United States Sentencing Commission

United States v. Baez-Martinez, 950 F.3d 119 (1st Cir. 2020). Puerto Rico second-degree murder is a violent felony under the ACCA because it requires malice aforethought rather than ordinary recklessness. Puerto Rico attempted murder conviction is also a violent felony because it requires the use of violent force.

United States v. Colon-Maldonado, 953 F.3d 1 (1st Cir. 2020). Neither aggravated abuse nor attempted abuse under Puerto Rico law are categorically crimes of violence that constitute Grade A violations under §7B1.1(a)(1)(A)(i) because the abuse statute includes psychological abuse that causes emotional harm.

United States v. Garica-Cartagena, 953 F.3d 14 (1st Cir. 2020). A hybrid approach is used to classify the grade of a violation under §7B1.1(a). The first step involves classifying the grade of a violation using the categorical approach to determine whether an offense is a “crime of violence” or “controlled substance offense.” The second step involves using a conduct-based approach to determine if the defendant committed the offense. In the second step, the court can look beyond Shepard documents to any other reliable evidence.

United States v. Lewis, 963 F.3d 16 (1st Cir. 2020). Application Note 1 to §4B1.2 includes conspiracies and other inchoate crimes in the definitions for a crime of violence and a controlled substance offense, and this application note is valid. Prior First Circuit panels have held so, and “the case for finding that the prior panels would have reached a different result today is not so obviously correct” to allow overruling those decisions. On plain error review, the First Circuit declined to address whether a § 846 conspiracy is categorical mismatch with the generic definition.

United States v. Capelton, 966 F.3d 1 (1st Cir. 2020). Massachusetts possession with intent to distribute and distribution of a class B substance is a controlled substance offense under the career offender guideline at §4B1.2. The statute was not overbroad because the defendant did not show there was “a realistic probability” that Massachusetts would have applied the statute to conduct that fell outside the generic definition of aiding and abetting.

United States v. Aviles, 938 F.3d 503 (3d Cir. 2019). New Jersey maintaining a controlled dangerous substance production facility and Maryland possession with intent to distribute a controlled dangerous substance are not felony drug offenses under 21 U.S.C. § 841(b)(1)(A).

United States v. McCants, 952 F.3d 416 (3d Cir. 2020). New Jersey second-degree robbery is a crime of violence under both the force clause and enumerated clause of §4B1.2. The statute is divisible, and the charging documents indicated the defendant had been charged with violent crimes.

United States v. Bullock, 970 F.3d 210 (3d Cir. 2020). Assault of a federal employee involving a dangerous weapon or causing serious bodily injury, in violation of 18 U.S.C. § 111(b), is a crime of violence under §4B1.2.

United States v. Burris, 920 F.3d 942 (5th Cir. 2019). Texas robbery is a violent felony under the ACCA’s force clause, whether it was committed by injury or by threat. The statute requires the “use, attempted use, or threatened use of physical force,” and “causing bodily injury” under Texas law exceeds the level of force required by Stokeling v. United States, 139 S. Ct. 544 (2019).

United States v. Rocha Flores, 921 F.3d 1133 (5th Cir. 2019) (per curiam). Texas assault of a public servant is a crime of violence and “aggravated felony” under 8 U.S.C. § 1326(b)(2).

United States v. Flores, 922 F.3d 681 (5th Cir. 2019) A juvenile adjudication for Texas aggravated assault is not a violent felony under the ACCA. The ACCA requires the “use or carrying of a firearm, knife, or destructive device” to enhance a sentence based on a prior juvenile adjudication. The “serious bodily injury” and “deadly weapon” prongs of the Texas aggravated assault statute are broader than the relevant portion of the ACCA.

United States v. Torres, 923 F.3d 420 (5th Cir. 2019). Texas aggravated assault with a knife involving knowingly threatening imminent bodily injury is a crime of violence under 18 U.S.C. § 16(a).

United States v. Reece, 938 F.3d 630 (5th Cir. 2019). Federal conspiracy to commit bank robbery is not a crime of violence under 18 U.S.C. § 924(c) because it does not require the use, attempted use, or threatened use of physical force.

United States v. Herrold, 941 F.3d 173 (5th Cir. 2019). Texas burglary of a building is a violent felony under the enumerated clause of the ACCA.

United States v. Butler, 949 F.3d 230 (5th Cir. 2020). Bank robbery in violation of 18 U.S.C. § 2113 is a violent felony under the ACCA. The statute is divisible, so courts may use the modified categorical approach to narrow a defendant’s prior conviction to taking bank property through intimidation.

United States v. James, 950 F.3d 289 (5th Cir. 2020). Louisiana armed robbery is a violent felony under the force clause of the ACCA.

United States v. Prentice, 956 F.3d 295 (5th Cir. 2020). Texas possession with intent to deliver a controlled substance is a serious drug offense under § 924(e): the state conviction (possession with intent to deliver) necessarily requires the generic conduct under the ACCA (distribution of illegal drugs).

United States v. Smith, 957 F.3d 590 (5th Cir. 2020). Aggravated federal bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), is a crime of violence under § 924(c). A previous panel already determined that federal bank robbery in violation of 18 U.S.C. § 2113(a) is a crime of violence. Attempted murder, 18 U.S.C. § 1114(3), is also a crime of violence. An attempt crime is crime of violence if the underlying substantive offense is a crime of violence.

United States v. Stovall, 920 F.3d 738 (8th Cir. 2019). Arkansas robbery is a crime of violence under U.S.S.C §4B1.2(a) because the offense has the same elements as that of generic robbery—“misappropriation of property under circumstances involving danger to another person.”

Jones v. United States, 922 F.3d 864 (8th Cir. 2019). Missouri first degree robbery is a violent felony under the ACCA. “Putting a victim in fear of immediate injury” satisfies the force clause.

United States v. McDaniel, 925 F.3d 381 (8th Cir. 2019). Shepard documents established that three prior Missouri convictions for selling cocaine listed in one indictment were “committed on occasions different from one another,” as required for the ACCA’s mandatory minimum penalty to apply.

Faulkner v. United States, 926 F.3d 475 (8th Cir. 2019). Indiana burglary is a violent felony under the ACCA even though the statute defines “structure” to include “outdoor, fenced-in” areas.

Taylor v. United States, 926 F.3d 939 (8th Cir. 2019). Minnesota simple robbery is a violent felony under the force clause of the ACCA.

United States v. Williams, 926 F.3d 966 (8th Cir. 2019). A conviction under 18 U.S.C. § 924(c) is a controlled substance offense under §2K2.1(a).

United States v. Smith, 928 F.3d 714 (8th Cir. 2019). Arkansas aggravated robbery is a crime of violence under both the force and enumerated clauses of §4B1.2. The statute requires force sufficient to overcome the victim’s resistance.

Brown v. United States, 929 F.3d 554 (8th Cir. 2019). Missouri second-degree burglary is not a violent felony under the ACCA because the statute is not divisible and includes burglary of a boat or railroad car.

Kidd v. United States, 929 F.3d 578 (8th Cir. 2019). Aiding and abetting armed robbery of controlled substances in violation of 18 U.S.C. §§21188(a) and (c), is a crime of violence under the force clause of 18 USC § 924(c).

United States v. Davis, 932 F.3d 1150 (8th Cir. 2019). The Court did not clearly err when it determined that the defendant’s prior Iowa burglary conviction was a crime of violence under § 4B1.2 because the court announced an alternative rationale for the sentence, noting the defendant’s criminal history, likelihood of recidivism, and prior gang membership.

