Federal Sentencing Update Criminal Justice Panel Training

INTRODUCTION

This Federal Sentencing Update contains five sections, (1) The recent Supreme Court sentencing case regarding the right to remain silent at sentencing, (2) Fourth Circuit published sentencing cases decided from January 1, 1998 through April 15, 1999, (3) published cases from other Circuit Courts where the defense won at least one issue, (4) almost every unpublished Fourth Circuit sentencing case (a few were too meaningless to include), and (5) published District of Maryland sentencing cases. All the cases cited in (3) - (5) were decided between June 26, 1998 and April 15, 1999.

Supreme Court Case

Mitchell v. United States, 119 S. Ct. 1307 (1999) (Reversing Third Circuit affirmation of defendant's sentence for conspiracy to distribute cocaine. At her guilty plea, defendant indicated only that she had done "some of" the proffered conduct. At sentencing, the district court found the quantity of drugs to be greater than five kilograms mandating a ten year minimum. The court held that because of her guilty plea, the defendant had waiver her right to remain silent at sentencing and thus her failure to testify was a factor persuading the court to rely on the co-defendant's testimony establishing the drug quantity. The Supreme Court ruled that the Fifth Amendment right to silence applies to criminal sentencing and is not waived by a guilty plea or the defendant's admission to "some of" the alleged conduct. Furthermore, a sentencing court may not draw adverse inferences from a defendant's invocation of her right to silence at sentencing. Finally, the Court noted it expressed no opinion on the effect of a defendant's invocation of the right to silence on lack of remorse or acceptance of responsibility for purposes of a downward adjustment. J. Scalea, Thomas, O'Connor and Rehnquist dissented arguing that the district court should have been allowed to make adverse inferences from the defendant's silence).

Recent Fourth Circuit Published Sentencing Cases

Defense wins:

"United States v. Lawrence ,___161 F.3d 250___ (4th Cir. 1998) - Reversing upward departure for under-represented criminal history from an offense level of 22 and a criminal history category V to an offense level of 38 and a criminal history category VI. When upward departing for under-represented criminal history the district court should depart to the next highest criminal history category and then proceed to the next highest category only upon a finding that the first next highest category failed adequately to reflect the seriousness of the defendant's record. If the court reaches a category VI and determines that the criminal history category is still inadequate "the district court may depart directly to the guideline range applicable to career offenders similar to the defendant."

United States v. Williams,___ 152 F.3d 294___ (4th Cir. 1998) - Reversing and remanding district court's drug quantity calculation because the court did not expressly or by implication adopt the PSR findings nor make sufficiently detailed independent findings. Upholding district court's finding that an obstruction of justice enhancement applied when appellant escaped during arrest.

United States v. Van Metre, ___150 F.3d 339___ (4th Cir. 1998) - Vacating and remanding 20 year solicitation sentence because district court improperly concluded that Application Note 5 of § 5G1.3 allowed for imposition of the statutory maximum. Upheld district court's upward departure in kidnapping case to life in prison because the kidnapping was atypical and the purpose of the offense was to commit first degree murder.

United States v. Washington,___146 F.3d 219___ (4th Cir.), cert. denied 142 L. Ed. 2d 206 (1998) - Remanding sentence because district court impermissibly relied on appellant's statements to probation officer that were immunized under his plea agreement pursuant to § 1B1.8. Upheld district court's admission of amended lab report (stating some of the cocaine was cocaine base) that was based on probation officer's independent investigation.

United States v. Lominac, ___144 F.3d 308 ___(4th Cir. 1998) - Vacating and remanding sentence because a violation of supervised release sentence violated the prohibition against ex post facto laws since a sentence based on 18 U.S.C. § 3583(h) (allowing court to sentence defendant to term of imprisonment and new term of supervised release) acted to increase the punishment for his original crimes.

United States v. Terry, ___142 F.3d 702___ (4th Cir. 1998) - Vacating and remanding upward departure in manslaughter and reckless driving case because each of three encouraged factors were already taken into account in the guideline range (endangering public safety, extreme psychological injury to victim and death).

United States v. Sampson, ___140 F.3d 585___ (4th Cir. 1998) - Vacating and remanding one defendant's sentence because it was unclear whether one drug sale location was a protected area within the meaning of § 2D1.2(a) (2 point enhancement) or whether the drug quantities attributable included amounts distributed from that location. Second defendant's sentence not vacated because enhancement did not effect the fact that he would have otherwise have received a life sentence. Rejected appellant's claim that the amounts of drugs was improperly calculated based upon trial testimony.

United States v. Neilssen, ___136 F.3d 965___ (4th Cir. 1998) - Vacating and remanding upward departure because had district court considered 1996 amendment to the commentary of § 2G2.2 (1995) it would have realized that a certain amount of punishment for appellant's sexual abuse of his daughter and sister was reflected in § 2G2.2(b)(4) (1995). Appellant's argument rejected that the district court erred as a matter of law in applying 5 level enhancement pursuant to the 1995 version of § 2G2.2(b)(4) (engaging in a pattern of activity involving the sexual abuse or exploitation of a minor).

Government wins :

United States v. Ward, ___ F.3d ___, 1999 U.S. App. LEXIS 4805 (4th Cir. March 22, 1999) – Defendant was properly sentenced as an armed career criminal where prior offense was state "conspiracy" charge. District court properly looked beyond the elements of statute which did not indicate if the crime was violent or not. In fact, case had been based upon conspiracy to commit robbery, thus conviction counted as crime of violence for ACCA.

United States v. Aramony,___ 166 F.3d 655___ (4th Cir. 1999) – Defendant had objected to relevant conduct calculation and claimed that because of the grant of his motion for judgement of acquittal on one fraud charge he was prevented from offering evidence countering the charge and the court's use of that fraud as relevant conduct to enhance their sentences was improper. Affirmed, because defendant had ample opportunity through PSI objections and at sentencing to present such evidence. Also, enhancement for misrepresenting charitable motives, § 2F1.1(b)(3)(A), was appropriate where even though defendant, who was employed by charity, did not actually misrepresent that he had authority from the charitable organization because he misrepresented that he was acting wholly on behalf of the organization instead of in part for himself. Fines imposed upon defendants vacated and remanded because district court failed to make any findings regarding defendant's financial status or ability to pay.

United States v. Wells, ___163 F.3d 889 ___(4th Cir. 1998) – Affirming upward departure for "domestic terrorism" where defendant collaborated with Montana Freeman and provided vehicles which were to be used in kidnapping federal officials for trial and hanging. Further, district court did not err in calculating amount of loss to include face value of fraudulent "warrants" even though they were not mailed, fact that they had specified amounts and were in sealed addressed envelopes created evidence of intended loss.

United States v. Coleman,___ 158 F.3d 199___ (4th Cir. 1998)( en banc), cert. denied 143 L. Ed. 2d 372 (1999) - Affirming armed career criminal sentence and rejecting appellant's claim that predicate common law assault conviction was not violent. Also rejecting appellant's claim that his assault conviction was a misdemeanor and fell under the misdemeanor exclusion. The Court also held Maryland common law assault convictions are not per se a "violent felony" for Armed Career Offender sentencing.

United States v. Fenner,___ 147 F.3d 360___ (4th Cir.), cert. denied 142 L. Ed. 2d 473 (1998) - Finding in drug conspiracy that the district court did not err in determining that it lacked authority to depart based on a huge increase in sentence based after applying § 2K2.1(c)(1)(B) (enhancement for possession of a firearm in connection with a homicide offense) cross reference. Defense contention also rejected that downward departure also warranted because defendant's due process rights were violated because they were twice acquitted of conduct forming the basis for the enhancement.

United States v. Kirksey, ___138 F.3d 120___ (4th Cir.) cert. denied 142 L.Ed. 2d 98 (1998) Affirming imposition of career offender sentence because in a limited class of cases, when the definition of the prior crime of conviction is ambiguous (e.g. Maryland battery convictions) and will not necessarily provide an answer to whether the prior conviction was for a crime of violence, courts should look beyond the definition of the crime to examine the facts contained in the charging document. This exceptional application of the categorical approach never involves a factual inquiry into the facts previously presented and tried. Review of the charging document requires focus only on the facts necessarily decided by the prior conviction. It is proper in Maryland cases to review complaining witness' statements because they serve to supply the facts of the charges.

United States v. Johnson, ___138 F.3d 115 ___(4th Cir. 1998) - Affirming supervised release violation sentence because: (1) appellant had not challenged his drug screening and fine requirement on direct appeal; (2) that consecutive sentences were proper based upon simultaneous violations of supervised release; and (3) the district court did not err in reimposing Johnson's fine and reimbursement costs for his court appointed counsel in the revocation order when it failed to reimpose them at the hearing.

United States v. Wilkinson, ___137 F.3d 214 ___(4th Cir), cert. denied 142 L. Ed. 2d 140 (1998) - Affirming refusal to downwardly depart because district court determined that departure was not factually warranted and hence review is precluded.

United States v. Gray, ___137 F.3d 765___ (4th Cir.), cert. denied 142 L. Ed. 2d 129 (1998) - Rejecting appellant's assertion that the Sentencing Commission's decision to impose a presumptive life sentence for violations of 18 U.S.C. 1959(a)(1) (murder in aid of racketeering) was beyond its statutory authority because judges have the discretion to sentence less than life imprisonment and can award a downward adjustment for acceptance of responsibility.

