eligible for a sentence reduction Average eligible sentence reduction will be 18% Average eligible reduction will be 25 months Current average sentence: 11 years, 1 month New average sentence: 9 years

18. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 18 2014 Guideline Amendments Effective November 1, 2014

19. 19 Supervised Release - §5D1.2 Failure to Register as a Sex Offender (18 U.S.C. § 2250) is not a “sex offense” and not subject to §5D1.2(b) (which would increase the maximum of the guideline called-for range at §5D1.2(a) to life, and recommend that the life maximum term be imposed) U.S. v. Segura, 747 F.3d 323 (5 th Cir. 2014)

20. 20 Other Terms of Imprisonment - §5G1.3 does not To qualify under §5G1.3(b) (concurrent sentence and credit for time served), the offense for which the defendant is serving an undischarged term of imprisonment only has to be relevant conduct, and does not have to also increase the offense level in the instant federal sentencing

21. 21 Other Terms of Imprisonment - §5G1.3 (cont.) If the defendant is facing an anticipated but not yet imposed state sentence, then the federal sentence should be imposed concurrently if the state offense is relevant conduct in the instant federal sentencing

22. 22 Illegal Reentry – §2L1.2 Departure Provision §2L1.2, new App. Note 8 provides a departure provision for certain cases in which the defendant is located by immigration authorities while the defendant is serving time in state custody U.S. v. Barrera-Saucedo, 385 F.3d 533 (5 th Cir. 2004)

23. 23 Firearms Felon in Possession (§2K2.1) The cross reference at §2K2.1(c)(1) will be limited to the firearm(s) listed in the offense of conviction

24. 24 Alien Smuggling - §2L1.1 Guiding persons through, or abandoning persons in, a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements is “reckless endangerment” under §2L1.1(b)(6) (2-level increase, with floor of OL 18)

25. 25 Amendments in Response to the Violence Against Women Act Various guidelines amended to address new statutory sections and penalty increases for crimes pertaining to domestic violence, assault, sexual abuse, stalking, and human trafficking

26. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 26 Supreme Court Cases

27. 27 Restitution in Child Porn Offenses “ Restitution is proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses. Applying the statute’s causation requirements in this case, victims should be compensated and defendants should be held to account for the their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others.” Paroline v. U.S., 134 S Ct. 1710 (2014)

28. 28 Restitution in Child Porn Offenses (cont.) “There are a variety of factors, district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining restitution. But district courts might, as a starting point, determine the amount of the victim’s images, then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant conduct in producing those losses.” Paroline v. U.S., 134 S Ct. 1710 (2014)

29. 29 Restitution in Child Porn Offenses (cont.) 1.The number of past criminal defendants found to have contributed to the victim’s general losses; 2.Reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; 3.Any available and reasonably reliable estimate of the broader number of offenders involved; Paroline v. U.S., 134 S Ct. 1710 ( 2014 )

30. 30 Restitution in Child Porn Offenses (cont.) 4.Whether the defendant reproduced or distributed images of the victim; 5.Whether the defendant had any connection to the initial production of the images; 6.How many images of the victim the defendant possessed and other facts relevant to the defendant’s relative causal role.” Paroline v. U.S., 134 S Ct. 1710 (2014)

31. 31 Cases Discussing Paroline Factors U.S. v. Dunn, 2015 WL 525698 (10 th Cir. 2015) Remanding $583,9555 award to Vicky U.S. v. Rogers, 758 F.3d 37 (1 st Cir. 2014) Affirming $3,150 restitution order for “Vicky” U.S. v. Reynolds, 2014 WL 4187936 (E.D. MI 2014) District court ordered $11,000 “Cindy” and $15,500 to “Vicky” U.S. v. Watkins, 2014 WL 3966381 (E.D. CA 2014) District court ordered $2,191.74 to “Vicky”

32. 32 Cases Discussing Paroline Factors U.S. v. Miner, 2014 WL 4816230 (N.D.N.Y 2014) Court ordered $2000 to “Jblonde” & $3,065 to “Andy” U.S. v. Galan, 2014 WL 3474901 (D. OR 2014) District court ordered $3,433 in restitution to “Cindy” U.S. v. Hernandez, 2014 WL 2987655 (E.D. CA 2014) District court ordered $2,282.86 to “Vicky” U.S. v. Crisostomi, 2014 WL 3510215 (D. RI 2014) Court ordered $713.68 to “Vicky” & $638.41 to “Cindy”

33. 33 Mandatory Minimums Any fact that increases a mandatory minimum sentence for a crime is an “element” of the crime, not a “sentencing factor,” that must be submitted to a jury; overruling Harris v. U.S., 536 U.S. 545. The finding as to whether a defendant brandished a gun is an element of the offense and must be submitted to the jury Alleyne v. U.S. 133 S. Ct. 2151 (2013)