United States v. Gamell, 932 F.3d 1175 (8th Cir. 2019). Minnesota aggravated robbery is a violent felony under the force clause of the ACCA. Minnesota aiding and abetting second-degree burglary is a violent felony under the ACCA. Aiding and abetting is not a separate offense but rather one way to prove the defendant guilty of the substantive offense.

United States v. Hataway, 933 F.3d 940 (8th Cir. 2019). Arkansas aggravated assault is a violent felony under the ACCA purposes. While the statute is divisible and lists non-violent ways to commit the offense, the charging document established that the defendant’s offense necessarily involved force. South Carolina pointing a firearm at another person is a crime of violence under the guidelines and a violent felony under the force clause of the ACCA.

United States v. Merritt, 934 F.3d 809 (8th Cir. 2019). It was not plain error to decline to apply the categorical approach to determine whether drug conspiracy in violation of 21 USC § 846 is a controlled substance offense under §4B1.2.

United States v. Jones, 934 F.3d 842 (8th Cir. 2019). Missouri sale of a controlled substance is a serious drug offense under the ACCA. An offer to sell is an offense “involving” the distribution of a controlled substance.

United States v. Clark, 934 F.3d 843 (8th Cir. 2019). Missouri second-degree robbery is a violent felony under the force clause of the ACCA.

United States v. Block, 935 F.3d 655 (8th Cir. 2019). Arkansas second-degree battery is a violent felony under the force clause of the ACCA. Texas delivery of a controlled substance, which includes offers to sell, is a serious drug offense under the ACCA.

United States v. Quigley, 943 F.3d 390 (8th Cir. 2019). Iowa assault with intent to inflict serious injury is a crime of violence under the force clause of the career offender enhancement at USSG §4B1.2.

United States v. Silva, 944 F.3d 993 (8th Cir. 2019). The court appropriately looked to the state court judgment, indictment, and notice of criminal disposition to decide whether the defendant’s prior conviction for Mississippi burglary was a crime of violence under USSG §4B1.2. Though the records were not explicit enough to meet Taylor’s “demand for certainty,” they were sufficient for the factual inquiry into the statutory basis of the conviction at issue.

United States v. Garcia, 946 F.3d 413 (8th Cir. 2019). Arkansas aiding and abetting distribution of methamphetamine is a “controlled substance offense” because the commentary to §4B1.2 includes aiding and abetting offenses. Arkansas’ battery statute is divisible and one form of it is a crime of violence because it has as an element causing serious physical injury to another person.

United States v. Harris, 950 F.3d 1015 (8th Cir. 2020) Arkansas committing a terroristic act is not a crime of violence under §4B1.2. It does not have as an element use of force against a person because it can be committed with intent to injure property.

United States v. Clayborn, 951 F.3d 937 (8th Cir. 2020). Iowa and Illinois delivery of a controlled substance are controlled substance offenses under §4B1.2. The guideline’s definition of “distribution” includes delivery and is not limited to commercial drug trafficking crimes. The definition encompasses inchoate offenses through Application Note 1, which “is a reasonable interpretation of the career offender guidelines.”

United States v. Castellanos Muratella, 956 F.3d 541 (8th Cir. 2020). Iowa manufacture, delivery, and possession of counterfeit substances, simulated controlled substances, and imitation controlled substances is a controlled substance offense under §4B1.2(b).

United States v. Vanoy, 957 F.3d 865 (8th Cir. 2020). Virginia manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance, is divisible by the type of substance. Here, applying the modified categorical approach, the defendant’s drug convictions were serious drug offenses under § 924(e).

McCoy v. United States, 960 F.3d 487 (8th Cir. 2020). Voluntary manslaughter in violation of 18 U.S.C. § 1112 is a crime of violence under the force clause of 18 U.S.C. § 924(c)(3)(A).

United States v. Ross, 969 F.3d 829 (8th Cir. 2020). Kidnapping resulting in death in violation of 18 U.S.C. § 1201(a)(1), and carjacking (with or without a death) in violation of 18 U.S.C. § 2119, are crimes of violence under § 924(c). Under these circumstances, a mandatory life sentence for a kidnapping resulting in death did not violate the Eighth Amendment, and insofar as the consecutive life sentences under § 924(c) had any practical effect, those sentences also did not violate the Eighth Amendment.

United States v. Thomas, 939 F.3d 1121 (10th Cir. 2019). Colorado distribution of an imitation controlled substance is a controlled substance offense under §4B1.2(b).

Williams v. United States, 927 F.3d 427 (6th Cir. 2019). Ohio felonious assault does not have as an element the use of force and is not a predicate violent felony under the ACCA.

United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc). Tennessee selling or delivering cocaine is not a controlled substance offense under §2K2.1(a)(4). The statute includes attempted transfer, but the plain language of §4B1.2(b) does not include attempt crimes.

United States v. Mayes, 928 F.3d 502 (6th Cir. 2019). Defendant’s convictions for Kentucky cocaine trafficking were serious drug offenses under the ACCA, even though the Kentucky legislature subsequently reduced the maximum 10-year sentence for three of the offenses to five years. The applicable maximum term is the term in effect at the time of the defendant’s state conviction for that offense.

United States v. Johnson, 933 F.3d 540 (6th Cir. 2019). Ohio robbery and complicity to commit aggravated robbery are crimes of violence under §4B1.2 because both statutes have as an element the use of force.

Knight v. United States, 936 F.3d 495 (6th Cir. 2019). Assault and robbery of a postal employee in violation of 18 U.S.C. § 2114(a) is a crime of violence under the force clause of 18 U.S.C. § 924(c)(3)(A).

Greer v. United States, 938 F.3d 766 (6th Cir. 2019). Ohio aggravated burglary is a violent felony under the ACCA’s enumerated offense clause.

United States v. Parrish, 942 F.3d 289 (6th Cir. 2019). North Carolina indecent liberties with children is a conviction related to “abusive sexual contact involving a minor” under 18 U.S.C. § 2252(b)(1). The categorical approach in this context does not require as close a match to a crime’s generic definition because the conviction only has to “relate to” abusive sexual contact.

United States v. Richardson, 948 F.3d 733 (6th Cir. 2020). Aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. § 1951 is a crime of violence under the force clause of 18 U.S.C. § 924(c).

United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020). Texas possession of a controlled substance with intent to deliver is not a controlled substance offense under §4B1.2. The statute prohibits “offers to sell,” which constitute an attempt to commit a controlled substance offense. Inchoate offenses cannot qualify as predicate offenses because the guidelines commentary that includes them “impermissibly ‘add[s] to’ the Guidelines.”

United States v. Armes, 953 F.3d 875 (6th Cir. 2020). In determining the elements of a prior conviction, courts may consider the relevant part of an undisputed PSR that characterizes the contents of an underlying Shepard-approved state court record, such as an indictment or plea agreement.

United States v. Brown, 957 F.3d 679 (6th Cir. 2020). Tennessee aggravated burglary is a violent felony under § 924(e).

United States v. Smith, 960 F.3d 883 (6th Cir. 2020). Ohio preparing for shipment, shipping, transporting, deliver, preparing for distribution, or distribution of a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or controlled substance analog is intended for sale or resale to another person is a controlled substance offense under §4B1.2(b).