United States v. Martinez, ___136 F.3d 972___ (4th Cir.), cert. denied 142 L. Ed. 2d 98 (1998) - Rejecting appellant's assertion that because the indictment did not specify a particular crime of violence in aid of racketeering they should have been sentenced under 18 U.S.C. § 1954(a)(4) (threatening a crime of violence) instead of § 1954(a)(5) (attempting or conspiring to murder or kidnap). Also rejecting one appellant's claim that the crime he conspired to commit was a robbery rather than a robbery and a murder and another appellant's claim that he should have been awarded a downward departure because he would have pled guilty but for the ineffective assistance of his trial counsel in understanding and explaining the guidelines prior to trial.

United States v. Hobbs, ___136 F.3d 384___ (4th Cir.), cert. denied 141 L. Ed. 2d 727 (1998) - Remand for sentencing under the Armed Career Criminal Act because the district court improperly determined that appellant's three prior burglaries were not offenses committed on occasions different from one another because all three burglaries occurred at least a mile apart from each other and in two different towns even though they occurred within a short period of time.

United States v. Love, ___134 F.3d 595___ (4th Cir.), cert. denied, 141 L. Ed. 2d 705 (1998) - Rejecting appellant's contention that the district court incorrectly determined their base offense levels by holding them responsible for drug amounts inconsistent with the jury's criminal forfeiture verdicts. Also rejecting claims of refusing to decrease sentence for minimal role, and for increases based on obstruction of justice, possession of a firearm and criminal history computation.

Recent Published Court of Appeals Sentencing Defense Wins

United States v. Espinosa, ___F. 3d ___, 1999 U.S. App. LEXIS 7257 (11 st Cir. April 15, 1999) - Reversing district court's deferral to government of determination of whether defendant had provided truthful information to the government in determining if requirement (5) of the safety-valve provisions applied, § 2D1.1(b)(6). Defendant and government disagreed as to amount of drugs involved, district court said that because defendant had not testified at trial it had no way of knowing if he had been telling the truth, thus court erroneously accepted government's position that defendant had lied.

United States v. Threadgill, ___ F. 3d ___, 1999 U.S. App. LEXIS 7196 (5 th Cir. April 13, 1999) - Affirming district court's downward departure based upon two factors which were permissible and removed case from the heartland: first, defendant's money laundering was incidental to their illegal gambling operation, and second, money laundering was atypical because defendant's laundering money was not used to further any other criminal activities.

United States v. Galvez-Falconi, ___ F. 3d ___, 1999 U.S. App. LEXIS 6996 (2nd Cir. April 12, 1999) - Reversing district court's holding that it did not have the authority to depart downward under § 5K2.0 for a defendant's consent to deportation even in the absence of the government's consent.

United States v. Clayton, ___ F. 3d ___, 1999 U.S. App. LEXIS 6952 (5th Cir. April 12, 1999) - Affirming district court's refusal to impose two level adjustment for obstruction of justice, § 3C1.1, where defendant, a police officer, threatened other officers at arrest where he abused prisoners in order to silence them. Because such threats did not occur during the course of the federal investigation, but rather prior to it, enhancement for obstruction was not appropriate.

United States v. Corral, ___ F. 3d ___, 1999 U.S. App. LEXIS 6321 (9th Cir. April 8, 1999) - Reversing district court's denial of minor role adjustment, § 3B1.2(b), and denial of downward departure for aberrant behavior, because court may have relied in part on unreliable double hearsay, remanded.

United States v. Cataldo, ___ F. 3d ___, 1999 U.S. App. LEXIS 6307 (11 th Cir. April 8, 1999) - Reversing district court's imposition of a two level adjustment for obstruction of justice, § 3C1.1, where defendant allegedly lied to probation officer in not admitting 1983 arrest, but government could only provide documentation of an arraignment date, conviction, and probation, not an arrest.

United States v. Hendricks, ___ F. 3d ___, 1999 U.S. App. LEXIS 5763 (8th Cir. March 30, 1999) - Reversing district court's imposition of ten year term of supervised release following 76 month sentence imposed below statutory minimum mandatory because of application of safety valve provision, § 5C1.2, because application of safety valve to reduce sentence also precludes use of statutory maximum for supervised release.

United States v. Hoskins, ___ F. 3d ___, 1999 U.S. App. LEXIS 5708 (6 th Cir. March 30, 1999) - Reversing district court's calculation of drug quantity because only evidence that certain marijuana plants had any connection to defendant was alleged purchase of them by confidential informant from an alleged member of defendant's conspiracy and that member was acquitted of involvement in the conspiracy.

United States v. McClain, ___ F. 3d ___, 1999 U.S. App. LEXIS 5442 (8 th Cir. March 26, 1999) – Reversing district court's use of two prior state offenses for career offender enhancement, § 4B1.4(b)(3)(A), because although information listed two offenses as felony resisting arrests, state law required the underlying arrest be for a felony before the resisting arrest could be charged as a felony, thus because underlying arrests were for misdemeanors, state information charging offenses as felony resisting arrests had been incorrect.

United States v. Hayes, ___ F. 3d ___, 1999 U.S. App. LEXIS 4836 (6 th Cir. March 23, 1999) - Reversing for plain error district court's use of ex parte victim impact statements, from the files of co-defendants in bank robbery, to sentence defendant to top of particular guideline, as such ex parte use violated Fifth Amendment Due Process.

United States v. Davis, ___ F. 3d ___, 1999 U.S. App. LEXIS 4781 (6 th Cir. March 22, 1999) - Reversing district court's imposition of four level upward departure for extreme conduct, § 5K2.8, which was based upon court's statement it had seen and heard the conduct of defendant because he went to trial and had seen victims and thus knew better the harm caused by defendant's fraud in comparison to co-defendant who plead guilty. Reversed because although district court did not penalize defendant for exercising right to trial, on the record, evidence only supported at most a two level upward departure.

United States v. Dueno, ___ F. 3d ___, 1999 U.S. App. LEXIS 4839 (1 st Cir. March 19, 1999) - Reversing district court's use of prior "breaking and entering" conviction as a crime of violence for career offender guideline, § 4B1.2, because state statute includes breaking and entering into vehicle, which would not qualify as crime of violence. Government claimed that the fact that other charges brought in same state case with the breaking and entering charge suggested a home was the crime's target and not a car, but nothing in the record demonstrated sufficiently that the breaking and entering was into a home, remanded for further findings.

United States v. Ticchiarelli, ___ F. 3d ___, 1999 U.S. App. LEXIS 4831 (1 st Cir. March 19, 1999) - On resentencing, district court erred in not granting defendant evidentiary hearing to challenge weight of drugs for inclusion of containers, defendant did not waive issue by failing to raise it at initial sentencing because there he had no incentive to raise issue because drug weight had been erroneously calculated and subtraction of the container weight at that time would not have had any effect on guideline range. Also, under § 4A1.2(a), for criminal history points, defendant was convicted in Maine (1st Circuit) in 1997 but the case was remanded for resentencing on appeal. Before that second sentencing, defendant was sentenced in a separate case in Florida (11th Circuit) and that court considered the Maine case a "prior sentence" and thus added a criminal history point. Later on re-sentencing in Maine, the Maine court considered the Florida case as a "prior sentence" as well and added three criminal history points. Such calculation was erroneous as Maine case preceded the Florida case and thus the resentencing in Maine could not have considered the Florida sentence as a prior sentence.

United States v. Crandon,___ F. 3d___, 1999 U.S. App. LEXIS 4559 (3rd Cir. March 18, 1999) - Reversing district court's imposition of cross reference for charge of receiving child pornography to guideline for sexually exploiting a minor, court refused to take into consideration defendant's intent or motivation in taking sexually explicit pictures of fourteen year olds, court assumed that the defendant had taken pictures for purpose of producing sexually explicit material. However, defendant claimed he took pictures to memorialize his feelings for victim.

United States v. Cooper, ___ F. 3d___, 1999 U.S. App. LEXIS 4546 (8th Cir. March 18, 1999) - Upon conviction for transportation of explosive materials, reversing district court's imposition of term of supervised release that defendant refrain from employment as a truck driver if his work were to take him from home for more than a twenty-four hour period, such alleged "geographic" limitation effectively prevented defendant from his employment. Abuse of discretion because limitation on truck driving does not "bear a reasonably direct relationship" to the offense, and no evidence that defendant had drug or alcohol problem which would require constant testing incompatible with schedule of truck driver.

United States v. Grimm, ___ F. 3d ___, 1999 U.S. App. LEXIS 4358 (7th Cir. March 17, 1999) - Reversing because government breached plea agreement where it promised to recommend acceptance of responsibility reduction so long as no new evidence incompatible with such acceptance was discovered post plea, but alleged "new" evidence was that defendant had participated with criminal organization a year earlier than he admitted, but government should have know that fact at the time of plea agreement.

United States v. Sackoi, ___F. 3d___, 1999 U.S. App. LEXIS 4144 (1 st Cir. March 15, 1999) - Reversing district court's use of statutory rape of fourteen year old as a "violent felony" that "presents a serious risk of physical injury," under § 4B1.2, because statutory rape can be either violent or non-violent, remanded for findings regarding physical injuries.

United States v. Loetz, ___ F. 3d ___, 1999 U.S. App. LEXIS 4015 (9 th Cir. March 9, 1999) – Reversing district court's imposition of two level enhancement for obstruction of justice due to perjury because although specific findings of perjury elements can theoretically be gleaned from court's adoption of pre-sentence report, here report did not contain enough information to satisfy elements. Case remanded for further findings.

United States v. Avila-Ramirez, ___ F. 3d ___, 1999 U.S. App. LEXIS 3840 (2 nd Cir. March 11, 1999) - Reversing district court's imposition of sixteen level enhancement for illegal reentry where deportation was for an aggravated felony, § 2L1.2. Defendant had been deported for indecent assault involving a minor, but use of such enhancement violated the ex post facto clause because that offense was not added to list of enhancements until 1996, and defendant had committed assault offense six months prior to effective date of 1996 amendment.

