Case o' The Week: A Great Session(s) in the Ninth - Vargem, Guideline Error, and Relevant Conduct
|Hon. Judge William K. Sessions, III|
AFPD Candis Mitchell argued the guidelines still matter.
(Former Sentencing Guideline Commission Chair) Judge William Sessions (sitting by designation), agrees.
United States v. Vargem, 2014 U.S. App. LEXIS 5824 (9th Cir. Mar. 28, 2014), decision available here.
Players: Decision by visiting DJ (and former Sentencing Guideline Commission Chair) Sessions, joined by Judges Reinhardt and Thomas. Big win by ND Cal AFPD Candis Mitchell and R&W Attorney Steven Koeninger.
Facts: Represented by private counsel, Vargem was sentenced for possession of an unregistered machine gun. Id. at *1. The case started with a protective order against Vargem, issued after his wife reported an assault. Id. at *2. The protective order prohibited Vargem from having guns. Id. at *2. Cops then learned that Vargem had 12 guns registered in his name. An officer called Vargem, told him about the protective order, and told Vargem he had to surrender the guns. Id. at *3. Officers then went to Vargem’s house and saw him loading stuff into a van. Id. at *4. Vargem drove away, the van was stopped, a pistol was discovered. Id. A later search of Vargem’s house revealed an unregistered machinegun (and 27 other guns). Id. at *X. The district court imposed a six level adjustment under § 2K2.1(b)(1)(C) for multiple guns. The defense did not object to the guideline calcs. Id. at *5. Vargem appealed, with FPD counsel. Id. at *5.
Issue(s): “[There is] a six-level increase under § 2K2.1(b)(1)(C), which applies to ‘offenses’ involving between 25 and 99 firearms.” Id. at *14. Under relevant conduct rules, “offenses” include charged or uncharged offenses that “were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. at *15 (quoting § 1B1.3(a)(2)). “Echoing the language of § 1B1.3(a)(2), the government asserts that all 28 weapons were part of a common scheme or plan and the same course of conduct.” Id. at *15.
Held: “[T]he government concedes that Vargem was not a prohibited person [from possessing a firearm] under federal law . . . [based] upon the current record, there is no evidence to support the conclusion that each of Vargem’s other 27 firearms was illegal. Accordingly, it was error for the district court to have included all 28 firearms under § 2K2.1(b)(1).” Id. at *19. “We . . . vacate Vargem’s sentence, and remand . . . .” Id. at *19.
Of Note: On the surface, this seems like a guideline-bound decision on a unique fact pattern. Read carefully, however, Vargem is an important case for the hot topic of relevant conduct. The government argued that Vargem lied to an officer to conceal weapons from seizure due to the protective order – an argument which “may have surface appeal.” Id. at *16. (Former Commission Chair) Sessions, however, rejects that expansive reading of relevant conduct: “it obscures the crux of the relevant conduct analysis, which is the relationship to the offense of conviction.” Id. at *14. This careful reading of relevant conduct may resonate in cases where guideline tables drive big offense level figures (think fraud). A great relevant conduct case.
How to Use: Wait – the (incorrect) guidelines were 70-87, but the district court gave Vargem thirty months. Does this guideline mistake rise to “plain error?” Yup (to the government’s chagrin). Because the district court engaged with Vargem’s mitigating factors, there is a reasonable probability that the court would have imposed a different sentence had it known the correct range. Id. at *9. Vargem teaches that Booker and variances do not immunize a sentence from reversal when there is guideline error: a welcome arrow for the defense quiver.
|Hon. C.J. Patti Saris|
(“[W]e are overdue as a society and as a federal criminal justice community to reconsider our approach to federal drug sentencing. The Sentencing Commission hopes to continue playing a leading role in this important discussion that can begin to move the country toward rational and necessary changes.”)
Picture of the Honorable William K. Sessions III, District Judge for the District of Vermont, from http://www.fcpablog.com/storage/judgesessions.jpg?__SQUARESPACE_CACHEVERSION=1264834925507
Picture of the Honorable Chief Judge Patti Saris, Chair, Sentencing Guideline Commission, from http://upload.wikimedia.org/wikipedia/en/f/fb/Patti_B._Saris_District_Judge.png
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org