United States v. Garth, 965 F.3d 493 (6th Cir. 2020). Tennessee possession of marijuana with intent to deliver is a controlled substance offense under §4B1.2(b) because it criminalizes the same conduct as the federal offense of possession with intent to distribute a controlled substance.

United States v. Vargas, 961 F.3d 566 (2d Cir. 2020). Section 3E1.1(b)’s 1-level reduction for timely notification of the intent to plead guilty requires a government motion, but a government motion is not enough. The court must also determine whether the defendant’s notification of his intention to plead guilty came early enough to permit the government “to avoid preparing for trial” and “to allocate [its] resources efficiently.” A court may not deny this reduction based on a defendant’s filing a suppression motion requiring a hearing, because “preparing for a jury trial involves more work than preparing for a suppression hearing.”

United States v. Waguespack, 935 F.3d 322 (5th Cir. 2019). A 2-level increase for obstruction of justice under §3C1.1 applied in a receipt and distribution of child pornography case where the defendant installed anti-forensic and encryption software, making it difficult for law enforcement to access portions of his computer.

United States v. Guidry, 960 F.3d 676 (5th Cir. 2020). Section 3C1.1’s 2-level enhancement for obstruction of justice applied where the defendant, several weeks after his arrest, attempted to have third parties convince a co-conspirator to recant prior statements implicating the defendant. Section 3E1.1(a)’s 2-level reduction for acceptance may still apply despite the application of an obstruction enhancement.

United States v. Goodson, 920 F.3d 1209 (8th Cir. 2019). The court did not clearly err in denying a reduction for acceptance under §3E1.1. Although the defendant accepted responsibility for the weapons cited in the offense of conviction, he frivolously disavowed a prior recorded statement in which he admitted to having handled an additional firearm.

United States v. Coffin, 946 F.3d 1 (1st. Cir. 2019). Any error in arriving at criminal history category IV by adding an additional point under §4A1.1(e) for a crime of violence was harmless because the court expressly stated that it would have upwardly departed to category IV based on the seriousness of the defendant’s criminal history.

United States v. Cortez-Gonzalez, 929 F.3d 200 (5th Cir. 2019). A 4-level increase under §2L1.1(b)(3)(B) for two or more prior felony convictions for immigration and naturalization offenses applied even though one of the prior convictions was ineligible for criminal history points under §4A1.2(e). The language of §2L1.1 is unambiguous and contains no temporal limit on assessing increases for prior illegal entry offenses.

United States v. Guidry, 960 F.3d 676 (5th Cir. 2020). The time spent in custody on a “probation modification” “in lieu of revocation” is included when determining the length of a prior sentence for purposes of calculating criminal history.

United States v. Rothenberg, 923 F.3d 1309 (11th Cir. 2019). In calculating restitution in a child pornography case, the court is not required to calculate and “disaggregate” the losses caused by the original abuser-creator or distributor of the pornographic material from those caused by a later defendant possessing the images. Courts have “flexibility and broad discretion” in arriving at the restitution amount.

United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019). The court exceeded its authority under the Mandatory Victims Restitution Act (MVRA) when it ordered restitution for losses incurred outside the offense of conviction. Although facts in the presentence report supported the conclusion that the defendant burglarized a pawn shop, he could not be ordered to pay restitution for related damage because he was convicted only of possessing and concealing stolen firearms.

United States v. Leal, 933 F.3d 426 (5th Cir. 2019). It was not plain error to order restitution of $58,415 including $25,000 for “general expenses” to a victim depicted in child pornography that the defendant transported. Even though the court did not mention the Paroline factors, the victim’s letter did, and the restitution amount was not “drastically out of proportion to [the defendant’s] own individual causal relation to the victim’s losses.”

United States v. Bleau, 930 F.3d 35 (2d Cir. 2019). The court committed plain error when it imposed a condition of supervised release prohibiting the defendant from having direct contact with minors without preapproval from his probation officer. The defendant’s criminal conduct did not involve direct contact with minors and the district court failed to adequately explain why the condition was “reasonably necessary.”

United Stats v. Parkins, 935 F.3d 63 (2d Cir. 2019). The court abused its discretion when it imposed 695 hours of community service as a condition of supervised release. The court did not adequately explain how the condition was reasonably related to the 18 U.S.C § 3553(a) factors, and it ignored Application Note 1 to §5F1.3, which states that, “community service generally should not be imposed in excess of 400 hours.”

United States v. Hathorn, 920 F.3d 982 (5th Cir. 2019). The court did not abuse its discretion when it imposed a special condition of supervised release upon revocation that allowed probation officers to conduct warrantless searches of the defendant’s electronic devices on reasonable suspicion. The condition met the three requirements of 18 U.S.C. § 3583(d). “[E]ven though §5D1.3(d)(4) [“Substance Abuse”] recommends a few potential special conditions for defendants with substance abuse issues, it does not cabin a district court’s discretion to only those conditions.”

United States v. Prentice, 956 F.3d 295 (5th Cir. 2020). Imposing the standard visitation condition requiring the defendant to “permit a probation officer to visit him at any time at home or elsewhere and [] permit confiscation of any contraband observed in plain view by the U.S. Probation Officer,” was not plain error because the Circuit had not yet addressed the defendant’s challenges to it.

United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc). A court is not required to “pronounce” a mandatory condition of supervised release, as defined by 18 U.S.C. § 3583(d). The court must “pronounce” all other conditions. A condition is “pronounced” when a sentencing court conducts an “oral in-court adoption of a written list of proposed conditions,” such as adopting the “special conditions” outlined in the PSR or adopting the “standard conditions” set forth in “courtwide or judge-specific standing orders.” Courts must articulate reasons justifying any discretionary conditions it imposes. Plain-error review applies when a defendant fails to raise a pronouncement objection, had notice of the proposed conditions, and had an opportunity to object.

United States v. Lee, 950 F.3d 439 (7th Cir. 2020). A clause in a condition of supervised release requiring the defendant to obtain permission from the probation officer before knowingly associating with felons improperly delegated the court’s authority to the probation officer. The clause did not involve “management or supervision” of a condition, it involved whether a condition of supervised release should go into effect.

United States v. Hanson, 936 F.3d 876 (9th Cir. 2019). The court committed plain error and violated the Ex Post Facto clause when it imposed a five-year sentence upon revocation of supervised release because, at the time the original sentencing, the statutory maximum penalty for violating supervised release was two years.

United States v. Campbell, 937 F.3d 1254 (9th Cir. 2019). Courts have discretion under 18 U.S.C. § 3584(a) to impose concurrent or consecutive terms for the revocation of concurrent supervised release terms.

United States v. Ped, 943 F.3d 427 (9th Cir. 2019). Supervised release conditions that required the defendant to “support his . . . dependents and meet other family responsibilities,” “work regularly at a lawful occupation,” and “notify third parties of risks . . .” were unconstitutionally vague.

United States v. Abney, 957 F.3d 241 (D.C. Cir. 2020). A defendant has a right to make a statement before being sentenced for violating probation or supervised release. The defendant preserved his objection to the denial of this right by informing the sentencing court that he wanted to “say something.” Even assuming that the error was unpreserved, the failure to permit a defendant to speak before sentencing would be plain error.

United States v. Clark, 935 F.3d 558 (7th Cir. 2019). It was not plain error to treat the defendant’s prior conviction as criminal history rather than relevant conduct to the instant offense. Although the prior conviction also involved fentanyl, it involved different buyers in different cities, the quantity of drugs sold was different, and the offenses occurred several months apart.

