Advanced Guideline Issues: Relevant Conduct


Uploaded by uscourts on 18.06.2010

Transcript:
Hello, and welcome to our program.
I'm Rachel Pierce, and I'm joined today by Alan Dorhoffer, my coworker.
Today's broadcast is the second in a series of installments that we're doing
interactively
with the Federal Judicial Center
on Advanced Guideline Issues.
Today's topic is going to be centering on 1B1.3,
relevant conduct.
As we go through today's broadcast today our goal is to provide you with a better understanding
of relevant conduct. Not only what it is,
but how it works and how it's going to aid the courts in determining
what sort of things the defendant is going to be held accountable for.
Now, we're going to be doing that today through discussions, and by also looking at case fact patterns
from actual calls that we've gotten
and different cases that we've seen throughout the years to help illustrate
the pertinent application of relevant conduct and the analysis that needs to be done.
Before we get started with that, however, Alan, why don't you remind our viewers of some of the
housekeeping items that they are going to need to be aware of today?
Sure, Rachel.
The first thing that I think you may want to look at is at the bottom of the screen
we're going to have a website where you can find some of the participatary materials
that we are going to be focusing on today, such as the slides and some other
information.
Also, during the broadcast you will be seeing a fax number coming across the screen at various
times, as you can see on the screen right now.
Please, and we are encouraging you to, fax in your questions. We're going to be talking about advanced
issues. And for some people this may be
in some ways a refresher course, and for others it's going to be one that
relevant conduct might be the first time that they are actually hearing the term, so please
fax us those
questions.
We also have a Helpline at the Sentencing Commission that we
answer questions about relevant conduct or any other questions that we have.
Feel free--we're going to put up that number
now and also throughout the broadcast as well--
to call in with questions.
And as Rachel mentioned, we will be talking about fact patterns because the best way to learn
relevant conduct is actually through case examples
and also
real life situations that have developed. The guidelines themselves
have a lot of examples at 1B1.3, which we're going to focus on as well.
Once again, please fax us with those questions, because we'd like to get as many questions
as possible during this broadcast.
Thank you, Alan.
Let's get started with sort of a general discussion, or an overview, if you will, of relevant conduct.
Let me just take a minute here
to recognize that that we are aware that the audience is made up of members that have
varying knowledges of relevant conduct. Some of you may be very experienced with the guidelines;
others of you may not.
As we go through this discussion, as I said, we'll start off with a general discussion,
sort of a brief overview.
And then we will move on to some more complex facets of relevant conduct as we near
the end of the broadcast today.
If for some reason
you get lost and you need further clarification on some of the more basic elements, as Alan
said, please call us on our Helpline.
If you feel this program is too basic for you and you have some other relevant conduct
issues that are more complex that you would like to discuss,
again, please call us at any point on our Helpline. Again, that number is
(202) 502-
4545.
Having said that, let's go ahead and jump in with the discussion of relevant conduct.
Many of you who have heard us train over the years might have heard us refer to relevant conduct as the
cornerstone or the gatekeeper of guideline application.
And that is because relevant conduct
sets the limits
of information that is to be used at sentencing.
Generally,
all information can be looked at as far as sentencing, as far as the court, is concerned. The
court can look at all information. This is set out at the statute at 18 U.S.C. section
3661.
We've memoralized that section of the statute at our guideline at 1B1.4.
It's important to remember that while
all information can be considered, there are some exceptions to that, and the statute
does note those--
things such as the age of the defendant, the race of the defendant,
the religion of the defendant. But unless there is a specific statutory prohibition about
what the court can look at,
the court can generally look at all information for sentencing.
There are a couple of cases, however, the Supreme Court cases, the Witte and the Watts cases
that also discuss the breadth of conduct that the court can look at when determining what
is relevant conduct.
Another important fact to remember is that sentencing accountability is not always the same as criminal
liability.
We will talk about this frequently
as we discuss
relevant conduct today.
So having said that relevant conduct sets the limits of guideline application,
let's talk a little bit more about exactly how it does that--how is relevant conduct structured--
before we get into the specific analysis of determining which acts
are and are not going to be included in our determination of relevant conduct. Alan, why don't
you get us started on that? Sure, Rachel. The first thing that the court is going to have
to look at is to try to make a determination of which acts
committed by either the defendant or some other coconspirators potentially are relevant
to this fact situation or to the actual case that's in front of the court.
1B1.3 is divided into two subsections, 1B1.3(a)
and 1B1.3(b).
We're going to focus mostly on 1B1.3(a) today, and what (a) focuses on, it establishes what
is relevant
for Chapter 2 and Chapter 3.
We are going to be looking to the base offense levels of Chapter 2, the specific offense
characteristics
at Chapter 2,
any cross-references at some of the guidelines,
and also the Chapter 3 adjustments
are going to be what's focused at 1B1.3(a).
Subsection (b)
provides the appropriate analysis for the determination of relevant information
for Chapter 4 and Chapter 5. We're going to save that for another
day. We're going to focus mostly on 1B1.3(a)(1) and
(a)(2) today.
When we talk about
relevant conduct, it's really important to look to not only the
guideline itself, but the application notes. Throughout the broadcast we are going to be
referring, Rachel and I,
to certain application notes, and that's where you'll see a lot of the
determinations of relevant conduct
will come from examples that you'll see in the
actual application notes.
What 1B1.3(a)(1) and (a)(2) look to is--
you're looking to--the analysis to establish the relevant acts
committed by either a defendant or potentially some
codefendants.
1B1.3(a)(3) focuses on the harms for those
acts established in
(a)(1) and (a)(2).
And we're going to focus on that a little bit later as well.
Then at 1.B1.3(a)(4), (a)(4)
is going to address any information-- any additional or any other information--
specified for application in a particular guideline.
