Federal Sentencing - Adjustment Flashcards by Cody Cofer

Vulnerable Victims

What makes a victim “unusually vulnerable”?

age, physical or mental condition, or particularly susceptible to criminal conduct
SG 3A1.1
It doesn’t have to play a part in the offense

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Vulnerable Victims

What is the adjustment for “unusually vulnerable” victim?

If D “knew or should have known” +2 levels
If D “intentionally selected” +3 levels
If offense included “large number” of vics. +2 additional levels

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Vulnerable Victims

Does the victims “vulnerability” need to play a role in the offense?

NO. Just needs to be “reasonably foreseeable” to the D

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Hated Victims

What characteristics for this enhancement?

beyond a reasonable doubt “actual or perceived” race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation
SG 3A1.1

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Hated Victims AND Vulnerable Victims

CUMMULATIVE if victim is vulnerable for another reason than the reason for being hated

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Hated Victims Selected

What’s the adjustment?

3 levels

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Hated Victims

Gender selection and “sex crimes”?

Cannot adjust for both

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Official Victims

What does the Gov’t have to prove for this adjustment?

“crime was motivated by status” as official (gov. official, former official, or immediate family member of official)
SG 3A1.2

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Official Victims

What adjustment is there for official victim?

+ 3 levels UNLESS

+ 6 for “Offense Against the Person” or substantial risk of SBI

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Is Official Victims adjustment for Official organizations?

NO, for persons

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Physical Restraint of Victim

+ 2 levels
UNLESS restraint was an element of offense
Need not actually be the “VICTIM” of the offense
Even lawful restraint!!
SG 3A1.3

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What is a “federal crime of terrorism”?

Offense “calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct; and” is one of certain enumerated offenses such as attacks on airports, gov. officials, gov. property, and use of nuclear, bio, and chemical weapons
18 USC 2332

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What is the “International Terrorism” adjustment?

+ 12 levels

minimum level of 32

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What is a “serious human rights violation”?

means a violation of federal criminal law relating to genocide, torture, war crimes, and the use of recruitment of child soldiers”
SG 3A1.4 note 1

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What is the “serious human rights violation” adjustment?

2 and 4 level depending on seriousness

3A1.4

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Role in Offense - Aggravating

What are the “leadership roles”?

Organizer or leader

Manager or Supervisor

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Role in Offense - Aggravating

What kind of activity does “leadership roles” apply to?

D was an “organizer or leader of criminal activity that involved 5 or more participants or was otherwise extensive.”

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Role in Offense - Aggravating

What is the adjustment for “organizer or leader”?

(5 or more participants or extensive activity)

+ 5 levels

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Role in Offense - Aggravating

What is the adjustment for “manager or supervisor”?

(5 or more participants or extensive activity)

+ 3 levels

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Role in Offense - Aggravating

What factors do you consider in determining “Roles”?

Decision making authority;
Nature of participation;
Recruitment of accomplices;
Share of “fruits” of crime;
Scope of illegal activity;
Degree of participation or planning;
Degree of control over others

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Role in Offense - Aggravating

What must government prove?

Requisite number of participants (only criminally responsible actors are considered “participants”)
Actually that D is “leader”
Role must be “anchored” in transaction of conviction
D only need to supervise ONE (not 5)

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Role in Offense - Mitigating

What are the “mitigating” roles called?

“minimal participant” - plainly least culpable

“minor participant” - less culpable, but not minimal

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Role in Offense - Mitigating

What is the adjustment for the “mitigating” roles?

Study These Flashcards

“minimal participant” (plainly least culpable) - 4

“minor participant” (less culpable, but not minimal) - 2

Role in Offense - Aggravating

How does it interplay with “Abuse of Position or Skill”?

Study These Flashcards

Role + Abuse of Trust = OK

Role + Abuse of Skill = NO

Abuse of Position or Skill | What is the adjustment for "abuse of position or skill"?

+ 2 levels

Abuse of Position or Skill | What must happen?

D must abuse SPECIAL trust or skill

Abuse of Position | What is the 5th Cir. TEST?

Two part: 1. Occupied superior position relative to others; 2. Abused that position to "significantly facilitate offense"

Abuse of Position | Through a third party?

+2 applies still

Abuse of Skill | What constitutes a "skill"?

"skill not possessed by general public and usually requiring substantial education, training, or licensing"

Abuse of Skill | What must the Gov't prove?