United States v. Yurek, 925 F.3d 423 (10th Cir. 2019). In a bankruptcy fraud case, the intended loss attributable to the defendant under §2B1.1 included the monetary harm the defendant intended to cause the Internal Revenue Service when she tried to discharge a tax debt through the bankruptcy proceeding.

United States v. Patton, 927 F.3d 1087 (10th Cir. 2019) A getaway driver was liable for his accomplice’s shooting of a police officer during their flight. The shooting was within the scope of the defendant’s agreement to commit robbery, in furtherance of it, and foreseeable. Enhancements for permanent or life-threatening bodily injury under §2B3.1(b)(3)(C) and assault on a law enforcement under §3A1.2(c)(1) applied.

United States v. Cuevas-Lopez, 934 F.3d 1056 (9th Cir. 2019). The court did not commit plain error when it applied the single-sentence rule at §4A1.2(a), aggregating two prior convictions to determine the base offense level at §2L1.2. The convictions were not separated by an intervening arrest and the defendant was sentenced on both convictions on the same day.

United States v. Valle, 940 F. 3d 473 (9th Cir. 2019). The court erred when it enhanced the defendant’s guideline range under §2L1.2 based on prior convictions that were too old to consider under criminal history rules. The government failed to prove the defendant’s continuing presence in the United States by clear and convincing evidence, a heightened standard that applies where a finding underlying an enhancement has a disproportionate impact on the guideline range — here, increasing the guideline range from 1 to 7 months to 37 to 46 months.

United States v. Mumuni, 946 F.3d 97 (2d Cir. 2019). A downward variance from 85 to 17 years’ imprisonment for terrorism-related offenses was substantively unreasonable in light of the defendant’s exceptionally serious conduct in the name of ISIS. The court’s errors included making findings of fact contrary to the defendant’s guilty plea and admissions, which the court had accepted, and relying on a factor when it served as a mitigator in one defendant’s case, while ignoring the same factor when it served as an aggravator in another defendant’s case.

United States v. Johnson, 934 F.3d 498 (6th Cir. 2019). The statutory maximum sentence of 60 months for possession of a firearm with an obliterated serial number was procedurally and substantively reasonable. The court properly calculated the guideline range of 37-46 months, considered the appropriate § 3553(a) factors, and varied upward based on the defendant’s history and characteristics, which included prior convictions for illegal firearms possession.

United States v. Boucher, 937 F.3d 702 (6th Cir. 2019). A downward variance from a guideline range of 21 to 27 months to a sentence of 30 days for assaulting a member of Congress was substantively unreasonable. The court gave little weight to the seriousness of the victim’s injuries, ignored general deterrence, and placed too much weight on disfavored characteristics such as the defendant’s education, professional success, and standing in the community. The court also failed to address the risk of sentencing disparities, as made clear by Commission sentencing data showing an average sentence of 26 months for similar assault offenders in Criminal History Category I.

United States v. Potts, 947 F.3d 357 (6th Cir. 2020). The court need not expressly reference the §5G1.2 factors in formulating a sentence involving multiple counts of aggravated identity theft if there is an indication that the court evaluated the factors listed in the guideline.

United States v. Demma, 948 F.3d 722 (6th Cir. 2020). A sentence of one day of imprisonment for possession of child pornography, a downward variance from a guideline range of 78 to 97 months, was substantively unreasonable. The court’s policy disagreement with §2G2.2 could not justify the extent of the downward variance because it failed to discuss the retributive purposes of §2G2.2. The court gave excess weight to the factors in 18 U.S.C. § 3553(a) involving the defendant’s individual characteristics but gave little to no weight to other factors, including sentences imposed in similar cases, offense seriousness, and deterrence.

United States v. Reif, 920 F.3d 1197 (8th Cir. 2019). The court did not abuse its discretion when it departed upward from a guideline range of 15-21 months to 96 months for distributing heroin to a person under the age of 21. The court relied on §5K2.1 to account for death resulting from heroin the defendant sold and on §5K2.21 to account for the seriousness of a dismissed charge carrying a 20-year mandatory minimum.

United States v. Anderson, 926 F.3d 954 (8th Cir. 2019). A ten-year statutory maximum sentence for false statement to a licensed firearms dealer was procedurally and substantively reasonable. The court’s explanation of its decision to vary upward from a guidelines range of 15–21 months, “though perhaps testing brevity’s limits,” was sufficient because it considered all of the defendant’s mitigation arguments and explained the reason for the extent of the variance.

United States v. Watters, 947 F.3d 493 (8th Cir. 2020). The court did not commit plain error when it imposed a 262-month sentence to be served consecutively to a 60-month sentence for a supervised release violation under 18 U.S.C. § 3583(k). The consecutive sentences did not violate the Double Jeopardy Clause even though both were based on the same conduct. The Supreme Court’s invalidation of § 3583(k) in United States v. Haymond did not necessarily displace longstanding double jeopardy jurisprudence.

United States v. Cloud, 956 F.3d 985 (8th Cir. 2019). A sentence of 60 months, 23 months above the top of the guidelines, was procedurally and substantively reasonable in a case involving the sexual abuse of a minor. The court relied on uncontested information in the presentence report documenting unscored tribal court convictions. And, although the court may have mentioned potential disparities between federal and state sentences under § 3553(a)(6), it “did not afford any such disparities significant weight” in justifying its upward variance.

United States v. Winnick, 954 F.3d 1103 (8th Cir. 2020). The court incorrectly believed that §5G1.3 limits credit for time spent in state custody to time served after federal charges were brought. Nothing in the guideline or its application notes provides such a limitation.

United States v. Mantha, 944 F.3d 352 (1st Cir. 2019). The court erred when it used the 2016 Guidelines Manual to sentence a defendant convicted of sexual exploitation of a child occurring in 2001, and child pornography offenses occurring in 2015 and 2016. Use of the 2016 Guidelines Manual resulted in a higher total offense level for the defendant’s 2001ungrouped child sexual exploitation offense.

United States v. Vanderhost, 927 F.3d 824 (4th Cir. 2019). A defendant may rely on Rule 36 to request resentencing when a clerical error in the presentence report likely resulted in a longer sentence than would have been imposed absent the error.

United States v. Carman, 933 F.3d 614 (6th Cir. 2019). The district court did not have the authority to enter an order of forfeiture after sentencing where the defendant had already filed a notice of appeal to the original judgment. Once a defendant files a notice of appeal, jurisdiction is transferred to the court of appeals and the district court lacks authority to modify the defendant’s sentence, including adding an order of forfeiture.

United States v. Fleischer, 971 F.3d 559 (6th Cir. 2020). In a plea under Rule 11(c)(1)(A) resulting in dismissed counts, a court is not bound by the parties’ Guidelines calculation, which in this case excluded the dismissed counts. The defendant waived any argument that dismissed counts did not constitute relevant conduct. Section 2G2.2(b)(5)’s five-level enhancement applied when the defendant pleaded guilty to performing sexual acts on one minor victim and stipulated that he abused a second minor. No impermissible double counting results from applying a §2G2.2(b)(5) enhancement and additional offense levels under §3D1.4. The defendant’s 447-month sentence was not substantively unreasonable.

United States v. Moody, 930 F.3d 991 (8th Cir. 2019). The court erred when it imposed consecutive sentences for two convictions under 18 U.S.C. 1791(a)(2) for possession of contraband in prison because it believed it did not have discretion to run the sentences concurrently. Although the statute requires that the sentences run consecutive to the undischarged term being served, it does not require that sentences for multiple violations of the statute run consecutively to each other.