And 1B1.3(a)(4) is something that we're also going to talk about
a little bit later.
It's not a provision that is used all that often, but there are specific times within the
guideline manual where
1B1.3(a)(4) comes into play.
Thank you, Alan. As Alan said, we are going to focus
the majority of our broadcast today on what relevant conduct normally focuses on, which
is basically subsections (a)(1) and (a)(2).
We are going to touch on (a)(3) and (a)(4) briefly,
but those are the sections that are not as frequently used in the discussion of
relevant conduct.
So, having said that, let's go ahead and just dive in and get started talking about
the analysis that occurs when you are
determining what your relevant conduct is.
There are two main questions that need to be answered when discussing the issue of relevant
conduct.
The first is the "who."
The second is the "when."
Specifically, we'll start off here by looking at subsection (a)(1)(A), which is acts committed
by the defendant.
So we're looking at what sort of acts did the defendant commit,
aid, abet, counsel, command, induce,
procure, or willfully cause,
and when did those acts occur?
Everything is centered around the offense of conviction.
Did that act occur either during the offense of conviction,
in preparation for the offense of conviction, or in order to avoid detection or responsibility
for the offense of conviction?
A lot of times when you're making a determination about an act that the defendant committed
either during the offense of conviction, in preparation for that offense,
or in order to avoid detection or responsibility for that offense of conviction,
it can be a very straightforward analysis. For example, if you have a defendant who has
committed a bank robbery. Let's say
this defendant has walked into a bank
armed. When you're doing your guideline calculations for that defendant
and you're at the robbery guideline at 2B3.1,
there is a specific offense characteristic for possession of a weapon.
So when you're doing the relevant conduct analysis to determine if you're going to give
that specific offense characteristic, well, you ask yourself,
Is this an act committed by the defendant?
Yes, the defendant possessed a weapon.
Did the act occur
during the offense of conviction? Well, given the facts that I just spoke about,
the defendant absolutely possessed a weapon during the course of the robbery.
So, again, that's a straightforward analysis. It makes sense.
It's easy to understand.
However, sometimes this concept of what is "during the offense of conviction" can
be a little bit more complex and a little bit more difficult
to determine. Alan, why don't you tell us a little bit about some of the
things that can happen when determining
whether or not an act occurred during the offense of conviction? Sure, Rachel. I think one area that sometimes rises
to a level of difficulty for some people is when you're dealing with conspiracies.
And that's, I think, where the difficult questions sometimes come in is, what is an act during
that offense of conviction?
There are basically two things that we are looking for when we're looking to
the "during"
aspect. As you can see, we're going to be focusing a lot on the acts of the defendant
and the certain acts of others. But right now we're just going to focus on the "during" aspect of it,
"during
the offense of conviction."
During the time, the first thing that we want to look to is,
obviously, the timing of that offense of conviction.
However, it cannot just be that the act occurred during
the offense of conviction--just on the timing. It must be more than contemporaneous.
Just because something happened during a specific time frame
at the offense of conviction site doesn't mean
that we're automatically going to count that as relevant conduct. The second thing that we're
going to look for is,
besides the contemporaneous aspect, we are going to look to whether
that offense was in furtherance of that offense of conviction.
There are two good places to look for
a description of "in furtherance of the offense of conviction."
Number 1,
Amendment 3 and Amendment 439 of Appendix C.
For those who might be unfamiliar with Appendix C, Appendix C is where are all the reasons for the
amendments
that the Commission makes changes to the guidelines. And Amendment 3
and Amendment 439 give a good explanation
of really what this "in furtherance" means.
However, just by
explaining it that way, I think,
leaves out the way that it actually operates, unless we look to a couple of examples.
So, why don't we look to a couple of examples to see exactly how this operates? First
fact pattern:
conspiracy to distribute meth
from January 1, 1996,
to December 31, 2006.
On November 21, 2002,
the defendant was in possession of 3 firearms,
during which time the defendant was in the company of 4 others
also involved in the conspiracy as well as a scale and a police scanner.
Well, the first thing that we want to look to, Rachel,
is we want to look to see, well,
did this occur during the offense of conviction?
And when we look to during,
was it contemporaneous? And the answer is yes. That
action of possessing the weapons
in November,
it was within a ten-year time frame
between 1996 and 2006.
However, once again we must go beyond just the more than contemporaneous,
and look to whether it was
occurring in furtherance.
With the facts of the police scale
and the scanner,
I think the court
is most likely going to find
that this act of possessing that weapon was in connection
with the, and during the time of,
the offense of conviction--that ten-year gap. And therefore, at the 2D1.1
guideline,
which is your drug trafficking guideline,
there's a 2-level increase if the offense involved the
possession of a
dangerous weapon.
Possessing that weapon in furtherance
during that time frame
will lead the court to give that 2-level increase.
So that would be an example of where
in furtherance
is really what's driving the 2-level increase.
However,
as with all relevant conduct questions,
relevant conduct is very factual
driven. The facts of each case may be so
different or there may be just
slight differences that
the court must make individualized findings, as we'll see a little bit later. What I
want to do now is talk about another example
to show the same point,
but just how the analysis does differ in some ways.
Fact Pattern #1 variation
is, you look into a conspiracy to distribute methamphetamine from January 1 to 1996--
I'm sorry--January 1, 1996,
to December 31,
2006.
On October 21, 2002,
the defendant, while going on a hunting trip,
possessed two hunting rifles in his truck while on the hunting trip.
Well, here the court has to make a determination of whether or not this
possession of the weapon
was during the offense of conviction
and whether it was in furtherance.
We have the same time frame--
the ten-year time frame that we had in variation 1.
