by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that the state of Washington’s mandatory sentencing guidelines set the upper limit for possible punishment for a state crime that U.S. district courts must abide by when determining the grade of violation of supervised release under the U.S. Sentencing Guidelines (“U.S.S.G.”). The Court also held a U.S. district court cannot run a prison sentence consecutive to other future federal sentences that have yet to be imposed.

While Lawrence Williams was serving a term of supervised release following his imprisonment for a federal drug-related offense, he scammed a mentally impaired homeless woman out of a portion of her Social Security payments. The U.S. District Court for the Eastern District of Washington concluded Williams’ conduct constituted the Washington offense of theft from a vulnerable adult in the second degree, which carries a maximum prison term of five years. This meant it was a Grade B violation for purposes of the U.S.S.G. § 7B1.1(a)(2).

Williams’ counsel argued that Washington’s mandatory sentencing guidelines limited the possible punishment Williams could receive for his conduct to no more than one year in prison. Counsel argued Williams’ conduct would then be a Grade C violation with his federal Sentencing Guidelines range being 4 to 10 months of imprisonment. § 7B1.1(a)(3)(A).

The district court rejected that argument and calculated Williams’ Sentencing Guidelines range at 6 to 12 months in prison based on the Grade B violation. The court imposed a sentence of 12 months in prison; stated it would have imposed the same sentence if Williams had committed a Grade C violation; and directed that the sentence “be served consecutively to any and all other terms of imprisonment, including any and all future state sentences.” Williams appealed the district court’s ruling that he committed a Grade B violation and the district court’s directive that his sentence be served consecutively to any and all other terms of imprisonment.

The Ninth Circuit observed “[t]he Sentencing Guidelines provide for different ‘grades of ... Supervised release violations.’” U.S.S.G. § 7B1.1(a). A Grade B violation includes “conduct constituting any ... federal, state, or local offense punishable by a term of imprisonment exceeding one year.” § 7B1.1(a)(2). A Grade C violation includes “conduct constituting ... a federal, state, or local offense punishable by a term of imprisonment of one year or less.” § 7B1.1(a)(3)(A). The grade of the violation depends on “the defendant’s actual conduct,” and a violation may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct. § 7B1.1 cmt. n.l.

In Washington, theft from a vulnerable adult in the second degree carries a maximum prison term of five years. Wash. Rev. Code §§ 9A.20.021(1)(c), 9A.56.400(2)(b). But because the state’s sentencing guidelines are mandatory (in contrast to the U.S.S.G.), a Washington court must impose a sentence within the state’s guidelines range. State v. Woodruff, 151 P.3d 1086 (Wash. Ct. App. 2007); Wash. Rev. Code § 9.94A.505(2)(a). An above-guidelines sentence may be imposed only when certain aggravating circumstances are present. See Wash. Rev. Code §§ 9.94A.535(2)-(3), 9.94A.537.

In United States v. Valencia Mendoza, 912 F.3d 1215 (9th Cir. 2019), the court had to determine if the defendant’s prior conviction was a felony for purposes of an enhancement under U.S.S.G. § 2L1.2. “Felony” was defined as any “federal, state, or local offense punishable by imprisonment for a term exceeding one year.” Id., cmt. n.2.

The defendant had been convicted of an offense under Washington law that had a statutory maximum term of five years’ imprisonment. Valencia-Mendoza. But under Washington’s sentencing guidelines, “the maximum sentence that he actually could have received was only six months” because “neither the court nor the jury found an aggravating circumstance” that could have resulted in a higher sentence. Id. The court reasoned that the word “punishable” indicates “a realistic look at what a particular defendant actually could receive” and concluded the prior offense was not a felony. Id.

The Court found no reason to depart from the reasoning of Valencia-Mendoza in the instant case and ruled that the district court erred in relying on the statutory maximum instead of Washington’s mandatory sentencing guidelines when determining the grade of Williams’ violation. While the district court stated it would impose the same sentence even if Williams’ conduct were a Grade C violation, that statement is insufficient to insulate the sentence from remand because “the court’s analysis did not flow from an initial determination of the correct Guidelines range,” the Court explained. See United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011). Furthermore, a 12-month sentence is outside the Guidelines Range for a Grade C violation, and district courts must explain its reasons for imposing such a sentence. United States v. Leonard, 483 F.3d 635 (9th Cir. 2007).

The district court’s order that Williams’ sentence “be served consecutively to ... any and all other terms of imprisonment, including any and all future state sentences” was not objected to by defense counsel. Consequently, the Court reviewed for plain error, i.e., (1) error, (2) that is plain, and (3) affects substantial rights. United States v. Gallegos, 613 F.3d 1211 (9th Cir. 2010); United States v. Wang, 944 F.3d 1081 (9th Cir. 2019). If those three conditions exist, the court may grant relief if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Wang.  

The Court noted that a district court may order a sentence to run consecutively to an anticipated state sentence. Setser v. United States, 566 U.S. 231 (2012). But a federal sentencing court is not permitted to impose a sentence to run consecutively to another federal sentence yet to be imposed. United States v. Montes-Ruiz, 745 F.3d 1286 (9th Cir. 2014). Because the district court’s order directed Williams’ sentence be run consecutively to “any and all other terms of imprisonment,” it plainly included future federal terms of imprisonment and is plainly erroneous, the Court ruled. The Court concluded the error met the requirements of plain-error review.

Accordingly, the Court vacated Williams’ sentence and remanded with directions that resentencing be based on an assessment of the punishment Williams faces under Washington’s mandatory sentencing guidelines as determined by his actual conduct, including any aggravating factors the district court may find. After the district court has determined the grade of the violation, it may consider to impose a sentence outside of the U.S.S.G. range, but it must explain its reasons for doing so. Finally, the district court must not order that Williams’ term of imprisonment run consecutively to future federal sentences. See: United States v. Williams, 5 F.4th 973 (9th Cir. 2021). 

Subscribe today

Already a subscriber? Login

Related legal cases