United States v. Hamilton, 950 F.3d 567 (8th Cir. 2020). The court mistakenly believed that on remand it could consider only the criminal history issue that was the subject of the defendant’s appeal. With the exception of issues decided by the appellate court, the defendant may raise, and the district court may consider, any new issues it could have heard at the original sentencing hearing.

United States v. Winnick, 954 F.3d 1103 (8th Cir. 2020). When applying a §5G1.3 adjustment for time in state custody on related state offenses, the date on which the federal case was initiated is irrelevant. The district court here was instructed to apply the following four steps on remand: (1) determine what, if any, time was served in state custody for relevant conduct; (2) adjust the federal sentence for time served in state custody for solely relevant conduct; (3) determine whether, and by how much, to depart for time served in state custody for conduct that was either not relevant or a mixture of relevant and not relevant conduct; and (4) determine whether to depart or vary from the sentence as calculated after steps one through three.

United States v. Ramon, 958 F.3d 919 (10th Cir. 2020). Title 18 section 3584(a) prevents a court from ordering its sentence to run consecutively to a later federal sentence. The later-sentencing court (in the context of two federal sentencings) determines whether multiple federal sentences will run consecutively or concurrently. The error here was not plain; neither the Supreme Court nor the Tenth Circuit had previously ruled on this issue.

United States v. McIlwain, 931 F.3d 1176 (D.C. Cir. 2019). It was error to fail to disclose the probation officer’s sentencing recommendation contained in the presentence report based on a policy of “always treat[ing]” that portion as confidential.” While a court may exercise its discretion to withhold the recommendation, it must do so for a case-specific reason.

United States v. Browne, 953 F.3d 794 (D.C. Cir. 2020). The use of uncharged or acquitted conduct at sentencing does not violate the Sixth Amendment or due process, and, in light of the evidence presented, the court did not clearly or obviously err in finding that the defendant’s kidnapping was in furtherance of drug trafficking.

United States v. Miller, 953 F.3d 804 (D.C. Cir. 2020). Defense counsel’s failure to request a recommendation for residential drug abuse treatment did not constitute ineffective assistance of counsel because the defendant could not show a reasonable probability of RDAP placement if there had been a judicial recommendation. Trial counsel was constitutionally ineffective for not informing the court that the defendant, who was serving an indeterminate state sentence, would not receive custody credit from the state while on a federal writ awaiting trial. The court could not ignore the credit issue when deciding what sentence was necessary to achieve just punishment.

United States v. Abney, 957 F.3d 241 (D.C. Cir. 2020). A defendant has a right to make a statement before being sentenced for violating probation or supervised release. The defendant preserved his objection to the denial of this right by informing the sentencing court that he wanted to “say something.” Even assuming that the error was unpreserved, the failure to permit a defendant to speak before sentencing would be plain error.

United States v. Jones, 927 F.3d 895 (5th Cir. 2019) Under §2K2.1, a serial number is “altered or obliterated” when it is “materially changed in a way that makes accurate information less accessible.” The enhancement applies when only one serial number is altered or obliterated, even if others are clearly legible.

United States v. Rodriguez-Leos, 953 F.3d 320 (5th Cir. 2020). The 3-level reduction at §2X1.1 for attempt applied to a defendant convicted of unlawfully exporting ammunition. At the time of his arrest, he had bought the ammunition but did not have possession of it, and there was no showing that completion of the offense was inevitable or imminent.

United States v. Goodson, 920 F.3d 1209 (8th Cir. 2019). The court correctly applied a 2-level enhancement for number of firearms under §2K1.2(b)(1)(A). Even though only two pistols were found, the defendant’s statement indicating that he had previously “handled” another firearm was sufficient proof that he unlawfully possessed a third firearm.

United States v. Brockman, 924 F.3d 988 (8th Cir. 2019). The 4-level enhancement under §2K2.1(b)(6)(B) for possessing a firearm in connection with another felony drug trafficking offense applied where the gun was found in close proximity to the drugs and there was sufficient evidence that the defendant committed the felony offense of drug trafficking, despite his statement that the drugs were for personal use.

United States v. Edger, 924 F.3d 1011 (8th Cir. 2019). The cross reference at §2K2.1(c)(1)(B) applied where the defendant knew the gun he transferred to a codefendant would be used to commit violence. The cross reference to the first-degree murder guideline at §2A1.1 was proper even though the indictment did not include any identifying characteristics of the gun at issue. The “cited in the offense of conviction” requirement at §2K2.1(c) “encompasses more broadly the offense conduct giving rise to the conviction.”

United States v. Anderson, 926 F.3d 954 (8th Cir. 2019). A ten-year statutory maximum sentence for false statement to a licensed firearms dealer was procedurally and substantively reasonable. The court’s explanation of its decision to upwardly vary from a guidelines range of 15–21 months, “though perhaps testing brevity’s limits,” was sufficient in that it considered all of the defendant’s mitigation arguments and explained the reason for the extent of the variance.

United States v. Paul, 932 F.3d 1163 (8th Cir. 2019). The 4-level increase at §2K2.1(b)(6)(B) for possession of a firearm in connection with another offense applied where the defendant held the gun in the air and threatened the mother of his child. Displaying a weapon in an angry or threatening matter in the presence of another person is a felony under Missouri law.

United States v. Davidson, 933 F.3d 912 (8th Cir. 2019). The 4-level increase at USSG §2K2.1(b)(6)(B) for use of a weapon in connection with another felony applied where the defendant was found with marijuana packaged for distribution and $1,300 in cash, and discarded a firearm while running from police.

United States v. Roberts, 958 F.3d 675 (8th Cir. 2020). Section 2K2.1(b)(6)’s 4-level increase for possession of a firearm “in connection with” another felony offense applies when a defendant violates an Iowa law prohibiting the sealed carrying of a weapon. Section 3B1.4’s two-level adjustment for use of a minor does not apply when a defendant purchases a firearm from a minor.

United States v. Caudle, 968 F.3d 916 (8th Cir. 2020). The court did not clearly err in applying §2K2.1(b)(1)(A)’s 2-level increase for multiple firearms when the challenged firearm was found in the defendant’s wife’s car, which was the only car possessed by the couple. The defendant had used his wife’s car; the challenged firearm was kept (on other occasions) in the couple’s home, to which the defendant had unrestricted access; and magazines and spent casings matching the challenged firearm were found in the home.

United States v. McCall, 934 F.3d 380 (4th Cir. 2019). The court abused its discretion when it varied upward, based on bias against the defendant’s out-of-state residency, from a range of 30-37 months to 120 months in a methamphetamine case. There was no evidence the defendant brought the drugs from out of state. On remand, the case was to be assigned to a different judge to avoid the appearance of bias.

United States v. Aguilar-Alonzo, 944 F.3d 544 (5th Cir. 2019). The court committed clear error when it applied the 2-level use of affection enhancement at §2D1.1(b)(15)(A) without evidence that the defendant “actively employ[ed] or play[ed] upon affection to induce” his girlfriend’s involvement in the offense. “[T]he mere existence of a romantic, familial, or any other kind of pre-existing relationship” is not sufficient to support the enhancement.