But here,
the act itself
is obviously within that time frame,
but the act itself doesn't appear to be in furtherance. The fact that the individual
had the weapon on a hunting trip
doesn't seem to relate to any of the drug trafficking that the defendant had done during
that
ten-year period. And if there's no other evidence
before the court to
show that the defendant carried a weapon,
or that maybe a codefendant carried a weapon, here,
this possession of those firearms while on the hunting trip
would not be in furtherance of the offense,
and therefore would not be considered relevant conduct. And that 2-level increase that I
talked about earlier at
2D1.B(1)
would not apply.
This just illustrates how at 2D1.1, while we have a broad
definition of what it means to
possess the weapon, there are going to be times where just because defendants possess weapons
doesn't mean that that enhancement is going to apply.
And remember, the act must be in furtherance.
That's really important to realize when you're looking to relevant conduct.
Thank you, Alan.
As I said, it can be very straightforward, but then we can have
fact-specific things that make it a little bit more complex.
Speaking of a little bit more complex, let's move on to another part
of an analysis of relevant conduct,
and that's this
(a)(1)(B) aspect of analysis. The first thing you'll notice is that the "when" component
stays the same. We're still evaluating acts within
the frame of the offense of conviction. Did they occur during that offense of conviction,
in preparation for that offense of conviction,
or in order to avoid detection or responsibility for that offense of conviction?
But the difference you see here is the "who". Who are we looking at?
At this point, we are no longer looking at acts
of the defendant; we are actually looking at certain acts of others.
But in order for our defendant to be held accountable for certain acts of others, there's
actually a three-part analysis that has to be completed by the court.
And as you can see here, there are three separate determinations that need to be made
to determine if certain acts of others can be considered
within a single defendant's relevant conduct.
The first
determination that has to be made is that the court has to determine
what the scope of the defendant's jointly undertaken criminal activity is.
Secondly, after determining that scope
of the jointly undertaken criminal activity,
the court has to determine if those acts of others were in furtherance
of that jointly undertaken criminal activity.
And finally, are those acts reasonably foreseeable in connection
with the defendant's undertaking into the jointly undertaken criminal activity?
So let's start by looking at each one of these individually, first by determining
the scope.
And 1B1.3, Application Note 2
gives the court more guidance in how to make a determination of what the scope of the undertaking
is. And the first thing you'll see is that it has to be an individualized determination,
and that individualized determination is going to be based on each defendant's undertaking.
In other words, the court has to look at each individual defendant
and make a decision as to what his or her
undertaking is with others
in the course of a jointly undertaken criminal activity.
Now, this can be established by explicit agreements or implicit agreements inferred from the facts
or the conduct of the defendant
and/or others.
It's also very important to remember here that the scope of the criminal activity jointly
undertaken by a defendant is not necessarily the same as the scope of the entire conspiracy.
What we mean by this is that criminal liability
in essence is not always the same as sentencing accountability. For example, a defendant can
be criminally liable for, let's say, a drug conspiracy that may span over the course
of ten years.
But as far as what the defendant is going to be
accountable for under relevant conduct for sentencing purposes,
that may be a little bit more narrow depending on
what exactly the defendant did,
what exactly the scope of the undertaking is for jointly undertaken criminal activities.
So you have to keep in mind
that sentencing accountability is not always the same as criminal liability.
Moving on,
the second thing that needs to be determined after the court determines the scope of the
defendant's jointly undertaken criminal activity
is acts of others. Are they in furtherance of what the defendant agreed to do with the other
defendants in the case?
And finally,
are those acts reasonably foreseeable? And, remember we're talking about reasonably foreseeable
to a reasonable person here.
Not just reasonably foreseeable to the defendant, because it might not be reasonably foreseeable
to the defendant.
In other words, I just want to sort of give a quick example right here. If you have--let's say we have--
two defendants who are going to rob a bank,
and
they both walk into the bank together, and only one of them, however, is armed.
Let's say we're writing the presentence report
on the defendant who walks into the bank without the weapon. OK.
We're doing our guideline calculations at the robbery guideline at 2B3.1,
and, as we had discussed in a previous example,
there is a specific offense characteristic
for possession of a weapon.
Well, our defendant
did not possess the weapon.
So we're moving on to look at certain acts of others.
Is our defendant still going to get an increase
because the codefendant
did walk into the bank?
Well, applying the 3-part analysis, the first step the court has to make is
what is the scope of the agreement?
I think it's pretty clear from the facts that we've discussed
that the two defendants agreed to rob the bank together.
The next question that needs to be answered is, is the act of the codefendant carrying
the weapon in furtherance of the agreement?
Well, I think it's reasonable that people would argue that the act of carrying a weapon
through the course of a violent offense such as robbery
would be in furtherance of the general agreement, which was to rob the bank.
And lastly, is it reasonably foreseeable
that the act of carrying a weapon would be in furtherance of the jointly undertaken
criminal activity--in this case, the robbery?
And again,
a reasonable person,
I believe, would argue that it's reasonably foreseeable
through the course of a violent offense such as robbery
that a weapon would be not only possessed, but even possibly used.
So again,
we've completed our 3-part analysis, and we've concurred that this occurred during the
offense of conviction. So it's going to be included as relevant conduct.
I want to make another point about this concept of what is reasonably foreseeable. It's very
important to remember that it's only one part of the 3-step
analysis,
and it does not impact
conduct
that the defendant is only responsible for. You are only talking about the concept of what
is reasonably foreseeable
when you're talking about the conduct
of others.
And the guidelines actually give us a bright line rule at 1B1.3, Application Note 2,
that says relevant conduct does not include the conduct of members of a conspiracy
prior to the defendant joining the conspiracy even if the defendant knows of that conduct.
So, going back to this concept of what is reasonably foreseeable, again,
if you're making a determination at (a)(1)(A), which is an act committed by the
defendant,
you're not discussing the concept of what is reasonably foreseeable, because that only
enters the equation
when you're talking about the 3-part analysis and possibly holding your defendant accountable
for certain acts of others.
