Case o' The Week: Double Trouble - Joey and Double Counting in Sex Offenses

 Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration.

  Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration.

   (Double vision maybe: double counting, no).

United States v. Roy Red Joey, 2017 Westlaw 218029 (9th Cir. Jan. 19, 2017), decision available here.

 Players: Decision by Judge Ikuta, joined by Chief Judge Thomas and Judge Bea. Hard fought appeal by D. Arizona AFPD Dan Kaplan.

Facts: Joey was convicted after trial of two counts of abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(5), and two counts of committing a felony with a minor while required to register as a sex offender, under 18 U.S.C. § 2260A. Id. at *1.

  At sentencing, the district court used USSG § 4B1.5 for the § 2244(a) counts – even though Joey had been convicted under § 2260A, which (the defense) contended punishes the same conduct. Id.

  When simplified, this complicated calculation worked as follows: for the two § 2244(a) counts, the sentence was increased to offense level 37 under § 4B1.5 because Joey had been previously convicted of a covered sex crime. Id. at *2. For the § 2260A counts, the court tacked on a decade apiece – required by statute – because the substantive crimes happened while Joey was required to register as a sex offender. Id. at *3.

  The final sentence imposed was a pair of life sentences (imposed concurrently), plus a pair of concurrent ten-year sentences running after – well, running after the life terms. Id. at *3.

  Joey timely objected to the guideline calculation. Id. at *3.

Issue(s): “[A]ccording to Joey, the district court violated the principle against double counting in applying the Guidelines.” Id. at *1. 

  “According to Joey, the district court made a procedural error in applying § 4B1.5 for two reasons: (1) § 2A3.6, and in particular Application Note 3 of that provision, precludes the application of § 4B1.5, and (2) applying § 4B1.5 in determining Joey's sentence under § 2244(a) (5) when he was also being sentenced under § 2260A violated the principle against double counting under the Guidelines.” Id. at *3.

Held: “Because we cannot infer that the Sentencing Commission intended to preclude a § 4B1.5 determination for a § 2244(a)(5) offense when the defendant has also been convicted under § 2260A, we conclude that the district court did not commit a procedural error in calculating the Guidelines sentencing range, and we affirm.” Id. at *1 (fn. omitted).

Of Note: We know of the double-counting bar from the (good) gun rule: Probation can’t twice-hit our clients with the “used . . . in connection with another felony offense” + 4 OL specific offense adjustment in the firearm guideline, and with the mand-mins required by § 924(c). In fact, Judge Ikuta discusses that very example in Joey. Id. at *4.

  Unfortunately, Judge Ikuta also describes what is effectively an inverse rule of lenity: guideline double-counting is o.k, unless expressly prohibited by the Commission. Id. That familiar double-counting ban for gun cases happens to be one of those expressly-barred examples. Id.

  Here, by contrast, Judge Ikuta concludes that the Commission intended to allow cumulative punishment – particularly because § 4B1.5’s increase is tied to a prior sex crime conviction, while § 2260A is tied to a new sex offense while a sex registrant. “Distinct penological goals,” assures the Court. (Though if you’re familiar with guideline sausage-making, this quirk looks suspiciously like a tragic Commission oversight.)

How to Use: It ain’t double counting, assures the Court. But it will feel that way to Joey, who will serve a life sentence (twice!) for the bump for the sex crime, plus a brace of decades for the registration offense. This is a dangerous case: a sex offender with a prior is almost inevitably a sex registrant, so the impact of Joey is a de facto (and dramatic) increase in our clients’ sentencing ranges. If a § 2260A offense is alleged, slog through Joey’s guideline calcs: the client’s exposure is likely higher than you think.  

                                               

For Further Reading: Last week we asked “whither the Ninth, with four new Trump appointees?” This week we ask, “wither the Ninth with a Republican Congress?”

  Asunder, perhaps.

  For a troubling article on the resuscitation of efforts to split the Ninth Circuit, see, GOP Eyes New Push to Break Up California Court, available here. 

Image of “Double Count” from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhzDE2Xe1Gd49lGzKNKnzzsRh51Dr6lU3MUh_b8KmUxV6sEE99dnhiBq9eFdB-McoWQq1QSRRqgcFjC1WiZrYg1OyF6ksB5YpLtZoJp_ErSJ_bj94_2AlFKucRrr-rn-fKV1iu6/s320/54472_double_count_wharton01f.png

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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