1. Relevant Conduct Within a Conspiracy
Heart of America
Sentencing Guidelines Conference
April 27, 2018
Kansas City, KS
Tom Bartee, Branch Chief, FPD, D/KS
Rusty Burress, Trainer, USSC
Sheri Catania, Lead OCDETF AUSA, D/KS
April 20, 2018

2. Relevant Conduct Synopsis
Defendant accountable for acts he/she did in furtherance of the offense of conviction
Defendant accountable for certain acts others did in furtherance of the offense of conviction 2

3. Relevant Conduct Synopsis (cont.)
For certain offenses, the defendant also accountable for acts he/she did, and certain acts others did, in the same course of conduct or common scheme or plan as the offense of conviction 3

4. Relevant Conduct Analysis: §1B1.3(a)(1) & (a)(2)
WHO:
(a)(1)(A): Acts of the defendant
(a)(1)(B): Certain acts of others (3-part analysis)
WHEN:
Offense of Conviction
Avoiding detection/ responsibility
(a)(1):
In preparation
During
Same course of conduct/ common scheme or plan as the offense of conviction
(a)(2): 4 4 4

5. Relevant Conduct Analysis: §1B1.3(a)(1)
(a)(1)(A): Acts of the defendant
(a)(1)(B): Certain acts of others (3-part analysis)
WHO:
Offense of Conviction:
BROAD CONSPIRACY COUNT
WHEN:
(a)(1):
In preparation
During
Avoiding detection/ responsibility 5 5 5

6. 3-Part Analysis of (a)(1)(B)
Determinations required for acts of others to be relevant conduct
What was the scope of the defendant’s jointly undertaken criminal activity?
Were the acts of others “in furtherance of” the defendant’s jointly undertaken criminal activity?
Were the acts of others “reasonably foreseeable” in connection with the defendant’s jointly undertaken criminal activity?
AND 6 6 6 6

7. Determining Scope in a Conspiracy
§1B1.3, App. Note 3(B)
Scope of criminal activity jointly undertaken by a defendant is not necessarily the same as the scope of the entire conspiracy (i.e., Pinkerton doctrine is broader than “jointly undertaken criminal activity”)

8. Determining Scope of Undertaking *
§1B1.3, App. Note 3(A)
“Jointly undertaken criminal activity”:
A criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy.

9. Determining Scope of Undertaking *
§1B1.3, App. Note 3(B)
“Scope” refers to the scope of the specific conduct and objectives embraced by the defendant’s agreement.

10. Determining Scope of Undertaking *
§1B1.3, App. Note 3(B)
An individualized determination.
Based on each defendant’s agreement regarding the jointly undertaken criminal activity.
Can be established by explicit agreements and implicit agreements that can be inferred from the conduct of the defendant and others.

11. Individualized Findings Required *
U.S. v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013)
A sentencing court must make particularized findings to support the attribution of a coconspirator's actions to the defendant as relevant conduct, whether or not the defendant asks it to do so or disputes the attribution.
U.S. v. Adejumo, 772 F.3d. 513 (8th Cir. 2014)
The Guidelines require an individualized assessment of Adeniran's criminal undertaking, and being convicted on the same charge as a co-defendant... does not necessarily equate to a calculation of the same offense level.

12. Determining Scope in a Conspiracy *
§1B1.3, App. Note 3(B)
Scope of criminal activity jointly undertaken by a defendant is not necessarily the same as the scope of the entire conspiracy (i.e., Pinkerton doctrine is broader than “jointly undertaken criminal activity”).
Hence relevant conduct is not necessarily the same for every participant.

13. Determining Scope in a Conspiracy (cont.) *
“Bright Line Rule” §1B1.3, App. Note 3(B)
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.   13 13 13 13

14. 3-Part Analysis of (a)(1)(B)
Determinations required for acts of others to be relevant conduct
What was the scope of the defendant’s jointly undertaken criminal activity?
Were the acts of others “in furtherance of” the defendant’s jointly undertaken criminal activity?
Were the acts of others “reasonably foreseeable” in connection with the defendant’s jointly undertaken criminal activity?
AND 14 14 14 14

15. “Reasonably Foreseeable”
§1B1.3, App. Note 3(D)
Only one part of the conjunctive 3-part analysis regarding the conduct of others ((a)(1)(B))
Foreseeability alone does not make a co-participant’s act relevant conduct

16. A Reminder on “Reasonably Foreseeable”
§1B1.3, App. Note 3(D)
Reasonable foreseeability applies only to the conduct of others in the 3-part analysis under (a)(1)(B)
Reasonable foreseeability does not apply to the defendant’s own conduct under (a)(1)(A)
Acts the defendant committed, aided, abetted, counseled, commanded, induced, or willfully caused

17. A Reminder on “Reasonably Foreseeable” (cont.)
§1B1.3, App. Note 3(D)
Defendant is responsible for the results of acts he committed even if the results were not reasonably foreseeable
Defendant is responsible for the results of acts he aided, abetted, counseled, etc., another to do, even if the results were not reasonably foreseeable