Along with that, mere knowledge of other activity is not enough.
It may be reasonably foreseeable within the scope of a drug conspiracy
that others would be dealing drugs.
But that mere knowledge and the concept that something is reasonably foreseeable is
not enough, because the first thing you have to determine is, what is the scope of the agreement?
If there is no scope
of a jointly undertaken criminal activity, then you don't even get
to the second step--or the third step, excuse me--with what is reasonably
foreseeable.
So that's an important thing to remember. And again, since
fact patterns are such a good way to illustrate
the points that we're trying to teach, let's take a look at another fact pattern.
In this case we have a drug conspiracy that's charged from January 1, 2002,
to December 31, 2006.
Our particular defendant, however, entered the conspiracy January 14,
2006.
The defendant, our particular defendant,
through the course of his involvement in the conspiracy distributed a kilo of marijuana for
50 weeks, for a total of 50 kilos of marijuana.
These particular facts indicate the defendant also worked with codefendants, who
also distributed
50 kilos over a period of 50 weeks.
So, what we have here is we have
defendants who are involved in a drug conspiracy.
And let's say for purposes of discussion that
the facts of this case indicate that they were all working in concert with each other
in that, even though they might have had different areas in which they sold the drugs,
they would help each other out if one of them was running low, or was running out
of drugs, or that type of thing. They were working in concert with one another.
So, clearly,
when we're doing the presentence report for our one defendant,
we can do the analysis of
acts committed by the defendant during the offense of conviction. The 50 kilograms that our
defendant
distributed
during the course of that conspiracy
he is going to be held accountable for.
The question then becomes, well, what about the other 50 kilos that each one of those other codefendants
distributed?
Well, since we're looking at certain acts of others, we're going to do the 3-part analysis
and look to each step, the
first being, what is the scope of the agreement?
Given the facts of this case,
the defendants all agreed
to distribute drugs together, and to help each other out should the need arise.
Secondly,
are the acts of others
in furtherance of the jointly undertaken criminal activity?
Clearly,
when all of the players are distributing drugs together and helping each other, that's in furtherance
of the larger goal, which is the drug distribution conspiracy.
And is it reasonably foreseeable when you're in concert
with others distributing drugs that
they're going to be distributing drugs to further that conspiracy? And I think the answer's
pretty clear, and that's yes.
All, again,
occurring during the offense of conviction, which is the dates of the conspiracy.
But there again,
because relevant conduct is so fact specific,
sometimes that analysis can change. Alan, why don't you walk us through an example where it would
change the analysis?
Sure, Rachel. Let's look at another example here, and this comes from another real case that occurred in the federal
system.
It was a drug conspiracy charge from January 1, 2004, to December 31,
2004.
Two defendants
each carried 1 kilo of cocaine across the U.S. border on five separate occasions.
Each defendant picked up the drugs from the same supplier,
but each crossed the border on separate days.
Our first reaction might be, well,
here we have, as Rachel
talked about a little earlier, a drug conspiracy.
Are we going to hold the defendant accountable not only for what he brought across the border, but also
what
some people may say his codefendant, or another backpacker, did?
Here, I think when you go once again to that 3-part analysis, you're going to
look first
to the first question, and that is, what is the scope of the defendant's undertaking?
And the scope of the defendant's undertaking here would be that
Defendant A, the first backpacker,
decided that he was going to on 5 occasions go across the border
with 1 kilo of cocaine going to a supplier.
He wasn't working in concert with anybody.
There was no planning with the other backpacker.
And even though they might have shared the same supplier,
the scope of the defendant's undertaking seems to be at that particular point is just limited
to his actual
role on those 5 occasions that
he, himself,
crossed the border.
Now, if they had maybe worked together
and gone across the border at the same time, but here,
going across the border on separate occasions, they didn't plan the actions together.
Just because they share the same supplier
does not mean that we're going to hold the defendant accountable for everything
within that conspiracy.
Now, some may argue,
well, isn't it reasonably foreseeable
that if one backpacker is going across, there may be some other folks that are involved in this
conspiracy--
isn't it reasonably foreseeable that other people would be going across the border?
But we don't get to the reasonably foreseeable
approach yet, or the criteria,
unless you look to the scope of the defendant's undertaking first.
That's what we are trying to emphasize here-- is that the first thing that you have to do
is look to the scope of the undertaking.
And in looking at a lot of appellate cases,
they look
closely at
not only the scope of the undertaking, but that each case
in which there are multi-defendants,
there must be an individualized finding. Rachel mentioned that a little bit earlier,
and that is an extremely important point,
as you can see by this fact pattern.
For each individual
defendant in the case, each individual coconspirator, the court needs to make
a finding on their own scope of the undertaking,
then look to the
acts of the defendant and others,
and then also look to the reasonbly foreseeable. But you don't get to reasonable foreseeability
unless you make the determination that it was within the scope of the defendant's undertaking.
So you see this come up in a lot of situations
when you have backpackers or you have drug conspiracies or fraud cases.
We now looked a lot at 1B1.3(a)(1).
We're going to move a little bit now to a little different direction to focus
on 1B1.3(a)(2).
Now, what 1B1.3(a)(2) looks to is--
it's going to expand in some situations the offense of conviction.
The offense of conviction we talked about--anything that occurred
during the offense of conviction, in preparation for that offense of conviction,
or to avoid detection for that offense of conviction.
However,
relevant conduct
will be different for certain type of offenses, and there is a term of art that has
come about called "expanded" relevant conduct.
And while you may not find that term in the actual guideline manual,
all circuits across the country have used this term "expanded" relevant conduct.
When the
Sentencing Commission, when the trainers, and when the lawyers go across the
the country, and the commissioners,
we hear everyone asking questions about expanded relevant conduct. And let me try to explain
what expanded relevant conduct means.
