Vol. 11, No. 2	Covering Cases Published in the Advance Sheets through Jan. 12, 2004

Sentencing

• In Gonczy, the First Circuit vacated a sentence and remanded for resentencing on the grounds that the prosecutor had violated the terms of the plea agreement by paying lip service to its obligation to recommend a sentence at the low end of the Guidelines, and then undercutting, if not eviscerating, that recommendation by arguing that the defendant really deserved a greater punishment.
  
  
• In Doe, the Ninth Circuit rejected the defendant’s claim that the district court had erred as a matter of law when it refused to grant him a second Rule 35(b) sentence reduction on the grounds that a previous sentence break of 198 months was “more than enough.” While the Court agreed that, when granting a Rule 35(b) motion, a district court is limited to considering factors relating only to his cooperation, when denying such a motion the district court may properly consider relevant factors other than a defendant’s substantial assistance.

Guidelines

• In Bordon, Judge King of the S.D.Fla. rejected a series of constitutional challenges to the Feeney Amendment, including challenges that its retroactive use violates the ex post facto clause and that the new law violates the separation of powers doctrine.
  
  
• In Moore, Judge Adelman of the W.D.Wisc. rejected the Probation Department’s efforts to increase a defendant’s sentence by adding a criminal history point based on a prior conviction for loitering. Holding that loitering convictions - “by whatever name they are known” - are always excluded from sentence calculations under the express language of U.S.S.G. § 4A1.2(c)(2), the court ruled that there was simply no basis for the Probation Department’s unsupported contention that loitering convictions may be counted if they are for the purpose of “illegal drug activity.”

“A Blow to the Credibility of Fingerprint Evidence”

Harvard Law Professor Jennifer L. Mnookin has published the captioned article in the Boston Globe in which she cast some new doubts on the reliability of fingerprint evidence. Among her conclusions were the following: “Fingerprinting is often said to be infallible, a forensic ‘gold standard.’ But if we ask how often declared fingerprint matches are actually wrong, the only honest answer is that no one has any idea. . . . There are no systematic proficiency tests to evaluate examiners' skill. Those tests that exist are not routinely used and are substandard. . . . More shocking, there are no uniform standards, locally or nationally, about what counts as a fingerprint match. . . .

“Fingerprints are clearly an enormously valuable investigative tool. But the fingerprint community has little motivation to investigate how often they make mistakes. Fingerprint examiners regularly assert in court that the technique is error-free and that fingerprint matches are a sure thing. Whatever real research ends up showing, fingerprints cannot possibly be as perfect a technique as the experts presently claim. Unless courts make better knowledge about error rates a precondition of its use as legal evidence, the fingerprint experts will have no incentive to measure them.” The full article can be accessed on the Member's portion of this Web site.

U.S. v. Gonczy, No. 02-2399 (1st Cir. 02/02/04)(Judge Torruella)

With a rare rebuke to a prosecutor for paying lip service to the spirit, if not the words, of a plea agreement, the First Circuit vacated an 84-month sentence and remanded for resentencing. The Court concluded that the prosecutor had breached the plea agreement by undercutting, if not eviscerating, its promise to recommend a 70-month sentence by “substantively” arguing for a higher sentence.

Here, the defendant, Donald Gonczy, pled guilty to various mail and wire fraud counts arising out of his participation in a telemarketing scheme that the Government claimed bilked some 38,000 victims of over $15 million in collective losses. The plea agreement specified a Guideline sentencing range of 70 t0 87 months; and, under the terms of the agreement, the Government was obligated to recommend incarceration at the low end of that range, although the agreement clearly specified that the recommendation was not binding on the district court.

At sentencing, the prosecutor began her remarks by stating that “in line with the plea agreement the government would be recommending 70 months’ imprisonment.” However, she then immediately launched into a series of arguments that the Court said “can only be understood to have emphasized Gonczy’s wrongdoing and his leadership role in the offense, advocating for the imposition of a higher sentence than the agreed-upon term of 70 months.” She then concluded that “the defendant at a minimum deserves what the guidelines provide for and those are his just deserts [sic].”

In response to those comments, the Court admonished the prosecutor by stating: “We have found in similar circumstances that an AUSA violated a plea agreement when she ‘never . . . affirmatively recommended a 36-month sentence and her comments seemed to undercut such a recommendation.’ (Citing U.S. v. Canada, 960 F.2d 263, 268 (1st Cir. 1992)). In Canada, we found that while the AUSA's comments ‘stopped short of explicitly repudiating the agreement, Santobello [Santobello v. New York, 404 U.S. 257, 262 (1971)] prohibits not only explicit repudiation of the government's assurances, but must in the interests of fairness be read to forbid end-runs around them’.” The Court then continued:

“The government argues that this appeal is distinguishable from Canada because the AUSA in fact recommended 70 months. No magic formula exists for a prosecutor to comply with the agreed-upon sentence recommendation, but the prosecutor's ‘overall conduct must be reasonably consistent with making such a recommendation, rather than the reverse.’ . . . The initial recommendation in Gonczy's case was undercut, if not eviscerated, by the AUSA's substantive argument to the district court. . . .