34. 34 Alleyne Issues U.S. v. Olvera, 2015 WL 110149 (5 th Cir. 2015) Alleyne does not apply retroactively U.S. v. King, 773 F.3d 48 (5 th Cir. 2014) Allyene does not affect judge’s determination of safety valve

35. 35 Alleyne Issues U.S. v. Tuma, 738 F.3d 681 (5 th Cir. 2013) Allyene only applies to facts that increase a mandatory minimum sentence not guideline enhancements U.S. v. Wallace, 759 F.3d 486 (5 th Cir. 2014) Alleyne does not apply to prior convictions

36. 36 ACCA and the Modified Categorical Approach Courts may not apply the modified categorical approach to sentencing under ACCA when the crime of which defendant was convicted has a single, indivisible set of elements U.S. v. Teran-Salas, 767 F.3d 453 (5 th Cir. 2014) U.S. v. Rodriguez-Negrete, 772 F.3d 221 (5 th Cir. 2014) Descamps v. U.S. 133 S. Ct. 2276 (2013)

37. 37 Cert. granted: ACCA Case Whether mere possession of a shotgun with a short barrel should be treated as a violent felony under the Armed Career Criminal Act (argued November 5, 2014) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague (to be argued April 2015) Johnson v. U.S. 526 F. App’x 708 (8 th Cir. 2013), cert granted, 134 S. Ct. 1871 (2014)

38. 38 Recent Fifth Circuit Cases

39. 39 Relevant Conduct Cases Remanded U.S. v. Hagman, 740 F.3d 1044 (5 th Cir. 2014) Government did not prove that possessed additional firearms for purposes of §2K2.1(b)(1) U.S. v. Benns, 740 F.3d 370 (5 th Cir. 2014) Court did not make necessary findings regarding whether the uncharged conduct was part of the same course of conduct in mortgage fraud

40. 40 Cases Remanded U.S. v. Rodriguez-Lopez, 756 F.3d 422 (5 th Cir. 2014) §3B1.1 leadership enhancement should not have applied U.S. v. Palacios, 756 F.3d 325 (5 th Cir. 2014) Government could not withhold sentence reduction for §3E1.1. based on defendant’s refusal to waive right to appeal U.S. v. Robinson, 741 F.3d 588 (5 th Cir. 2014) Court can consider cooperation by defendant at § 3553(a) and not just at §5K1.1

41. 41 Acceptance of Responsibility U.S. v. Torres-Perez, 2015 WL 394105 (5 th Cir. 2015) §3E1.1 third level cannot be denied only on waiver of appeal

42. 42 Illegal Reentry U.S. v. Rodriguez-Rodriguez, 2015 WL 51264, (5 th Cir. 2015) TX Stalking not a COV because threat of bodily injury required by statute can occur in even absence of threat to use physical force U.S. v. Martinez-Lugo, 773 F.3d 678 (5 th Cir. 2014) GA possession with intent to distribute marijuana without remuneration is not a drug trafficking offense

43. 43 Illegal Reentry U.S. v. Sanchez-Sanchez, DN 14-10305 (5 th Cir. Feb. 23, 2015) TX Aggravated assault 22.02 is divisible statute and 22.02(a)(4) is a crime of violence under enumerated approach based on charging document and Texas procedure regarding plea agreement U.S. v. Garcia-Perez, DN 13-20482 (5 th Cir. Feb. 23, 2015) FL manslaughter not a COV under either “force” component or enumerated offense

44. 44 Child Porn U.S. v. Baker, 742 F.3d 618 (5 th Cir. 2014) No knowledge required for distribution 2-level SOC to apply U.S. v. Richardson, 713 F.3d 232 (5 th Cir. 2013) §2G2.2(b)(3) distribution SOC applied to P2P case

45. 45 Child Porn U.S. v. Jenkins, 712 F.3d 209 (5 th Cir. 2013) §3A.1.1 (vulnerable victim) can apply to receipt, trafficking, or possession of child porn cases U.S. v. Ramos, 739 F.3d 250 (5 th Cir. 2014) Here, vulnerable victims enhancement was duplicative of age and sadistic-conduct enhancement. While there are some vulnerabilities that can be unaccounted for age enhancement, but here where the kids were eight to ten year old victims, §3A1.1 should not have applied

46. 46 Sex Offenses U.S. v. Pringler, 765 F.3d 445 (5 th Cir. 2014) §2G1.3(b)(3) text of the guideline must be followed and not the application note which is in conflict with the guideline Undue influence SOC applied

47. 47 Drugs U.S. v. Foulks, 747 F.3d 914 (5 th Cir. 2014) Distribution of meth, even without more, may subject defendant to the important of meth SOC at 2D1.1(b)(5)