United States v. Sifuentes, 945 F.3d 865 (5th Cir. 2019). The cross-reference from §2S1.1(a)(1) to §2D1.1 applied to a defendant who “consistently communicated with and coordinated with senior individuals in the ongoing drug distribution and money laundering conspiracy.” Those actions amounted to aiding and abetting the distribution of drugs from which the laundered funds were derived.

United States v. Guidry, 960 F.3d 676 (5th Cir. 2020). Section 2D1.1(b)(1)’s 2-level weapon enhancement requires the government to prove a temporal and special relationship between the weapon, the drug trafficking activity, and the defendant; and such an enhancement applies where the gun and drugs were both within the defendant’s reach and where the defendant carried a bullet that had been cycled through the gun’s chamber.

United States v. Hopper, 934 F.3d 740 (7th Cir. 2019). The 2-level increase at §2D1.1(b)(12) for “maintaining a premises for purposes of manufacturing or distributing a controlled substance” applied where trial evidence showed the house in question belonged to the defendant and the defendant distributed drugs from there on a weekly basis.

United States v. Dozier, 949 F.3d 322 (7th Cir. 2020). A prior Texas drug conviction punished as a misdemeanor is still a “felony drug offense” punishable by more than one year in prison because the defendant pled guilty to a two-year state jail felony. For purposes of the Controlled Substances Act, the statutory punishment range for the offense of conviction is the focal point, not the punishment received.

United States v. Draheim, 958 F.3d 651 (7th Cir. 2020). Pursuant to 18 U.S.C. § 3553(f)(1)(4), the defendant’s leadership role in the meth distribution conspiracy foreclosed her eligibility for safety valve relief.

United States v. Rodriguez, 921 F.3d 1149 (9th Cir. 2019). In a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782, drug quantities in an adopted PSR are not binding in resentencing proceedings unless: (1) the initial sentencing court made a specific and explicit drug quantity finding; or (2) the defendant admitted to a specific drug quantity. Because neither applied, the court must engage in supplemental fact-finding to determine whether it is “more likely than not” that the defendant is responsible for a drug quantity that meets the threshold and may, in its analysis, consider the “court-adopted PSR, as well as the trial and sentencing transcripts.”

United States v. Baldon, 956 F.3d 1115 (9th Cir. 2020). Section 2D1.1(b)(1)’s two-level enhancement for possession of a weapon applied where: (1) the firearm was found inside a storage unit inside a backpack with the defendant’s drugs; (2) the defendant entered the storage unit, stored his drugs in the unit, and paid cash in person to extend the lease of the storage unit; and (3) the defendant possessed ammunition matching the firearm in his residence.

United States v. George, 872 F.3d 1197 (11th Cir. 2018). The court did not err in applying the two-level enhancement at §2D1.1(b)(1) for possession of a dangerous weapon. The loaded firearm was found at the salon, which “operated as a front for [t]he defendant’s illicit drug-trafficking and identity-theft operations.” The defendant failed to show that it was “clearly improbable” that the firearm was connected to drug trafficking.

United States v. Bleau, 930 F.3d 35 (2d Cir. 2019). The 4-level enhancement at §2G2.2(b)(4) for material portraying “sadistic or masochistic conduct or other depictions of violence,” applies to the depiction of either mental cruelty or physical pain.

United States v. Davis, 924 F.3d 899 (6th Cir. 2019). Applying the 2-level increase at §2G1.3(b)(2)(B) for exercising undue influence over a minor was procedurally unreasonable. The court relied almost exclusively on the rebuttable presumption in Application Note 3(b), that the enhancement applies when the defendant is at least ten years older than the minor, instead of considering record evidence rebutting that presumption.

United States v. Lynde, 926 F. 3d 275 (6th Cir. 2019). The sentencing enhancements at §2G2.2 are reasonable despite the “purported lack of empirical grounding” and the Commission’s 2012 child pornography report criticizing the guideline. “Congress's direct involvement [in a Sentencing Guideline] is a ‘virtue, rather than [a] vice[].’”

United States v. Doutt, 926 F.3d 244 (6th Cir. 2019). When applying the enhancement for pattern of activity involving the sexual abuse or exploitation of a minor at §2G2.2(b)(5), which requires that the perpetrator was at least four years older than the minor, the court must calculate the age difference using days and months – not whole years.

United States v. Parrish, 942 F.3d 289 (6th Cir. 2019). North Carolina indecent liberties with children is a conviction related to “abusive sexual contact involving a minor” under 18 U.S.C. § 2252(b)(1). The categorical approach in this context does not require as close a match to a crime’s generic definition because the conviction only must “relate to” abusive sexual contact.

United States v. Demma, 948 F.3d 722 (6th Cir. 2020). A sentence of one day of imprisonment for possession of child pornography, a downward variance from a guideline range of 78 to 97 months, was substantively unreasonable. The court’s policy disagreement with §2G2.2 could not justify the extent of the downward variance because it failed to discuss the retributive purposes of §2G2.2. The court gave excess weight to the factors in 18 U.S.C. § 3553(a) involving the defendant’s individual characteristics but gave little to no weight to other factors, including sentences imposed in similar cases, offense seriousness, and deterrence.

United States v. Hollon, 948 F.3d 753 (6th Cir. 2020). Engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g) is a “covered sex offense” under the repeat and dangerous sex offender enhancement at §4B1.5(b). The enhancement can apply to first offenders if there is a pattern of prohibited sexual conduct.

United States v. Paauwe, 968 F.3d 614 (6th Cir. 2020). Section 4B1.5(b)(1)’s 5-level enhancement for a pattern of activity involving prohibited sexual conduct applies to a defendant whose conduct involves a single victim.

United States v. Fleischer, 971 F.3d 559 (6th Cir. 2020). In a plea under Rule 11(c)(1)(A) resulting in dismissed counts, a court is not bound by the parties’ Guidelines calculation, which in this case excluded the dismissed counts. The defendant waived any argument that dismissed counts did not constitute relevant conduct. Section 2G2.2(b)(5)’s 5-level enhancement applied when the defendant pleaded guilty to performing sexual acts on one minor victim and stipulated that he abused a second minor. No impermissible double counting results from applying a §2G2.2(b)(5) enhancement and additional offense levels under §3D1.4. The defendant’s 447-month sentence was not substantively unreasonable.

United States v. Flete-Garcia, 925 F.3d 17 (1st Cir. 2019). Application Note 2 to §2B1.6, which prohibits applying “any specific offense characteristic for the transfer, possession, or use of a means of identification,” does not preclude application of the number of victims enhancement at §2B1.1(b)(2) because the enhancement does not punish simply using a means of identification but, punishes using the means of identification of ten or more individuals.

United States v. Jimenez, 946 F.3d 8 (1st. Cir. 2019). A defendant who fraudulently induced banks to make loans for short sales was accountable for a loss of $1,500,000. The court used anticipated gains to banks from mortgage holders continuing to make their loan payments as a measure of the banks’ loss under §2B1.1(b)(1).

United States v. Woodson, 960 F.3d 852 (6th Cir. 2020). A consistent “home base” from which defendants carry out key aspects of their criminal scheme does not preclude a §2B1.1(b)(10) enhancement for relocating a fraudulent scheme to another jurisdiction to evade law enforcement.

United States v. Igboba, 964 F.3d 501 (6th Cir. 2020). The court did not err when it attributed $4.1 million in losses to the defendant in a tax fraud cause even though some losses were linked to the defendant by a single piece of evidence. Also, the sophisticated means enhancement, pursuant to §2B1.1(b)(10), applied based upon the defendant’s acquisition of taxpayer personally identifying information and his use of a virtual private network, the Tor browser, the dark web, multiple bank accounts and email aliases, and corporate shell companies.

