Category Archives: criminal

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.

Lying police undermine confession

This week’s case comes out of the Tenth Circuit: United States v. Young, No. 18-6221, on appeal from the Western District of Oklahoma. It is marked for publication, but I don’t have the cite yet.

Shane Young was driving early one morning in Woodward County, Oklahoma. The police signaled him to pull over, but he delayed stopping for a while. When he finally stopped, he got out of the car and fled on foot. The police caught him and retraced his steps. They found a small headphones case containing 4 grams of meth. They arrested him, but he invoked his rights to counsel and to remain silent and was released before too long.

Later that day, police returned to Mr. Young’s flight path and found something they had missed before: a black bag containing 93 grams of meth. The black bag changes things. Possession of 4 grams has no mandatory minimum prison term, but possession of 97 grams (the headphones case plus the black bag) carries a mandatory minimum of 5 years in prison. 21 U.S.C. § 841(b)(1)(B), (C). They rearrest him. He admits to the 4 grams but not the 93 grams. He asks for a lawyer, so they stop questioning him (but they do not let him go).

Four days later, Mr. Young is still in custody when he meets FBI special agent Kent Brown. Mr. Young tells Agent Brown about how he’s worried about the effect this arrest will have on his life. He has a new baby, etc. Agent Brown says he wants to help and that he’s “on your side.” Agent Brown showed Mr. Young the federal arrest warrant, but told him that he had spoken to the federal judge on the case. According to Agent Brown, the judge was willing to charge Mr. Young “anywhere from five to ten years” for the 4 grams. But Mr. Young could “physically buy down the amount of time you see in federal prison” by “own[ing] to the information.” According to Agent Brown: “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re actually going to see.” In other words, the more meth Mr. Young admitted to possessing, the less prison time he would get. Agent Brown specifically said: “that’s the way it works.”

Mr. Young was a little suspicious, but he didn’t have any experience in federal court. He wondered if he should talk to a lawyer and said he felt “like I’m buying the farm.” But he bought the farm anyway. He agreed with Agent Brown’s suggestion about how the black bag with 93 grams got there and was charged with possession with intent to distribute 97 grams of meth. By owning to the information, Mr. Young increased the amount of time he was likely to see from 0-20 years to 5-40 years.

A lawyer was appointed for Mr. Young after he was charged. The lawyer moved to suppress the confession as involuntary. Involuntary confessions are not admissible. The Government bears the burden of proving that the confession was not involuntary, that it was “freely self-determined.” In considering the question, courts should consider the totality of the circumstances, including characteristics of the accused and the details of the interrogation and whether there was any “coercive police activity,” such as misrepresentations and promises of leniency.[1]

The district court found that Agent Brown lied to Mr. Young and made promises of leniency. Nevertheless, the district court determined that the confession was voluntary, based mostly on the relative friendliness of the interrogation, Mr. Young’s experience in state criminal court, and the fact that he had been advised of his constitutional rights. Unable to avoid the confession, Mr. Young pled guilty and was sentenced to 188 months’ imprisonment. That’s 15 years and 8 months. So by confessing to more meth, he “physically bought down his time” and increased it from the 5 to 10 years Agent Brown had promised to more than 15 years.

On appeal, the Tenth Circuit was most troubled by Agent Brown’s misrepresentations about how the federal system works. “Although we do not require a law enforcement officer to inform a suspect of the penalties for all the charges he may face, if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” This is a version of a general rule in American law: you don’t have to say anything, but if you do say something, you can’t lie. Here, Agent Brown lied to Mr. Young when he said that confessing to higher quantities would result in a lower sentence. Agent Brown also lied when he said that he would tell the judge about Mr. Young’s cooperation, that the cooperation would “physically buy down the amount of time you see in federal prison,” and that “that’s the way it works.”

Because “that is not the way the federal system works.” Slip Op. at 9. In the federal system, higher amounts of possession tend to result in longer sentences. Cooperation can reduce sentencing ranges, but not enough to overcome the difference between 4 grams and 97 grams. Agent Brown’s lies undermined the voluntariness, and therefore the admissibility, of the confession. The confession should have been suppressed. The conviction must be vacated and the case remanded for further proceedings.

This case gives me hope. Police authority should come from their moral authority, their impeccable integrity, not from their guns. I am glad to see courts holding police to that standard.


Footnotes:

  1. I have omitted the case citations. If you are interested in seeing the cases the court cited, check out the slip opinion at 6–8.

Papering Over the Constitution

The case of United States v. Lim, 897 F.3d 673 (5th Cir. 2018), is one of those cases that discourages me. It involves dishonesty and duplicity by three different Government actors on three different levels.

Level 1: The Miranda Two-Step

Miranda v. Arizona, 384 U.S. 436 (1966), is the source of the well-known “Miranda Warning”: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. And so on. The purpose of the Miranda Warning is to inform people that they do not have to answer police questions without an attorney present. But what if people won’t answer questions if there is an attorney present? How can you make sure you catch the bad guys?

One solution is the “Miranda two-step.” It goes like this:

  1. The officer asks questions and gets answers he likes.
  2. The officer gives the Miranda Warning to the individual, telling him that he doesn’t have to answer any questions.
  3. The officer asks the same questions again.
  4. If he gets the same answers, great; if the answers change, the officer says something like: “Wait a minute. Didn’t you just say . . . ?” With any luck, the person will change their answer back to the original answer.

It can be a pretty effective technique for covering up Miranda violations. It’s also pretty slimy.

