Second Circuit Rules NY Statutory Rape Law Not a Crime of Violence Under the Guidelines

Several sections of the United States Sentencing Guidelines Manual provide for increased offense levels when the defendant has prior convictions for crimes of violence or drug trafficking offenses.  The Career Offender Guideline -- USSG § 4B1.1, is perhaps the most well-known of these.  A less well-known example is § 2K1.1, the offense guideline for the unlawful receipt, possession, or transportation for firearms or ammunition.  USSG § 2K1.1(a)(2) provides for a base offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.”  Whether a prior conviction counts as a crime of violence does not necessarily depend on whether the crime involved violence.  The Guideline definition of “crime of violence” covers two types of offense.  The first type “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  The second type involves “burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  § 4B1.2(a).  Recently the Second Circuit ruled that a prior conviction under New York’s statutory rape law does not count as a crime of violence under this definition.  The Court easily found that New York’s statutory rape law did not meet the first definition since it lacks a physical force element.  The more serious question was whether it “involve[d] conduct that presents a serious potential risk of physical injury to another.”  The Court took a “categorical approach” in determining the answer to that question.  That is, it did not look to the facts that supported the defendant’s prior conviction.  Instead, it looked to “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.”  The Court first noted that it had previously found a Vermont law which outlawed sexual contact by an adult with a child aged 15 or younger to be a crime of violence based on the risk of injury sexual acts pose to young victims.  United States v. Daye, 571 F.3d 225 (2d Cir. 209).  The Court distinguished the New York from the Vermont law in one important respect.  While the Vermont law applied to all children – from infants through age 15, the New York law focused primarily on children aged 15 and 16.  The Court refused to find that sexual contact with children of that age necessarily presents a potential risk of physical injury since, as the court noted, in many states consensual sexual contact with a 16-year-old is not even a crime.  The Court remanded for resentencing.  UnitedStates v. Van Mead, 2014 WL 6863679 (2d Cir. Dec. 8, 2014).

Eighth Circuit Finds Evidence Insufficient to Hold Defendant Responsible for Loss to All Victims in Fraud Conspiracy

Prior to sentencing, the judge must determine and then “consider” the sentencing range recommended by the Sentencing Guidelines.  Determining that range is a several-step process.  The first step is to determine the offense guideline for each offense of conviction.  The offense guideline is determined solely by the offense of conviction.  Almost all other guideline decisions are determined by “relevant conduct.”  “Relevant conduct” looks beyond the offense of conviction to what actually happened.  For some cases, “relevant conduct” means what the defendant did to commit the offense, or to prepare to commit the offense, or to try to avoid being caught after committing the offense.  In cases involving jointly undertaken criminal activity (such as conspiracies), “relevant conduct” also includes all reasonably foreseeable acts and omissions committed by other people in furtherance of the jointly undertaken criminal activity.  See USSG § 1B1.3. 

Defense counsel in conspiracy cases must take special care to ensure that relevant conduct is correctly determined.  Relevant conduct can be different for each member of the same conspiracy.  In conspiracy cases, the actions of other people are not relevant conduct unless the prosecution can prove two things – first that the actions were in furtherance of the jointly undertaken criminal activity and second, that the actions were reasonably foreseeable.  Unless the prosecution can prove both factors, it is not relevant conduct.  These principles are illustrated in a recent Eighth Circuit fraud case in which the Court found the evidence insufficient to support the sentencing court’s holding one defendant responsible for the entire loss to all victims of the entire conspiracy.  The sentencing court had held this defendant responsible for the entire loss because it had found that he was a manager or supervisor of other participants.  The Court of Appeals found the evidence insufficient for two reasons.  First, this defendant had not been a member of the conspiracy from the beginning.  As the Court noted, a defendant is not responsible for acts of other co-conspirators that occurred before he joined the conspiracy.  The Court also noted that a defendant is also not responsible for acts of co-conspirators that occur after he “exits” the conspiracy.  Second, there was insufficient evidence to support the district court’s finding that the defendant held a managerial or supervisory role in the conspiracy.  After this underpinning was removed, there was no evidence to support the district court’s finding concerning relevant conduct, especially since this particular defendant “was significantly less involved in the conspiracy in scope and time.” The Court remanded for the sentencing court to make individualized findings concerning the relevant conduct applicable to this defendant.  United States v. Adejumo, 2014 WL 6653283(8th Cir., Nov. 25, 2014).

Eighth Circuit Reverses Aggravating Role Ajustment

The Guidelines provide for a three-level upward adjustment for an “aggravating role” in the offense where “the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.”  USSG § 3B1.1.  Before a court may apply this adjustment, the government must prove not only that the offense involved five or more participants (that is, people who are criminally responsible), but also that the defendant either recruited participants, planned or organized their criminal activity, or exercised some decision-making authority over them.  The Eighth Circuit recently reversed an aggravating role adjustment in a case involving five or more participants where the government offered insufficient evidence to support it.  The Court rejected the prosecution’s contention that the defendant was a manager or supervisor because he had photos of other participants in the storage locker where he kept materials related to the conspiracy.  The Court also rejected the prosecution’s claim that the fact that the defendant expressed concern for the success of the conspiracy in telephone calls made him a manager.  The Court noted that it is likely that all participants in a conspiracy share a similar concern.  In the absence of any evidence that the defendant recruited or supervised any participant, the Court reversed the adjustment and remanded for further proceedings.  United States v. Adejumo, 2014 WL 6653283(8th Cir., Nov. 25, 2014).