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| Federal Sentencing Guidelines |
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United States v. Booker,
No. 04-104 (U.S., January 12, 2005): Holding that the Sixth Amendment requires jury fact finding of facts that increase punishment (or admission by the defendant) and thus the Federal Sentencing Guidelines are no longer mandatory, but rather advisory only; District Courts must consult the Guidelines and take them into account at sentencing and Courts of Appeals can review for unreasonableness.
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Shepard v. United States,
No. 03-9168 (U.S., March 7, 2005): Another micro-win for defendants. Fractured opinion in which the Court held that police reports and complaint applications are not good enough to establish the specific type of burglary under state law that would support a conviction under the Armed Career Criminal Act where a felon possessing a gun who has three prior violent felonies or drug convictions is looking at 15 years minimum. Burglary counts as "violent" if it is committed in a building or enclosed space; not in a boat or motor vehicle. Court held that a sentencing court can not rely on police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, the violent variety of burglary.
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United States v. Doe,
No. 03-3255 (February 24, 2005) (Published): Winner!!! Convictions on guilty pleas for unlawful use of a communication facility and possession of a firearm in furtherance of a drug trafficking crime. (Defendant apparently a snitch who requested his name be protected and court agreed). Reversed because the district court departed upward (way upward) without fully considering Defendant's cooperation with the government. Government filing a formal motion under sec. 5K1.1 is not required and does not prevent the sentencing court from fully considering a Defendant's assistance to the government. Concerning Booker, the circuit stated in a footnote that although the Guidelines are now advisory, district courts must still consult the Guidelines and take them into account when sentencing; and appellate review continues to encompass review of the district court's interpretation and application of the Guidelines.
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United States v. Montgomery,
No. 03-11131 (5th Cir., March 1, 2005): Instructive case in which Montgomery challenged his Texas conviction of "retaliation" as constituting a violent crime for purposes of the Armed Career Criminal Act (possession of firearm after three prior "violent" felonies gets your client 15 minimum). You can envision vividly the scene: Montgomery and two other guys walking down the street. Cop drives past and Montgomery yells, "Why the fuck are you sweating us?" Cop stops patrol car and attempts to talk to the three, but they keep walking. Cop tries to stand in front of them and they try to walk past him. "We are just walking down the street. You can't stop me mother fucker." At this point, Montgomery is handcuffed, but a few minutes later let go and, not being able to let it go, yelled, "I'm not going to put up with this shit any more. I'm going to put a hole in you mother fuckers next time I get a chance." Oops. Convicted of "retaliation" against the performance of duty of the cops. Uh, yeah. Circuit held this is not a violent crime for ACCA purposes in a meticulous and hair-splitting opinion. If you have this issue you should read this, the analysis is very good on this issue and instructive on how to attack other statutes presenting this problem. Note: the circuit (the conservative Fifth Circuit, mind you) analyzed the language of the statute, not the conduct of Montgomery; but, it appears that the facts definitely helped.
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United States v. Brown,
No. 03-8027 (10th Cir., March 9, 2005) (Published): Lengthy opinion in which various gun and drug charges affirmed, but case remanded for re-sentencing. One interesting argument by Brown was a claim of "constructive amendment" of the Indictment which occurs when the evidence at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the Indictment. This violates the Fifth Amendment. The circuit denied this claim, but noted an inter-circuit conflict on whether this error is reversible per se or subject to plain error review (Brown raised it for the first time on appeal). This panel went with plain error and Brown did not meet it. Brown also raised the issue of the trial court leading prospective jurors in reciting the Pledge of Allegiance. No dice in light of United States v. Wonschik, 353 F.3d 1192, 1198-99 (10th Cir. 2004). Finally, the case was remanded for re-sentencing because Brown objected to the PSI on the basis that some of his priors had actually been dismissed and the trial court simply failed to note or rule upon his objections. The gumment conceded error on this point; thus, the remand.
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United States v. Moore,
No. 04-8078 (10th Cir., March 23, 2005) (Published): Moore was involved in a domestic dispute which necessitated the police being in his house. Unfortunately for Moore, the police discovered firearms. Even more unfortunately for Moore, he had more than three violent felony convictions. The circuit held that the fact of the priors and whether they are "violent" under the Armed Career Criminal Act do not need to be plead in the Indictment and found by a jury beyond a reasonable doubt. The panel applied circuit precedent, but recognized the tension between the circuit precedent and the Supreme Court's recent decisions in Booker and Shepard, particularly the concurring opinion of Justice Thomas in Shepard in which he questions the continued validity of the Supreme Court case relied upon by the panel, Almendarez-Torres v. United States, 523 U.S. 224 (1998). It appears to me that this case is a cert. candidate and the ruling is no longer valid in light of Shepard; but, the panel was unwilling to declare it so without further guidance from the Supreme Court.
