Monday, June 6, 2016

Another Way to Avoid a Mandatory Minimum Without Joining Team America



By Mark D. Hosken, Supervisory AFPD

            Congress enacted terms of imprisonment that prohibit federal court judges from imposing a sentence below the mandatory minimum required by statute. The only exception routinely applied is for those defendants who provide substantial assistance to the government.  The lawmakers limited this exception to prosecutorial applications.  Otherwise, the sentencing court must impose at least the minimum term mandated.

            This exception is applied in those prosecutions where the defendant enters into an agreement with the AUSA to provide substantial assistance.  Assuming that cooperation is provided and found satisfactory by the prosecutor, the government will file an application asking (and permitting) the sentencing court to impose a term less than that minimum mandated term.  Without such motion the court may not avoid the minimum term notwithstanding the remaining sentencing factors unique to the defendant.  Not surprisingly, this prosecutorial empowerment encourages many defendants to join Team America.

            Recently, a district court judge in the WDNY applied another exception that did not require the defendant to cooperate.

            The defendant was in primary state custody serving a state term of 30 months resulting from his guilty plea to Rape 3rd.  The federal government determined that further punishment was warranted as the defendant videotaped the underlying sex act with the minor.  The defendant was indicted and brought to federal court on a writ.  The defendant decided to plead guilty to the federal offense (Production of Child Pornography). That conviction carried a mandated minimum term of at least 15 years up to a maximum term of 30 years. Though the federal sentencing guidelines recommended a term between 151 months and 188 months, the mandatory minimum trumped the guidelines increasing that range from 180 to 188 months. Absent a government application for a reduction based on cooperation, the defendant could not receive less than 15 years.

            In the instant case, the defendant had served approximately 22 months on his state sentence before he appeared before the federal sentencing judge.  Though the sentencing judge would impose a concurrent sentence, the federal law does not permit a relation back to the beginning of the 22 month state term.  A federal concurrent sentence looks forward from the date of the imposition of that sentence.  The defendant would not receive concurrent credit towards his federal sentence for those 22 months already served in primary state custody.  The goal was to provide authority to the sentencing judge that would permit the piercing of the mandatory minimum term.

            Relevant conduct is frequently relied upon in federal sentencing practice. It is defined in the United States Sentencing Guidelines as other conduct not necessarily prosecuted but part of the criminal acts or omissions that occurred during the commission of the offense of federal criminal conviction (USSG § 1B1.3).  Here, the conduct supporting the Rape 3rd conviction was integral to the Production of Child Pornography. Thus, it was properly considered relevant conduct.

            The federal sentencing guidelines include a provision which directs the sentencing court to reduce the federal prison term found applicable by the amount of prison time served on the state crime determined to be relevant conduct [USSG § 5G1.3 (b)].  For example, if the appropriate federal term was determined to be 188 months, the court must reduce by 22 months and impose a sentence of 166 months. The question arose whether that credit found in the federal sentencing guidelines must be equally applied to the application of a mandatory minimum sentence.

            United States v. Rivers, 329 F.3d 119 (2d Cir. 2003), provides direct authority for that application. The district court judge determined that 64 months was the appropriate term for a federal drug offense that carried a 60 month mandatory minimum term. The court ruled the federal term should be served concurrently with the state sentence being served.  The judge reduced the 64 month term by the 18 months already served in state custody. The resulting federal sentence imposed was 46 months.  The Second Circuit affirmed and rejected the government's claim that the sentencing court was not empowered to sentence below the mandatory minimum.  The panel held, "[s]o long as the total period of incarceration, after the adjustment, is equal or greater than the statutory minimum, the statutory dictate has been observed and its purpose accomplished."  Id. at 122.  Whether the calculation was called a credit under the federal sentencing guidelines or an adjustment, “this linguistic variance is a distinction without a difference.” Id. at 122.

            In the instant case, the federal court judge decided that 188 months was the appropriate sentence.  That term was above the minimum sentence mandated for the conviction of Production of Child Pornography.  Based on the application of the Rivers' principle, the judge applied a 22 month adjustment to that term based on the previously served state time. The resulting sentence imposed was 166 months to be served concurrently with the unexpired state term.  The sentencing court was authorized and required to adjust the term to reflect the state term served.  Here, the mandatory minimum term was properly adjusted without the defendant being required to join Team America.

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