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d criminal history category of I from the 1989 edition of the Guidelines Manual in conjunction with the amended guideline range of 0-6 months for this offense level and criminal history category from the 1992 edition of the Guidelines Manual. 2. Under subsection (b)(1), the last date of the offense of conviction is the controlling date for ex post facto purposes. For example, if the offense of conviction (i.e., the conduct charged in the count of the indictment or information of which the defendant was convicted) was determined by the court to have been committed between October 15, 1991 and October 28, 1991, the date of October 28, 1991 is the controlling date for ex post facto purposes. This is true even if the defendant’s conduct relevant to the determination of the guideline range under §1B1.3 (Relevant Conduct) included an act that occurred on November 2, 1991 (after a revised Guideline Manual took effect). Background: Subsections (a) and (b)(1) provide that the court should apply the Guidelines Manual in effect on the date the defendant is sentenced unless the court determines that doing so would violate the ex post facto clause in Article I, § 9 of the United States Constitution. Under 18 U.S.C. § 3553, the court is to apply the guidelines and policy statements in effect at the time of sentencing. Although aware of possible ex post facto clause challenges to application of the guidelines in effect at the time of sentencing, Congress did not believe that the ex post facto clause would apply to amended sentencing guidelines. S. Rep. No. 225, 98th Cong., 1st Sess. 77-78 (1983). While the Commission concurs in the policy expressed by Congress, courts to date generally have held that the ex post facto clause does apply to sentencing guideline amendments that subject the defendant to increased punishment. Subsection (b)(2) provides that the Guidelines Manual in effect on a particular date shall be applied in its entirety. Subsection (b)(3) provides that where the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses, even if the revised November 1, 2005 GUIDELINES MANUAL §1B1.11 – 41 – edition results in an increased penalty for the first offense. Because the defendant completed the second offense after the amendment to the guidelines took effect, the ex post facto clause does not prevent determining the sentence for that count based on the amended guidelines. For example, if a defendant pleads guilty to a single count of embezzlement that occurred after the most recent edition of the Guidelines Manual became effective, the guideline range applicable in sentencing will encompass any relevant conduct (e.g., related embezzlement offenses that may have occurred prior to the effective date of the guideline amendments) for the offense of conviction. The same would be true for a defendant convicted of two counts of embezzlement, one committed before the amendments were enacted, and the second after. In this example, the ex post facto clause would not bar application of the amended guideline to the first conviction; a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense. Decisions from several appellate courts addressing the analogous situation of the constitutionality of counting pre-guidelines criminal activity as relevant conduct for a guidelines sentence support this approach. See United States v. Ykema, 887 F.2d 697 (6th Cir. 1989) (upholding inclusion of pre- November 1, 1987, drug quantities as relevant conduct for the count of conviction, noting that habitual offender statutes routinely augment punishment for an offense of conviction based on acts committed before a law is passed), cert. denied, 493 U.S. 1062 (1990); United States v. Allen, 886 F.2d 143 (8th Cir. 1989) (similar); see also United States v. Cusack, 901 F.2d 29 (4th Cir. 1990) (similar). Moreover, the approach set forth in subsection (b)(3) should be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under §3D1.2(d). The ex post facto clause does not distinguish between groupable and nongroupable offenses, and unless that clause would be violated, Congress’s directive to apply the sentencing guidelines in effect at the time of sentencing must be followed. Under the guideline sentencing system, a single sentencing range is determined based on the defendant’s overall conduct, even if there are multiple counts of conviction (see §§3D1.1-3D1.5, 5G1.2). Thus, if a defendant is sentenced in January 1992 for a bank robbery committed in October 1988 and one committed in November 1991, the November 1991 Guidelines Manual should be used to determine a combined guideline range for both counts. See generally United States v. Stephenson, 921 F.2d 438 (2d Cir. 1990) (holding that the Sentencing Commission and Congress intended that the applicable version of the guidelines be applied as a "cohesive and integrated whole" rather than in a piecemeal fashion). Consequently, even in a complex case involving multiple counts that occurred under several different versions of the Guidelines Manual, it will not be necessary to compare more than two manuals to determine the applicable guideline range -- the manual in effect at the time the last offense of conviction was completed and the manual in effect at the time of sentencing. Historical Note: Effective November 