Wednesday, May 6, 2015

The Road Goes on Forever, the Amendment Cycle Never Ends

AFPD David Freund --

With apologies to Robert Earl Keen, while it seems like only yesterday when the Sentencing Commission voted to reduce offense levels for drug quantities in USSG §2D1.1, on April 30, 2015, the US Sentencing Commission sent yet another round of proposed guidelines amendments to Congress. Absent action by Congress, these amendments will become effective November 1, 2015.  
Among the notable amendments are changes to the definition of “jointly undertaken criminal activity” in the relevant conduct guideline (§1B1.3); an increase in the marijuana equivalency for hydrocodone offenses ( §2D1.1); revision of the “single sentence” rule in §4A1.2; and revisions to the minimal participant mitigating role reduction.
Carl Folsom recently wrote about the proposed amendments to USSG §2B1.1, the guideline for fraud and other economic crimes. We’ll focus on two others: (1) marijuana equivalency for hydrocodone combination products in §2D1.1; and (2) the single sentence rule in §4A1.2:
USSG § 2D1.1: On August 22, 2014, the DEA reclassified hydrocodone combination products from schedule III to schedule to II. The change became effective on October 6, 2014. This increased the statutory maximum penalty for hydrocodone offenses from 10 years to 20 years when death or serious bodily injury did not occur. See 21 U.S.C. § 841(b)(1)(C), and (b)(1)(E)(i).
The proposed amendment to the drug equivalency table in Application Note 8(D) to §2D1.1 increases the marijuana equivalent for one gram of hydrocodone (actual) from 500 grams marijuana to 6,700 grams marijuana. In other words, sentences for this crime will get (more than three times) longer. Our marijuana equivalency spreadsheet will be updated to reflect this change and posted on our web site on November 1, 2015.
USSG § 4A1.2: In creating a solution in search of a problem, resolving a rather undeveloped Circuit split, the Commission changed how the “single sentence rule” applies to determine what felony crimes of violence and controlled substance offenses receive criminal history points, and thus count as career offender predicates.
To put §4A1.2 in context and to explain why the amendment is important, a quick review of the current “single sentence rule” and career offender guideline is helpful.
USSG 4A1.2(a)(2) currently states that when a defendant has multiple prior convictions, the convictions count as a single sentence when there was no intervening arrest and the sentences resulted from offenses included in the same charging document or the sentences were imposed on the same day. For purpose of applying §4A1.1(a), (b), or (c), if the prior sentences are counted as a single sentence, the longest sentence of imprisonment is scored if the sentences were concurrent, and the aggregate sentence is scored if consecutive sentences were imposed.

A defendant is a career offender if he is at least 18 years old at the time of the current offense, the current offense is a felony that is a crime of violence or controlled substance offense, and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. See §4B1.2(a). Crime of violence and controlled substance offense are defined in §4B1.2(c), and include only those prior felony convictions that are counted separately under §4A1.1(a), (b), or (c).
Almost everywhere but the Sixth Circuit, USSG §4A1.2 as currently written may exclude some crimes of violence or controlled substance offenses from scoring in criminal history under §4A1.1(a), (b), or (c). This means that such convictions would also not count as career offender predicates.
This would occur when the otherwise predicate offense was included with other convictions in a case, and the counts are treated as a single sentence by §4A1.2(a)(2). For example, a defendant is charged in the same case and convicted of possession of cocaine and burglary of a dwelling. He receives concurrent sentences of 26 months for the cocaine conviction, and 13 months on the burglary conviction. As currently written, if the convictions occurred within the requisite time frame, the §4A1.2 “single sentence” would result in 3 criminal history points for the cocaine conviction (see §4A1.1(a)), but no additional criminal history points for the 13 month burglary sentence under §4A1.1(a), (b), or (c). Because the burglary does not receive criminal history points under §4A1.1(a), (b), or (c), it does not meet the §4B1.2(c) definition of “prior felony offense,” and is not counted as a career offender predicate.

The proposed amendment revises Application Note 3 to §4A1.2 and includes a new subparagraph (A), which makes a prior crime of violence or controlled substance offense conviction count as a career offender predicate “when the conviction would have otherwise received criminal history points.” The proposed amendment provides this example in application Note 3(A):

[A] defendant’s criminal history includes one robbery conviction and one theft conviction. The sentences for these offenses were imposed on the same day, eight years ago, and are treated as a single sentence under §4A1.2(a)(2). If the defendant received a one-year sentence of imprisonment for the robbery and a two-year sentence of imprisonment for the theft, to be served concurrently, a total of 3 points is added under §4A1.1(a). Because this particular robbery met the definition of a felony crime of violence and independently would have received 2 criminal history points under §4A1.1(b), it may serve as a predicate under the career offender guideline.

This change in criminal history scoring will result in more clients being eligible for the career offender enhancement. It will also result in more clients receiving an enhanced offense level for firearms offenses under §2K2.1(b)(1), (b)(2), (b)(3), and (b)(4)(A); and explosives offenses under §2K1.3(a)(1) and (2).
The amendment to §4A1.2 doesn’t exactly fulfill the Commission’s previously stated priority of reducing overcapacity in federal prisons.

For additional information on the proposed amendments, and potential arguments in support of downward variances, please read the Summary of 2015 Proposed Amendments to the Sentencing Guidelines by the Federal Public & Community Defender National Sentencing Resource Counsel Project, and the Public Comments submitted by the Federal Defender Guidelines Committee.

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