48. 48 Health Care Fraud U.S. v. Collins, 774 F.3d 256 (5 th Cir. 2014) Court could use average loss from successful fake automobile injury claims to determine intended loss on unsuccessful claims and could rely on hearsay Sophisticated means SOC applied Mass marketing SOC for advertising on TV U.S. v. Willett, 751 F.3d 335 (5 th Cir. 2014) §3B1.3 (Abuse of Trust) applied in medicare fraud

49. 49 Health Care Fraud U.S. v. St. Junius, 739 F.3d 193 (5 th Cir. 2013) §3B1.3 (Abuse of Trust) applied in health care fraud Restitution amount exceeded the losses from count of conviction U.S. v. Oke Imo, 739 F.3d 226 (5 th Cir. 2014) §2B1.1 loss calculation in health care fraud, court could use billed amount

50. 50 Health Care Fraud U.S. v. NJoku, 737 F.3d 55 (5 th Cir. 2013) §2B1.1 loss calculation in health care fraud U.S. v. Valdez, 726 F.3d 684 (5 th Cir. 2013) §3A1.1 (Vulnerable victim) applies in health care §3B1.3 (Abuse of Trust) applies in Medicare §2B1.1(b)(9) (Sophisticated) should not have applied U.S. v. Read, 710 F.3d 219 (5 th Cir. 2012) Abuse of trust in Medicare fraud

51. 51 Health Care Fraud U.S. v. Sharma, 703 F.3d 318 (5 th Cir. 2012) Restitution amount in Medicare fraud remanded U.S. v. De Leon, 728 F.3d 500 (5 th Cir. 2013) Incorrect restitution award in Medicare case – court included loss outside the time frame

52. 52 Identity Theft U.S. v. Myers, 2014 WL 5483531(5 th Cir. 2014) Vulnerable victim enhancement at §3A1.1 applied for defendant who got list of residents identifying information from nursing home. A reasonable person, in the defendant’s position should know that at least some of the residents are at the nursing home due to their mental or physical disabilities

53. 53 Mortgage Fraud U.S. v. Beachem, 774 F.3d 267 (5 th Cir. 2014) §2B1.1 number of victims applied §2B1.1 sophisticated means applied Restitution award remanded because court used the original loan amount which is irrelevant in determining restitution amount when a mortgage is purchased on the secondary market

54. 54 Bribery U.S. v. Richard, 2014 WL 7398642 (5 th Cir. 2014) Court correctly concluded that amount of bribe included co-defendant’s bribe as well because they were in a conspiracy

55. 55 Reasonableness U.S. v. Diehl, 2015 WL 110145 (5 th Cir. 2015) 600 month above guideline sentence (range was 210-262) for production of child porn involving 3, 8, and 10 year old girls was reasonable U.S. v. Fuentes, 2014 WL 723674 (5 th Cir. 2014) Above guideline sentenced based on § 2L1.2 note 7 because defendant’s prior conviction underrepresented seriousness of criminal conduct (indecent contact) Court could use police report facts to base its upward departure

56. 56 Alien Smuggling U.S. v. Reyna-Esparza, 2015 WL 394099 (5 th Cir. 2015) §2L1.1(b)(5) weapon enhancement for brandishing applied U.S. v. Ramos-Delgago, 763 F.3d 398 (5 th Cir. 2014) §2L1.1(b)(7) (injury and death enhancement) does not require a causation U.S. v. Cedillo-Narvaez, 761 F.3d 397 (5 th Cir. 2014) §3A1.1 Vulnerable victim applied in in kidnapping illegal aliens case

57. 57 Supervised Release U.S. v. Ferndandez, 2015 WL 178999 (5 th Cir. 2015) Supervised release condition requiring software installation improper because it was not related to defendant’s Failure to Register conviction when his only prior sex offense conviction was for sexual assault of 14 year old which did not involve a computer

58. 58 Supervised Release U.S. v. Oswalt, 771 F.3d 849 (5 th Cir. 2014) Court could re-impose 30 month term of supervised release after revocation

59. 59 Appeal Waiver U.S. v. Higgins, 739 F.3d 733 (5 th Cir. 2014) Appeal waiver incudes supervised release and its conditions U.S. v. Keele, 742 F.3d 192 (5 th Cir. 2014) Here, appeal waiver covered restitution. Note that not all appeal waivers will encompass restitution.

60. 60 Time Served U.S. v. Fernandez, 743 F.3d 453 (5 th Cir. 2014) A time-served “credit” noted in a prior sentencing order cannot be suspended, the period credited serves as the measure for assessing criminal history points in accordance with §4A1.2(b)(2) when the prior sentence is otherwise suspended.