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United States v. Tedford,
No. 04-7079 (10th Cir., May 3, 2005) (Published): Appeal and affirmation of federal probation revocation. The Circuit holds that Booker does not apply to these (in accord with the Eighth Circuit).
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United States v. Souser,
No. 04-1101 (10th Cir., May 4, 2005) (Published): Winner!!! Guilty plea case on one count of making false statement to the government. Issue is whether Souser must, as a condition of her probation, inform her employer of her criminal history. In the district of Colorado it is an unwritten policy that all probationers must inform their employers of the criminal history. Not anymore. The Circuit quashed the blanket policy and mandated that such a condition of probation (employer notification) can be imposed only by applying strict findings under the Guidelines.
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United States v. Jaimes-Jaimes,
No. 03-2871 (7th Cir., May 4, 2005): Winner!!! Excellent discussion of principles regarding waiver of issues on appeal (meaning you get no appeal) as opposed to forfeiture (which allows for plain error review); but notable for holding that the state crime of "discharging a firearm into a vehicle or building" is not a "crime of violence" for purposes of federal enhancements under the Guidelines because the elements of the crime must require the use or attempted use of force against a person. Very important to know this if you work in federal court.
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United States v. Ziniga-Soto,
No. 06-2364 (10th Cir., June 3, 2008) (Published): Federal Sentencing Guidelines; Crime of Violence: In this illegal re-entry case, the panel held that "assault on a public servant" under Texas law is not a "crime of violence" for enhancement purposes. NOTE: the panel recognized an intra-circuit conflict of sorts in the analysis of these claims. This one might be headed for en banc review.
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Irizarry v. United States,
No. 06-7517 (U.S., June 12, 2008): Federal Sentencing Guidelines; Notice: The notice requirements of Rule 32(h), which requires the Court to give notice of a departure from the Guidelines range, does not apply to a variance (a sentence outside the Guidelines range).
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United States v. Gallant,
No. 07-1344 (10th Cir., August 20, 2008) (Published): Federal Sentencing Guidelines: This is a massive 108-page opinion dealing with "fraud-related crimes arising from and related to the operation of a credit card portfolio financed by BestBank, a Colorado bank insured by the FDIC." As to the convictions, the panel held that the evidence was sufficient as to all but counts 55 and 56 (these counts involved wire transmittals that preceded their involvement in the alleged wire fraud scheme) and that the District Court did not err in denying the request for "an instruction on suretyship law). As to sentencing, all defendants and the Government appeal this aspect of the case. HELD: Remanded for re-sentencing because the the District Court erred in assessing the calculation of loss in terms of the gain as to each defendant, and also failed to aggregate the amount of loss from the joint conduct of the defendants.
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United States v. Sharkey,
No. 08-3115 (10th Cir., October 7, 2008) (Published): Federal Sentencing Guidelines: Sharkey plead guilty to one count of Distribution of Cocaine Base (Crack) within 1,000 feet of a school. He did not appeal, even though the plea agreement reserved the right to appeal certain determinations regarding sentencing. His subsequent motion to vacate his sentence pursuant to 28 U.S.C. 2255 was dismissed as untimely. He attacked his sentence yet again, this time pursuant to 18 U.S.C. 3582(c), which allows reduction "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission...if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Sharkey lost on this last point because the change that benefited him did not change the low end of the Guidelines range in his case.
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Moore v. United States,
No. 07-10689 (U.S., October 14, 2008): Federal Sentencing Guidelines: Pithy per curiam opinion reversing the Eighth Circuit in a case where the district court stated that it felt constrained by then-current law to not depart from the disparate treatment of offenders regarding crack/powder cocaine. Kimbrough was decided while Moore's cert petition was pending and the Supreme Court remanded to the Eighth Circuit which affirmed. The Court felt that the Eighth Circuit failed to give meaning to the statement of the district court and again reversed the Eighth Circuit.
