Thursday, April 04, 2013

U.S. v. Augustine, No. 12-50061 (04-03-13) (Hurwitz with Callahan and Ikuta)
In the Fair Sentencing Act, Congress finally addressed, somewhat, the inequitable disparity between the sentences for crack and the sentences for powder cocaine. The defendant here was sentenced before the FSA went into effect, and his sentence, both mandatory minimum and guidelines, was higher than he would have gotten under the FSA. Does he get the benefit? He moved under the retroactive guidelines statute, 3582(c)(2), for a reduced sentence. The district court had lowered his sentence by one month, to 121 months. And there it stays, even after the appeal, because the mandatory minimum remains unchanged, and he was sentenced before FSA. The Supreme Court in Dorsey had carved out an exception for those sentenced after FSA even if their acts were before FSA. It does not apply here, because the acts and sentencing were prior to FSA. Yes, there is still disparity, but Congress did not make FSA retroactive to mandatories and such is life, or at least the sentence. The 9th joins all the other circuits in this holding.

U.S. v. Jennings, No. 11-50315 (02-04-13) (Clifton with O'Scannlain and Trott)
The 9th affirms an enhanced adjustment of two levels for "sophisticated means" in a tax fraud under 2T1.1(b)(2). What was so "sophisticated"? The use of a deceptive name on a bank account in order to shield income. The sophistication does not have to be complex, or brilliant, or exceedingly devious; it just needs to involve a greater level of planning or concealment. Here, the concealment was a fictitious account with a deceptive name to which siphoned funds were diverted. That was sufficient to affirm the enhancement.


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