The first thing
is to make a determination
if the offense of conviction or the offense is listed at
3D1.2(d).
Now while 3D1.2(d) is a guideline
that is concerned with multiple counts of conviction,
3D1.2(d) also focuses on relevant conduct
at 1B1.3.
If an offense is listed at
3D1.2(d) and it's one of the types
that can be grouped at this guideline,
then we are going to be looking to see
that the offense of conviction time frame can be expanded.
Let me give some examples of what
these type of offenses look like:
drug trafficking,
fraud, theft, and embezzlement,
money laundering, firearms, these are types of offenses
in which
things can be aggregated together.
Normally, things can be aggregated together. If an individual
distributes drugs, you can add up the amount of drugs.
If the individual has committed a fraud, you can add up the amount of loss that the individual has
caused
on a number of occasions.
What we are doing here by looking at this list is these type of offenses
allow the court
to expand the time frame
of the "when" component that Rachel talked about earlier.
You have the "who" component, then you have the "when."
This expands this list of cases. You're going to be looking at
the majority of cases in the federal system-- probably about sixty percent on approximation--
will have this expanded relevant conduct
potentially applied.
Now, just because it's listed at 3D1.2(d)
doesn't mean that all conduct that the defendant and his codefendants
engaged in will automatically be considered
to be relevant conduct.
There is also a list of offenses
which are specifically excluded
from having expanded relevant conduct or having the "when" component
to be expanded.
These examples include
robbery,
murder,
kidnapping,
assault,
rape cases.
Cases normally involving (as a general rule), one way to try to remember this, Rachel, is
physical harm cases
are those types that normally do not allow for this
expansion of the "when" component.
However, once you have made that determination that it is
on the list of offenses,
then you have to make a determination if it's the same course of conduct, common
scheme, or plan.
But even before we get to that,
one thing to keep in mind is
you have to make sure it's listed at 3D1.2(d),
then see if it's part of the same course of conduct,
common scheme, or plan.
But one of the things that you have to look to is--
don't forget--
you have to make a determination. We are still looking everything under 1B1.3(a)(1)(A),
1B1.3(a)(1)(B),
and your offense
of conviction.
Because sometimes people like to just jump to,
well, is it part of 1B1.3(a)(2),
when oftentimes those acts often may fall under 1B1.3(a)(1)(A), (a)(1)(B).
It's very important to realize and go through the analysis correctly.
Once you have made that determination
that it's beyond 1B1.3(a)(1)(A) and (a)(1)(B)
to look to the same course of conduct, common scheme, or plan.
The guidelines give some examples
at Application Note 9(A) of what we mean by common scheme or plan, and
then also same course of conduct,
with that at
Application
Note (9)(B).
For common scheme or plan, offenses must be connected to each other by at least one
common factor, such as
common victims,
common accomplices,
common purpose,
or similar modus operandi.
If you have one of those, it's most likely going to be a common scheme or plan--
if it has one of those offenses listed at 3D1.2(d).
However, even if you don't find common scheme or plan, you might look to same course of
conduct,
and that's listed, as I mentioned earlier, at Application Note 9(B)
at 1B1.3.
Also, Appendix C
at Amendment 503 also gives a good illustration
of what same course of conduct means.
You're looking to
similarity,
similarity of the offense--(and we are going to go over some examples of this shortly),
regularity,
the repetitions--are these individuals or is this defendant doing this on a number of
occasions,
and the temporal proximity--
how often are these offenses
occurring in a time frame?
This U.S. v. Hodge case that you saw on the screen gives a good example of
when one of these factors,
such as potentially maybe the proximity, may not be strong,
if the other--
if one of the other factors--is strong, such as regularity
or the similarity,
that may compensate for the fact that the temporal component may
not be as strong as the other factors.
And, as I said, I think the best way to illustrate
what common scheme or plan looks like and same course of conduct is through an example.
So, why don't we look at an example?
Look at Fact Pattern 3.
Here you have a defendant convicted of tax evasion
for failing to pay taxes in 2004.
The facts also illustrate that the defendant also did not pay taxes
in 2003,
2002,
and 2001.
The question for the court is,
is the tax loss from 2001,
2002,
and 2003
relevant conduct?
The first thing we want to look to is
what's the offense of conviction?
The defendant was convicted of
failing to pay taxes
in 2004.
However,
we're looking at
this offense
and we are looking at a time frame
in tax evasion.
Well, tax evasion is one of those guidelines, Rachel, that is listed at
3D1.2(d).
And, therefore since it's listed at 3D1.2(d),
the court can go beyond that offense of conviction, that one year time frame, to look to other
conduct that the defendant
has committed.
In looking to that other conduct, first we'll focus on common scheme or plan.
Remember, we talked about common purpose,
common victims.
Well, here
you have a common victim, the government
was not being
paid taxes for 2004, and the 3 preceding years.
You also have individuals looking for that common scheme,
similar modus operandi,
where you have an individual who is not paying taxes,
not just one year,
but the three years preceding that.
So you're probably going to have a pretty strong case for the court
to find that 2003, 2002, and 2001
conduct can be brought into the
equation.
Now, even if the court didn't find the common scheme or plan,
remember we have
same course of conduct.
For same course of conduct, we are looking at similarity,
regularity,
and temporal proximity.
One argument that might be raised by the defendant, "Well,
these offenses
(the temporal proximity) are separated by a year. That's a pretty long time."
Remember, with tax evasion, I think the first thing that might be argued is that
these offenses only occur once a year.
You don't pay your taxes more than one
time a year; at least most people don't. Then you are looking at
also the regularity
and also the similarity.
The similarity--this is now 4 years in a row that the defendant has not paid taxes.