United States v. McCall, ___ F. 3d ___, 1998 U.S. App. LEXIS 30717 (2 nd Cir. Dec. 4, 1998) – Reversing district court's imposition of two level enhancement for vulnerable victim because court erroneously applied "more vulnerable than most" test instead of "particularly vulnerable" test, furthermore, age alone does not make victim particularly vulnerable, neither does ownership of an easily embezzled bank account.

United States v. Guerrero, ___169 F. 3d 933___ (5th Cir. 1999) – Reversing district court's imposition of two level adjustment for causing victim "bodily injury," § 2B3.1(b)(3), because court used incorrect standard of "minimal, minimal injury," where injury needs to be "significant," and because although defendant struck a victim on the back, no evidence that attack actually caused an injury.

United States v. Leahy, ___169 F. 3d 433___ (7th Cir. 1999) – Upon conviction for possession of a toxin for use as a weapon, affirming district court's upward departure because toxin could be considered a weapon of mass destruction but ten level departure was excessive because use of analogy to terrorism was inappropriate where no evidence defendant had any terrorist intentions.

United States v. Navarro, ___169 F. 3d 228___ (5th Cir. 1999) – Reversing district court's sentencing of defendant by video conferencing as violating of Federal Rule of Criminal Procedure 43 which requires the "presence" of defendant and he had not signed Waiver of Rights and Consent to Proceed by Video-Conferencing.

United States v. Anglin, ___169 F. 3d 154___ (2nd Cir. 1999) – Reversing district court's imposition of two level enhancement for "physically restraining" during a robbery, § 2B3.1(b)(4)(B), where defendant brandished a gun, told tellers to get on the floor and not move and they did so.

United States v. LeBlanc,___ 169 F. 3d 94___ (1st Cir. 1999) – Defendant convicted on plea of violating ban of importing freon without regard to consumption allowances and related offenses. After grouping all counts, the district court used the customs tax guideline for sentencing. Court of Appeals reversed trial court because court should have applied the environmental offense guideline. Under grouping guideline § 3D1.3(a), the highest adjusted offense level for the offenses in the group is to be used, court erred in comparing the offense levels before "guided departures" were taken into account, which changed which offense in the group had the highest offense level.

United States v. Velez,___ 168 F. 3d 1137___ (9th Cir. 1999) – Reversing for plain error because sentence imposed by district court after upward departure, exceeded the maximum penalty under the guidelines for conspiracy to file false INS applications. Maximum guideline range was for "100 or more" false applications, thus, district court's upward departure for 2700 applications violated maximum sentence allowed by guidelines.

United States v. Wilson,___ 168 F. 3d 9___16 (6th Cir. 1999) – Reversing district court's imposition of career offender guideline, § 4B1.2, because court erred in using burglary of non-dwelling (liquor store) as crime of violence. While such crime may be a crime of violence in certain circumstances, such offense does not qualify on its face. Remanded for inquiry to whether burglary presented serious potential risk of physical injury to another.

United States v. Lawlor, ___168 F. 3d 633___ (2nd Cir. 1999) – Reversing for plain error because government breached plea agreement where agreement provided government stipulated to using guideline § 2A2.3 (minor assault), but at sentencing government noted its agreement with pre-sentence report calculation which applied guideline § 2A2.4 (obstructing law enforcement officer).

United States v. Ponce, ___168 F. 3d 584___ (2nd Cir. 1999) – Affirming district court's refusal to impose two level enhancement for possession of a dangerous weapon, § 2D1.1(b)(1), because gun was found in wheel well of car in which defendant was only passenger.

United States v. Ellis, ___168 F. 3d 558___ (1st Cir. 1999) – Reversing district court's imposition of enhancement for use of a firearm in connection with a drug offense, § 4B1.4(b)(3)(A), where two firearms were located in a separate building from the drug operation, under a bureau in a small room in which it was difficult to shift furniture.

United States v. Harfst, ___168 F. 3d 398 ___(10th Cir. 1999) – Granting 2255 for counsel's failure to present claim of minor participant adjustment where at sentencing counsel only asked the court "to consider whether or not he's a minor or minimal participant," and court never ruled on the issue.

United States v. Mikaelian, ___168 F.3d 380___ (9th Cir. 1999) -- After government failed to move for downward departure for substantial assistance where plea agreement granted government sole discretion, defendant moved for departure nevertheless based upon unconstitutional motive, arbitrariness, and in bad faith. Defendant also moved to gain access to the government's debriefing report filed in camera with the District Court. The district court denied the departure and refused to allow counsel access to the report. The Ninth Circuit reversed, remanding for specific findings as to why the district court found the government had not acted bad faith or arbitrarily and ordered the trial court to allow the defendant access to the in camera report.

United States v. Mueller, ___168 F. 3d 186___ (5th Cir. 1999) – Reversed because in 18 U.S.C. § 3582(c)(2) proceeding to reduce sentence, defendant was denied ample time and opportunity to read and respond to addendum in pre-sentence report prepared for that proceeding, left open the question of whether all Federal Rule of Criminal Procedure Rule 32 processes must be followed in § 3582 proceeding.

United States v. Lavalle, ___167 F. 3d 1255___(9th Cir. 1999) – Granting 2255 where defendant had been sentenced as a career offender, § 4B1.1, but after sentencing, defendant had collaterally attacked prior state conviction which was dismissed (joining First, Fourth, Fifth, and Tenth Circuits). Remanded for new sentencing without career offender enhancement.

United States v. Jacobs, ___167 F.3d 792___ (Cir. 1999) – Reversing district court's imposition of five level upward departure for infliction of extreme psychological injury, § 5K2.3, where although court found aggravated assault had caused post-traumatic stress disorder, mood disorders, anxiety, and sleeplessness, court had failed to make required finding that the injury was much more serious than that normally resulting from the commission of the crime. Further, on remand, requiring district court to justify five level departure with more detailed comparison to physical injury enhancements, § 2.2A2(b).

United States v. Izydore,___ 167 F. 3d 213___ (5th Cir. 1999) – Reversing district court's inclusion in loss figure of trustee's fees where defendant's fraud caused company to be run by trustee in bankruptcy in failed attempt to salvage business, such fees were consequential amounts of loss and not to be included in calculations pursuant to § 2F1.1.

United States v. Medina, ___167 F. 3d ___77 (1st Cir. 1999) – Reversing district court's imposition of two level enhancement for managing others, § 3B1.1(c), because no evidence, other than speculation, that defendant managed others in twenty-eight person conspiracy.

United States v. Mitchell, ___166 F. 3d 748___ (5th Cir. 1999) – Reversing district court's imposition of enhancement for possession of a firearm in connection with another offense, § 2K2.1(c), because connection too tenuous where defendant stopped by police while driving children to school found with firearm under his car seat and home from which he had retrieved children contained cocaine in a lockbox for which defendant was never charged. Fact that defendant had keys to both car and lockbox was insufficient to impose enhancement.

United States v. White, ___166 F. 3d 558___ (3rd Cir. 1999) – Reversing district court's decision that it could not have reduced defendant's sentence pursuant to § 5G1.3(b) for time served in state custody on charge arising out of same conduct as federal conviction because court erroneously concluded only Bureau of Prisons had such ability.

United States v. Robie, ___166 F. 3d 444___ (2nd Cir. 1999) – Reversing district court's imposition of any loss amount for theft from Postal Service of misprint stamps (inverted Richard Nixon stamps). Although stamps had market value, Postal Service would have destroyed the stamps had the theft not occurred, thus Postal Service lost nothing of value.

United States v. Clavijo, ___165 F. 3d 1341___ (11th Cir. 1999) – Reversing district court's denial of safety valve provision, § 5C1.2, court found that co-defendant's possession of a firearm precluded relief under provision (2) of safety valve (defendant did not use violence or posses firearm or induce other to posses), but co-defendant's possession of a firearm only precludes application if defendant aided, abetted, procured, or counseled such possession, and not if co-defendant's possession was merely reasonably foreseeable.

United States v. McDonald, ___165 F. 3d 1032___ (6th Cir. 1999) – Reversing district court's imposition of four level enhancement for possession of a firearm in connection with another felony, § 2K2.1(b)(5), where defendant broke into pawn shop unarmed, stole firearms and was apprehended shortly thereafter without having used the firearms in any way.

United States v. Rettelle, ___165 F. 3d 489___ (6th Cir. 1999) – Reversing district court's imposition of minimum mandatory for defendant cultivating more than one hundred marijuana plants, § 841(b), because court erroneously included plants that were only relevant conduct and not charged in indictment as part of charged offense, despite broadly written language and time frame of indictment.

United States v. Gomez, ___164 F. 3d 1354___ (11th Cir. 1999) – Reversing district court's drug calculation in minimum/mandatory case because it included drugs sold outside the course of conduct on which the indictment was returned, indictment had specifically alleged drug ring operating through particular car wash and conduct used by district court was drug sale apart from car wash connections.

United States v. Allard, ___164 F. 3d 1146 ___(8th Cir. 1999) – Fashioning the most analogous guideline to state vehicular battery count for non-Indian defendant on Indian land, district court imposed involuntary manslaughter guideline and erroneously added five levels for seriousness of victims injuries under aggravated assault guideline, § 2A2.2,court cannot use one guideline, and add to it specific offense characteristic from a second guideline.

