Monday, March 11, 2013

Split Noted: Does U.S.S.G. 3C1.2 Require Nexus?

Per United States v. Gray (10th Cir. Mar. 5, 2013)

This unpublished disposition notes the CA10's continued disagreement with opinions from the CAs 5 and 6 holding that the 2-level adjustment for reckless endangerment by flight in U.S.S.G. 3C1.2 requires some nexus to the offense of conviction.  (p.10-11.)  Here, as before, the CA10 determines it is unnecessary to resolve this issue because--whether or not required--nexus is present.  (p. 12.)  The full text of the Guideline is:
If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.
On its face, this language does not require nexus.  But the CA5 relied on a different provision (U.S.S.G. 1B1.3(a)(1)) to conclude that nexus was still nonetheless required.   I had written a post sharply critical of the CA5's position before I realized that the Commission's website provided an inaccurate html version of U.S.S.G. 1B1.3.  More on the website issues anon.  Now, with the accurate version, I am inclined to agree with the CA5 for four reasons.

First, U.S.S.G. 1B1.3(a)(1) provides in relevant part that "adjustments in Chapter Three[] shall be determined on the basis of . . . all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction . . .  or in the course of attempting the avoid detection or responsibility for that offense."  The emphasized language indicates that must be a link between the flight proscribed by U.S.S.G. 3C1.2 and the underlying offense.

Second, the introductory commentary to Chapter 3 of the guidelines, where U.S.S.G. 3C1.2 is located, provides that the "following adjustments are included in this Part because they may apply to a wide variety of offenses."  Thus, the commentary also suggests an offense-specific linkage.

Third, the offense-specific linkage is supported by the history of U.S.S.G. 3C1.2.  When the Guidelines were first propounded, there was no "flight" adjustment.  And when the flight adjustment of 3C1.2 was added in 1990, the Commission made explicit that it derived from 3C1.1, governing obstruction.  (This relation is also documented in the title of Part C of Chapter 3--"Obstruction and Related adjustments).  The guideline for obstruction--to which the flight adjustment must be related--clearly requires a linkage to the offense, calling for a two-level increase if  "the defendant willfully obstructed or impeded . . . the administration of justice with respect to . . . the instant offense of conviction."

Finally, another part of the history of 3C1.2 supports an offense-specific linkage.  One year after the flight adjustment was created, the Commission made clear that "during flight" was to be construed broadly, such that reckless endangerment of a police officer in flight was at least subject to a 2-level increase under U.S.S.G. 3C1.2, if a 3-level increase under U.S.S.G. 3A1.2(b) did not apply.  At the time, 3A1.2(b) also created an explicit offense-specific link, requiring assaultative conduct creating "during the course of the offense or immediate flight therefrom", i.e., "proximate in time to the commission of the offense."  I view the distinction between these two as whether the flight is assaultative conduct.  That said, this is the weakest argument, becuase it could be argued that the amendment was intended to encompass situations that were not linked, or proximate in time, to the offense of conviction.

The counter-argument, though not explicitly made by the CA10, is that U.S.S.G. 1B1.3(a)(1) is not exclusive.  U.S.S.G. 1.1B3(a)(4) permits Chapter Three adjustments to be determined on the basis of "any other information specified in the applicable guideline," and the commentary to this provision explicitly states that it is intended to include information related to the defendant's "state of mind."  Thus, U.S.S.G. 3C1.2 calls for consideration of "other information" relating to a defendant's "state of mind":  namely whether "the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer."   Moreover, this counter-argument is bolstered by the fact that nexus does not appear to be required for U.S.S.G. 3A1.2(c)(2), which no published opinion has construed (at least that I found).

Ultimately, although I agree with the CA5, there is valid room for dispute.  This dispute may not matter all that much, because  if nexus is required, a sentencing court can (and should, in my view) vary 2 levels up to take into account the defendant's behavior where nexus is lacking.

What does matter to practitioners, however, is that the Sentencing Commission's website be accurate.  And it is not.  The Commission provides materially different versions of U.S.S.G. 1B1.3(a)(1),  depending on whether one is viewing the Guidelines in pdf form, or html form.

Here is the PDF version, as quoted above:

(1)      (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,  
                procured, or willfully caused by the defendant; and

          (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor,
                or enterprise undertaken by the defendant in concert with others, whether or not    
                charged as a conspiracy), all reasonably foreseeable acts and omissions of others in
                furtherance of the jointly undertaken criminal activity,

          that occurred during the commission of the offense of conviction, in preparation for that      
          offense, or in the course of attempting to avoid detection or responsibility for that offense;

In this version, the structure of the paragraphs makes clear that the last sentence, beginning "that occurred", modifies both (A) and (B).  In contrast, the HTML version provides:

(1)      (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced,  
           procured, or willfully caused by the defendant; and

          (B)in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or
           enterprise undertaken by the defendant in concert with others, whether or not charged as a
           conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the
           jointly undertaken criminal activity, that occurred during the commission of the offense of
           conviction, in preparation for that offense, or in the course of attempting to avoid detection
           or responsibility for that offense;

In the HTML version, the structure of the paragraphs erroneously suggests that the clause beginning "that occurred" modifies only (B).  This inference is grounded in the location of the semi-colons and the last antecedent rule ("that" would modify "reasonably foreseeable acts and omissions").

The Sentencing Commission needs to change its coding.

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