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United States v. Dowlin,
No. 03-8038 (10th Cir., May 17, 2005) (Published): Lengthy opinion dealing with federal fraud and affirmed, but notable because the panel holds that constitutional Booker error (actual judge fact-finding rather than mistaken mandatory application of the Guidelines) is not "structural error" in accord with the First Circuit.
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United States v. Foote,
No. 03-3263 (10th Cir., July 6, 2005) (Published): Which version of the Guidelines applies: the version in effect at the time the crime was committed, or the version in effect at the time of sentencing? The Guidelines themselves say that the version in effect at the time of sentencing applies, unless application of the Guidelines would violate constitutional ex post facto provisions. Here, the conspiracy ended before the Guidelines version used by the District Court came into effect and the panel reversed and remanded for re-sentencing.
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United States v. Wolfe,
No. 04-2114 (10th Cir., January 31, 2006) (Published): Lengthy opinion in a federal case where Wolfe got drunk, drove a car filled with some friends, and crashed the car, resulting in serious injury to herself and the deaths of two of the passengers (it happened on federal land so she was charged with involuntary manslaughter). The District Court departed upward in a big way and Wolfe was sentenced ultimately to 41 months. The Circuit reverses here for re-sentencing based upon a pain-staking analysis of upward departures and the extreme degree to which the District Court departed without sufficient explanation. I thought the reasons outlined by the District Court were explained pretty well but what do I know. Also, this opinion gets style points for repeatedly citing to a decision called United States v. Whiteskunk. Cool.
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United States v. Tidwell,
No. 05-7018 (10th Cir., February 2, 2006) (Unpublished): Tidwell plead to possession of child porn in Oklahoma and was sentenced to 27 months. I included this case because the Circuit reversed and remanded for re-sentencing because the District Court found an enhancement by relying upon facts in the PSR that were contested by Tidwell. The enhancement centered around the ages of the children depicted in the images. Although Tidwell couched the claim under Booker, the Circuit held the issue really was not governed by Booker, but rather general sentencing error because Tidwell contested the age question and the Government produced no evidence other than the opinion of the probation officer in the PSR. The opinion makes clear that the District Court did not want to look at the images. The Government typically does not introduce the actual images during the sentencing proceeding but the Circuit held that the Government may do so at the re-sentencing. Tidwell may wish he had not appealed this case once those images come in.
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United States v. Price,
No. 05-5177 (10th Cir., February 14, 2006) (Published): Price sought to have his federal drug sentence reduced in light of Booker, arguing that the District Court was empowered to modify his sentence under 18 U.S.C. 3582(c)(2) which allows sentence reductions in cases where the Sentencing Commission subsequently lowers the range. The Circuit denied relief, holding that section 3582 allows a reduction only when the Sentencing Commission lowers the range, not the Supreme Court. This holding is in line with all other circuits that have considered the issue.
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United States v. Johnson,
No. 04-7049 (10th Cir., February 24, 2006) (Unpublished): Instructive case where several defendants convicted of bank robbery get no relief under Booker, but two of them do get sentencing relief because a jury, applying the reasonable doubt standard, would not have been able to conclude that the robbery was "sophisticated" under the Guidelines. There are apparently very few published cases on this subject.
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United States v. Calzada-Maravillas,
No. 05-5029 (10th Cir., April 17, 2006) (Published): Illegal re-entry case where the District Court departed upward without notice to the accused pursuant to Fed. R. Crim. Proc. 32(h). Reversed and remanded for re-sentencing. The panel engaged in a rather in-depth discussion of the notice rule, noting that this is the second case decided this month on this issue. Also, the panel rejected the government's assertion of harmless error because the defense asserted that it would have investigated the circumstances surrounding the old prior convictions. The panel canvassed other circuit authority and concluded ultimately that since the government has the burden of proving that the error was harmless beyond a reasonable doubt, the accused will not be made to specify the arguments he would have made or the evidence he would have investigated if he had had proper notice in order to avoid harmless error.
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Salinas v. United States,
No. 05-8400 (U.S., April 24, 2006): Federal sentence enhancements. The Fifth Circuit held that a prior of simple possession of CDS constituted a "controlled substance offense" for enhancement purposes under section 4B1.1(a). But "controlled substance offense" is defined as possession "with intent to manufacture, import, export, distribute, or dispense." Thus, the Fifth Circuit's decision treating simple possession as a "controlled substance offense" was erroneous. The Solicitor General conceded the error and this per curiam opinion is one page long, constituting the most pithy rebuke I have seen out of the Supreme Court in a while.