1. "skill not possessed by general public and usually requiring substantial education, training, or licensing" 2. Skill used to facilitate offense

Insider Trading - Abuse of ________?

Abuse of TRUST - 2012 Amendment

Use of Minor | What is the adjustment?

+2 levels

Use of Minor | What must the Gov't show?

1. D took some "affirmative step" to involve minor; | 2. OR minor's participation was reasonable foreseeable

Obstruction of Justice | What is the definition of "obstructing justice"?

D "willfully impeded or obstructed the administration of justice during the investigation or prosecution of the instant offense."

Obstruction of Justice | What is the adjustment for "obstructing justice"?

+ 2 levels

Obstruction of Justice | What should the CRT do about "obstruction of justice" adjustment based on FALSE information/testimony?

Make a specific finding about WILLFULNESS and MATERIALITY D should object to the adjustment

Obstruction of Justice | What are some common examples of "false information" obstruction?

1. Perjury 2. Lying in presentence interview 3. Giving false name (if SIGNIFICANTLY interfers)

Obstruction of Justice | When does false information obstruction apply?

Pretrial AND trial

Obstruction of Justice | What are common types of obstruction?

1. False information; 2. Threats 3. Destruction of Evidence

Obstruction of Justice | What doesn't amount to obstruction, by itself?

Flight along does not constitute obstruction | BEWARE +2 for reckless risk of death or SBI

Obstruction of Justice | Does obstruction adjustment apply to "accessories afte the fact?

No.

Obstruction of Justice | What if D commits new crime while on release?

+3 and sentences must be consecutive

Grouping | What is "grouping"?

It's combining offenses into a single count under SG 3D1

Grouping | How do you determine offense level of grouped offenses?

``` You use the highest level in the Group, and then use chart in 3D1.4 1 unit = no increase 1.5 units = 1 level increase 2 units = 2 level increase 3.5 - 3 units = 3 levels 3.5 - 5 = 4 levels More than 5 = 5 levels ```

Grouping | How do you determine "Units"?

SG 3D1.3 One Unit is the most serious Next, add a unit that equally serious or from 1 - 4 levels less serious Next, add a 1/2 unit for offenses that are 5 - 8 levels less serious If 9 levels less serious, don't add a unit

Grouping | How do you determine which counts should be grouped?

Group: 1. same victim and same act or transaction 2. same victim and two or more acts, but connected by common objective or plan or scheme 3. When count embodies conduct that is treated as an adjustment of another count 4. If offense level determined by aggregate harm or loss, or quantity OR guideline provides for ongoing behavior - (Add them all up)

Acceptance of Responsibility Adjustment | What is the adjustment?

- 2 levels if D clearly demonstrates acceptance of responsibility Another -1 if the offense level is 16 or greater, and the Gov't moves for an adjustment based on D assistance in investigating or prosecuting his own case, D communicated his intention to plea guilty before the Gov't had to prepare for trial

Acceptance of Responsibility Adjustment | What does the CRT determine?

That D expresses sincere contrition

Acceptance of Responsibility Adjustment | Relevant conduct?

D cannot FALSELY deny relevant conduct

Acceptance of Responsibility Adjustment | Uncharged conduct?

Although, D cannot FALSELY deny relevant conduct, D need not admit to uncharged conduct

Acceptance of Responsibility Adjustment | Does a guilty plea raise a presumption of "Acceptance of Responsibility Adjustment"?

No, and evidence of conduct that is inconsistent with acceptance of responsibility may outweigh the plea.

Acceptance of Responsibility Adjustment | What must the D accept?

ALL elements of the charged offense, and not falsely deny relevant conduct

Acceptance of Responsibility Adjustment | Can the Gov't condition their motion for adjustment on waiving appeal?

Yes. In the 5th Cir., but some others say NO

Acceptance of Responsibility Adjustment | Can a D get this after trial?

RARELY. There is a balance between punishing the D for exercising right to trial. Very unlikely that court will grant the 2 levels.

Acceptance of Responsibility Adjustment | When is the adjustment made?

After computation of all Groups is combined.

Acceptance of Responsibility Adjustment | Can a D with "obstruction of justice" adjustment get this?

Only in "extraordinary circumstances"

Acceptance of Responsibility Adjustment | Are rehabilitative measures required?

No. Good idea, but not required. And using drugs on bond, doesn't necessarily mean you lose it.

Federal Sentencing - Adjustment Flashcards

(57 cards)