61. 61 Career Offender U.S. v. Guerrero, 768 F.3d 351 (5 th Cir. 2014) A prior conviction for which the defendant had not yet been sentenced at the time of the federal sentencing counts as a predicate offense for career offender purposes U.S. v. Jones, 752 F.3d 1039 (5 th Cir. 2014) Federal escape from halfway house not a COV at §4B1.2 U.S. v. Nieto, 721 F.3d 357 (5 th Cir. 2013) TX injury to a child is a COV at §4B1.2 under the residual clause

62. 62 Categorical Approach U.S. v. Rodriguez-Negrete, 772 F.3d 221 (5 th Cir. 2014) SC possession with intent to distribute is a drug trafficking offense under §4B1.2 using the modified approach No realistic probability for administer part as defendant did not show any convictions under this section of the statute

63. 63 Immigration U.S. v. Martinez-Lugo, 773 F.3d 678 (5 th Cir. 2014) GA possession with intent to distribute marijuana without remuneration is not a drug trafficking offense U.S. v. Albonoz, 770 F.3d 11391 (5 th Cir. 2014) NY attempted burglary in 2 nd degree is a COV because it meets enumerated offense of burglary of dwelling

64. 64 Immigration U.S. v. Ceron, 2014 WL 7239682 (5 th Cir. 2014) FL aggravated battery is a COV under modified approach as defendant could not show realistic probability that there was a conviction for mere tapping on shoulder for offense U.S. v. Albonoz, 770 F.3d 11391 (5 th Cir. 2014) NY attempted burglary in 2 nd degree is a COV because it meets enumerated offense of burglary of dwelling

65. 65 Immigration U.S. v. Rodriguez-Rodriguez, 2015 WL 51264, (5 th Cir. 2015) TX Stalking not a COV because threat of bodily injury required by statute can occur in even absence of threat to use physical force U.S. v. Virgil, 774 F.3d 331 (5 th Cir. 2014) LA sexual battery is a COV because it meets enumerated offense of sexual abuse of a minor

66. 66 Immigration U.S. v. Albornoz-Albornoz, 2014 WL 5573313 (5 th Cir. 2014) NY attempted burglary is a COV because not broader than generic definition of burglary U.S. v. Rodriguez-Salazar, 768 F.3d 437 (5 th Cir. 2014) TX theft without effective consent is theft and is therefore an aggravated felony

67. 67 Immigration U.S. v. Cortez-Cortez, 770 F.3d 355 (5 th Cir. 2014) IN sexual misconduct with a minor was “sexual abuse of a minor” U.S. v. Segovia, 770 F.3d 351 (5 th Cir. 2014) MD conspiracy to commit robbery with dangerous and deadly weapon is a COV under force component

68. 68 Immigration U.S. v. Teran-Salas, 767 F.3d 453 (5 th Cir. 2014) TX Possession with Intent to Deliver (§481.002(14)) was a drug trafficking offense and an aggravated felony because defendant did not prove a realistic probability that Texas would prosecute under an administering theory in a way that does not constitute dispensing or distributing under the guidelines U.S. v. Sanchez-Espinal, 762 F.3d 425 (5 th Cir. 2014) NY aggravated criminal contempt is an aggravated felony

69. 69 Immigration U.S. v. Garcia-Figueroa, 753 F.3d 179 (5 th Cir. 2014) FL attempted aggravated battery on a law enforcement officer with a law enforcement gun is a COV under force U.S. v. Elizondo-Hernandez, 755 F.3d 779 (5 th Cir. 2014) TX indecency with minor by contact is sexual abuse of a minor at §2L1.2

70. 70 Immigration U.S. v. Herrera-Alvarez, 753 F.3d 132 (5 th Cir. 2014) LA aggravated battery is a COV under modified approach U.S. v. Conde-Castaneda, 753 F.3d 172 (5 th Cir. 2014)* TX burglary was a COV at §2L1.2 under modified approach using judicial confession

71. 71 Immigration U.S. v. Pascacio-Rodriguez, 749 F.3d 353 (5 th Cir. 2014) NV conspiracy to commit murder is a COV at §2L1.2 as the generic definition does not require an overt act U.S. v. Carrasco-Tercero, 745 F.3d 192 (5 th Cir. 2014) NM aggravated assault is a COV at §2L1.2 U.S. v. Chacon, 742 F.3d 219 (5 th Cir. 2014) MD attempted sexual contact is a COV as it is sexual abuse against a minor

72. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 72 Relevant Conduct §1B1.3

73. 73 Relevant Conduct Synopsis The defendant is held accountable for anything she does during the offense of conviction, preparing for that offense, or avoiding detection/responsibility for that offense The defendant might be held accountable for some conduct of co-conspirators

74. 74 Relevant Conduct Synopsis (cont.) For certain offense types, the defendant is also held accountable for conduct outside the offense of conviction, when in the same course of conduct or common scheme or plan (e.g. drug trafficking, fraud, felon in possession)

75. 75 (a)(1) & (a)(2): Analysis WHEN: Offense of Conviction (a)(1)(A): Acts of the defendant (a)(1)(B): Certain acts of others (3-part analysis) WHO: DuringIn preparation Avoiding detection (a)(1): Same course of conduct/ Common scheme or plan (a)(2):

