Sunday, May 22, 2011
The 6th Circuit Legal Beagle: Supervised Release Violation Sentencing: "Supervised Release Sentencing : United States v Brown, 10-1410;10-1411 Facts: Mr. Brown pled guilty to armed robbery of a federally insu..."
The 6th Circuit Legal Beagle: Acceptance of Responsibility: "Acceptance of Responsibility: United States v Genschow No. 09-1946 Facts: Mr. Genschow, ..."
Acceptance of Responsibility:
v Genschow United States
Mr. Genschow, Sr. was charged and convicted after a bench trial of destroying trees on the Ontonagon Reservation in violation of 18 U.S.C. § 1853, and stealing tribal property for his own use in violation of 18 U.S.C. § 1163.
One of the issues on appeal was that Mr. Genschow did not receive acceptance of responsibility. Prior to sentencing a sentencing memorandum was submitted on Mr. Genschow’s behalf. And Mr. Genschow himself wrote an “acceptance letter” to the United States Probation Department. In part, Mr. Genschow wrote:
I, Robert Genschow, do hereby accept responsibility for my actions. It was my decision to undertake to have the land cleared on the Ontonagon Reservation; and I, alone, am responsiblie for any and all consequences. However, these actions were taken by me a Chief of the Ontonagon Band of Lake Superior Chippewa Indians and were being undertaken for what I believed was the benfit of that Ontonagon Band . . . . I am very sorry for the trouble and difficulties I have caused everyone – . . . .”
At sentencing the Federal Court District Judge determined that Mr. Genschow did not possess the requisite acceptance of responsibility per the United States Sentencing Guidelines Manual § 3E1.1(a).
What is enough to receive acceptance of responsibility per United States Sentencing Guidelines Manual § 3E1.1(a)?
To receive acceptance of responsibility you must not only admit to what you did, but also, that you intended the action and/or end result.
The Federal Sentencing Guidelines 3E1.1(a) provides for a two (2) level reduction to the offense variable total if a Defendant “clearly demonstrates acceptance of responsibility for his/her offense.” U.S.S.G. 3E1.1(a). The Defendant has the burden of proving by a preponderance of the evidence that he/she merits the reduction.
Factors the Court may consider in deciding whether the Defendant has shown he/she merits the reduction include:
- Whether the defendant truthfully admitted the conduct comprising the offense of conviction; and
- Whether the defendant truthfully admitted, or did not falsely deny any additional relevant conduct for which the defendant is accountable;
- The voluntary termination or withdrawal of the defendant from criminal conduct or associations; and the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.
U.S.S.G. § 3E1.1. app. note 1(a), (b), and (h).
“Regret alone does not warrant a reduction.” To receive the two (2) point reduction for of acceptance responsibility you must admit your wrongdoing in full at the time you are put on notice that the behavior/action was wrong. This does not normally include the pre-indictment phase; however, but may include the time after arrest, search warrant, post indictment time or the time after a guilty plea is entered.
Thursday, May 19, 2011
Supervised Release Sentencing:
v Brown, 10-1410;10-1411 United States
Facts: Mr. Brown pled guilty to armed robbery of a federally insured bank. He was thereafter sentenced to 78 months. Upon release Mr. Brown was placed in a half way house. He subsequently walked away from the half way house. Mr. Brown was subsequently charged with a supervised release violation (armed robbery) and a new criminal charge (escape). Mr. Brown received a sentence of 46 months incarceration, consecutive to the armed robbery, and three years supervised release, concurrent to the armed robbery supervised release, on the escape conviction. In 2009 Mr. Brown once again began supervised release; however, three months later he was again charged with supervision release violations. Mr. Brown pled guilty to two of the violations and was sentenced to: seven (7) months incarceration with no supervised release to follow on the armed robbery; and, eight (8) months incarceration with three years supervised release on the escape.
Issue: Did the trial court improperly calculate the term of Defendant’s supervised release (three (3) years) when sentencing Defendant to eight months incarceration?
Reasoning: 18 U.S.C. § 3583(h) states:
“the length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.
Per statute, Mr. Brown could not be sentenced to more than 28 months supervised release on the escape term: supervised release authorized by statute for the charge of escape was 36 months, minus the 8 months of incarceration for the violation, leaves a maximum permissible term of supervised release of 28 months.
Sentence vacated and remanded for resentencing.