Sentencing in the Federal System

A recent case out of the Fourth Circuit—United States v. Bolden, 964 F.3d 283 (4th Cir. 2020)—provides a good illustration of how sentencing works in the federal system.

The Offense

Early in the morning of October 13, 2017 in Burlington, North Carolina, Jermarise Bolden got high on drugs and became paranoid. He “placed two women in a ‘bear hug’, and [began] shooting at shadows on the walls inside the home’s rear bedroom.” Someone called the police about the gunshots. The police arrived and quickly got control of the situation (without shooting anyone). Their protective sweep found two handguns, 2.6 grams of marijuana, and 300 milligrams of cocaine base. Mr. Bolden was eventually taken to a hospital, where he was diagnosed with multiple psychiatric disorders. The Government charged him with one count of being a felon in possession of a handgun, and he pled guilty.

Step 1: The Pre-Sentence Report, or PSR

In the federal system, the sentencing process begins when the probation office prepares a pre-sentence report (or “PSR”) in which it tries to apply the Sentencing Guidelines to the facts of the case and propose a sentencing range. The Guidelines take into account the events (the charged crime as well as relevant uncharged conduct) and the defendant’s criminal history and other characteristics. The events are scored on a point system and all the points are added together to arrive at the Offense Level. Then, the defendant’s interactions with the criminal justice system are assigned points according to rules, those points are summed, and the resulting sum is translated into a Criminal History Category. The Offense Level and the Criminal History Category form the axes of a table in the Sentencing Guidelines, so you take those two, find where they intersect, and there is your “Guidelines range,” usually expressed in months.

Here, the probation office started with the fact that Mr. Bolden pled guilty to being a felon in possession of a handgun. Then, the probation office suggested that an enhancement should apply because he “committed first-degree kidnapping by restraining the two women from the bedroom against their will.” Taken together—the felon in possession charge enhanced by the uncharged relevant conduct of first-degree kidnapping—the probation office recommended a sentence of 120 months (10 years).

Step 2: Objections to the PSR

The second step in the sentencing process: the defendant gets an opportunity to object to the PSR. Here, Mr. Bolden objected to the kidnapping enhancement. The Sentencing Guidelines provide that a sentence will be “enhanced” if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). The application notes define “another felony offense” as “any federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1 app. n. 14(C). To prove the enhancement, the Government has to prove the other felony by a preponderance of the evidence, not beyond a reasonable doubt. See U.S. v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). The “other felony” in this case was kidnapping. In North Carolina, a conviction for kidnapping requires a finding that the defendant acted ” ‘for the purpose of’ achieving certain illicit aims.” Slip Op. at 3–4 (citing N.C. Gen. Stat. § 14-39(a)). Mr. Bolden argued that “his mental condition on the morning of October 13 made it impossible for him to form the specific intent required for kidnapping under North Carolina law.” Slip Op. at 3. Without the kidnapping enhancement, the Guidelines range would have been 63 to 78 months (roughly 5 to 7 years).

Step 3: Determining the Sentence

The third step: the sentencing court rules on the objections (if any), hears other relevant material (like victim statements and the defendant’s statement), and considers the factors in 18 U.S.C. § 3553. Here, the sentencing court sustained Mr. Bolden’s objection, but then did something unusual. The sentencing court ruled that Mr. Bolden “had committed ‘a number of crimes’ — including . . . ‘felonious possession of cocaine’ ” that would support an enhancement similar to the one for kidnapping. Putting the enhancement back into the calculation resulted in a Guidelines range of 92 to 115 months (roughly 8 to 10 years). Ultimately, the court sentenced Mr. Bolden to 102 months’ imprisonment (8 years, 6 months).

Step 4: Appeal

The fourth step: appeal. Here, Mr. Bolden challenged the sentencing court’s sua sponte finding about cocaine possession. The court of appeals discussed two issues: the standard of review and the merits.

Step 4a: The Standard of Review

Regarding standard of review: Where the defendant objected below, the standard of review is abuse of discretion; where the defendant failed to object below, the standard of review is for plain error. The Government argued on appeal that Mr. Bolden’s objection below (“that the government had failed to prove that he possessed a firearm in connection with another felony offense”) did not encompass the cocaine enhancement. The Fourth Circuit disagreed. First, Mr. Bolden objected that the Government failed to prove “another felony offense,” not just kidnapping. And second, even if not, the circumstances below did not provide Mr. Bolden with “a meaningful opportunity to object more specifically. . . . [Mr.] Bolden was not required to assert an after-the-fact and formulaic objection in order to preserve the argument he raises here.”

Step 4b: The Merits

Regarding the merits: Because Mr. Bolden objected, the standard of review is abuse of discretion, which is a lower bar than plain error. Abuse-of-discretion review requires the court of appeals to “vacate a sentence as procedurally unreasonable if a district court makes clearly erroneous factual findings in the course of calculating a defendant’s advisory sentencing range.” Slip Op. at 6 (citing United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). The problem here is that the sentencing court made no factual findings regarding the connection between possessing the firearm and possessing the cocaine. In cases involving “simple drug possession,” it is not enough that a gun is present or close by. Instead, the gun must have “facilitated, or had the potential of facilitating,” the possession, that it had “some purpose or effect with respect to” the possession. Here, there were no findings about the connection, if any, between possessing the cocaine and possessing the firearm. Accordingly, “on this record—with no district court finding as to facilitation, and no indication of why the district court might have thought there was facilitation here—we are unable to review . . . and must instead vacate the defendant’s sentence and remand for resentencing.” Slip Op. at 11.

Step 4c: The Outcome

Theoretically, there are three possible outcomes: reverse and render, remand for resentencing, affirm. The latter two are by far the most common outcomes. Because the federal sentencing scheme requires the district court to exercise discretion in light of half a dozen factors, the courts of appeals are reticent to reverse one sentence and render another in its place. Instead, the court of appeals most often finds either no abuse of discretion or no plain error warranting remand and simply affirm the sentence below. When they do find error, as in this case, they usually remand back to the sentencing court to try again.

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