Monday, September 28, 2020

Tenth Circuit Breviaries

Sentencing: minor role, USSG § 3B1.2(b)

Litigating a minor-role reduction for your client? Read United States v. Delgado-Lopez. There the Tenth Circuit held that a district court considering whether to grant a minor-role reduction should not: (1) speculate about the economics of the drug-trafficking scheme; (2) consider the defendant's refusal to cooperate; or (3) fail to consider the defendant's culpability relative to other participants (unless the only evidence in support of the reduction is the defendant's testimony and the district court properly finds that testimony not credible).

Sentencing: disparities and issue preservation generally

18 U.S.C. § 3553(a)(6) obligates the district court to consider, at sentencing, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Native Americans convicted of assault in Indian country under the Major Crimes Act face higher sentences under federal law than they would under state law. Because of the Act's conferral of federal jurisdiction over certain crimes within Indian country, the Act disproportionately affects Native Americans. Can a sentencing court consider this disproportionate effect when sentencing a Native American person convicted under the Act?

Nope---at least not under Section 3553(a)(6). So said the Tenth Circuit in United States v. Begay, citing binding Circuit precedent holding that the purpose of Section 3553(a)(6) is to prevent disparities among federal defendants, period.

BUT the Tenth Circuit suggested that the disparity at issue in Begay might be relevant to other sentencing factors, or even the basis for an equal-protection argument. Alas, counsel for Mr. Begay did not sufficiently raise or argue these other bases for considering the disparity in his case. Sentence affirmed.

Sentencing: substantial risk of death or serious bodily injury, § 2K1.4(a)(1)(A)

This guideline requires an actual risk, not just an intended one. But the district court found an actual risk here, and so Mr. Ansberry's base-offense level stands. United States v. Ansberry.

Sentencing: terrorism enhancement, § 3A1.4

"[F]or a § 3A1.4 terrorism enhancement based on the defendant’s retaliation against government conduct to apply, the conduct retaliated against must objectively be government conduct." United States v. Ansberry (emphasis added) (in other words, it is not enough that the defendant subjectively believed the conduct was government conduct).

Sentencing: official victim enhancement, § 3A1.2(a)

This enhancement may only be based on "facts immediately related to the offense of conviction," and not on broader relevant conduct. United States v. Ansberry. The government charged Mr. Ansberry with using or attempting to use a weapon of mass destruction against any person or property. But Mr. Ansberry only pleaded guilty to attempting to use the WMD against property. An offense against government property does not automatically victimize government employees.

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