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Circuit Conflicts

(for Review and Consideration During 1997-98)

The Commission has identified the following circuit conflicts for further review and consideration during 1997-98. Staff have been instructed to develop additional information and amendment options for these issues.

Issue 1: Whether for purposes of downward departure from the guideline range a "single act of aberrant behavior" (USSG Chapter 1, Part A, §4(d)) includes multiple acts occurring over a period of time.

Compare: United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996) (Sentencing Commission intended the word "single" to refer to the crime committed; therefore, "single acts of aberrant behavior" include multiple acts leading up to the commission of the crime; the district court should review the totality of circumstances); United States v. Takai, 941 F.2d 738 (9th Cir. 1991) ("single act" refers to the particular action that is criminal, even though a whole series of acts lead up to the commission of the crime).

With: United States v. Marcello, 13 F.3d 752 (3d Cir. 1994) (single act of aberrant behavior requires a spontaneous, thoughtless, single act involving lack of planning); United States v. Glick, 946 F.2d 335 (4th Cir. 1992) (conduct over a ten-week period involving a number of actions and extensive planning was not "single act of aberrant behavior"); United States v. Williams, 974 F.2d 25 (5th Cir. 1991), cert. denied, 507 U.S. 934 (1993) (a single act of aberrant behavior is generally spontaneous or thoughtless; a demand note dated several days before the robbery is neither); United States v. Carey, 895 F.2d 318 (7th Cir. 1990) (single act of aberrant behavior contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning); United States v. Garlich, 951 F.2d 161 (8th Cir. 1991) (fraud spanning one year and several transactions was not a "single act of aberrant behavior").

Issue 2: Whether falsely filling out bankruptcy schedules and forms constitutes "violation of any judicial or administrative order, injunction, decree, or process" under the fraud guideline, 2F1.1(b)(3)(B).

Compare: United States v. Michalek, 54 F.3d 325 (7th Cir. 1995) (bankruptcy fraud a "special procedure"; it is a violation of a specific adjudicatory process); United States v. Lloyd, 947 F.2d 339 (8th Cir. 1991) (knowing concealment of assets in bankruptcy fraud violates "judicial process"); United States v. Welch, 103 F.3d 906 (9th Cir. 1996) (knowing concealment of assets in bankruptcy fraud violates "judicial process"); United States v. Messner, 107 F.3d 1448 (10th Cir. 1997) (bankruptcy fraud constitutes violation of "judicial process"); United States v. Bellew, 35 F.3d 518 (11th Cir. 1994) (knowing concealment of assets during bankruptcy proceedings qualifies as a violation of a "judicial order").

With: United States v. Shadduck, 112 F.3d 523 (1st Cir. 1997) (falsely filling out bankruptcy schedules and making false assertions under oath during bankruptcy proceedings does not constitute a violation of a judicial order); United States v. Carrozzella, 105 F.3d 796 (2d Cir. 1997) (falsely filling out bankruptcy forms does not violate judicial process since the debtor is not accorded a position of trust).

Issue 3: Whether §2F1.1(b)(3)(A), providing an enhancement for an offense that involved a misrepresentation that the defendant was acting on behalf of a charitable . . . or government agency, applies to a defendant who in fact represents the agency but misapplies or embezzles agency funds.

Compare: United States v. Frazier, 53 F.3d 1105 (10th Cir. 1995) (enhancement does not apply to agency representative who illegally misapplied funds where he did not misrepresent his authority to act on behalf of the organization).

With: United States v. Marcum, 16 F.3d 599 (4th Cir. 1994) (enhancement applies to agency representative who embezzled funds).

Issue 4: Whether the abuse of position of trust adjustment, §3B1.3, applies to a defendant who falsely presents himself as someone holding a position of trust.

Compare: United States v. Echevarria, 33 F.3d 175 (2d Cir. 1994) (defendant who falsely presented himself as a physician cannot "hold" the position that he purports to occupy).

With: United States v. Gill, 99 F.3d 484 (1st Cir. 1996) (defendant who falsely presented himself as a psychologist for mental health patients occupied a position of trust by virtue of his conduct); United States v. Queen, 4 F.3d 925 (10th Cir. 1993) (defendant who falsely presented himself as an investment broker created a position of trust between himself and the victim; victims objectively led to believe that the defendant occupied a position of trust with regard to them).

Issue 5: Whether the term "instant offense," as used in the obstruction of justice guideline, 3C1.1, refers to cases closely related to the defendant's case, or only to the "offense of conviction."

Compare: United States v. Powell, 113 F.3d 464 (3d Cir. 1997) (obstruction of justice enhancement applies where a defendant pleads guilty and then attempts to impede the prosecution of a codefendant for the same offenses); United States v. Acuna, 9 F.3d 1442 (9th Cir. 1993) (obstruction of justice adjustment applies where defendant pleaded guilty and then testified falsely in codefendant/coconspirator's trial); United States v. Bernaugh, 969 F.2d 858 (10th Cir. 1992) ("a defendant attempts to obstruct justice in a case closely related to his own, such as that of a codefendant").