So, I think the court is probably going to make a finding
in this particular case (and in the actual real case they did)
saying that this conduct from the other three years, the 2003,
2002, 2001
based on the similarity
and the regularity,
that that tax loss can be used at the tax guideline.
So the loss from those three years
would be brought into the equation for the offense of conviction.
That just illustrates how
with the tax loss case,
or with fraud, or with drugs--those offenses listed at 3D1.2(d)--
other conduct can be brought into the equation.
But you have to also focus--do not forget to focus--on
1B1.3(a)(1) and 1B1.3
(a)(1)(A) and (a)(1)(B),
and then you get to
1B1.3(a)(2).
And I think that's a great point,
Alan, that you make. And we've focused on the analysis that has
to be done. And Alan is absolutely right. You have to start out with,
is this an act committed by the defendant?
Did it occur during the offense of conviction, in preparation for that offense, or in order
to avoid detection or responsibility?
And in this case we do have the defendant convicted of at least one year where he failed
to file taxes. So clearly,
that occurred during the offense of conviction.
But certain types of offenses, as Alan has told us about,
could expand
the kind of conduct that we're looking at.
And a tax offense is one of those offenses. And, as Alan mentioned,
a large number of the cases that you're going to see are going to fall within expanded
relevant conduct, and you can look to the same course of conduct, common scheme, or plan.
So, it is important, hopefully, we've illustrated,
to go through each and every step of the analysis to determine
what exactly you are going to be including. Because, as you can see, it can narrow depending on
the facts or it can expand depending on the facts.
Again, we started off by saying that the majority of the focus for your relevant conduct
analysis
is in sections a(1) and a(2).
But sometimes we do reference a(3) and (a)4, and we're going to go ahead and talk
a little bit about that now,
starting by looking at section (a)(3) of Relevant Conduct.
And we reference you here to
Application Note 4.
What we're talking about here in section (a)(3) of Relevant Conduct is really kind
of an intuitive concept
in that it makes the harms from the acts of the defendant, or
acts of others that our defendant is held accountable for,
it makes them relevant. Harms such as loss, injury, damage to property that may occur.
Again, all within the context of, is it an act committed by the defendant,
or is it a certain act of another person that our defendant is going to be held accountable
for?
In other words,
what we mean is this,
the concept of loss, for example,
is not
an act that
the defendant commits.
Loss is a specific offense characteristic at 2B1.1, the fraud and theft
guideline,
but loss is the result of an act
that the defendant commits. So the defendant is either stealing something
or committing some sort of mortgage fraud or bank fraud.
The harm that results from that is the loss. So, that would be something that would
be captured under 1B1.3(a)(3).
Similarly, injury
is not an act committed by the defendant. If the defendant assaulted another person,
the harm that results from that is the injury. The act is the assault itself. So, as you can see,
it's somewhat of an intuitive concept, but when you break it down,
it does fall under 1B1.3(a)(3).
Another example
of a harm that results from the offense
would be ... let's go back to the robbery example. I love to use the robbery example when
talking about relevant conduct.
Let's say the defendant goes into the bank,
robs the bank, and among all the commotion, one of the tellers decides this is a perfect
time for me to slip a couple hundreds--three, four, five, or six, however many they think they can
get away with--into my pocket
because nobody's paying attention.
Well, arguably that's clearly a harm
that occurrs because of the offense.
OK, the bank is out that additional money that the teller decides
he or she is going to slip in her pocket during the course of the robbery.
However,
again, it has to be evaluated within the context of (A)(1)(a) and (A)(1)(b). Is this an act committed
by the defendant?
Is this the harm that results from an act committed by the defendant, or is this the
harm that results
from the act committed by someone else for which our defendant is held accountable for?
Well, clearly it's not an act committed by the defendant, because the defendant's the one robbing the
bank, and the teller is the one that works there.
I think that everyone would probably be in agreement that the defendant and the teller
are not in a jointly undertaken criminal activity to rob the bank.
So, while, yes, this is a
harm that results from the robbery,
it's not going to be included in the relevant conduct anaylsis because it doesn't meet
the definition of an act committed by the defendant
or certain acts of others that the defendant is going to be held accountable for.
Moving on, let's move on now to talk about the (a)(4), which is even more of a
complex and somewhat obscure application of relevant
conduct, but nonetheless important. Alan, why don't you tell us about that? Sure, Rachel. And 1B1.3(a)(4)
focuses on, as we saw a little bit earlier, any other information
specified in the guidelines.
While we've been talking about 1B1.3(a)(1), (a)(2), and (a)(3),
what (a)(4) is looking to is any acts
beyond the
1B1.3(a)(1), (a)(2), and (a)(3)
situation.
You're mostly going to be focused on this in the application in Chapter 2 and Chapter
3. And they are going to be limited to the discrete
guidelines
in which the information is specified.
Now, they may have some limited impact on Chapter 4 for some guidelines, but
in reality you're really going to be focused on this in Chapter 2.
Let me give an example of where this 1B1.3(a)(4) comes
into play.
Section 2G2.2 is the guideline
that is associated with the trafficking, receipt, or possession of child pornography
under 18 U.S.C. 2252.
One of the specific offense characteristics at this guideline is that 2G2.2(b)(5)
states that
there's a 5-level increase if the defendant engaged in a pattern of activity
involving sexual abuse of a minor.
Now, remember the person who is being sentenced using this guideline at 2G2.2,
his offense of conviction is trafficking, receipt,
or possession of child pornography. It's not the sexual abuse of a minor.
Well, this application note--there's an Application Note, Application Note 1 that instructs the court
to see when this 2G2.2(b)(5) situation applies.
If a defendant
had sexually abused a minor
on more than one occasion,
that's when this 5-level increase applies.