76. 76 Holding a Defendant Accountable for Her Acts Under Relevant Conduct §1B1.3(a)(1)(A)

77. 77 (a)(1)(A) Analysis of §1B1.3(a)(1) WHEN: Offense of Conviction (a)(1)(A): Acts of the defendant: Acts committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant WHO: DuringIn preparation Avoiding detection (a)(1):

78. 78 Holding a Defendant Accountable for the Acts of Others §1B1.3(a)(1)(B)

79. 79 3-Part Analysis of (a)(1)(B) 1.The scope of the defendant’s jointly undertaken criminal activity 2.If acts of others were in furtherance of the defendant’s undertaking, and 3.If acts of others were reasonably foreseeable in connection with the defendant’s undertaking Determinations required for acts of others to be relevant conduct

80. 80 Determination of Scope of Undertaking An individualized determination Based on each defendant’s undertaking §1B1.3, Comment Note 2

81. 81 Determining Scope in a Conspiracy Scope of criminal activity jointly undertaken by a defendant is not necessarily the same as the scope of the entire conspiracy §1B1.3, App. Note 2

82. 82 Determining Scope in a Conspiracy (cont.) Relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct. “Bright Line Rule” of §1B1.3, App. Note 2

83. 83 Example: Holding Defendant Accountable for the Act of Another Def. convicted of drug conspiracy: §2D1.1 Conspiracy involved multiple importations; Def. was involved in two of those If Def.’s undertaking was two importations, Def. will only be accountable for acts of others within those two importations, if reasonably foreseeable §1B1.3(a)(1)(B)

84. 84 Example: Holding Defendant Accountable for the Act of Another Def. convicted of robbery: §2B3.1 Co-participant carried gun If determined that Def.’s undertaking with co-participant was robbery co-participant carried gun in furtherance, and a reasonable person would have foreseen that act it will be relevant conduct SOC for firearm will apply §1B1.3(a)(1)(B)

85. 85 Holding a Defendant Accountable for Acts Outside the Offense of Conviction §1B1.3(a)(2): “Expanded” Relevant Conduct

86. 86 Analysis of §1B1.3(a)(2) WHEN: Offense of Conviction (a)(1)(A): Acts of the defendant (a)(1)(B): Certain acts of others (3-part analysis) WHO: Same course of conduct/ Common scheme or plan (a)(2):

87. 87 Offenses for Which “Expanded” Relevant Conduct Applies The applicable Chapter Two guideline must be one included in a list at §3D1.2(d) (or be of that type), which is the list used for “grouping” multiple counts of conviction of a certain type NOTE: Multiple counts of conviction are not necessary to have “expanded” relevant conduct §1B1.3(a)(2) & “Rule (d)”

88. 88 Offenses Included at §3D1.2(d):

89. 89 Examples of Chapter Two Guidelines on the Included List at §3D1.2(d) Drug trafficking Fraud, theft, & embezzlement Firearms Alien smuggling Trafficking/possession of child pornography “Expanded Relevant Conduct” at §1B1.3(a)(2) Applies Money laundering Tax violations Counterfeiting Bribery Other similar offenses

90. 90 “Common Scheme or Plan” Offenses must be connected to each other by at least one common factor, such as: Common victims Common accomplices Common purpose Similar modus operandi See U.S. v. Rhine, 583 F.3d 878 (5th Cir. 2009) and U.S. v. Wall, 180 F.3d 641 (5th Cir. 1999) §1B1.3(a)(2); App. Note 9(A)

91. 91 “Same Course of Conduct” Similarity Regularity (repetitions) Temporal proximity U.S. v. Booker, 334 F.3d 406 (5 th Cir. 2003)(“We have generally used a year as a benchmark for determining temporal proximity.”) §1B1.3(a)(2); App. Note 9(B);

92. 92 U.S. v. Ortiz, 613 F.3d 550 (5 th Cir. 2010) “There are no such distinctive similarities here. Other than the fact that the cocaine was discovered in the same condominium as the marijuana, there is no evidence that the marijuana and cocaine offenses are similar. There is no evidence that there were any common accomplices, suppliers, or buyers between the two offenses. In addition, the marijuana offense involved massive quantities of the drug, much of it in plain view, throughout the condominium. In contrast, the relatively small amount of cocaine was located in one bag hidden inside Cuellar's suitcase. The fact that both marijuana and cocaine are illegal drugs is not enough for us to find that they arise from the same course of conduct.”