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United States v. Aranda-Flores,
No. 05-4140 (10th Cir., June 13, 2006) (Published): Federal Sentencing Guidelines: Guilty plea to a charge of Transporting Illegal Aliens. However, he fell asleep while driving, crashed into a car and killed the driver, and also killed one of the illegals in the car he was driving. The District Court enhanced six levels on the basis that the conduct was reckless and resulted in the death of a person. The Circuit reversed on the basis that the actual conduct---falling asleep while driving---is not reckless per se, but merely negligent.
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United States v. Krejcarek,
No. 04-1531 (10th Cir., July 11, 2006) (Published): Federal Sentencing Guidelines: Third Degree Assault Misdemeanor convictions under Colorado law are "crimes of violence" under the Guidelines.
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United States v. Gunter,
No. 05-2952 (3rd Cir., September 11, 2006): Federal Sentencing Guidelines: Gunter was convicted of Possession of Cocaine Base (Crack) with Intent to Distribute and sentenced to 295 months. The District Court opined that it could not impose a sentence below the applicable Guideline range for offenses involving crack cocaine. Specifically, Gunter argued that there exists a disparity between sentences imposed for crack cocaine and those imposed for powder cocaine (if Gunter possessed powder his range would have been 111-123 instead of 295-353 months). He argued that Booker allowed the District Court to sentence below the Guideline range in this area and the Circuit agreed. Thus, the 100:1 crack-powder cocaine discrepancy is apparently not legally binding on a sentencing court (at least in the Third Circuit).
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United States v. Zuniga-Chavez,
No. 04-2293 (10th Cir., September 27, 2006) (Published): Federal Sentencing Guidelines: Illegal re-entry conviction on a guilty plea where Zuniga-Chavez raised sentencing claims based on Booker and Shepard involving the Government's introduction of documents related to his prior convictions (a certified docket sheet, a certified copy of an abstract judgment, and court case summaries). AFFIRMED.
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United States v. Martinez-Jimenez,
No. 04-2324 (10th Cir., September 29, 2006) (Published): Federal Sentencing Guidelines: Another illegal re-entry into the country case on a guilty plea affirmed over a claim of insufficient evidence to prove one of the prior convictions used to establish the criminal history category. Here, the Government used, in part, an NCIC report which the panel held to be just fine.
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United States v. Sepulveda-Contreras,
No. 04-1409 (1st Cir., October 25, 2006): Federal Sentencing Guidelines: District Court abused its discretion in imposing a financial disclosure and search condition for the first time in its written judgment without orally announcing them at sentencing; and also improperly delegated when it ordered drug tests at the discretion of the Probation Officer.
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United States v. Willis,
No. 06-6009 (10th Cir., February 16, 2007) (Published): Federal Sentencing Guidelines: Willis worked for a debt collection agency in Oklahoma City which used Accurint.com (a web site owned by Lexis-Nexis). Willis allowed his drug dealer to access Accurint to obtain personal identity information of various persons in the database. The drug dealer and his friends used the information to commit identity theft crimes and Willis was indicted and convicted by jury of aiding and abetting the accessing without authorization of a protected computer and obtaining information therefrom. The Court affirmed his conviction over his claims of insufficient evidence and refusal to give his jury an instruction that in order to convict, the jury must find that Willis knowingly and intentionally aided another in obtaining information worth more than $5,000 or that it was foreseeable. However, the panel vacated the sentence and remanded for further fact-finding on the issue of the scope of criminal activity that Willis agreed to jointly undertake. Willis was subjected to a two-level enhancement because the offense involved using a means of identification to produce or obtain any other means of identification. But, the evidence was clear that Willis allowed access to Accurint because he thought the drug dealer was getting information on persons who owed money, not to obtain information to commit identity theft.
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United States v. Manzella,
No. 06-3434 (3rd Cir., February 2, 2007): Federal Sentencing Guidelines: A district court cannot justify a longer sentence for a defendant based on its reasoning that the longer sentence is necessary for rehabilitative purposes. In this case, the defendant's sentence under the Guidelines was one month, but the defendant needed a 30-month sentence to be eligible for the 500-hour BOP drug treatment program, which the district court thought necessary and accordingly it imposed a 30-month sentence. The Circuit relied on a more specific statute, 18 U.S.C. sec. 3582(a), to conclude that imprisonment is not an appropriate means of promoting correction and rehabilitation. Accordingly, rehabilitation is a factor to be considered when imposing a non-imprisonment alternative sentence.