However,
in order for the court to make that
finding here,
sometimes it may be necessary--and this is what Application Note 1 states--
this pattern of activity meets any combination,
whether or not the abuse or exploitation,
and this is three parts, (a) occurred during the course of the offense. The key language, as you
can see, is whether
or not it occurred during the course of the
offense. So here, what the Commission is telling
the court, and telling individuals who are using the guideline system, is to
go beyond your
1B1.3(a)(1), (a)(2), and (a)(3),
analysis. You still have to go there to see if this act,
and this specific offense characteristic, falls within
that relevant conduct provision.
But, if not, 1B1.3(a)(4) allows the court
to then make a determination
that this individual sexually abused a minor
and then to give this 5-level
increase.
And as I mentioned, this is not something you use all that frequently;
that's why we're focusing most of our attention on
1B1.3(a)(1), (a)(2), and (a)(3). But
(a)(4) does allow the court
to go beyond
those three provisions of the relevant conduct
to look to see if there's any other information specified in the guidelines.
The background information at 1B1.3 also lists some other examples
of where
(a)(4) does apply. So if you're running into a situation
where you may not be as familiar with 1B1.3(a)(4),
look to the background information at 1B1.3, and it gives some illustrations there.
Now, with that, one of the things that we want to cover today is
a number of questions that we've received. But, before that, we've done a lot of information.
We've given you a lot of information so far.
We want to give a recap
of what we have actually
talked about today. Because we know
with 1B1.3,
there's a lot of analysis that is involved in these types of cases.
And remember, the first thing we want to look to is
the "who."
There are two main questions you want to ask,
who and when? The first question is
the who. You're looking at 1B1.3(a)(1)(A),
1B1.3(a)(1)(B). You're looking to acts of the defendant,
and also potentially certain acts of others.
Remember, Rachel talked about that 3-part test,
the scope of the defendant's undertaking,
were those acts
in furtherance of that,
and then was it reasonably foreseeable?
We're looking to--the first thing we want to look to is--
did these acts occur during the offense of conviction?
Did they occur in preparation for that offense of conviction,
during the offense of conviction,
and avoiding detection for that offense of conviction?
Remember, when you look to during, it's not just contemporaneous.
It must be more than that time frame.
It must be an act that's in furtherance. We looked at a couple of examples
illustrating that point with the
firearm in the possession of firearms in relation to 2D1.1.
Then remember,
after you've done this analysis, is there going to be certain offenses, and relevant conduct is
not,
as one judge said, not created equal
because certain offenses have
the application at 1B1.3(a)(2),
and those are the offenses that are listed at 3D1.2(d):
drug trafficking,
money laundering.
You're looking also at firearms, fraud.
And then there are going to certain offenses that are excluded.
And those are your robberies--your physical harm type cases--robberies,
murders,
rapes,
those types of cases excluded. If it is listed,
the court then can expand the "when" component of the offense of conviction
and go beyond
the offense of conviction time frame
to potentially other
conduct. And we looked at that with same course of conduct or common scheme or plan.
Then, obviously, you have the (a)(3) and the (a)(4)
that we just talked about.
With that, Rachel, I know we've gotten some questions in. We have gotten some questions, and you're
up first. OK. This one is from
the Eastern District of Louisiana-- tax evasion, the defendant is
charged with tax evasion. Yeah, OK.
If some of the tax loss is outside the statute of limitations, for the purposes of the prosecution
can we still include that tax loss in the expanded relevant conduct when applying the
guideline at 2T1.1? That's a very timely question, and a question that
we've gotten a lot when we use the example of that tax loss because of the statute of
limitations, particularly with
tax evasion charges.
While the guidelines themselves don't reference a statute of limitations, all the appellate
courts
that have looked at this issue have all said that, yes, while the defendant may not be able
to be charged with that
other conduct. So, if there is some tax evasion
charges where the statute of limitations
has run out, and therefore the defendant can't be charged, or
the counts have to be dismissed,
that conduct--as long as it meets the 1B1.3 analysis--
the court can then use that, if, as we
said, it meets 1B1.3(a)(1),
if it falls under 1B1.3(a)(2), same course of conduct, common scheme, or plan.
The court can use that information
even with the
statute of
limitations
situation.
OK.
I see we have another question here. We do.
A caller is writing a
presentence report on a defendant that committed 7 bank robberies
in a 14-day period.
The defendant pled guilty to 3 of these robberies.
The caller asked how to take into account the other 4
robberies. It was a Helpline call that we received.
OK. In this case, first of all, we start out with
the basic analysis of relevant conduct.
What are the acts that the defendant committed, and did those acts occur during the
offense of conviction? Well, for the 3 robberies that the defendant's actually
pled to
we can do this analysis of what sort of acts did the defendant commit during
that robbery or in preparation for that offense, or in order to avoid detection or responsibility
for that offense.
So, if any loss that occurs because of those bank robberies, if there's any weapon
enhancements that might occur
or apply,
any injury that might have occurred,
with respect to those 3 that the defendant pled to,
that's the analysis that we are going to be doing. It's going to focus on
what the defendant did during the offense of conviction,
in preparation for that offense, or in order to avoid detection or responsibility.
From the facts that we have here there's no need to move on to whether or not we
can include certain acts of others, because it seems that this defendant acted alone.
But the next question is, well, can we move on to
acts that the defendant committed that are part of the same course of conduct, common scheme,
or plan?
In other words,
can we look at anything that occurred in those other 4 robberies that the defendant did
not plead to?
Well, as you may recall, Alan gave us a list of offenses
for which expanded relevant conduct applies,
and at 3D1.2(d),
the guidelines are very clear about which offenses
for which expanded relevant conduct applies and for which offenses it doesn't.
Robbery is one of those offenses for which
expanded relevant conduct specifically does not apply.
So, in this case,
the court would not be able to factor any behavior loss,
harm, any sort of anything that occurred during those other 4 robberies
into the guideline application itself.