In this case, ICE was executing a warrant for removal on a guy named Chhay Lim. Mr. Lim had been ordered removed 16 years earlier, but apparently had not been a priority for tracking down. Anyway, ICE knocked on his door at 6 am, asked him to step outside, and arrested him on his front porch. Lim, 897 F.3d at 685. Even though he was clearly under arrest, the ICE officers did not give him the Miranda Warning. In fact, the ICE officer in question “bragged that it was his standard policy not to Mirandize an alien until after it appeared that criminal charges might be filed.” Id. at 690. In other words: this officer doesn’t like to tell people they don’t have to answer incriminating questions until they have already answered some incriminating questions.

Back to the two-step. Since it was 6 am and Lim was still in his underwear, they “offered to allow Lim to return inside to dress,” but “they would have to accompany him inside if he did.” Lim, 897 F.3d at 685. Once inside, they asked him if there were any guns in the house. He told them there was one in the bedroom and one in the laundry room. They escorted him to the bedroom, and he pointed out where the gun was. Step one complete.

Step two: They “secured the gun” and “read [him] his Miranda rights.” Id. at 685. This is a key juncture in the facts of the case. Everything before the warning is “pre-Miranda”; everything after is “post-Miranda.”

Step three: Post-Miranda, they ask him where he got the gun. He said: “From a friend,” but then exercised his right to remain silent. Id. at 685.

At trial, the Government wanted to admit into evidence: (1) Lim’s statements admitting that there were two guns in the house and (2) the guns themselves. Lim objected: the question about whether there were any guns was pre-Miranda, and the guns were only discovered because of the Miranda violation. The trial court overruled his objections. On appeal, the Fifth Circuit agreed with Lim that the pre-Miranda statements and the laundry room gun should have been excluded, but agreed with the trial court that the bedroom gun could be admitted, because it would have been discovered in a proper protective sweep of the bedroom.

Even though the Fifth Circuit got this part of the case right, it’s discouraging that the ICE officers routinely dance the Miranda Two-Step.

Level 2: Crafty Wording in the Factual Basis

After the trial court denied his motion to suppress the statements and the guns, Mr. Lim pled guilty. As part of the guilty plea process, the Government drafted and Mr. Lim executed a “factual basis.” The idea of the factual basis is to make the judge comfortable that this defendant actually did what the Government claims he did.

Here, the Government drafted the factual basis to say the laundry room gun was “in plain view.” Lim, 897 F.3d at 688. If the gun was in plain view, then it was ok for the ICE officers to ask about it without telling Mr. Lim that he didn’t have to answer any questions. But here’s the thing: the officer who found the gun didn’t think it was in plain view. In fact, he testified that it took two tries to find the gun in the laundry room because it was “in a place he did not look initially because it was not somewhere a person could hide.” Lim, 897 F.3d at 688.

The Fifth Circuit did not approve of the Government’s shenanigans: “we will not allow the government to avoid its own evidence and rely on a craftily worded factual basis to justify a potentially unconstitutional search.” Lim, 897 F.3d at 689.

Still, it’s disappointing that a member of the bar who has taken an oath to uphold the Constitution and laws of the United States would stoop to shenanigans like this.

Level 3: The Appeal Waiver

Generally speaking, a defendant who pleads guilty waives the right to appeal any nonjurisdictional defect in the proceedings that occur before the plea is entered. A defendant may plead guilty while still reserving the right to appeal some aspect of the proceedings; that is referred to as a “conditional guilty plea.” Conditional guilty pleas, though, must “be in writing and designate the particular issues that are preserved for appeal; the government must consent to it; and the district court must approve it.” United States v. Olson, 849 F.3d 230, 231 (5th Cir. 2017). But “variances from these technical requirements” can be excused if “the record clearly indicates” that the defendant intended to enter a conditional plea, that he intended to appeal a particular pretrial ruling, and that neither the Government nor the district court objected to the conditional guilty plea. Lim, 897 F.3d at 680-81.

Here, the “written plea agreement does not indicate that the plea was conditional.” Lim, 897 at 680. In other words, Mr. Lim’s conditional guilty plea was not in writing, as required by Olson. So on appeal, the Government’s first argument was that Lim waived his right to appeal.

Only — that’s not the position the Government took in the trial court. According to the trial court “it is my understanding that you [Mr. Lim] and the government have agreed that you will not waive any right to appeal your conviction or your sentence.” The trial court then confirmed with Mr. Lim, Mr. Lim’s counsel, and the Government’s counsel that the court’s understanding was correct. In fact, the prosecutor agreed on the record:

Yes, Your Honor, that is correct. We have stripped out all of the appeal waiver language so he is reserving all of his appellate rights.

Lim, 897 F.3d at 680.

The Fifth Circuit was not amused. After outlining the facts and noting that, “The government weakly contends, however, that Lim did not do enough to preserve his right to appeal the denial of his motion to suppress,” the Fifth Circuit simply concluded: “Lim properly preserved his right to appeal the denial of his motion to suppress.” Lim, 897 F.3d at 681.

Still, it’s disappointing that the Government’s appellate attorney would even make the argument.

Thoughts for the Road

The police and the Government are supposed to be on the side of law and order. In America, that means being on the side of those who keep their promises. But here we have an ICE officer playing games with the constitutionally promised right to remain silent, we have a government trial lawyer trying to paper it over, and we have a government appellate lawyer trying to hide it. We have a right to expect better from our Government.