Sentencing 101 Drug and Gun Guidelines Gun case This was an - PowerPoint PPT Presentation

Sentencing 101 Drug and Gun Guidelines

Gun case • This was an offense charged under 18 U.S.C. 922(g)(3) • Refer to the Appendix of the guidelines to determine the applicable guideline section

USSC Guidelines, Appendix A • 18 U.S.C. § 879 2A6.1 • 18 U.S.C. § 880 2B1.1 • 18 U.S.C. § 892 2E2.1 • 18 U.S.C. § 893 2E2.1 • 18 U.S.C. § 894 2E2.1 • 18 U.S.C. § 911 2B1.1, 2L2.2 • 18 U.S.C. § 912 2J1.4 • 18 U.S.C. § 913 2J1.4 • 18 U.S.C. § 914 2B1.1 • 18 U.S.C. § 915 2B1.1 • 18 U.S.C. § 917 2B1.1 • 18 U.S.C. § 922(a)-(p) 2K2.1 • 18 U.S.C. § 922(q) 2K2.5 • 18 U.S.C. § 922(r)-(w) 2K2.1 • 18 U.S.C. § 922(x)(1) 2K2

Section 2K2.1 • Almost always the guideline for gun cases, but check the appendix to be sure • Unique guideline because criminal history impacts the base offense level • So before we can do the guidelines, we have to look at his criminal history

The Pretrial Report • Valuable tool, because clearly and concisely sets out criminal history • BUT NOT ALWAYS ACCURATE • Use casenet to see if your client has any prior convictions not reported on the PTS report (https://www.courts.mo.gov/casenet/base/welcome.do) • Ask your client where he has ever been arrested or gone to court • Including municipal court!

GET RECORDS • Always, always, always ask for records from the court where your client has been convicted • You need to review the charging document and the commitment form in EVERY CASE • How else you can verify dates of convictions (sometimes clients are convicted AFTER the federal offense occurred.) • How else can you verify exact nature of charges? • How else can you verify exact sentence? (Your client may not always remember accurately, and the pretrial/probation officer isn’t always right either)

Our client’s criminal history • In this case, the pretrial report (page 1 of the “discovery”) is accurate • Client has two pending cases (Clay County, and KCMO municipal) • Client has no prior convictions

OPPORTUNITY TO GIVE ADVICE • This client was released on bond. If your client is released on bond, advise him not to plead guilty to the pending cases. • Although new convictions can’t be used to increase his base offense level under 2K2.1 (because they won’t be considered prior convictions), they can be used to increase his criminal history • Reach out to the client’s state or municipal court lawyer to make sure he/she understands the importance of not having a finding of guilt on pending cases until the federal case is done • Can’t avoid a finding of guilt? Then avoid sentencing. At least those cases will be no more than one point each if client hasn’t been sentenced.

Back to 2K2.1 to determine the base offense level • Our client doesn’t have any prior convictions, so he will not have an enhanced punishment based on that reason. • BUT THERE ARE OTHER EVIL GROUNDS TO INCREASE THE BASE OFFENSE LEVEL

2K2.1(a)(4) • 2k2.1 • (a) Base Offense Level (Apply the Greatest) • … • (4) 20 , if— (A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a • crime of violence or a controlled substance offense; or (B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine; or (II) firearm • that is described in 26 U.S.C. § 5845(a); and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense; (II) is convicted under 18 U.S.C. § 922(d); or (III) is convicted under 18 U.S.C.§ 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person; …

Did you see the high capacity magazine enhancement? • Discovery page 7

The High Capacity Magazine Enhancement • Stinks • Fight it. The lack of empirical data to support this enhancement makes it ripe for an attack that could result in a downward variance • Sample pleading: United States v. Hughley, 14-CR-224 (WDMO), Document 40. (sentencing memo and several attachments) • The guideline does contain this enhancement, so it’s not necessarily an objection . You are asking for a downward variance because the guideline is bad. • This is similar to the variance you might ask for because certain drugs receive such greater sentences than other drugs.

Guideline calculations • Base offense level 20 (2K2.1(a)(4))

Specific Offense Characteristics • Usually bad news, but not always • Opportunity to advocate • 2K2.1(b)(2) says you can get a reduced based offense level if the firearms were possessed solely for lawful sporting purposes or collection • This does happen and you should see if you can get this to apply to your client • Won’t work here because base offense level under 2K2.1(a)(4) is excluded (as is just about any enhanced base offense level) • Our client doesn’t have much argument that he possessed the guns for lawful sporting purposes or collection.

Specific Offense Characteristics • Go through every option at 2K2.1(b) to see if anything applies to your client. • Often seen: • Number of guns enhancement (anything more than 2) • Destructive Devices (includes sawed off shotguns) MOST COMMON ENHANCEMENTS Stolen gun Obliterated serial number “In connection with” another felony offense

The Stolen Gun Enhancement • Your client does not have to know it was stolen. If the gun has been reported stolen, you get the enhancement. • But be mindful and get reports: If the gun had been returned to the owner and it was no longer considered a stolen gun, then you shouldn’t get this enhancement.

Altered or Obliterated Serial Number • Your client does not have to be responsible for the damage to the serial number • Opportunity to advocate: • If there’s more than one place where the serial number is on the gun, and only one is altered or obliterated, argue that this enhancement does not apply • If they were able to restore the serial number, argue that this enhancement does not apply

Did you see the obliterated serial number enhancement? Discovery page 7

Guideline Calculations • Base offense level 20 • Obliterated Serial Number +4

“In connection with” another felony offense • This does not mean “at the same time as.” • The firearm or ammunition must have facilitated or had the potential of facilitating another felony offense. (Application note 14) • Use your application notes • Note 14, (B) Application When Other Offense is Burglary or Drug Offense.—Subsections (b)(6)(B) and (c)(1) apply (i) in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary; and (ii) in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug- manufacturing materials, or drug paraphernalia. In these cases, application of subsections (b)(6)(B) and, if the firearm was cited in the offense of conviction, (c)(1) is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense, respectively.

“In connection with” another felony offense • Use application note 14(B) to distinguish your facts from the sort of case in which USSC thinks this enhancement should apply. Especially distinguish the use of this enhancement when all the client had was personal use drugs. That’s not a drug trafficking offense as suggested in the application note. • Use common sense to argue. How does a gun or ammunition facilitate a tampering offense? • There’s bad caselaw out there. The “other” offense can be the state offense of unlawful use of a weapon. Fight anyway.

Watch for cross-references • 2K2.1(c) calls for a cross reference to a different, more harsh guideline if the gun or ammunition was used to facilitate that offense. • This is never good. We are talking about cross references to murder, assault, etc. • Be aware of this possibility. It’s a good reason to try to get a binding plea agreement.

Chapter Three • After you finish with 2K2.1 you go to Chapter Three to see if any enhancements or reductions apply. • Commonly seen enhancements in gun cases: • 3C1.1 Obstructing or Impeding the Administration of Justice • Providing false information during the investigation • 3C1.2 Reckless Endangerment During Flight • Opportunity to advocate: The false information was not meant to impede the investigation and really didn’t. The flight did not really endanger anyone.

Chapter Three • There are lots of potential enhancements, and a few beneficial possibilities, in Chapter Three. You should review each section of this Chapter every time you do guidelines calculations.