93. 93 Same course of conduct “Here, at least 17 months separate[d] any participation by Rhine in the Fish Bowl drug-trafficking ring from his offense[s] of conviction.” Id. at 887. “[S]imilarity is lacking [ ] as the differences between the[ ] offenses are significant. The quantities, methods of distribution, participants, and nature of the transactions—as well as the defendant's role in them—all vary substantially.” Id. at 889. U.S. v. Rhine, 583 F.3d 878 (5 th Cir. 2010)

94. 94 Same course of conduct “Rhine's instant offense[s] involved possession of a very small quantity (1.89 grams) of crack cocaine with intent to sell some lesser portion of it to an individual buyer for five dollars; the sale took place in a vehicle; and Buchanan, the individual purchaser for her personal consumption, had just learned about Rhine from some unnamed source at a service station. U.S. v. Rhine, 583 F.3d 878 (5 th Cir. 2010)

95. 95 Offenses for Which “Expanded” Relevant Conduct Does Not Apply “Expanded” relevant conduct does not apply if the applicable Chapter Two guideline is on the “excluded list” at §3D1.2(d) §1B1.3(a)(2) & §3D1.2(d)

96. 96 Offenses Excluded at §3D1.2(d):

97. 97 Examples of Chapter Two Guidelines in the Excluded List at §3D1.2(d) Robbery Assault Murder Kidnapping Criminal sexual abuse Production of child pornography Extortion Blackmail Burglary Other similar offenses “Expanded Relevant Conduct” at §1B1.3(a)(2) Does Not Apply

98. 98 Example: RelCon Does NOT Include Same Course of Conduct/ Common Scheme or Plan Def. convicted of one count of robbery of $5,000; applicable guideline §2B3.1 which is on the “excluded list” at §3D1.2(d) Even if determined that Def. robbed $5,000 on each of four other occasions, those losses will not be relevant conduct Loss will be $5,000 §1B1.3(a)(1)

99. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 99 Chapter Four 99 Criminal History

100. 100

101. 101 Criminal History T “Prior Sentences” (1, 2, or 3 points each) T “Status” (2 points) Measures the seriousness of a defendant’s prior record and the likelihood of recidivism

102. 102 Criminal History Points Prior Offense Committed at 18 or Older 3  13 months 2  60 days 1 All others** * If otherwise countable ** Exceptions may apply Within 15 yrs. of prior sentence imposition or release Within 10 yrs. of prior sentence imposition (max of 4) Time Frame (Earliest Date of Relevant Conduct) Points* Sentence

103. 103 Length of Prior Sentences Set by maximum sentence imposed If sentence or any portion is suspended, the maximum is established by the unsuspended portion Unaffected by release E.g., release to parole or for “good time” §4A1.2(a) and App. Note 2

104. 104 Is the Previous Sentence Part of Relevant Conduct?

105. 105 “Prior Sentence” §4A1.2(a)(1) & App. Note 1 Conduct that is part of the relevant conduct of the instant offense will not be a “prior sentence” for criminal history

106. 106 “Prior Sentence” (cont.) §4A1.2(a)(1) & App. Note 1 Note: Some Chapter Two guidelines that consider a defendant’s prior convictions and certain other conduct give direction about also using those considerations in Criminal History, e.g., §2K2.1 (Felon in Possession), App. Note 10; §2L1.2 (Illegal Reentry), App. Note 6

107. 107 Is the Previous Sentence Within the Time Frame?

108. 108 Criminal History Points Prior Offense Committed at 18 or Older 3  13 months 2  60 days 1 All others** * If otherwise countable ** Exceptions may apply Within 15 yrs. of prior sentence imposition or release Within 10 yrs. of prior sentence imposition (max of 4) Time Frame (Earliest Date of Relevant Conduct) Points* Sentence

109. 109 The Interplay Between Criminal History Time Frames and Relevant Conduct 15 years 10 years 5 years Earliest Date of Relevant Conduct Offense of Conviction Date of Plea /Verdict Date of Sentencing

110. 110 Relevant Conduct and “Status” “Status” if under criminal justice sentence during any relevant conduct §4A1.1(d) & App. Note 4 Note: “status” can only count if the sentence from which it resulted has been counted

111. 111 Excluded Offenses §4A1.2(c)(1) & (c)(2)

112. 112 Excluded Offenses §4A1.2(c)(1) - List of misdemeanors and petty offenses that are only counted when: The sentence was probation of more than one year The sentence was imprisonment of at least thirty days The prior offense was similar to an instant offense E.g., driving without license or with suspended license §4A1.2(c)(1) & (c)(2) & (o)

113. 113 Excluded Offenses (cont.) §4A1.2(c)(2) - List of misdemeanor and petty offenses that are never counted E.g., hitchhiking §4A1.2(c)(1) & (c)(2) & (o)

114. 114 Treatment of Multiple Prior Sentences §4A1.2(a)(2)

115. 115 Multiple Prior Sentences Requires a determination of whether multiple prior sentences are counted “separately” or as a “single sentence” §4A1.2(a)(2)

116. 116 Multiple prior sentences for offenses separated by an intervening arrest are counted separately §4A1.2(a)(2) Threshold Determination: Intervening Arrest