“We agree with the district court that ‘no fair reading of [the prosecutor's] argument to the court would lead an impartial observer to think that [she] thought 70 months' was an adequate sentence.’ The district judge admonished the prosecutor, saying that ‘if you plea bargain out a case at 70 months then the entire argument should be devoted to a sentence of 70 months.’ While paying lip service to a term of 70 months' imprisonment, the AUSA substantively argued for a sentence at the higher end of the guidelines. In doing so, the government violated the plea agreement it entered into with Gonczy.”

U.S. v. Moore, 288 F.Supp.2d 955 (E.D.Wisc. 2003) (Judge Adelman)

In this decision, Judge Adelman firmly rejected the Probation Department’s efforts to increase the defendant’s sentence by adding one criminal history point for a 1998 conviction for loitering - on the grounds that the loitering in question was for the purpose of “illegal drug activity.” Noting that the Probation Department offered “no authority for its proposition” (id., at 956), Judge Adelman wryly commented:

“The sentencing guidelines have many flaws, but failing to impose sufficient punishment is not one of them. Courts should not stretch the language of the guidelines to increase a defendant’s criminal history points or his offense level.” (Id., at 961).

With his signature thoroughness even on minor issues that many courts would ignore, Judge Adelman analyzed the provisions of U.S.S.G. § 4A1.2 in general, and § 4A1.2(c)(1) and (2) in particular, which define and prescribe the rules for determining when prior sentences for misdemeanors and petty offenses may be used to increase a defendant’s sentence.

In general, the Guidelines provide that most prior offenses are to be counted in computing a defendant’s criminal history category (CHC); and the weight given to those prior convictions depends on the length of the prior sentence. While all prior felony convictions are always counted for purposes of increasing a defendant’s CHC, Judge Adelman explained that “the Sentencing Commission has determined that certain petty offenses bear so little relation to the purposes of sentencing that their inclusion ‘would more likely distort than improve the process established by the guidelines for determining an appropriate sentence’.” (Id., at 961) (Internal citations omitted).

Thus, under § 4A1.2(c)(1) there are fifteen offenses that are counted only if the sentence imposed was a term of probation of at least one year or a term of imprisonment of at least thirty days, or if the offense was "similar" to the instant offense.

Similarly, § 4A1.2(c)(2) lists six offenses (namely, hitchhiking, juvenile status offenses and truancy, loitering, minor traffic violations (e.g. speeding), public intoxication and vagrancy) that are never counted, "by whatever name they are known."

In holding that the Probation Department had erred in counting the loitering offense at issue, Judge Adelman concluded that, under its plain language, “the § 4A1.2(c)(2) prohibition is not dependent on the defendant’s motive for loitering.” (Id., at 956). He continued: “[T]he language of § 4A1.2(c)(2) is very broad. ‘Sentences for the following offenses and offenses similar to them, by whatever name they are known, are never counted[.]’ U.S.S.G. § 4A1.2(c)(2). By using such broad language, the Sentencing Commission left no doubt that loitering and the other listed offenses were not to be counted regardless of the label the state or municipality placed on them.” (Id.).

As part of his exhaustive analysis, Judge Adelman also examined the relevant caselaw and determined that there were only two cases on point - both unpublished. One of those cases agreed with his analysis that it was error to count a loitering offense in computing a defendant’s CHC. The other case held that certain types of loitering offenses could be counted under the “similarity” test contained in § 4A1.2(c)(1). Patiently and convincingly, Judge Adelman explained why that ruling was “unsound” since it was both contrary to the specific language of § 4A1.2(c)(2) and contrary to common sense.

Finally, although he disagreed that the general “similarity” test contained in § 4A1.2(c)(1) even applied to the six categories of offenses referred to in § 4A1.2(c)(2), Judge Adelman presented a detailed analysis of the rules for determining whether a prior offense is “similar” under § 4A1.2(c)(1); and still concluded that it was error to use the defendant’s loitering conviction as a means of increasing his CHC.

As a matter of note, Judge Adelman’s analysis on that issue also contained a comprehensive description of the two competing methods used by the courts for determining whether a prior offense is “similar” under § 4A1.2(c). On the one hand, the First, Third and Fourth Circuits use an “elements” test; while the Second, Fourth and Seventh Circuits use a “multifactor” test - both of which are described in detail in the instant decision. (Id., at 958-960).

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