With: United States v. Perdomo, 927 F.2d 111, 118 (2d Cir. 1991) (defining "instant offense" as "offense of conviction"); United States v. Kim, 27 F.3d 947, 958 (3d Cir. 1994) (same); United States v. Partee, 31 F.3d 529 (7th Cir. 1994) ("instant offense" as used in the obstruction of justice guideline does not include relevant conduct, but is narrowly defined as the "offense of conviction").

Issue 6: Whether the obstruction of justice adjustment, §3C1.1, applies to a defendant who fails to admit to use of a controlled substance while on pretrial release.

Compare: United States v. Garcia, 20 F.3d 670 (6th Cir. 1994) (defendant willfully and materially obstructed justice when he failed to admit his use of cocaine on pretrial release), cert. denied, 115 S. Ct. 1120 (1995).

With: United States v. Belletiere, 971 F.2d 961 (3d Cir. 1992) (defendant's failure to admit cocaine use, after testing positive for same, did not justify enhancement because defendant was sanctioned by having bail revoked); United States v. Thompson, 944 F.2d 1331 (7th Cir. 1991) (denial of drug use while on bail is not an obstruction of justice).

Issue 7: Whether a failure to appear count sentenced under §2J1.6 should be grouped with the underlying offense when the underlying offense has been enhanced under §3C1.1 for obstruction of justice.

Compare: United States v. Agoro, 996 F.2d 1288 (1st Cir. 1993) (remand for resentencing necessary where sentence imposed for failure to appear caused defendant's total sentence for both failure to appear and the underlying conduct to exceed the maximum for the grouped offenses); United States v. Lacy, 969 F.2d 926 (10th Cir. 1992) (district court erred in imposing a consecutive sentence for obstruction offense when it had already enhanced the underlying drug offense level), judgment vacated on other grounds, 113 S. Ct. 1233 (1993); United States v. Flores, 23 F.3d 408 (6th Cir. 1994) (unpublished) (same).

With: United States v. Packer, 70 F.3d 357 (5th Cir. 1995) (guideline commentary at §2J1.6, n.3 that maintains that failure to appear count should be grouped with count for underlying offense, and then earmark a portion of the total punishment as a consecutive sentence conflicts with 18 U.S.C. § 3146(b)(2) which requires a consecutive sentence for failure to appear that is separate and distinct from the underlying offenses).

Issue 8: Whether a sentence to a community confinement center, halfway house, or drug treatment center qualifies as "incarceration" under §4A1.2(e)(1).

Compare: United States v. Rasco, 963 F.2d 132 (6th Cir.), cert. denied, 113 S. Ct. 238 (1992) (detention in community treatment facility following revocation of parole is "incarceration"); United States v. Vanderlaan, 921 F.2d 257 (10th Cir. 1990), cert. denied, 499 U.S. 954 (1991) (placement in federal special treatment facility during period of commitment to federal prison is confinement and is considered "sentence of imprisonment").

With: United States v. Latimer, 991 F.2d 1509 (9th Cir. 1993) (placement in community treatment facility following revocation of parole is not considered "incarceration"); United States v. Urbizu, 4 F.3d 636 (8th Cir. 1993) (dicta) (placement in halfway house not categorized as confinement).

Issue 9: Whether "non-violent offense," as the term is used in §5K2.13 (Diminished Capacity), should be defined with reference to "crime of violence" under §4B1.2 (Career Offender).

Compare: United States v. Mayotte, 76 F.3d 887 (8th Cir. 1996) (commission of bank robbery, a "crime of violence," precluded downward departure for diminished capacity); United States v. Rosen, 896 F.2d 789 (3d Cir. 1990) (term "non- violent" in §5K2.13 is the opposite of "crime of violence" under §4B1.2; therefore, district court did not err in refusing to make a downward departure for a defendant convicted of extortion by force or threat of injury or serious damage); United States v. Maddalena, 893 F.2d 815 (6th Cir. 1989) (district court does not have the authority in a bank robbery case to depart based on diminished capacity because bank robbery is not a "non-violent offense"); United States v. Poff, 926 F.2d 588 (7th Cir. 1991) (en banc) (defendant whose offense of conviction, threatening public officials, constituted a "crime of violence" under career offender provision could not have sentence reduced under guideline provision dealing with commission of nonviolent offenses while suffering from reduced mental capacity); United States v. Borrayo, 898 F.2d 91 (9th Cir. 1989) (departure for attempted unarmed bank robbery not appropriate based on defendant's alleged, partial diminished capacity due to depression and alcohol abuse); United States v. Dailey, 24 F.3d 1323 (11th Cir. 1994) (downward departure not permissible for reduced mental capacity under §5K2.13 where defendant convicted of a "crime of violence").

With: United States v. Weddle, 30 F.3d 532 (4th Cir. 1994) (defendant convicted of mailing threatening communications by sending bullets inscribed with victim's name to her parents nevertheless could be said to have committed a "nonviolent offense" within the meaning of §5K2.13 where defendant presented no likelihood of carrying out threat); United States v. Chatman, 986 F.2d 1446 (D.C. Cir. 1993) (district court should not refer to the definition of "crime of violence" in §4B1.2, but "should consider all the facts and circumstances surrounding the commission of the crime").

United States Sentencing Commission