Tuesday, July 22, 2008

Rape Via Lack of Consent Is "Forcible Sex Offense"

US v. Chacon: Chacon is a Honduran citizen who entered the US illegally and was deported following a conviction in Maryland for second-degree rape. Afterwards, Chacon again entered the country illegally, this time using false ID documents. He pleaded guilty to illegal reentry and fraud. At sentencing, he was assessed a 16-level enhancement under 2L1.2(b)(1)(A) because his Maryland conviction constituted a "crime of violence." Chacon objected, arguing it was merely an aggravated felony (an 8-level enhancement). The district court disagreed and sentenced Chacon to 41 months in prison.

On appeal, the Fourth Circuit affirmed, dealing with the first time with the issue of whether a sexual offense committed based on lack of consent, as opposed to physical force, constituted a "forcible sex offense" and, therefore, a crime of violence. The Maryland information to which Chacon pleaded guilty did not specify which of the three subsections he violated - rape by force, rape of a person unable to give consent, or statutory rape. The Fourth Circuit began by noting that it was clear that the first and third provisions were forcible sex offenses by the language in the Guidelines. As to the second provision, noting a circuit split on the issue, the court held that sex offenses committed based on the inability to give consent are forcible sex offenses. Thus, the court affirmed Chacon's sentence.

Gain From Criminal Activity Not Proper Measure for Restitution

US v. Harvey: Harvey and his codefendant, Kronstein, were convicted by a jury of honest services wire fraud and bribery. The convictions arose from an arrangement by which Harvey, a civilian military employee, funnelled a no-bid contract to a company owned by Kronstein. Harvey and Kronstein also moved funds between themselves, using businesses and intermediaries (including their wives) as conduits. Harvey was sentenced to 72 months in prison, Kronstein to 70 months and ordered them, jointly and severally, to pay $383,621 in restitution.

They appealed both their convictions and sentences. The Fourth Circuit affirmed the convictions and prison terms, while vacating the restitution award.

As to the convictions, the court first concluded that the evidence was sufficient to convict Harvey and Kronstein of honest services wire fraud, rejecting the argument that the Government failed to show either that their scheme involved a material misrepresentation or concealment of fact or that they had the specific intent to defraud. The court also rejected the argument that there was insufficient evidence to sustain the bribery convictions, holding that there was sufficient evidence of corrupt intent in their dealings.

As to the sentences, the Fourth Circuit turned away factual challenges to Guideline enhancements for the amount of loss, the number of bribes involved, and Harvey's and Kronstein's roles in the offense.

As to the restitution, the court concluded that the Government had failed to prove the amount of actual loss attributable to the defendants, rather than intended loss (which was used in the Guideline calculations). Specifically, the court rejected the practice of using the profit gained from the criminal activity as a proxy for actual loss. Thus, the restitution award was vacated and remanded to the district court for further proceedings.

Tuesday, July 01, 2008

Sentenced Imposed Without Guideline Affirmed as Not "Plainly Unreasonable"

US v. Finley: Finley was convicted under the Assimilative Crimes Act of 3rd offense DUI and driving on a revoked license on a military base. At sentencing, Finley argued that the district court should consider what the state (Virginia) sentencing guidelines for the offenses would be - 90 days to six months in jail (or 7-10 months, as conceded on appeal). The district court "could care less what the guidelines [were] in the state system" and imposed a sentence of 27 months in prison.

Affirming, the Fourth Circuit first addressed the proper standard of review in a case like this one where there is no applicable Guideline. Applying the holding in US v. Crudup, the court concluded that such sentences are reviewed to determine if they are "plainly unreasonable." In such cases, step one is regular Booker/Gall reasonableness review, followed by a second step of determining whether any unreasonableness is "plain."

Utilizing that standard, the court concluded that Finley's sentence was not unreasonable, much less plainly so. First, the court concluded that the district court did, in fact, consider the Virginia sentencing guidelines, but rejected them as not providing adequate deterrence to Finley. Second, the court concluded that Finley's sentence was substantively reasonable and supported by the district court's findings below.

Prior Offenses Stacked in Applying 2L1.2 Enhancement

US v. Martinez-Varela: Martinez-Varela pleaded guilty to illegal reentry following an aggravated felony. He had three prior convictions for distribution of drugs, all of which occurred and were sentenced on the same day. Each carried a 6-8 month sentence, but two were made consecutive, for a total sentence of 12-16 months. At sentencing, his Guideline range was enhanced 16 levels under USSG 2L1.2(b)(1)(A) because the "sentence imposed" for the prior offenses was greater than 13 months. Aggregating the sentences imposed for the three offenses, the district court concluded that the 13-month threshold was passed and a 16-level increase was appropriate.

On appeal, the Fourth Circuit affirmed, holding that while the specific Guideline section cited in 2L1.2 as being used to determine prior sentences does not answer the question, a related section does provide support for the aggregation approach.

Estoppel Not a Bar to False Statements Convictions

US v. Benkahla: This case is a third one dealing with terrorism related charges arising out of an Islamic center in Falls Church, Virginia (see the prior Chandia and Khan decisions for more detail). Benkahla was initially charged and acquitted in a bench trial of supplying services to the Taliban and using a firearm in connection therewith in 2004, after being arrested in Saudi Arabia in 2003 (related to the recent Abu Ali decision). The basis for the court's acquittal was the Government failed to prove that the training camp Benkahla attended was in Afghanistan. Undaunted, the Government convened a grand jury to investigate charges of providing material support to terrorist organizations and subpoenaed Benkahla to testify multiple times, during which he denied any involvement. in 2006, the Government indicted Benkahla for making false statements to the grand jury, obstruction of justice, and making false statements to the FBI. After a jury convicted on those charges, the district court at sentencing applying the terrorism Guideline, but eventually imposing a variance sentence of 121 months in prison.

On appeal, Benkahla raised several issues, all of which the Fourth Circuit rejected. First, he argued that the Government was collaterally estopped from prosecuting him for false statements after his acquittal on related charges. While recognizing the "tension" inherent in such situations, the Court ultimately found it not to be problematic, focusing on the district court's narrow ground for acquittal in the first trial. Second, he argued that evidence presented at his trial on the nature of radical Islam, jihad, and terrorism was unduly prejudicial. The court concluded otherwise, noting its relevance to the elements of the offenses with which he was charged and noting that the jury acquitted Benkahla on some charges, thus showing it was not unduly swayed by prejudice. Finally, the court rejected Benkahla's argument about the proper application of the terrorism Guideline, specifically rejecting a Sixth Amendment-based Booker argument, noting that "the point is thus that the Guidelines must be advisory, not that judges may find no facts."