United States v. Robinson, ___164 F. 3d 1068___ (7th Cir. 1999) – Reversing district court's drug weight calculation where although only 32.9 grams of crack found, relevant conduct included hearsay statement made to state police recorded in "summarize interview" forms which attributed 5,103 grams of crack to defendants, statement also unreliable because witness alleged defendant sold 1/16th ounce for $100.00 but sold 1/8th ounce for $250.00.

United States v. Brown, ___164 F. 3d 518___ (10th Cir. 1998) – Affirming district court's loss determination in securities fraud scheme which was based upon defendant's gain of $650,000 and not actual loss to victims of 18-25 million, relying on gain is unreasonable only when actual loss is non-existent.

United States v. Flowal, ___ 163 F. 3d 956___ (6th Cir. 1998), cert. denied U.S., 1999 U.S. LEXIS 2953 (1999) – Reversing district court's drug weight calculation because one DEA employee found weight to be 5.008 kilograms, but second DEA employee found weight of 4.997 kilograms, remanded for more definite judicial findings as to why court would chose one over the other.

United States v. Montez-Gaviria, ___163 F.3d ___697 (2nd Cir. 1998) (District court can depart on basis of time an alien is incarcerated due to federal government's delay in transferring him to federal custody and for which alien does not receive credit toward his sentence)

United States v. Fagan,___ 162 F. 3d 1280___ (10th Cir. 1998) – Reversing district court's decision that it did not have the discretion to depart downward for exceptional remorse, although such a factor is already considered by guidelines, departure is permissible if factor present to an extraordinary degree.

United States v. Whiteskunk, ___162 F. 3d 1244___ (10th Cir. 1998) – Reversing as to extent only of district court's three level upward departure for recklessness exceeding that contemplated in guidelines where defendant driving with blood alcohol level of .212, veered over yellow line and killed victim.

United States v. Graham,___ 162 F. 3d 1180___ (D.C. Cir. 1998) – Reversing district court's imposition of three level manager enhancement, § 3B1.1(b). District court's claim that defendant was "block overseer" insufficiently supported by evidence that defendant pointed customers to people carrying drugs, and bare claim by one person that defendant was "sometimes a lieutenant" insufficient where person's testimony did not include details such as how often defendant was in that role, what actions defendant took in that role, or why person believed defendant held such a position. Mere fact that defendant operated within "middle zone" of drug organization hierarchy is insufficient to enhance defendant as manager without specific evidence he directed those at lower levels.

United States v. Hernandez-Guevara,___ 162 F. 3d 863___ (5th Cir. 1998), cert. denied U.S., 1999 U.S. LEXIS 2496 (1999) – District court erred in sentencing defendant to three year supervised release term consecutive to another supervised release term imposed in second case, in violation of plain language of 18 U.S.C. § 3624(e) requiring second term to be concurrent with first.

United States v. Sanders, ___162 F. 3d 396___ (6th Cir. 1998) – Reversing district court's imposition of four level enhancement for possession of a firearm in connection with another felony, § 2K2.1(b)(5), where defendant broke into pawn shop unarmed, stole firearms and was apprehended shortly thereafter without having used the firearms in any way.

United States v. Sapoznik,___ 161 F. 3d 1117___(7th Cir. 1998) – Reversing district court's calculation of benefit received by defendant police officer for bribes he took to ignore illegal gambling. Figure based upon amount which organized crime group which bribed defendant had skimmed from revenue of gambling, but calculation failed to consider how much revenue organization would have earned without help of defendant but from other means of continuing illegal operations. Remanded for further findings

United States v. Maliszewski, ___161 F. 3d 992___ (6th Cir. 1998), cert. denied 143 L. Ed. 2d 120 (1999) – Reversing district court's drug weight calculation. First amount used was attributed to defendant only through assumption of one witness that drugs were going to defendant, second amount was based on a payment of $25,000 which evidence showed paid off old debt and not used for additional drugs, and third amount attributed to defendant only through assumption from unknown party on the phone that co-defendant intended to give third drug quantity to defendant. No evidence amount was ever delivered to defendant.

United States v. Levario-Quiroz, ___161 F. 3d 903___ (5th Cir. 1998) – After gun battle with law enforcement on the Mexican side of the border, defendant fled into U.S. and was convicted of firearms possession offenses. District court erred in enhancing sentence for possession of firearm in connection with another offense, § 2K2.1, because foreign assault on Mexican officials did not count. Likewise, that shooting could not be considered relevant conduct. Finally, although enhancement for creating substantial risk of injury to law enforcement during flight, § 3A1.2(b), does apply to foreign law enforcement, conduct in this case occurred prior to offense of conviction, while in Mexico, and not during instant offense or escape therefrom

United States v. Sanchez-Rodriguez, ___161 F.3d 556___ (9th Cir. 1998) ( en banc) (Delay in charging and sentencing defendant caused him to lose opportunity to serve federal and state time concurrently and could form basis for departure)

United States v. Jones, ___161 F. 3d 397___ (6th Cir. 1998) – Granting 2255 because trial counsel was ineffective in failing to raise retroactive application of Guideline Amendment 500 clarifying manager enhancement, § 3B1.1, which as a clarifying amendment and not a substantive change in the law applied retroactively even without explicit language for such retroactive application in the amendment itself. Enhancement had been erroneously applied for managerial control over assets and not other people.

United States v. Walker, ___160 F. 3d 1078___ (6th Cir. 1998), cert. denied U.S., 1999 U.S. LEXIS 2446 (1999) – Reversing district court's imposition of four level enhancement for manager/leader, § 3B1.1(c), where district court adopted presentence report's recommendation which was based on "investigative information provided by the Government," but record revealed no organizational role for defendant and no claim that he actually directed anyone.

United States v. Woods, ___159 F. 3d 1132___ (8th Cir. 1998) – Affirming district court's use of fraud guideline rather than money laundering guideline for bankruptcy fraud because defendant's deposit of monies into husband's account to hide from bankruptcy trustee was not "serious money laundering."

United States v. Spears,___ 159 F. 3d 1081___ (7th Cir. 1998) – In calculating upward departure for under represented criminal history, reversing district court's use of three juvenile convictions for which defendant was not charged as an adult and which occurred more than five years before the instant offense, § 4A1.2(d).

United States v. Jones, ___159 F. 3d 969 ___(6th Cir. 1998) – Reversing district court's imposition of obstruction of justice enhancement, § 3C1.1, for perjury where defendant allegedly lied at sentencing that law enforcement official had t-shirts with racial epithets, such falsehood was not material to sentencing and thus could not form basis for perjury enhancement.

United States v. Casey, ___158 F.3d 993 ___(8th Cir. 1998) – Reversing district court sentencing for theft from an ATM as a burglary under § 1B1.2 Appendix A (allowing for grouping under other than the statute of conviction for the atypical case); this was not the atypical case just because the burglary guideline was more than the theft guideline and the Pre-Sentence Report (PSR) outlined facts which could support a burglary conviction. Further, defendant did not stipulate to burglary guideline by failing to object to those facts in the PSR.

United States v. Barnes, ___158 F.3d 662___ (2nd Cir. 1998) – Defendant was convicted on a general verdict of one count of conspiracy to distribute controlled dangerous substances (the indictment listed four different substances). District court's sentencing of defendant to the mandatory minimum for the one substance that carried the highest penalty was erroneous. Because mandatory minimums rely upon actual convictions alone and not relevant conduct, defendant should have been sentenced for the substance which carried the lowest mandatory minimum penalty (following 5th, 7th, 8th, 9th and 10th Circuits).

(2) Economic hardship upon defendant's wife and children was not so extraordinary to be an appropriate factor in this case;

(3) Aberrant conduct because defendant was thirty-five and had been "basically law abiding" before his marriage disintegrated was an appropriate factor;

(4) Community service and (5) support in the community were both appropriate factors where defendant offered twelve letters of his extensive community involvement;

(6) Lack of notice to defendant that he could not possess a firearm because of the restraining order against him was not an appropriate factor in this case because the defendant had taken the gun to the home of his estranged wife who instituted the restraining order;

(7) Early disclosure to authorities of defendant's false statement used to obtain the firearm was an appropriate factor because although the authorities were likely to discover the crime on their own, defendant's voluntary statement did not occur in connection with the ongoing investigation and was not motivated by fear of discovery (§ 5K2.16) and defendant's three level reduction for acceptance of responsibility under § 3E1.1 did not bar consideration of his statement to authorities for further downward departure;

(8) Adherence to conditions of release and (9) post-offense improvements in conduct are encouraged factors through acceptance of responsibility reduction, and if present to an exceptional degree, can be used for further departure, which was appropriate here where defendant refrained from contact with his ex-wife, worked to support his three children, and had seen his psychologist daily resulting in a changed attitude;

(10) Negative impact of incarceration on rehabilitative counseling was an appropriate factor because defendant's employment at a mental health facility afforded him daily contact with psychologist, removing case from heartland of mental and emotional conditions under § 5H1.3;

(11) Probation officer conducting the pre-sentencing report had concluded that downward departure was a marginally appropriate factor, but not on par with other appropriate factors.

Based upon the appropriate factors used, departure of three levels was not erroneous.

Recent Unpublished Fourth Circuit Sentencing Cases

Defense Wins:

United States v. Reilly, 1999 U.S. App. LEXIS 7713 (4 th Cir. April 21, 1999) – Affirming district court's grant of eleven level departure for extraordinary post-offense rehabilitation where defendant, at a young age, voluntarily left drug conspiracy, began full time employment for which she received positive evaluations, and participated in church sponsored youth activities and group counseling sessions as well as her aunt's informal recreational therapy program for drug users.

