Mathews: Failed Drug Test Does not Categorically Preclude Reduction for Acceptance of Responsibility

In United States v. Mathews, No. 16-11191 (Oct. 30, 2017) (Hull, Jordan, Gilman), the Court considered three Guideline calculation issues, and it ruled in the defendant's favor on one.

First, the Court upheld the application of the enhancement in 2J1.2(b)(3) for altering a substantial number of records, or, alternatively, altering essential or especially probative records.  The Court upheld the increase under the latter option, because the defendant altered a medical patient's records from the day of his death, which was essential to and obstructed the VA's investigation.  The Court found irrelevant  the defendant's subjective intent as to why he altered the records; it mattered only that he selected those records to destroy or alter.

Second, the Court upheld the application of the vulnerable-victim enhancement in 3A1.1(b)(1).  The victim was 76 years old and recovering from heart surgery, and it was irrelevant whether the defendant "targeted" the patient based on those infirmities; it required only that the defendant knew or should have known that the victim was vulnerable.  The Court further rejected the defendant's argument that the only victim harmed by his computer and record-related convictions was the United States, not the patient.  It emphasized that a person can qualify as a victim even if the defendant's conduct exposes that person to a risk of harm that was reasonable foreseeable.  The defendant's conduct met that standard and qualified as relevant conduct.

Third, the Court found that the district court erred by believing that a failed drug test precluded a reduction for acceptance of responsibility as a matter of law.   The Court noted that the Guidelines did not include any conduct that categorically precludes a defendant from receiving a reduction.  The Court could not find the error harmless because it reduced the defendant's guideline range.  Accordingly, it vacated the sentence and remanded for the limited purpose of allowing the court to determine whether a reduction was warranted.

Dixon: Florida Battery by Strangulation is a Crime of Violence under the Elements Clause

In United States v. Dixon, No. 17-10503 (Oct. 23, 2017) (Marcus, Jordan, Rosenbaum), the Court, without holding oral argument, held that Florida battery by strangulation under Fla. Stat. 784.041(2)(a) was a crime of violence under the elements clause.

This offense prohibits intentionally impeding the victim's normal breathing/blood circulation by applying pressure on the throat or neck or by blocking the victim's nose or mouth, and creating a risk of great bodily harm.  The Court found that, based on the plain language of the statute, this offense could not be committed without violent force -- that is, force capable of causing physical pain or injury.  The Court found that several non-violent hypothetical violations offered by the defendant -- including temporarily placing a pillow over a spouse's nose/mouth, removing a spouse's sleep apnea mask, or sitting on a spouse's chest -- were either "implausible" or would not actually violate the statute.  Other hypotheticals offered -- such as holding a spouse's head under water by applying pressure, and sitting in a spouse's chest and placing a hand over their mouth -- would require violent force.

George: Plain Error for Failing to Permit Allocution Before Imposing Sentence

In United States v. George, No. 16-14812 (Oct. 6, 2017) (Hull, Jordan, Gilman), the Court concluded that the district court did not clearly err by applying the firearm enhancement in USSG 2D1.1(b)(1) and premises enhancement in 2D1.1(b)(12), but did commit plain error by not allowing the defendant to allocute before it pronounced sentence.

As for 2D1.1(b)(1), the Court concluded that the enhancement was proper, because the defendant possessed a loaded firearm behind the reception area of a salon used as a front for his criminal activities.  Even though the criminal activities occurred in the back room of the salon, the government proved that the firearm was "present" at the location where he ran his criminal activities, and the defendant did not meet his burden to prove that it was "clearly improbable" that the gun was connected to the criminal activities. 

As for 2D1.1(b)(12), the Court applied a totality of the circumstances test adopted by other circuits to determine whether the defendant "maintained" the premises for drug trafficking.  The evidence supported the conclusion that a "primary purpose" of both the salon and an apartment was for drug distribution.  Thus, the Court upheld the enhancement.

As for allocution, the Court concluded that, merely by asking if there was "anything further from the other side," the district court did not fulfill its Rule 32 obligation to address the defendant personally in order to give him a chance to speak.  Relying on its recent decision in Doyle, the court found the error plain, observing that Rule 32 required the court to give the defendant a chance to speak before (not after already) imposing sentence, and the Court presumed prejudice under Doyle because he was not subject to a mandatory minimum sentence and thus could have varied downward.  The Court distinguished a former Fifth Circuit decision upon which the government relied.  Accordingly, the Court vacated the sentence and remanded for allocution only.