United States v. Kozerski, 969 F.3d 310 (6th Cir. 2020). In a set-aside procurement-contract fraud case, §2B1.1 loss excludes the value of the services provided to the victim. In this case, which involved the fraudulent procurement of government contracts set aside for service-disabled veterans, the court did not clearly err when it calculated loss by using the aggregate difference between the defendant’s bid and the next lowest bid.

Quarles v. United States, 139 S. Ct 1872 (2019). Michigan third-degree home invasion is a violent felony under the ACCA. Generic “remaining-in” burglary under the ACCA includes circumstances where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

United States v. Davis, 139 S.Ct. 2319 (2019). The residual clause at 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

Shular v. United States, 140 S. Ct. 779 (2020). The categorical approach applies to determining whether a prior conviction is a “serious drug offense” under the ACCA. Rather than compare the prior conviction to a generic offense, the court must compare the elements of the state offense to the conduct specified in ACCA’s controlled substance definition, which includes “the manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance offense.”

United States v. Luna, 968 F.3d 922 (8th Cir. Aug. 10, 2020). In a case about a recruitment-and-kickback scheme involving car-accident victims, a chiropractic clinic, and automobile insurers, §2B1.1 loss (as well as restitution) does not include the legitimate, compensable services provided by the chiropractic clinic. An offset for legitimate, compensable services, however, does not apply to forfeiture: the focus there shifts from the victim’s losses to the gross proceeds traceable to the commission of the offense.

United States v. Yurek, 925 F.3d 423 (10th Cir. 2019). It was plain error to deny the defendant a 3-level adjustment under §3B1.2 for minor role. The court applied the wrong legal standard, because it found only that the defendant’s role had been essential to the crimes, but did not consider whether her culpability was substantially less relative to other participants in the scheme.

United States v. Patton, 927 F.3d 1087 (10th Cir. 2019) A getaway driver was liable for his accomplice’s shooting of a police officer during their flight. The shooting was within the scope of the defendant’s agreement to commit robbery, in furtherance of it, and foreseeable. Enhancements for infliction of permanent or life-threatening bodily injury under §2B3.1(b)(3)(C) and assault on a law enforcement under §3A1.2(c)(1) applied.

United States v. Flores, 945 F.3d 687 (2d Cir 2019). The 2-level increase at §2D1.1(b)(3)(A) for use of a private aircraft to import drugs applied although the prosecution resulted from a sting operation and no aircraft was actually used. The drug trafficking guideline expressly covers conspiracies and attempts, and §2X1.1 instructs courts to apply the entire §2D1.1 guideline to drug conspiracy convictions, including all specific offense characteristics that would apply if the offense had been completed.

United States v. Yurek, 925 F.3d 423 (10th Cir. 2019). In a bankruptcy fraud case, the intended loss attributable to the defendant under §2B1.1 included the monetary harm the defendant intended to cause the Internal Revenue Service when she tried to discharge a tax debt through the bankruptcy proceeding.

United States v. Gordillo, 920 F.3d 1292 (11th Cir. 2019). The defendant was subject to a base offense level of 20 under §2K2.1(a)(4)(B)(i)-(ii) because he was a prohibited person in possession of a semiautomatic weapon capable of accepting a large capacity magazine, even though the magazine was not readily accessible. The fact that the weapon was locked in a case that was ten feet away from the high capacity magazine met the definition of “close proximity” in Application Note 2 to §2K2.1, which accounts for “both physical distance and accessibility.”

United States v. Martinez, 964 F.3d 1329 (11th Cir. 2020). The enhancement at §2K2.2(b)(6)(B) for possession of a firearm in connection with another felony offense applied where the weapon was found in the defendant’s car near drug paraphernalia and the government proved that the defendant planned to trade the weapon for drugs.

United States v. Mitchell, 944 F.3d 116 (3d Cir. 2019). The court committed plain error when it relied on the defendant’s bare arrest record to determine his sentence. An arrest record, without more, does not justify an assumption that a defendant has committed other crimes.

United States v. Seighman, 966 F.3d 237 (3d Cir. 2020). 18 U.S.C. § 3583(g), which carries a mandatory minimum sentence of one day in prison, does not violate the Sixth Amendment by requiring mandatory imprisonment without the right to jury trial. Comparing the provision to 18 U.S.C. § 3583(k), which the Supreme Court found unconstitutional in United States v. Haymond, subsection (g) is more akin to ordinary revocation and less like punishment for a new offense.

United States v. Perez-Rodriquez, 960 F.3d 748 (6th Cir. 2020). A 24-month sentence for illegal reentry, an upward variance from a guideline range of 8-14 months, was substantively unreasonable. The defendant’s conviction was a “mine-run case” and the guideline range already reflected his prior convictions. Citing Commission data, the court of appeals observed that the upward variance created unwarranted sentencing disparities.

United States v. Sims, 957 F.3d 362 (3d Cir. 2020). A defendant convicted of conspiracy to commit sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. § 1594(c), receives a base offense level of 34, not 14, under §2G1.1(a).

United States v. Monzel, 930 F.3d 470 (D.C. Cir. 2019). Restitution of $7,500 in a distribution of child pornography case was “’reasonable and circumscribed’ to fit [the defendant’s] contribution to[ the victim’s] damages.”

United States v. Holloway, 956 F.3d 660 (2d Cir. 2020). A defendant’s release from prison does not moot the appeal of a § 404(b) motion when the court could still reduce an undischarged term of supervised release. Eligibility for § 404(b) relief depends only on whether the Fair Sentencing Act modified the statutory penalties for the violation under which the defendant was sentenced. Eligibility for § 404 relief of is not governed by 18 U.S.C. § 3582(c)(2), and a court considering such a motion is not constrained by §1B1.10(a)(2)(b).

United States v. Johnson, 961 F.3d 181 (2d Cir. 2020). Eligibility for a sentence reduction pursuant to § 404(b) of the First Step Act depends on the statute of conviction, not the defendant’s actual conduct.

United States v. Jordan, 952 F.3d 160 (4th Cir. 2020). Section 403 of the First Step Act, which reduced mandatory minimum penalties for certain drug offenses, did not apply to a defendant whose case was pending appeal at the time of the statute’s enactment. A sentence is “imposed” when the district court enters a sentence, not when the appeals are exhausted.

United States v. Gravatt, 953 F.3d 258 (4th Cir. 2020). A dual-object conspiracy charging both 50 grams or more of crack cocaine (penalties modified by the Fair Sentencing Act) and 5 kilograms or more of powder cocaine (penalties not modified by the Fair Sentencing Act) is a covered offense under the First Step Act.

United States v. Chambers, 956 F.3d 667 (4th Cir. 2020). In ruling on a § 404(b) motion, a court should consider the § 3553(a) factors, may consider a defendant’s post-sentencing conduct, and may vary downwardly from the Guidelines range, “and, in doing so, [may] consider [a defendant’s] post-sentencing conduct”. The court may correct Guidelines errors, and further, the court must fix an error that was “a mistake at the time of the defendant’s original sentencing.”

United States v. Beamus, 943 F.3d 789 (6th Cir. 2019) Career offenders are eligible for a reduction under the First Step Act of 2019 as long as the defendant was convicted of a covered offense and had not previously received a reduction under the Fair Sentencing Act.