United States v. Murray, 1999 U.S. App. LEXIS 6134 (4 th Cir. April 6, 1999) – Granting 2255 for trial counsel's failure to object to illegal sentence where defendant was improperly enhanced under two of six possible disjunctive robbery enhancements, § 2B3.1(b)(2)(A)-(F). Only one enhancement may apply.

United States v. Wilson, 1999 U.S. App. LEXIS 5125 (4 th Cir. March 22, 1999) – Granting 2255 for trial counsel's failure to object to drug quantity of PCP, total weight included ether and PCP mix, but ether would evaporate from PCP cigarette once dipped and dried, thus actual weight of drug should not have included ether.

United States v. Parrales, 1999 U.S. App. LEXIS 3717 (4 th Cir. March 9, 1999) – Reversing for plain error because government breached plea agreement by opposing application of safety valve provision. The government agreed the safety value was appropriate so long as the "defendant's conduct prior to sentencing" does not change the circumstance of the safety valve provision. The government's two claims of violation were rejected on appeal: First, post-plea and pre-sentencing, defendant admitted to additional drug quantities during her statement to the government, the Fourth Circuit termed this an attempt on her part to comply with the plea agreement; Second, the probation officer learned through a fingerprint check that the defendant had an outstanding shoplifting charge in California under another name, this failure to disclose did not violate the requirement that the defendant disclose all she knows about the offense itself, § 5C1.2(5).

United States v. English, 1999 U.S. App. LEXIS 3709 (4 th Cir. March 9, 1999) – District court erred in using defendant's prior conviction, when he was seventeen years old, under state "Youthful Offender" statute (for assault and battery with intent to kill) as an adult conviction for career offender, the statute gave the state court the discretion to treat the defendant as a juvenile or adult. Case decided on the fact that defendant received a sentence of six years imprisonment but which was suspended to three years probation, implying that if defendant had received a sentence of greater than one year, application of prior for career offender would have been appropriate.

United States v. Perry, 1999 U.S. App. LEXIS 3326 (4 th Cir. Feb. 17, 1999) – Affirming district court's grant of downward departure for diminished capacity, § 5K2.13, where defense psychologist testified defendant was clinically depressed, had addictive behaviors and a capacity for denial that did cause some "diminished judgement," and government presented no evidence to the contrary, even though on cross examination defense expert admitted it may be just that the defendant liked to spend money.

United States v. Dobson, 1999 U.S. App. LEXIS 3325 (4 th Cir. Feb. 17, 1999) – Reversing upward departure under § 2A3.1 (Comment n.4) for multiple acts of criminal sexual abuse because such a departure is reserved for multiple acts grouped together and here acts were not grouped together, but rather defendant had received a two level increase under the multiple count rules, § 3D1.4.

United States v. McGrady, 1999 U.S. App. LEXIS 2395 (4 th Cir. Feb. 17, 1999) – Reversing district court's imposition of two level enhancement for possession of a firearm during a drug offense, § 2D1.1(b)(1), because the only testimony regarding it was unreliable hearsay from officer who had obtained information during an interview two years prior to his testimony at sentencing, officer had no contemporaneous notes, and admitted on cross he was unsure of what the witness had actually told him.

United States v. Spoone, 1999 U.S. App. LEXIS 1654 (4 th Cir. Feb. 5, 1999) – Reversing an Anders brief where district court had imposed armed career criminal guideline for underlying offense of possession of firearm by a convicted felon, but court never inquired as to whether the possession amounted to crime of violence to which ACCA applied. Although defendant admitted to using firearm to shoot someone, he claimed self-defense, which would have made crime inapplicable for ACCA as justified and not a crime of violence.

United States v. Butler, 1999 U.S. App. LEXIS 856 (4th Cir. Jan. 22, 1999) – Granting 2255 where district court sentenced defendant under the guidelines to 420 months, but statutory maximum sentence was only twenty years, see § 5G1.1(a).

United States v. Chiles, 1999 U.S. App. LEXIS 674 (4 th Cir. Jan. 20, 1999) – Granting 2255 for failure to inform defendant at sentencing of his right to appeal despite fact that defendant had waived right to appeal "guideline issues decided after a full and fair hearing," because defendant currently raised issues outside scope of that waiver such as due process claims, violation of Rule 32, and illegal sentence.

United States v. Rich, 1999 U.S. App. LEXIS 337 (4th Cir. Jan. 12, 1999) – Reversing application of armed career criminal act, because Maryland state court conviction for battery may or may not fall within definition of § 4B1.2's definition of crime of violence, remanded.

United States v. Ligon, 1998 U.S. App. LEXIS 31371 (4 th Cir. Dec. 13, 1998) – Reversing for plain error district court's imposition of restitution because court failed to make specific findings as to defendant's financial resources, needs, and earning ability.

United States v. Tucker, 1998 U.S. App. LEXIS 29353 (4 th Cir. Nov. 17, 1998) – Holding that government breached plea agreement where at sentencing it argued for application of cross reference to murder guideline for relevant conduct of having rival pawnshop dealer killed, but plea agreement had stated that "total relevant conduct" was 1086.7 grams of crack.

United States v. Clifton, 1998 U.S. App. LEXIS 27701 (4 th Cir. Oct. 28, 1998) – Reversing district court's imposition of two level enhancement for obstruction of justice, § 3C1.1. for perjury where court only stated defendant had testified falsely and did not make factual finding regarding the last two elements of perjury that the false testimony concerned 2) a material matter; and 3) the statements were made with the willful intent to deceive.

United States v. King, 1998 U.S. App. LEXIS 24686 (4 th Cir. Oct. 6, 1998), cert. denied 143 L. Ed. 2d 375 (1999) – District Court initially imposed a sentence of nine months imprisonment, then in response to a Rule 35(c) motion, imposed nine months of home detention instead. On appeal by the government in a prior case, the Fourth Circuit reversed and ordered the original nine month prison sentence imposed. Upon remand the district court imposed the nine month imprisonment, but defendant had already served the nine month home detention, thus on appeal after remand (the instant case), the Fourth Circuit held the Double Jeopardy Clause required the nine month home detention be credited toward Layman's nine month sentence of imprisonment.

United States v. Martinez, 1998 U.S. App. LEXIS 16909 (4 th Cir. July 23, 1998) – Reversing district court's imposition of manager/supervisor enhancement under § 3B1.1(b) where defendant only worked with co-defendant to obtain computer equipment to make forged checks and rented a mini-warehouse for criminal activity and did not supervise anyone else in the crime.

United States v. Brown, 1998 U.S. App. LEXIS 14833 (4 th Cir. June 30, 1998) – Vacating sentence because wrong procedure used for upward departure, where district court decided it wanted to impose ten year maximum and then, starting on sentencing chart at level 43, moved down criminal history category of defendant until it found range that included 120 months.

United States v. Barnett, 1998 U.S. App. LEXIS 14836 (4 th Cir. June 30, 1998), cert. denied, 142 L. Ed. 2d 355 (1998) – Plain error found where district court erred in failing to apply mandatory two level reduction under § 2D1.1(b)(4) and § 5C1.2 which defendant qualified for.

Government Wins:

United States v. Usi, 1999 U.S. App. LEXIS 6525 (4th Cir. April 9, 1999) – Defendant properly denied reduction for minor participant, § 3B1.2(b), because he was a sophisticated courier who taught drug smuggling methods to undercover agents, had significant knowledge of dealer's activities, and was well paid.

United States v. Arias, 1999 U.S. App. LEXIS 6523 (4 th Cir. April 9, 1999) – Defendant properly enhanced as leader/organizer, § 3B1.1(c), because during drug sale he spoke with informant, he, and not co-defendant, handled conversation, handed cocaine over to informant, and took money from informant.

United States v. Merchez-Gonzalez, 1999 U.S. App. LEXIS 6522 (4 th Cir. April 9, 1999) – Drug quantity properly included eight ounces undercover agent offered to purchase from defendant even though sale never took place because defendant never offered any evidence of inability or unwillingness to sell the eight ounces.

United States v. Key, 1999 U.S. App. LEXIS 6143 (4th Cir. April 6, 1999) – Affirming district court's denial of one point reduction for release of kidnapping victim before twenty-four hours where although defendants gave victim eighty dollars and told him they would drop him at bus station once they reached their destination, victim suddenly bolted from kidnappers' car before the bus station and defendants did not acquiesce to the escape.

United States v. Michalec, 1999 U.S. App. LEXIS 6141 (4 th Cir. April 6, 1999) – Agreeing with the Seventh and Ninth Circuits that individual computer files containing one picture are separate "items" of child pornography pursuant to § 2G2.4(b)(2), and the hard drive where those files are contained is not just one "item."

United States v. White, 1999 U.S. App. LEXIS 6137 (4 th Cir. April 6, 1999) – Defendant properly sentenced based upon drug quantity which included dead marijuana plants, § 2D1.1 (comment n.18).

United States v. Holley, 1999 U.S. App. LEXIS 6030 (4 th Cir. April 2, 1999) – Affirming district court's imposition of two level enhancement for possession of a firearm during commission of a drug offense, § 2D1.1(b)(1), even though gun was located in a locked safe in a room defendant did not used to make drugs, firearm in same building was sufficient.

United States v. Kehoe, 1999 U.S. App. LEXIS 6025 (4 th Cir. April 2, 1999) – Affirming two district court enhancements. First, for vulnerable victim, § 3A1.1(b) because defrauded victims were all elderly. Second, for abuse of position of trust, 3B1.3, because victims had trusted defendant as their investment advisor and because defendant had abused trust of insurance company who employed him and had provided him wide discretion.

United States v. Cruz, 1999 U.S. App. LEXIS 5041 (4th Cir. March 24, 1999) – Affirming district court's fraud loss calculation which included, as relevant conduct, amounts generated during defendant's nine month absence from the conspiracy because defendant knew the scheme would continue.