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United States v. Acevedo,
No. 05-4284 (10th Cir., March 22, 2007) (Unpublished): Federal Sentencing Guidelines: In this unpublished Order and Judgment, the panel reversed and remanded the case for re-sentencing on the basis that the District Court did not articulate specific reasons justifying an upward departure. NOTE: Acevedo did not object on this basis at the sentencing hearing and under Tenth Circuit precedent the issue was not preserved. The panel granted relief on plain error analysis, concluding that meaningful appellate review was not possible without proper findings by the District Court.
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United States v. Romero,
No. 06-2052 (10th Cir., June 29, 2007) (Published): Federal Sentencing Guidelines: Back in 2001, Romero, a Mexican national, plead guilty in New Mexico state court to Armed Robbery and Conspiracy to Commit Armed Robbery. He was deported in 2003. In 2005, he was again taken into custody in the United States and admitted that he had illegally re-entered. The District Court sentenced Romero to 57 months (the low end of the Guidelines range). At sentencing, Romero's counsel appeared to raise a "cultural assimilation" claim, arguing that he will again be deported to a country he does not know since he came to the U.S. at age 8-months. However, there was no objection on this basis to the District Court's sentence and the panel held that the issue was waived and, upon plain error review, no relief was required. The purpose of this case was to harmonize circuit authority on the question of whether defendants must object to procedural errors at the sentencing hearing. They do.
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United States v. Jackson,
No. 06-2079 (10th Cir., July 9, 2007) (Published): Federal Sentencing Guidelines: Jackson plead guilty to six counts of illegal drug distribution. In calculating the Guidelines range, the District Court considered un-counseled misdemeanor convictions for battery, domestic violence, and negligent use of a firearm for which he was sentenced to 90 days, all suspended. HELD: Such consideration was proper in calculating Jackson's criminal history (making him ineligible for the safety valve).
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United States v. Schmidt,
No. 06-1412 (10th Cir., August 10, 2007) (Unpublished): Federal Sentencing Guidelines: Schmidt pleaded guilty to her part in a Ponzi scheme which, according to the government, had an intended loss of $50 million. However, the counts to which she pleaded guilty had a loss of only $30,000.00. At sentencing, the government tried to enhance by alleging intended loss by Schmidt of between $20 and $50 million. Schmidt objected and the District Court simply referred back to the PSIR as establishing this fact. HELD: The District Court must actually resolve the dispute and not simply refer back to the PSIR; reversed and remanded.
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United States v. Rosa,
No. 05-3621-cr (2nd Cir., October 30, 2007): Federal Sentencing Guidelines: ACCA sentence of a mandatory minimum of 180 months is vacated where there was no evidence presented in the District Court to establish that a "guilty plea [resulting in a predicate state conviction] necessarily admitted, and supported a conviction for" a crime or "act of juvenile delinquency involving the use or carrying of a firearm...that would be punishable by imprisonment for [a] term [exceeding one year]," in violation of Shepard v. United States, 544 U.S. 13 (2005).
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United States v. Christman,
No. 06-3266 (6th Cir., November 20, 2007): Federal Sentencing Guidelines: Sentence in a child porn possession case vacated when District Court relied upon ex parte conversations with a probation officer and a pre-trial services officer that influenced his sentencing decision.
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United States v. Todd,
No. 06-6334 (10th Cir., February 12, 2008) (Published): Federal Sentencing Guidelines: This case presents the issue of a proper calculated Guidelines range even under the new sentencing regime heralded in Gall. Here, Todd admitted to dealing 680.4 grams of meth, but the District Court used only the 37 grams recovered in calculating the base offense level. The discrepancy in the Guidelines calculations is quite large (188-235 months as opposed to 77 to 96 months). The panel, upon the Government's appeal, remanded for re-sentencing upon finding that the mis-calculation was not harmless.
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United States v. Alexander
No. 06-1867 (6th Cir., February 26, 2008): Federal Sentencing Guidelines: Alexander entered a guilty plea to a charge of Sexual Abuse of a Minor. The District Court departed upward from the Guidelines range but failed to provide notice of the variance as required by Rule 32(h). Sentence vacated and case remanded for re-sentencing. NOTE: This was a 2-1 opinion and involved plain error review since no objection was lodged in the trial court.