1, 1992 (see Appendix C, amendment 442). Amended effective November 1, 1993 (see Appendix C, amendment 474). §1B1.12. Persons Sentenced Under the Federal Juvenile Delinquency Act (Policy Statement) The sentencing guidelines do not apply to a defendant sentenced under the Federal Juvenile Delinquency Act (18 U.S.C. §§ 5031-5042). However, the sentence imposed upon a juvenile delinquent may not exceed the maximum of the guideline range applicable to an otherwise similarly situated adult defendant unless the court finds an aggravating factor sufficient to warrant an upward departure from that guideline range. United States v. R.L.C., 503 U.S. 291 (1992). Therefore, a necessary step in ascertaining §1B1.11 GUIDELINES MANUAL November 1, 2005 – 42 – the maximum sentence that may be imposed upon a juvenile delinquent is the determination of the guideline range that would be applicable to a similarly situated adult defendant. Historical Note: Effective November 1, 1993 (see Appendix C, amendment 475). November 1, 2005 GUIDELINES MANUAL Ch. 2 – 43 – CHAPTER TWO - OFFENSE CONDUCT Introductory Commentary Chapter Two pertains to offense conduct. The chapter is organized by offenses and divided into parts and related sections that may cover one statute or many. Each offense has a corresponding base offense level and may have one or more specific offense characteristics that adjust the offense level upward or downward. Certain factors relevant to the offense that are not covered in specific guidelines in Chapter Two are set forth in Chapter Three, Parts A (Victim-Related Adjustments), B (Role in the Offense), and C (Obstruction); Chapter Four, Part B (Career Offenders and Criminal Livelihood); and Chapter Five, Part K (Departures). Historical Note: Effective November 1, 1987. §2A1.1 GUIDELINES MANUAL November 1, 2005 – 44 – PART A - OFFENSES AGAINST THE PERSON 1. HOMICIDE §2A1.1. First Degree Murder (a) Base Offense Level: 43 Commentary Statutory Provisions: 18 U.S.C. §§ 1111, 2113(e), 2118(c)(2), 2332b(a)(1), 2340A; 21 U.S.C. § 848(e). For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Applicability of Guideline.—This guideline applies in cases of premeditated killing. This guideline also applies when death results from the commission of certain felonies. For example, this guideline may be applied as a result of a cross reference (e.g., a kidnapping in which death occurs), or in cases in which the offense level of a guideline is calculated using the underlying crime (e.g., murder in aid of racketeering). 2. Imposition of Life Sentence.— (A) Offenses Involving Premeditated Killing.—In the case of premeditated killing, life imprisonment is the appropriate sentence if a sentence of death is not imposed. A downward departure would not be appropriate in such a case. A downward departure from a mandatory statutory term of life imprisonment is permissible only in cases in which the government files a motion for a downward departure for the defendant’s substantial assistance, as provided in 18 U.S.C. § 3553(e). (B) Felony Murder.—If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. For example, a downward departure may be warranted if in robbing a bank, the defendant merely passed a note to the teller, as a result of which the teller had a heart attack and died. The extent of the departure should be based upon the defendant’s state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. However, departure below the minimum guideline sentence provided for second degree murder in §2A1.2 (Second Degree Murder) is not likely to be appropriate. Also, because death obviously is an aggravating factor, it necessarily would be inappropriate to impose a sentence at a level below that which the guideline for the underlying offense requires in the absence of death. 3. Applicability of Guideline When Death Sentence Not Imposed.—If the defendant is sentenced pursuant to 18 U.S.C. § 3591 et seq. or 21 U.S.C. § 848(e), a sentence of death may be imposed under the specific provisions contained in that statute. This guideline applies when a sentence of death is not imposed under those specific provisions. November 1, 2005 GUIDELINES MANUAL §2A2.1 – 45 – Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 82); November 1, 1990 (see Appendix C, amendment 310); November 1, 1993 (see Appendix C, amendment 476); November 1, 2002 (see Appendix C, amendment 637); November 1, 2004 (see Appendix C, amendment 663). §2A1.2. Second Degree Murder (a) Base Offense Level: 38 Commentary Statutory Provisions: 18 U.S.C. §§ 1111, 2332b(a)(1), 2340A. For additional statutory provision(s), see Appendix A (Statutory Index). Application Note: 1. Upward Departure Provision.