United States v. Little, 1999 U.S. App. LEXIS 5034 (4th Cir. March 23, 1999) – Reversing district court's decision not to impose career offender status for a state "assault on female" charge, § 4B1.1, court erred in finding that North Carolina charge could easily involve no actual battery, court should have just looked to elements of charge which clearly showed a crime of violence. Fact that penalty for offense was reduced after defendant's conviction from two-year maximum to 150 day maximum made no difference because court is to examine statute at time defendant committed the prior offense for purposes of determining career offender.

United States v. Little, 1999 U.S. App. LEXIS 5030 (4th Cir. March 23, 1999) – Affirming district court's imposition of enhancement for restraint of victim where defendant ordered victim into car, hit victim on head with gun twice when victim refused, and held gun to victim's head in car.

United States v. Daniels, 1999 U.S. App. LEXIS 4826 (4 th Cir. March 22, 1999) – Disagreeing with Sixth Circuit and agreeing with First, Third, Seventh, Eighth, and Eleventh Circuits that post plea pre-sentencing illegal conduct can be used as a basis to deny acceptance of responsibility reduction whether connected to underlying criminal offense or not.

United States v. Stephen, 1999 U.S. App. LEXIS 4817 (4 th Cir. March 22, 1999) – Affirming district court's decision not to grant reduction for acceptance of responsibility because defendant, although pleading guilty, attempted to shift blame for crime by moving for downward departure for duress.

United States v. Hendren, 1999 U.S. App. LEXIS 3947 (4 th Cir. March 11, 1999) – Affirming district court's application of sexual assault guidelines instead of kidnapping guidelines, § 2A4.1(7) provides for cross reference if kidnapping occurred in connection with another offense. Here defendant kidnapped victim and threatened to kill her with gun he had if she did not resume their relationship, in order to convince defendant of her willingness, and to save her own life, victim eventually had sexual intercourse with defendant. Application of sexual assault guidelines appropriate even though defendant not charged with sexual assault.

United States v. Eaton, 1999 U.S. App. LEXIS 1423 (4 th Cir. Feb. 2, 1999) – Reversing district court's grant of downward departure for aberrant behavior because defendant had made two separate trips to Jamaica over three week period as drug courier.

United States v. Kinder, 1998 U.S. App. LEXIS 32678 (4 th Cir. Dec. 31, 1998) – Affirming two level enhancement for drug offense occurring within 1000 feet of a "protected location" (a school), § 2D1.2(a)(1), because crime occurred near a Head Start Center which instructed children ages three to five, had a school year like schedule and employed a teacher and assistant teacher, although the program did much more than act as a school.

United States v. Pearson, 1998 U.S. App. LEXIS 32636 (4 th Cir. Dec. 31, 1998) – Enhancement for possession of a dangerous weapon in connection with offense, § 2B5.1(b)(3), proper where defendant arrested in his car, three counterfeit twenties were found in his wallet and three weeks after conviction, inventory search of car revealed a gun under seat of car.

United States v. Looker, 1998 U.S. App. LEXIS 32632 (4 th Cir. Dec. 31, 1998) – In convictions for conspiracy to transport and manufacture explosive devices and to provide material support to terrorists, leader of Mountaineer Militia in West Virginia properly sentenced to 120 months for transportation of destructive devices, 40 months for their manufacture, served consecutively, and 56 months for terrorist offenses, served consecutively to first two (separate terrorist sentence imposed by the court because the offenses were not addressed in the guidelines was proper). No error to enhance defendant's sentence for improvised explosive devices, both as "destructive devices," § 2K2.1(b)(3). and as firearms, § 2K2.1(b)(1)(F).

United States v. Brown, 1998 U.S. App. LEXIS 31579 (4 th Cir. Dec. 17, 1998) – Ex post facto clause not violated where defendant's sentence was enhanced under § 841(b)(1)(A) for a prior state "misdemeanor" conviction for possession of crack for which defendant received a sentence of two years in 1993. In 1993 federal law provided that enhancement was not applicable to misdemeanors only to felonies, but 1994 change in the law made enhancement applicable for crime for which possible sentence is greater than one year. Because change in law did not impose additional penalty for 1993 conviction rather it "put him on notice of that he faced more severe consequences," no violation of ex post facto clause.

United States v. Mattox, 1998 U.S. App. LEXIS 29830 (4 th Cir. Nov. 23, 1998), cert. denied 143 L. Ed. 2d 375 (1999) – Affirming district court's imposition of one criminal history point (under § 4A1.2(c)(1)(A)) for combined traffic offenses which included, reckless driving, fleeing or attempting to elude police, obstructing an office, damage to property and speeding, for which defendant received a sentence of twelve months probation.

United States v. Carroll, 1998 U.S. App. LEXIS 29545 (4 th Cir. Nov. 19, 1998), cert. denied 143 L. Ed. 2d 89 (1999) – Affirming district court's calculation of amount of loss in car odometer rollback fraud where court did not use amount defendants sold the cars to car dealers for ($2,000-$3,000 per car), but rather used amount cars were sold to consumer for (at $6,000 per car).

United States v. Cannon, 1998 U.S. App. LEXIS 29458 (4 th Cir. Nov. 18, 1998) – Affirming district court's denial of reduction for minimal role, § 3B1.2, because in drug conspiracy, defendant's house was one of the ones used by ringleader to store drugs and because defendant's daughter was ringleader's girlfriend making it more likely he knew entire scope of conspiracy.

United States v. Tinsley, 1998 U.S. App. LEXIS 29373 (4 th Cir. Nov. 18, 1998), cert. denied 142 L. Ed. 2d 787 (1999) – Affirming district court's imposition of four level enhancement for infliction of "permanent or life-threatening bodily injury" (§ 2A2.1(b)(1)(A)) where victim suffered permanent damage to his arm which will prevent him from continuing a career as a state trooper even though victim has retained enough use to perform day-to-day activities such as grooming.

United States v. Whitmore, 1998 U.S. App. LEXIS 28991 (4 th Cir. Nov. 16, 1998), cert. denied U.S., 1999 U.S. LEXIS 3013 (1999) – Affirming district court's finding of drug quantity amount of crack to include 130 grams of cocaine that he had failed to successfully cook into crack because defendant's intent was to sell crack and his inept cooking ability will not relieve him of greater sentence (following First and Tenth Circuits). Also obstruction of justice enhancement proper where defendant obstructed not the investigation for the instant criminal offense but another investigation for an offense which counted as relevant conduct.

United States v. Bentley, 1998 U.S. App. LEXIS 28567 (4 th Cir. Nov. 13, 1998) – Affirming district court's loss calculation which included as relevant conduct amount of jewelry stolen and use of credit cards stolen during burglary despite fact that had burglary of items been separately charged, offense would have been grouped instead of having jewelry and credit card amounts added to amount of loss.

United States v. Wagner, 1998 U.S. App. LEXIS 28559 (4 th Cir. Nov. 13, 1998) – Affirming district court's two level enhancement for obstruction of justice, § 3C1.1, for attempting to escape where evidence showed defendant had a hacksaw in his cell, the cell's window bars had been almost completely sawn through, and filings and shaving were found in defendant's jumpsuit and shoes.

United States v. Robinson, 1998 U.S. App. LEXIS 28558 (4 th Cir. Nov. 13, 1998) – Affirming district court's imposition of two level increase for claiming to act on behalf of a charitable organization where defrauded victims were told by defendant that part of their money, in addition to earning them high rates of return, would go towards helping the needy.

United States v. Govan, 1998 U.S. App. LEXIS 28393 (4 th Cir. Nov. 12, 1998) – Affirming district court's finding that defendant's relevant conduct for 1994 conspiracy included receipt of 30 kilograms of cocaine in 1989, because although defendant had not been active member of the conspiracy in the five year interval since 1989, he had also not affirmatively disavowed the conspiracy either. Defendant's claim that he disavowed the conspiracy in 1989 by stating he was receiving the 30 kilograms only to help a friend did not sufficiently disavow him from conspiracy.

United States v. Maher, 1998 U.S. App. LEXIS 27771 (4 th Cir. Oct. 29, 1998) – Affirming district court's enhancement for defendant's misrepresenting that he was acting on behalf of an educational organization. Defendant created the Civil War Educational Association and the American Blue and Grey Association, and wrote fraudulent checks from both organizations' accounts. Both counted as educational organizations and although he had authority to write checks for both organizations, enhancement applied because he misrepresented that he was writing checks solely on behalf of the organization, when in fact he was writing checks in part for organization and in part for himself.

United States v. Key, 1998 U.S. App. LEXIS 27717 (4 th Cir. Oct. 29, 1998), cert. denied 1423L. Ed. 2d 121 (1999) – Affirming district court's four level enhancement for possession of a firearm in connection with another felony offense, § 2K2.1(b)(5), where the other felony offense was state offense of wanton endangerment involving a firearm. Defendant argued that application n.9 to § 2K2.1(b)(5) which states the other felony cannot be a firearm trafficking or possession offense, precluded enhancement incorrect because state offense had element of risk of bodily injury which made offense more than possession or trafficking offense.

United States v. Sofidya, 1998 U.S. App. LEXIS 27056 (4 th Cir. Oct. 23, 1998) -- Despite defendant's claim of being merely a "glorified bank teller" his job as "window supervisor" created a position of trust for which an enhancement for violating that position was appropriate under § 3B1.3.

