Sunday, January 22, 2017

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

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


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