18. Reasonable Foreseeability *
U.S. v. Flores, 73 F.3d 826 (8th Cir. 1996)
Reasonable foreseeability analysis based on the ongoing versus limited nature of the agreement, defendant’s level of commitment to the conspiracy, and the benefits derived
U.S. v. Gonzales, 841 F.3d 339 (10th Cir. 2016)
Pinkerton analysis utilized in holding defendant responsible for murder based on “a direct, and entirely foreseeable, result” of a conspiracy in which firearms weapons were used in furtherance 18

19. Relevant Conduct Analysis: §1B1.3(a)(1) & (a)(2)
(a)(1)(A): Acts of the defendant
(a)(1)(B): Certain acts of others (3-part analysis)
WHO:
Offense of Conviction: SUBSTANTIVE COUNT
WHEN:
(a)(1):
Avoiding detection
In preparation
During
Same course of conduct or common scheme or plan as the offense of conviction
(a)(2): 19 19 19

20. Guideline Application Includes the Same Course of Conduct or Common Scheme or Plan When the Offense Guideline Is Included at §3D1.2(d):

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

22. Charging, Pleas, & Relevant Conduct Eighth Cir. *
U.S. v. Dall, 918 F.2d 52 (8th Cir. 1990)
We find that there was sufficient evidence to support the district court's finding that the amount from Dall's 1983– 84 transactions was part of the conspiracy. The indictment included the dates of these transactions within the conspiracy.

23. COMMON SENTENCING CONSIDERATIONS *23

24. Meet the Brady Drug Trafficking Organization (DTO) a. k. a
Meet the Brady Drug Trafficking Organization (DTO) a.k.a. “The Brady Bunch” *
Mike: Kingpin
Carol: $ Launderer
Marcia: Broker
Greg: Courier
Peter & Jan: Distributors
Bobby: Stash House Operator
Cindy: Enforcer
Broker
$ Launderer
Courier
Distributor
Distributor
Enforcer
Organizer/Leader
Stash House

25. Brady DTO * Use of Minors
Mike: Kingpin
Carol: $ Launderer
Marcia: Broker
Greg: Courier
Peter & Jan: Distributors
Bobby: Stash House Operator
Cindy: Enforcer
Broker
$ Launderer
MINOR
MINOR
MINOR
Courier
Distributor
MINOR
MINOR
Distributor
MINOR
MINOR
Enforcer
Organizer/Leader
Stash House

26. Use of a Minor * §3B1.4 Two-level increase for use of a minor.
United States v. Spotted Elk, 548 F.3d 641, (8th Cir ) ( U.S.S.G. § 3B1.4 enhancement properly applied because the defendant knew that the coconspirators were using a child to sell drugs, hold money, and otherwise further the conspiracy).
Only applies if the Chapter 2 offense guideline does not incorporate a specific offense characteristic enhancement for use of a minor.

27. Brady DTO * Brady Stash House a Block from School
Within 1000 feet
Gun SOS

28. § 860 and Safety Valve *
There is a split between circuits whether a defendant convicted under 21 U.S.C. § 860 is eligible for reduction of offense level pursuant to the safety valve provision in U.S.S.G. §2D1.1(b)(6) (currently (b)(17)).
The Tenth (and several other circuits) have held that Congress intended that § 841 and § 860 be separate substantive offenses. See U.S. v. Smith, 13 F.3d 380, 382 (10th Cir. 1993).
Because Congress meant § 841 and § 860 to be separate offenses, if Congress had intended that § 3553(f) apply to convictions under § 860, it would have included § 860 in the list of statutes to which § 3553(f) applies. Congress did not do so.

29. § 860 and Safety Valve *
U.S. v. Koons, 300 F. 3d 985, 992 (8th Cir. 2002) (safety valve not available to defendants convicted of a violation of 21 U.S.C. § 860 because that offense is excluded from the list of offenses to which the statutory safety valve applies).

30. § 860 and Safety Valve *
U.S. v. Hohn, 8 F.3d 1301, 1307 (8th Cir. 1993) “Nothing in the statute requires that school be in session or that children be near or around the school [or playground] at the time of the offense”
U.S. v. Haynes, 881 F.2d 586, 590 (8th Cir. 1989) Defendant need not know that he distributed drugs within the 1,000 foot zone to be convicted.

31. The Brady DTO’S Enforcer Needs a Little Help *
Gun SOS

32. Brady DTO Starts Packing * Use of Weapons
Broker
$ Launderer
Guns
Drugs
Courier
Distributor
Distributor
Enforcer
Organizer/Leader
Stash House

33. Use of a Weapon * §2D1.1(b)(1)
Subsection (b)(1) establishes a two-level increase for possession of a dangerous weapon in connection with the offense. This enhancement also applies with respect to those portions of other guidelines that cross-reference U.S.S.G. §2D1.1. See U.S.S.G. §2D1.1 cmt. (n.11(A)) (Nov. 1, 2015).
"The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. §2D1.1(b)(1), Application Note 3.