United States v. Akinola, 1998 U.S. App. LEXIS 27055 (4 th Cir. Oct. 23, 1998) -- Upholding district court's four level enhancement for use of an automobile as a dangerous weapon (§ 2A2.2 (b) (2) (B)) despite claim of double counting where the initial aggravated assault guideline applied because of defendant's use of the automobile. Also, upholding finding that three level enhancement for assaulting a federal officer (under § 3A1.2) was not double counting with conviction for assaulting a federal officer because the guideline for the offense, aggravated assault, does not require the victim to be a federal officer, but covers any assault.

United States v. Pugh, 1998 U.S. App. LEXIS 26924 (4 th Cir. Oct. 22, 1998) – Upholding district court's imposition of nine month sentence of incarceration based upon a violation of probation because although before the 1994 amendments to 18 U.S.C.A. § 3565(a)(2), trial court was limited to the sentence available at the time of original sentencing, since those amendments trial court can begin the sentencing process anew and impose any guideline appropriate sentence.

United States v. Godfrey, 1998 U.S. App. LEXIS 26923 (4 th Cir. Oct. 22, 1998) – Affirming district court's six month sentence upon violation of supervised release for defendant's assault of his wife, despite defendant's argument that the victim did not wish defendant to be re-incarcerated.

United States v. Carroll, 1998 U.S. App. LEXIS 26727 (4 th Cir. Oct. 19, 1998) – Downward departure below career offender guideline (§ 4B1.1) because past criminal history overstated defendant's criminal record (two prior crimes of violence, a battery and an assault; one prior felony drug conviction) reversed because the six factors used by the district court for the encouraged departure of overstated criminal history (§ 4A1.3) were improper.

(1) Age - first offense at twenty-two, second at twenty-seven, and third at twenty-nine was not extraordinary;

(2) Ten years between battery and instant offense was "not significant;"

(3) Five years between battery and mere simple assault was "not significant;" (4) Small amount of drugs "not a valid ground for departure;"

(5) Employment record (employment when not incarcerated from 1983 to 1996) was not exceptional;

(6) Lenient sentence of probation on prior state assault and battery cases is "not a ground for departure."

United States v. Bailey, 1998 U.S. App. LEXIS 26741 (4 th Cir. Oct. 19, 1998) – District court's imposition of twenty-four month inpatient drug program for violation of probation affirmed despite Guideline Chapter 7's (§§ 7B1.1, 7B1.4) sentencing range of three to nine months, because Chapter 7 is merely a non-binding advisory guide. Sentence was reasonable because Defendant had three urine test violations and three other refusals to test, and could have been revoked for all sixty months of his supervised release.

United States v. Toole, 1998 U.S. App. LEXIS 26729 (4 th Cir. Oct. 19, 1998) – Enhancement for reckless endangerment during flight (§ 3C1.2) affirmed where defendant almost ran over law enforcement officer and led a several minute high speed chase over several city streets and a highway.

United States v. Perry, 1998 U.S. App. LEXIS 26551 (4 th Cir. Oct. 16, 1998) – Upholding district court's denial of reduction for defendant's acceptance of responsibility because she committed further offenses while out on bond pending trial, and upholding district court's upward departure from criminal history category VI to it's own extrapolated higher level of Category X where Perry had twenty-five criminal history points.

United States v. Tamburello, 1998 U.S. App. LEXIS 26068 (4 th Cir. Oct. 14, 1998) – Affirming district court's denial of safety valve provision (§ 5C1.2) because defendant in fact had a role of supervisor (and hid his role from the government) even though government did not seek to enhance his sentence under § 3B1.1 for that role.

United States v. Jones, 1998 U.S. App. 19171 (4th Cir. Oct. 14, 1998), cert. denied 142 L. Ed. 2d 295 (1998) -- District court stated it could not legally downward depart for successive prosecutions for the same relevant conduct despite defendant's claim that such charging imposed a greater sentence upon him, affirmed because defendant actually received a lighter sentence for successive prosecution than he would have for all prosecutions together. Also criminal history points were properly calculated to include conviction for actions taken after the instant offense but sentenced before the sentencing in the instant case.

United States v. Raney, 1998 U.S. App. LEXIS 26048 (4 th Cir. Oct. 13, 1998), cert. denied 143 L. Ed. 2d 221 (1999) – Upholding district court's upward departure for underlying escape charge because defendant committed the offense in order to commit another offense (an encouraged factor under § 5K2.9, not taken into account otherwise by the escape guideline § 2P1.1).

United States v. Justice, 1998 U.S. App. LEXIS 24898 (4 th Cir. Oct. 8, 1998) – Upholding district court's imposition of four level enhancement for possessing a firearm in connection with another felony (§ 2K2.1(b)(5)) where witnesses testified defendant had threatened her with the firearm he possessed.

United States v. Bradley, 1998 U.S. App. LEXIS 24675 (4 th Cir. Oct. 6, 1998) – Upholding district court's finding of amount of drugs attributable to defendant by converting $1,500.00 into its crack cocaine equivalent where defendant had arranged crack cocaine transaction with government informant.

United States v. Christie, 1998 U.S. App. LEXIS 24679 (4 th Cir. Oct. 6, 1998), cert. denied 143 L. Ed. 2d 80 (1999) – Upholding district court's finding that defendant was not eligible for safety value because he had failed to inform government during debriefing that he had attempted to continue drug ring while in prison. Because of this breach of the cooperation agreement, the district court was allowed to use the defendant's statements during debriefing to calculate the amount of drugs for sentencing. (§ 1B1.8(b)(4)).

United States v. Shifflett, 1998 U.S. App. LEXIS 23908 (4 th Cir. Sept. 24, 1998) – On remand for sentencing on other drug charges after reversal of continuing criminal enterprise (CCE) conviction, district court must calculate drug weight de novo because its prior calculation included the CCE conviction.

United States v. Stephens, 1998 U.S. App. LEXIS 23356 (4 th Cir. Sept. 21, 1998) – Affirming district court's application of the four level enhancement under § 2G2.2 (possession of materials involving sexual exploitation of minors with intent to traffic) instead of the two level enhancement under § 2G2.4 (mere possession of such materials) where defendant had sent cash and fourteen videos to undercover officer and received five videos in return.

United States v. Scott, 1998 U.S. App. LEXIS 23231 (4 th Cir. Sept. 18, 1998) – In robbery conviction, upholding district court's upward departure for under-representation of criminal history from Category III to Category VI by separately adding in criminal history points from each of three pending charges for other robberies despite fact that the other cases were later consolidated for judgement because District Court had stated that any consolidation would significantly under-represent the seriousness of the charges.

United States v. Frazier, 1998 U.S. App. LEXIS 22312 (4 th Cir. Sept. 11, 1998) – Affirming district court's imposition of 120 month sentence with 60 months to run consecutive to a separate state sentence of ten years because despite § 5G1.3(b)'s statement that sentencing in cases such as this should run concurrently, the district court did not err in departing upward from the concurrent sentence because it had found the defendant's criminal history score under-represented his actual criminal history.

United States v. Liteky, 1998 U.S. App. LEXIS 22147 (4 th Cir. Sept. 10, 1998) – Affirming district court's denial of acceptance of responsibility adjustment where defendant had thrown red paint on the Pentagon in protest, went to trial, but did not contest the facts, but rather used the trial as a protest, but defendant had indeed forced the government to prove its case and had stated he would perform such conduct again in the future.

United States v. Yancey, 1998 U.S. App. LEXIS 22291 (4 th Cir. Sept. 10, 1998) – Affirming district court's cross reference (under § 2J1.2(a) and § 2X3.1) for underlying obstruction of justice conviction to murder guidelines despite defendant's acquittal upon the murder charge because the cross reference goes to the seriousness of the object of the obstruction of justice, and does not intend to treat the defendant as guilty of the cross referenced crime.

United States v. Garzarek, 1998 U.S. App. LEXIS 22105 (4 th Cir. Sept. 9, 1998) – Upholding district court's enhancements (1) under § 2S1.2(b)(2)(use of funds illegally obtained greater than $100,000) because although the defendant only used $60,000 of the $300,000 total after learning of the fraud, (b)(2) does not require defendant have knowledge of the fraud only use of an amount greater than $100,000, and (2) under § 2S1.2(b)(1)(B)(use of funds defendant knew where the product of unlawful activity) because defendant actually used $60,000 knowingly and (b)(1)(B) has no amount limit, only the knowledge requirement.

United States v. Calderon, 1998 U.S. App. LEXIS 22108 (4 th Cir. Sept. 9, 1998) -- Appeal dismissed because defendant waived in plea agreement any right to appeal from a sentencing decision of the district court which was within its discretion and, in fact, defendant appealed discretionary enhancement and discretionary refusal to downward depart.

United States v. Dantzler, 1998 U.S. App. LEXIS 21633 (4 th Cir. Sept. 3, 1998) -- Affirming district court's weapon enhancement under § 2D1.1 where informant saw rifle in defendant's room and rifle along with crack cocaine was in defendant's room one month later along with weapons throughout the house. Also, denial of reduction for acceptance of responsibility under § 3E1.1 was correct where although defendant had been candid in interview with probation officer and stipulated to drug quantity at trial, subsequent letter disputed amount of drugs found.

United States v. Bradford, 1998 U.S. App. LEXIS 21523 (4 th Cir. Sept. 2, 1998) -- Affirming district court's refusal to compel motion for downward departure from the government for substantial assistance based upon § 5K1.1 because the plea agreement left the government the discretion to recommend the departure if it decided the defendant's assistance was substantial. Defendant violated the plea agreement by failing a polygraph test. A specific clause in the plea agreement rendered the government's obligations void.