—If the defendant’s conduct was exceptionally heinous, cruel, brutal, or degrading to the victim, an upward departure may be warranted. See §5K2.8 (Extreme Conduct). Historical Note: Effective November 1, 1987. Amended effective November 1, 2002 (see Appendix C, amendment 637); November 1, 2004 (see Appendix C, amendment 663). §2A1.3. Voluntary Manslaughter (a) Base Offense Level: 29 Commentary Statutory Provisions: 18 U.S.C. §§ 1112, 2332b(a)(1). For additional statutory provision(s), see Appendix A (Statutory Index). Historical Note: Effective November 1, 1987. Amended effective November 1, 2002 (see Appendix C, amendment 637); November 1, 2004 (see Appendix C, amendment 663). §2A1.4. Involuntary Manslaughter (a) Base Offense Level: (1) 12, if the offense involved criminally negligent conduct; or (2) (Apply the greater): (A) 18, if the offense involved reckless conduct; or §2A1.4 GUIDELINES MANUAL November 1, 2005 – 46 – (B) 22, if the offense involved the reckless operation of a means of transportation. (b) Special Instruction (1) If the offense involved the involuntary manslaughter of more than one person, Chapter Three, Part D (Multiple Counts) shall be applied as if the involuntary manslaughter of each person had been contained in a separate count of conviction. Commentary Statutory Provisions: 18 U.S.C. §§ 1112, 2332b(a)(1). For additional statutory provision(s), see Appendix A (Statutory Index). Application Note: 1. Definitions.—For purposes of this guideline: "Criminally negligent" means conduct that involves a gross deviation from the standard of care that a reasonable person would exercise under the circumstances, but which is not reckless. Offenses with this characteristic usually will be encountered as assimilative crimes. "Means of transportation" includes a motor vehicle (including an automobile or a boat) and a mass transportation vehicle. "Mass transportation" has the meaning given that term in 18 U.S.C. § 1993(c)(5). "Reckless" means a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation. "Reckless" includes all, or nearly all, convictions for involuntary manslaughter under 18 U.S.C. § 1112. A homicide resulting from driving a means of transportation, or similarly dangerous actions, while under the influence of alcohol or drugs ordinarily should be treated as reckless. Historical Note: Effective November 1, 1987. Amended effective November 1, 2002 (see Appendix C, amendment 637); November 1, 2003 (see Appendix C, amendment 652); November 1, 2004 (see Appendix C, amendment 663). §2A1.5. Conspiracy or Solicitation to Commit Murder (a) Base Offense Level: 33 (b) Specific Offense Characteristic (1) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels. November 1, 2005 GUIDELINES MANUAL §2A2.1 – 47 – (c) Cross References (1) If the offense resulted in the death of a victim, apply §2A1.1 (First Degree Murder). (2) If the offense resulted in an attempted murder or assault with intent to commit murder, apply §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder). Commentary Statutory Provisions: 18 U.S.C. §§ 351(d), 371, 373, 1117, 1751(d). Historical Note: Effective November 1, 1990 (see Appendix C, amendment 311). Amended effective November 1, 2004 (see Appendix C, amendment 663). * * * * * 2. ASSAULT §2A2.1. Assault with Intent to Commit Murder; Attempted Murder (a) Base Offense Level: (1) 33, if the object of the offense would have constituted first degree murder; or (2) 27, otherwise. (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) the victim sustained serious bodily injury, increase by 2 levels; or (C) the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels. (2) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels. Commentary Statutory Provisions: 18 U.S.C. §§ 113(a)(1), 351(c), 1113, 1116(a), 1751(c), 1993(a)(6). For additional statutory provision(s), see Appendix A (Statutory Index). §2A2.1 GUIDELINES MANUAL November 1, 2005 – 48 – Application Notes: 1. Definitions.—For purposes of this guideline: "First degree murder" means conduct that, if committed within the special maritime and territorial jurisdiction of the United States, would constitute first degree murder under 18 U.S.C. § 1111. "Permanent or life-threatening bodily injury" and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions). 2. Upward Departure Provision.—If the offense created a substantial risk of death or serious bodily injury to more than one person, an upward departure may be warranted. Background: This section applies to the offenses of assault with intent to commit murder and attempted murder. An attempted manslaughter, or assault with intent to commit manslaughter, is covered under §2A2.2 (Aggravated Assault). Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 83 and 84); November 1, 1990 (see Appendix C, amendment 311); November 1, 1991 (see Appendix C, amendment 391); November 1, 1995 (see Appendix C, amendment 534); November 1, 2002 (see Appendix C, amendment 637); November 1, 2004 (see Appendix C, amendment 663). §2A2.2. Aggravated Assault (a) Base Offense Level: 14 (b) Specific Offense Characteristics (1) If the assault involved more than minimal planning, increase by 2 levels. (2) If (A) a firearm was discharged, increase by 5 levels; (B) a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; (C) a dangerous weapon (including a firearm) was brandished or its use was threatened, increase by 3 levels. (3) If the victim sustained bodily injury, increase the offense level according to the seriousness of the injury: Degree of Bodily Injury Increase in Level (A) Bodily Injury add 3 (B) Serious Bodily Injury add 5 (C) Permanent or Life-Threatening Bodily Injury add 7 (D) If the degree of injury is between that specified in subdivisions (A) and (B), add 4 levels; or November 1, 2005 GUIDELINES MANUAL §2A2.2 – 49 – (E) If the degree of injury is between that specified in subdivisions (B) and (C), add 6 levels. However, the

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