34. Use of Violence * §2D1.1(b)(2)
If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels."
A commentary provides that the enhancements in §§ (b)(1) and (b)(2) may be applied cumulatively, but "in a case in which the defendant merely possessed a dangerous weapon but did not use violence, make a credible threat to use violence, or direct the use of violence, subsection (b)(2) would not apply." §2D1.1 cmt. (n.11(B)) (Nov. 1, 2015).

35. Use of Weapon * “Clearly Improbable”
Courts differ in allocating the burden of proof with respect to the "clearly improbable" prong.
Compare U.S. v. Harris, 310 F.3d 1105, 1112 (8th Cir. 2002) (government must prove both prongs), with United States v. Starks, 309 F.3d 1017, 1026 (7th Cir. 2002) (burden of persuasion shifts to the defendant). "Offense" includes relevant conduct. In the case of jointly undertaken criminal activity, a defendant can be held accountable for a co-defendant's reasonably foreseeable possession of a weapon. See United States v. Mumford, 25 F.3d 461, (7th Cir. 1994); United States v. Soto, 959 F.2d 1181, (2d Cir ).

36. Brady DTO. Butcher Shop front for Mexico Imports a. k. a
Brady DTO * Butcher Shop front for Mexico Imports a.k.a. Alice goes all in
Mexico Importer
Alice brings in Sam to import drugs from Mexico

37. Importation Enhancement *
§2D1.1(b)(5)
Two-level enhancement “[i]f the offense involved the importation of ... methamphetamine or the manufacture of ... methamphetamine from listed chemicals that the defendant knew were imported unlawfully ....” §2D1.1(b)(5)
Two-level enhancement “[i]f ... the offense involved the importation of ... methamphetamine” and the defendant is not subject to a mitigating role adjustment. U.S.S.G. §2D1.1(b)(5); U.S. v. Espinoza, 2018 W.L (8th Cir. March 13, 2018).

38. Importation Enhancement *
§2D1.1(b)(5)
Knowledge of importation is not required.
U.S. v. Beltran-Aguilar, 412 Fed.Appx. 171, 175 n. 2 (10th Cir ) (finding defendant knew of the importation but noting the knowledge requirement does not appear to apply to importation).
U.S. v. Rivera-Mendoza, 682 F.3d 730, 733 (8th Cir )(evidence supported finding that the conspiracy involved the knowing importation of methamphetamine, whether or not the enhancement requires proof that the defendant knew of the importation).

39. The Brady DTO Recruits Davy Jones to Store a Shipment Marcia, Marcia, Marcia… She doesn’t “Monkee” around. *
Temporary Shipment Storage
Gun SOS

40. Late Joiners * U.S. v. Matthews, 942 F.2d 779 (10th Cir. 1991)
We think it implausible that a person who undertakes a one-time drug deal in concert with others thereby assumes responsibility for the entire past misdeeds of his or her co-conspirators.
U.S. v. Lyons, 556 F.3d 703 (8th Cir. 2009)
This alleged trafficking by Fields occurred before Lyons joined the conspiracy. Under principles of relevant conduct, a defendant is not responsible under the sentencing guidelines for “the conduct of members of a conspiracy prior to the defendant's joining the conspiracy, even if the defendant knows of that conduct.” 40

41. Sam and Alice Quit Working with The Brady DTO To Become Professional Bowlers *
Time to
GO!
Gun SOS

42. Cessation of Involvement in Eighth Cir. *
Even if strict common law standard for withdrawal from conspiracy applies in context of RC, scope and foreseeability requirements may not be met in case of post-cessation acts of other conspirators.
U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008) 42

43. Cessation of Involvement in Tenth Cir. *
General rule is that affirmative act of withdrawal required:
U.S. v. Egbert, 562 F.3d 1092 (10th Cir. 2009)
U.S. v. Williams, 897 F.2d 1034 (10th Cir. 1990)
But defendant’s arrest may suffice to terminate:
U.S. v. Melton, 131 F.3d 1400 (10th Cir. 1997) 43

44. Meet the Brady Drug Trafficking Organization (DTO) a. k. a
Meet the Brady Drug Trafficking Organization (DTO) a.k.a. “The Brady Bunch” *
Mike: Kingpin
Carol: $ Launderer
Marcia: Broker
Greg: Courier
Peter & Jan: Distributors
Bobby: Stash House Operator
Cindy: Enforcer
Broker
$ Launderer
Courier
Distributor
Distributor
Enforcer
Organizer/Leader
Stash House

45. Role in Offense *
The determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct) ... and not solely on the basis of the elements and acts cited in the offense of conviction. Ch. 3, Pt. B, intro. comment. 45

46. The scope of the conspiracy determines whether:
Role in Offense *
The scope of the conspiracy determines whether:
criminal activity involved 5 or more participants or was otherwise extensive
(aggravating role §3B1.1)
defendant’s role was substantially less culpable than the average participant
(mitigating role §3B1.2) 46

47. HAVE A SUNSHINE DAY!