United States v. French, 1998 U.S. App. LEXIS 21528 (4 th Cir. Sept 2, 1998), cert. denied 142 L. Ed. 2d 700 (1999) -- Upholding district court's upward departure from criminal history category VI because it underrepresented the defendant's criminal history where he had committed a wide range of criminal acts since age sixteen, had repeatedly violated release on bond conditions and supervised release, and had continued criminal activity while incarcerated.

United States v. Charles, 1998 U.S. App. LEXIS 20849 (4 th Cir. Aug. 25, 1998) -- Affirming district court's refusal to depart downward for defendant's allegation that his fraud and money laundering conviction were so closely related he was only technically guilty of the money laundering because Congress intended to criminalize a broad array of money laundering actions.

United States v. Talbott, 1998 U.S. App. LEXIS 18773 (4 th Cir. Aug. 13, 1998) -- Affirming district court's imposition of fifteen year mandatory minimum for three prior violent felonies or drug offenses including prior breaking and entering conviction which defendant had stipulated was a violent felony during an earlier appeal before remand. Defendant did not offer any conclusive proof to overturn prior stipulation. Defendant foreclosed from re-litigating the issue on remand.

United States v. Hitomi, 1998 U.S. App. LEXIS 18681 (4 th Cir. Aug. 11, 1998) -- Upholding district court's denial of three level reduction under § 2X1.1 for an attempt because defendant had completed all the acts he thought necessary to complete fraud when he signed the purchase and sales agreement to sell fraudulent item even though he had not delivered it before being arrested.

United States v. Ritter, 1998 U.S. App. LEXIS 18302 (4 th Cir. Aug. 7, 1998) -- Affirming district court's finding of greater than 50 grams of crack cocaine where defendant delivered 50.16 grams of slightly undercooked crack, despite testing lab's labeling of the substance as powder cocaine because the chemical conversion to crack had been "incomplete."

United States v. Williams, 1998 U.S. App. LEXIS 17865 (4 th Cir. Aug. 5, 1998) -- Affirming district court's sentencing where, for the first time on appeal defendant claimed and the government denied that an oral plea agreement included a promise by the government that it would move for a downward departure for substantial assistance.

United States v. Singletary, 1998 U.S. App. LEXIS 17733 (4 th Cir. Aug. 3, 1998) -- District court included as relevant conduct defendant's intentional killing for which he was acquitted of murder but convicted of involuntary manslaughter, determining the intentional killing by a preponderance of the evidence and denying downward adjustment for acceptance of responsibility because defendant contested the finding of an intentional killing.

United States v. Todman, 1998 U.S. App. LEXIS 17455 (4 th Cir. July 30, 1998) -- Despite alleged good faith of claims by defendant of his innocence, such protestations provided acceptable basis for district court to deny downward departure for acceptance of responsibility.

United States v. Bramble, 1998 U.S. App. LEXIS 17454 (4 th Cir. July 30, 1998) -- Upholding district court's upward departure of seven levels for fraud outside the heartland of more than minimal planning where defendant embezzled from bank over five years, through 48 accounts, switched money by various means to cover up the fraud, and bank auditors had to review 700,000 transactions to reveal the extent of the fraud.

United States v. Mitchell, 1998 U.S. App. LEXIS 17172 (4 th Cir. July 28, 1998) -- Affirming district court's denial of downward departure for more lenient state sentences of codefendants because such a difference "did not provide a basis for departure."

United States v. McKinney, 1998 U.S. App. LEXIS 17170 (4 th Cir. July 28, 1998) -- Affirming district court's application of five level enhancement for use of a firearm during a robbery (under § 2B1.3 (b) (2)) despite government's dismissal, under plea agreement, of charge of use of a firearm in relation to a crime of violence.

United States v. Moses, 1998 U.S. App. LEXIS 17169 (4 th Cir. July 28, 1998) -- Affirming district court's application of four level enhancement for use of a firearm in connection with another felony offense (§ 2K2.1 (b) (5)) where defendant was arrested with firearm under the seat of his car and baggies of cocaine on his person, gun could be used to protect his drug trafficking and he admitted to buying gun to protect himself and his girlfriend.

United States v. Husky, 1998 U.S. App. LEXIS 16750 (4 th Cir. July 22, 1998), cert. denied 142 L. Ed. 2d 700 (1999) – Affirming district court's use of state defined "misdemeanor" as a prior felony drug offense for enhancement where maximum sentence was eighteen months. Government notice of intent to seek enhancement was sufficient even though notice labeled prior offense as for "dangerous drugs" when it was actually for "drug paraphernalia." Date of conviction in notice was correct and was sufficient to put defendant on notice.

United States v. Sutherland, 1998 U.S. App. LEXIS 15131 (4 th Cir. July 7, 1998) – Under the guidelines, one gram of pure methamphetamine is equal to ten kilograms of marijuana, while one gram of methamphetamine mixture is equal to one kilogram of marijuana. The guidelines instruct the district court to impose the higher amount of the two calculations. Held that such a sentencing scheme is not unconstitutional.

United States v. Montgomery, 1998 U.S. App. LEXIS 15130 (4 th Cir. July 7, 1998), cert. denied 142 L. Ed. 2d 410 (1998) – Affirming district court's imposition of sentence to run consecutively from state sentence although court did not analyze list of factors used to determine if a sentence should run concurrently or consecutively, but court did note severity of offense and defendant's extensive criminal history.

United States v. Matheny, 1998 U.S. App. LEXIS 14834 (4 th Cir. June 30, 1998) – Affirming district court's inclusion in defendant's criminal history of prior conviction for brandishing a deadly weapon because that charge was not similar enough to disorderly conduct as to require its exclusion as a minor offense in calculating criminal history points under § 4A1.2(c)(1).

United States v. Coley, 1998 U.S. App. LEXIS 14493 (4 th Cir. 1998) – Reversing district court imposition of $10,000 fine because the court failed to make the requisite finding of the fine's effect on defendant's wife and nine dependants.

United States v. Farley, 1998 U.S. App. LEXIS 13716 (4 th Cir. June 26, 1998) – Upholding district court's upward departure from criminal history category II to category III based upon many arrests for which defendant was found mentally incompetent to stand trial. In this case, although defendant was found competent to stand trial, district court found defendant had been faking mental illness in an attempt to gain another incompetency ruling.

United States v. Sumler, 1998 U.S. App. LEXIS 13714 (4 th Cir. May 4, 1998),, cert. denied 142 L. Ed. 2d 409 (1998) – Affirming district court's drug quantity determination based upon hearsay of first co-defendant, testified to at sentencing by a second co-defendant. District court also properly denied defendant's motion to force government to produce notes of its meeting with first co-defendant because neither Fed. R. Crim. P. 26.2 and 32(c)(2) nor § 6A1.3(a) compel such production where first co-defendant did not testify, and government provided defendant with meeting notes for second co-defendant who did testify.

United States v. Swann, 1998 U.S. App. LEXIS 13713 (4 th Cir. June 16, 1998), cert. denied 142 L. Ed. 2d 222 (1998) – Affirming district court's finding that defendant was not eligible for sentence reduction for "small amount" of drugs under 21 U.S.C. § 844 because in prison setting 4.9 grams of marijuana which defendant possessed was not a small amount.

Maryland District Court Decisions

United States v. Hall, ___F. Supp. 2d___, 1999 U.S. Dist. LEXIS 3872 (D. of Md. March 30, 1999) (J. Motz) – Granting 2255 for trial counsel's failure to move for a downward departure based on over representation of criminal history where defendant was sentenced as a career offender and district court judge asked at sentencing if there was anything he could do to find that the defendant was not a career offender and trial counsel remained silent. Furthermore, although no individual fact regarding defendant's criminal history justified a departure, a combination of factors warranted such departure pursuant to § 4A1.3 where defendant had two prior minor drug offenses within two years starting at age nineteen for which he received minor state sentences. (First offense, 4.73g cocaine and 4.23g of marijuana, sentenced four years all but nine months suspended; second offense, fifty-two bags cocaine, sentenced eighteen months all but twenty days suspended).

United States v. Smith, ___29 F. Supp. 2d 691___ (D. of Md. 1998) (J. Maletz) – Defendant filed a motion to reduce sentence, 18 U.S.C. § 3582(c)(2), based upon Guideline Amendment 484 which directed the drug wight should not include substances such as wastewater which have to be removed before a drug is usable. Motion denied because no evidence that the liquid "neutralizer" added to the PCP needed to be removed before use, in fact liquid PCP is often used by spraying it onto marijuana.

United States v. Blalock,___ 29 F. Supp. 2d 688___ (D. of Md. 1998) (J. Maletz) – Defendant's attempted murder conviction was not a "previous conviction" for purposes of armed career criminal definition, 18 U.S.C. § 924(e)(1), because attempted murder conviction occurred on 1/22/98 and instant firearm offense occurred on 12/22/97.

United States v. Holland, 1998 U.S. Dist. LEXIS 14872 (D. Md, Aug. 31, 1998) (unpublished) – District court found inter alia:

(1) proper to calculate drug quantity by use of the average quantities of individual transactions multiplied by known number of transactions over known period of time,

(2) some defendants were major players in the conspiracy and were credited for drug quantities other conspirators sold on the street while defendants were in prison,

(3) a cooperators' stipulation as to drug quantity was not binding as to other defendants who proceeded to trial,

(4) the § 2A1.1 murder cross reference was applicable to defendants for whom there was clear and convincing evidence of their involvement in the killings,

(5) obstruction of justice enhancement (§ 3C1.1) applied to defendants who encouraged a witness to give false information to law enforcement,

(6) career offender status imposed upon defendant for both prior convictions of heroin possession and of assault (and underlying facts show defendant had threatened victim with a gun).