United States v. Alexander, 951 F.3d 706 (6th Cir. 2019). The First Step Act does not entitle a defendant seeking a sentence reduction to a plenary hearing.

United States v. Richardson, 948 F.3d 733 (6th Cir. 2020). Section 403 of the First Step Act, which reduced penalties for subsequent violations of 18 U.S.C. § 924(c), is not retroactive and cannot be applied to a defendant whose case was remanded in light of Johnson v. United States, 135 S. Ct. 2551 (2015). The First Step Act created new law rather than clarifying existing law, and the defendant’s sentence was “imposed” when the judgment was first announced, which was more than one year before the First Step Act became law.

United States v. Allen, 956 F.3d 355 (6th Cir. 2020). A court may consider the § 3553(a) factors, including a defendant’s post-sentencing conduct, to determine whether to reduce his or her sentence under § 404(b).

United States v. Smith, 958 F.3d 494 (6th Cir. 2020). The defendant’s 360-month sentence, reduced pursuant to the First Step Act, was procedurally reasonable. The court was not required to hold a plenary resentencing and the judge sufficiently explained the reasons for the modified sentence.

United States v. Foreman, 958 F.3d 506 (6th Cir. 2020). The First Step Act does not require a court to conduct a plenary resentencing hearing before determining whether a reduction is warranted. The appellate court can review the sentence modification for reasonableness.

United States v. Smith, 959 F.3d 701 (6th Cir. 2020). The court abused its discretion when it denied the defendant’s motion to reduce his sentence pursuant to the First Step Act. The court “failed to provide a sufficiently compelling justification for maintaining the sentence that is now twice the guideline range set by Congress,” and would have to reconsider the defendant’s motion with reference to the purposes of the First Step Act and the Fair Sentencing Act.

United States v. Alam, 960 F.3d 831 (6th Cir. 2020). A prisoner’s motion for compassionate release under § 3582(c)(1)(A) requires the prisoner to fully exhaust all administrative rights or wait 30 days after the warden’s receipt of the request. This requirement is a claim-processing rule, not a jurisdictional one, and the district court must enforce the rule if the government raises it.

United States v. Boulding, 960 F.3d 774 (6th Cir. 2020). Section 404(b) eligibility depends on the statute of conviction, not the defendant’s actual conduct. Eligible defendants are not entitled to plenary resentencing, but a court’s discretion to deny resentencing is not unlimited: an eligible defendant is entitled to an amended Guidelines calculation, renewed consideration of the § 3553(a) factors, and an opportunity to raise objections.

United States v. Snow, 967 F.3d 563 (6th Cir. 2020). Conspiracy to kill a person while engaged in a conspiracy to distribute 50 grams of cocaine base in violation of 18 U.S.C. § 848(e)(1)(A), is not a covered offense under § 404(b).

United States v. Williams, 943 F.3d 841 (8th Cir. 2019). The court was not required to hold a hearing before denying a motion to reduce a defendant’s sentence under the First Step Act.

United States v. Sherman, 960 F.3d 978 (8th Cir. 2020). The court did not abuse its discretion when it denied a motion for a sentence reduction under the First Step Act for a defendant convicted of distributing more than 50 grams of crack cocaine. The court’s finding that the defendant was responsible for more than 30 kilograms of cocaine base was not inconsistent with the finding at the original sentencing that the defendant was responsible for more than 1.5 kilograms of cocaine base. Additionally, the court was not required to address explicitly the defendant’s post-sentencing rehabilitation efforts during the proceeding.

United States v. Hodgkiss, 960 F.3d 1110 (8th Cir. 2020). Statutory eligibility for safety valve excludes a defendant who possesses a firearm or other dangerous weapon in connection with the offense. In this context, “offense” means “offense of conviction,” not a defendant’s “relevant conduct” as determined by the Guidelines. A defendant who pleaded to a drug distribution offense (April 2018) was eligible for statutory safety valve despite a § 924(c) conviction (June 2018) relating to another drug offense.

United States v. Moore, 963 F.3d 725 (8th Cir. 2020). A court may, but is not required to, consider the § 3553(a) factors when ruling on a § 404(b) motion.

United States v. El Herman, 971 F.3d 784 (8th Cir. 2020). A transferee court has jurisdiction over a § 404(b) motion where the sentencing court transferred jurisdiction over a defendant who was serving a term of supervised release under 18 U.S.C. § 3605.

United States v. Mannie, 971 F.3d 1145 (10th Cir. 2020). A defendant serving concurrent, coextensive sentences for offenses covered and not covered by the First Step Act, lacks standing to bring a §404(b) motion unless the court has another mechanism for reducing the sentences on the non-covered offenses. Appellate courts review discretionary denials of § 404(b) motions for abuse of discretion. A district court may, but is not required, to hold a hearing on a § 404(b) motion.

Young v. United States, 943 F.3d 460 (D.C. Cir. 2019). The First Step Act of 2018, which eliminated the defendant’s prior conviction as a mandatory-minimum triggering offense under 21 U.S.C. § 841(b)(1)(A), did not apply where the sentence had already been imposed in the district court at the time the statute was enacted. A sentence is “imposed” when the district court passes sentence on a defendant.

United States v. Bell, 947 F.3d 49 (3d Cir. 2020). The 2-level physical restraint enhancement at §2B3.1(b)(4)(B) could not be applied based on the defendant’s grabbing the store clerk by the neck and forcing him to the floor during the robbery. The defendant’s actions must “involve[] the use of physical force that limited the victim’s freedom of movement, with a sustained focus on the victim for some period of time which provided the victim with no alternative but compliance.” In this case, the victim “twice attempted to thwart the robbery,” and the entire incident lasted only seconds.

United States v. Bailey, 931 F.3d 558 (6th Cir. 2019). The cross reference from §2J1.2(c)(1) (Obstruction of Justice) to 2X3.1 (Accessory After the Fact) applied to attempted obstruction of the “prosecution of an offense” by threatening to assault a victim who testified. It is not necessary that the attempted obstruction succeed.

United States v. Hill, 963 F.3d 528 (6th Cir. 2020). Section 2B3.1(b)(4)(A)’s 4-level enhancement applies when “any person was abducted to facilitate the commission of the offense of facilitate escape,” and “abducted” is defined as “that a victim was forced to accompany an offender to a different location.” A “different location” generally means a place different from the store being robbed, not the backroom of the store.

United States v. Bourquin, 966 F.3d 428 (6th Cir. 2020). The 4-level enhancement at §2A6.1(b)(4)(B) for the offense involving a substantial disruption of governmental or business function or a substantial expenditure of funds did not apply to a conviction for conveying false information concerning an attempt to kill, injure, or intimidate another. The government must introduce either a full accounting of the expenditure or some accounting coupled with facts for the sentencing court to assess whether the expenditure was substantial enough to warrant the enhancement.

United States v. Mays, 967 F.3d 748 (8th Cir. 2020). The 3-level increase under §2B3.1(b)(3)(D) for inflicting a degree of injury between “bodily injury” and “serious bodily injury” applied to a robbery offense in which the victim was taken to the hospital after being grazed by a bullet and suffered from a burning sensation, bleeding, and continued soreness after treatment. The §2B3.1(b)(3) enhancement applied even though Application Note 4 to §2K2.4 precludes firearm enhancements for an underlying offense imposed in conjunction with a firearm offense, because §2B3.1(b)(3) is “an injured victim enhancement” that can apply regardless of whether a firearm causes the injury.