It may be possible
that there would be departure considerations or possibly variance situations under
3553(a). But for guideline calculation purposes,
the court is not going to be able to expand beyond that offense of conviction to same course
of conduct, common scheme, or plan.
And that's a a very good question and one that particularly defense attorneys and AUSAs
want to know about
before you enter into any plea agreements. Because oftentimes
by entering into certain plea agreements, certain conduct
that may not be able to be brought in on the government's behalf and the same thing
where you are looking at some situations where it may be beneficial to the defendant
to plead to certain counts that
therefore some of those counts of conviction-- that conduct that occurred--
may not be occurring. That's why it's really important to look to
that 3D1.2(d) list to see which offenses are listed.
OK, we have one more question here. OK. Actually, we have a couple more, but we'll start with this one.
From the Southern District of Illinois, we have a defendant who is convicted of 1 count
of obtaining a prescription by
fraud.
The statute
is 21 U.S.C. 843(a)(3).
The indictment states that on one date the defendant obtained a prescription by fraud.
However--surprise, surprise--
the defendant has been engaging in this type of activity for over 2 years.
So, can we look at any of that conduct that's occurred in the previous 2 years?
Or is the court going to be limited to the conduct that occurred on the date in the indictment,
which is that one day that the defendant
acquired that
prescription by fraud?
That's a real interesting question. I think the first reaction I think most people would
have is
we are dealing with drug trafficking.
Well, drug trafficking is listed at 3D1.2(d), at least 2D1.1
is.
And this is an illustration of where relevant conduct becomes very fact specific, not only
on
the actual conduct, but the actual statutes that have been charged.
Here, you're looking at 21 U.S.C. 843(a)(3).
When you go to Appendix A, where after a defendant has been convicted of a particular
statute,
Appendix A tells the user of the guideline
what guideline to actually go to at Chapter 2.
This is a guideline
that's not at 2D1.1. This statute references to 2D2.2.
2D2.2,
when one looks to 3D1.2(d) to see if it's on the list of offenses
in which expanded relevant conduct would apply,
2D2.2 is specifically excluded.
So, therefore, by being specifically excluded, it's in the same categories that Rachel
just mentioned, the robbery
fact pattern.
This is the type of offense that is specifically excluded
from this expanded relevant conduct.
So, you will not be able to look to those additional
conducts from those preceding years
under the 1B1.3(a)(2) analysis.
But that's why it's so important to look to--
don't just assume it's a drug trafficking
situation. It's the same thing with
possession of drugs. Someone who is convicted of possession of drugs
goes to Guideline 2D2.1 and
at Guideline 2D2.1, that is not listed at 3D1.2(d).
That's another situation where you could not use
that expanded relevant
conduct.
Thank you for that, Alan.
I see we've got one more question. Yes, we do.
Here we have a defendant who is a crack dealer
who lived with two other crack dealers in a house.
The defendant sold crack independently from his two roommates.
The defendant's supplier was not the supplier for his two roommates.
The defendant has knowledge of the drug dealings of
his other two roommates.
Can the defendant
be held accountable for the drugs
sold by his two roommates?
So we're going beyond the defendant's actions here. Right. We're moving beyond that (a)(1)(A) analysis to the (a)(1)(B) analysis.
Are we going to hold our defendant
accountable for
the other
drugs that his roommates, basically, are distributing?
Well, this brings us to the 3-part test that we have to do, the first
part of that test being what is the scope of the defendant's jointly undertaken
criminal activity?
I think, given the facts in this case,
there is no agreement between the roommates to agree to sell anything.
They're getting their drugs from different dealers,
even though they may live in the same place, they may even hang out together.
They're distributing their drugs independently of each other.
So, we don't even have to go to
steps two and three, which is whether those acts are in furtherance of the conspiracy
or reasonably foreseeable.
Again, just because the defendants may know that the other ones are distributing crack,
that's not really relevant
to our analysis here, because we're stopping with the discussion of what is the scope of
the undertaking.
These facts don't seem to indicate that there's any jointly undertaken criminal activity. So, in
this particular situation,
our defendant is only going to be held accountable for the drugs that he or she distributed.
Right.
And, that just shows the
application, the analysis that needs to be done, with all 1B1.3
type cases, any type of relevant conduct cases. I think sometimes people like to just assume
when you're dealing particularly
with conspiracies, drug trafficking, and fraud
situations,
particularly telemarketing fraud situations, sometimes where people are in the same room
calling the same
number of people. You can't just automatically assume that the defendant is going to be held
accountable for everything. And I think Rachel
just illustrated that point once again, and that's a really important point
to hammer home--that
in all cases
you must do that individualized finding because that's where the appellate courts
will send the case back if there's not the individualized finding that's there.
That's right. Well, we've covered quite a bit of information today. We talked a lot about the analysis of
relevant conduct,
looked at fact patterns, answered some questions.
Again, if there's any other questions that you may have, if you need further clarification
on anything, please call us at any time on our Helpline at (202)
502-
4545.
The next installment of the Advanced Guideline Issues series is going to air in August. (Rescheduled for September.) If you
have any ideas or thoughts on topics that you would like for us to cover,
please note that on your evaluation form, as well as any other comments or concerns that
you have.
And unless, Alan, do you want to add anything else to the discussion?
I think Rachel has summed it up great, but there is
one thing I just want to add today. For those watching at
home today, I just want to let everyone know
that the Supreme Court issued the Rita v. United States case
today, in which they held that a court of appeals
may apply a presumption of reasonableness
to a district court sentence within the guidelines. For those watching at home today,
you might want to go and read a copy of that case. The Supreme Court just issued that case
today. So I think it's very timely with the broadcast
today. Thank you very much. On behalf of
both Rachel and I, we would like to thank everybody for their time,
and please
feel free to call us any time
on our Helpline.
Thank you, and have a great day.