|Hon. Judge William K. Sessions, III|
AFPD Candis Mitchell argued the guidelines
Guideline Commission Chair) Judge William Sessions (sitting by designation),
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.
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.
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
Further Reading: This was a big week for Sentencing Commission
Chairs. Current Chair (Chief Judge Patti Saris) just gave a terrific speech on
federal drug sentences. Her must-read comments are available here.
|Hon. C.J. Patti Saris|
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
Labels: Guideline 2D2.1, Mandatory-minimum sentences, Plain Error, Relevant Conduct