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United States v. Tatum
No. 07-7053 (10th Cir., March 3, 2008) (Published): Federal Sentencing Guidelines; Access Devices: Guilty plea to one count of Uttering a Counterfeit Check with the Intent to Deceive an Organization. At issue is the six-level enhancement under 2B1.1(b)(10) for producing or trafficking of an "access device." The District Court considered the checks themselves and the account numbers to be access devices. The panel, following preceding from the Fifth Circuit, disagreed: "We therefore conclude that both the counterfeit checks and the account numbers printed on those checks fall outside the statutory definition of an access device." Reversed and remanded for re-sentencing. The district judge was Ronald A. White out of the Eastern District of Oklahoma.
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United States v. Tindall,
No. 07-8038 (10th Cir., March 3, 2008) (Published): Federal Sentencing Guidelines: Tindall plead guilty to Assault Resulting in Serious Bodily Injury. The District Court enhanced the sentence after concluding that the injuries could have resulted in the loss of the life of the victim. The District Court relied upon the PSR as a factual basis for this finding. The panel found no error and AFFIRMED.
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United States v. Trotter,
No. 05-3487 (10th Cir., March 3, 2008) (Published): Federal Sentencing Guidelines: This is a "Kimbrough remand" from the Supreme Court in a drug case involving the crack/powder cocaine disparity. The record at sentencing was unclear whether the District Court felt constrained by then-existing circuit precedent to not consider such a variance (as Kimbrough now says is proper) or whether the District Court just chose to not vary the sentence. Thus: "We therefore REMAND this case for the district court to clarify why it rejected Defendant's request for a variance based on the crack/powder disparity. If it rejected this request based on a belief that it did not have discretion to specifically consider whether the disparity resulted in a disproportionately harsh sentence, the court is to conduct resentencing in light of Kimbrough." NOTE: The panel clarified the proper terminology which bears repeating here. A "departure" is when a District Court applies the Guidelines (chapters 4 or 5) that results in an increase or decrease in the Guidelines range. A "variance" occurs when a court enhances or detracts from the recommended range through application of Section 3553(a) factors.
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United States v. Regalado
No. 05-5739-cr (2nd Cir., March 4, 2008): Federal Sentencing Guidelines: Like the Trotter case from the Tenth Circuit reported above, the Second Circuit remands a sentence in a drug case in light of Kimbrough where it is unclear whether the District Court would have imposed a non-Guidelines sentence had it been aware that "the cocaine Guidelines, like all other Guidelines, are advisory only."
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United States v. Sutton
No. 07-1223 (10th Cir., April 3, 2008) (Published): Federal Sentencing Guidelines; Amount of Loss: Over a several year period, Sutton purchased 76 "high-mileage" vehicles at auction and rolled back the odometers. He also took various steps to conceal this. His base offense level was only 19 which, combined with his criminal history category of I, resulted in a Guidelines range of 30-37 months. However, the PSR whacked him with a 12-level increase by calculating a loss per vehicle of $4,000.00 which resulted in a total of $304,000.00 in loss for sentencing purposes. Sutton countered with an alternate method of calculating the loss which was much lower than the PSR. The panel, applying a clearly erroneous standard to the findings of fact by the District Court, found no error and AFFIRMED.
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Burgess v. United States
No. 06-11429 (U.S., April 16, 2008): Federal Sentencing Guidelines; "Felony Drug Offense": This case involves interpretation of the Controlled Substances Act and the provisions that enhance punishment if the defendant was convicted previously of a "felony drug offense." Burgess was convicted previously of possession of cocaine in South Carolina which carried up to two years, but for some reason was classified as a misdemeanor under state law. HELD: A "felony drug offense" encompasses a state drug offense punishable by more than one year even if state law classifies the offense as a misdemeanor.
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United States v. Saavedra,
No. 07-2192 (10th Cir., May 1, 2008) (Published): Federal Sentencing Guidelines: Saavedra plead guilty to one count of being an addict or unlawful user of a controlled substance in possession of a firearm, and was sentenced to 21 months. The panel held that the Guidelines provision dealing with possession of a shotgun with a barrel less than 18 inches applied, even though Saavedra did not admit this fact; it is enough that the Government showed that the gun met the elements of the provision. However, the District Court committed procedural error in including a municipal conviction for Negligent Use of Weapons in the criminal history calculation. Remanded for re-sentencing
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