117. 117 Examples: Separated by Intervening Arrest Intervening Arrest offense arrested offense arrested offense arrested offense arrested Not an Intervening Arrest

118. 118 “Intervening Arrest” §4A1.2(a)(2) “i.e., the defendant is arrested for the first offense prior to committing the second offense”

119. 119 Examples: Separated by Intervening Arrest Intervening Arrest for Thefts 1 & 2 Theft 1 offense Arrested Theft 1 Theft 2 offense Arrested Theft 2 Not an Intervening Arrest for Thefts 1 & 2 Theft 1 offense Arrested DUI Theft 2 offense Arrested Thefts 1 & 2

120. 120 §4A1.2(a)(2) AND Single Sentence Criteria Multiple prior sentences will be treated as a “single sentence” if 1.Prior sentences are for offenses NOT separated by an intervening arrest 2.The offenses either Were named in the same charging document, or Resulted in sentences imposed on the same day

121. 121 Impact of a “Single Sentence” If concurrent sentences Use the longest sentence If consecutive sentences Use the aggregate length of the sentences §4A1.2(a)(2) Rather than add points for each prior sentence:

122. 122 1 mo. 4 mos. consec. 9 mos. consec. “Single Sentence” 3 pts. Length Point Assignments { 1 pt. 2 pts. 2 pts. 5 pts.14 mos. Counted Separately Point Assignments and “Single” Sentences Example Consecutive Sentences

123. 123 1 mo. 4 mos. concur. 9 mos. concur. “Single Sentence” 2 pts. Length Point Assignments { 1 pt. 2 pts. 2 pts. 5 pts.9 mos. Counted Separately Point Assignments and “Single” Sentences Example Concurrent Sentences

124. 124 §4A1.1(e) A “Single Sentence” That Includes Crimes of Violence When multiple prior sentences are treated as a “single sentence,” §4A1.1(e) adds 1 point for each crime of violence that did not result in additional points under §4A1.1(a), (b), or (c)

125. 125 §4A1.1(e) A “Single Sentence” That Includes Crimes of Violence (cont.) Example: –Defendant was convicted of 3 bank robberies that had not been separated by intervening arrests –Defendant was sentenced on the same day to 5 years for each robbery to run concurrently –Single sentence: 3 points (§4A1.1(a)) –1 point added for crime of violence that did not receive points: 2 additional points (§4A1.1(e))

126. 126 Chapter Four “Overrides” §§4B1.1 - 4B1.2 Career Offender §4B1.3 Criminal Livelihood §4B1.4 Armed Career Criminal §4B1.5 Repeat and Dangerous Sex Offender Against Minors

127. 127 §4B1.1 Career Offender Criteria Defendant at least 18 at time of instant offense Instant offense of conviction is a felony for a “crime of violence” or a “controlled substance offense” At least two prior felony convictions for a “crime of violence” or “controlled substance offense,” counted separately under the provisions of §4A1.1(a), (b), or (c)

128. 128 Career Offender “Override” Criminal History Category is VI Offense level determined by a table based on statutory maximum Unless the offense level from Chapters Two and Three is greater §4B1.1; Pursuant to Directive at 28 § 994(h)

129. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 129 Chapter Three, Part D Multiple Counts Application

130. 130

131. 131 Multiple Counts Rationale Determine a single offense level Prevent “double-counting” Provide incremental punishment Limit prosecutorial impact

132. 132 Process of “Grouping” The determination as to whether multiple counts of conviction are to be treated as a single composite harm or as separate harms as defined by the guidelines’ “grouping rules”

133. 133 “Grouping Rules” (a) Same Victim, Same Act (b) Same Victim, Two or More Acts (c) Conduct Treated by Characteristic (d) Based on an Aggregate §3D1.2

134. 134 Steps in Multiple Counts 1. Grouping - Group under “Rule (d)” - Group under “Rules (a), (b), or (c)” 2.Incremental Increases - Assignment of units - Additional offense levels

135. 135 Step 1: Grouping “Rule (d)” If counts use the same Chapter Two guideline If that guideline is included at §3D1.2(d): Apply the guidelines as in single count application and

136. 136 Offenses Included at §3D1.2(d):

137. 137 Examples of Chapter Two Guidelines in the Included List at §3D1.2(d) Drug trafficking Fraud, theft, & embezzlement Firearms Alien smuggling Trafficking/possession of child pornography NOTE: This is the Same List for which “Expanded Relevant Conduct” at §1B1.3(a)(2) Applies Money laundering Tax violations Counterfeiting Bribery Other similar offenses

138. 138 Grouping under “Rule (d)” Example: One application with the offense level for the group based on the aggregate and the conduct “taken as a whole” Fraud §2B1.1 Fraud §2B1.1 Fraud §2B1.1 Fraud §2B1.1

139. 139 Example of Rule (d) - Smuggling Aliens Defendant is convicted of three counts of smuggling aliens, each on a specific date; violation of 8 USC § 1324(a); applicable guideline §2L1.1 Each count involves Defendant smuggling five aliens Defendant possessed a firearm during one trip Because the applicable guideline for the three counts is in the included list at §3D1.2(d), the counts will group under Rule (d)

140. 140 Example of Rule (d) - Smuggling Aliens (cont.) Because the relevant conduct of three counts includes the smuggling of 15 aliens, that is the number that will be used in the application of the SOC at §2L1.1(b)(2) Because Defendant possessed a firearm during one of the offenses, the SOC at §2L1.1(b)(5) for possession of a firearm will apply

141. www.ussc.gov(202) 502-4545@theusscgovpubaffairs@ussc.gov 141 Application of Multiple Counts that Do Not Group under “Rule (d)”

142. 142 Offenses Excluded at §3D1.2(d):

143. 143 Examples of Chapter Two Guidelines in the Excluded List at §3D1.2(d) Robbery Assault Murder Kidnapping Criminal sexual abuse Production of child pornography Extortion Blackmail Burglary Other similar offenses

144. 144 Counts Involving Chapter Two Guidelines on the “Excluded” List Counts excluded from grouping under “Rule (d)” are not precluded from grouping under “Rules (a), (b), or (c)” however §3D1.2(d)

145. 145 Steps in Multiple Counts 1. Grouping - Group under “Rule (d)” - Group under “Rules (a), (b), or (c)” 2.Incremental Increases - Assignment of units - Additional offense levels

146. 146 Step 1: Grouping “Rules (a), (b), or (c)” If counts “group” under §3D1.2(a), (b), or (c): Apply the guidelines separately to get an offense level for each count Use the highest offense level

147. 147 “Rule (a)” “When counts involve the same victim and the same act or transaction.”

148. 148 “Rule (b)” “When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.”

149. 149 “Rule (c)” “When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.”

150. 150 Application of Multiple Counts that Do Not Group under “Rule (d)” = adjusted offense level Acceptance = Offense Level Total Count 1 = adjusted offense level Chapter Three Victim Role Obstruction Multiple Counts Adjustment (Process of Grouping and Assignment of Units) = Combined Adjusted Offense Level Chapter Two Count 2 Chapter Two Chapter Three Victim Role Obstruction

151. 151 Count 1 OL 20 Count 2 OL 23 Must determine whether counts group under “Rules (a), (b), or (c)” or whether they do not group and “units” must be assigned Application of Multiple Counts that Do Not Group under “Rule (d)”

152. 152 Impact of Counts Grouping under “Rules (a), (b), or (c)” Count 1 OL 20 Count 2 OL 23 (Analogous to counts running concurrently with each other) Offense Level 23 for the group

153. 153 Grouping under “Rule (a)” Aggravated Assault (same victim) OL 20 Robbery (same victim) OL 23 Offense Level 23 for the group

154. 154 Grouping under “Rule (b)” Conspiracy to Rob (same victim) OL 23 Robbery (same victim) OL 23 Offense Level 23 for the group

155. 155 Grouping under “Rule (c)” Assault (of teller) OL 17 SOC addresses injury to teller Robbery (of bank) OL 24 Offense Level 24 for the group

156. 156 Steps in Multiple Counts 1. Grouping - Group under “Rule (d)” - Group under “Rules (a), (b), or (c)” 2.Incremental Increases - Assignment of units - Additional offense levels

157. 157 Step 2: Incremental Increases Compare the offense level of the highest group to the offense levels of the other groups, and assign “units” Increase the offense level of the highest group according to a guideline table corresponding to the number of “units” If more than one group:

158. 158 Assign “Units” and Additional Levels Simple Example: Robbery 1 OL 24 Robbery 2 OL 26 Robbery 1 §2B3.1 OL 24 Robbery 2 §2B3.1 OL 26

159. 159 Assignment of Units (§3D1.4) Highest Offense Level (or Equal) 1 1-4 Levels Less Serious 1 5-8 Levels Less Serious ½ 9 or More Levels Less Serious 0

160. 160 Additional Offense Levels (§3D1.4) Number Increase in of Units Offense Level 1 None 1½ add 1 level 2 add 2 levels 2½ - 3 add 3 levels 3½ - 5 add 4 levels more than 5 add 5 levels

161. 161 Assignment of Units (§3D1.4) Robbery 1 Group OL 24 Robbery 2 Group OL 26 Assignment of Units 1 unit Total Units 2

162. 162 Additional Offense Levels (§3D1.4) Total of 2 units =2 additional offense levels 26 (higher group (Robbery 2)) + 2 additional offense levels 28 combined offense level

163. 163 Multiple Counts and Acceptance of Responsibility Acceptance of responsibility is determined only after application of the guidelines for multiple counts has established a single combined adjusted offense level Acceptance (the reduction of 2 or 3 offense levels) is based upon consideration of all counts