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Determining the Loss Amount and Relevant Conduct

A. Loss amount
1. Relevant Conduct USSG § 1B1.3
Prior to November 1, 1992, a co-conspirator was held responsible for all reasonably foreseeable quantity of drugs involved in the conspiracy, regardless of the scope of the defendant’s agreement to participate. See United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3007, 120 L.Ed.2d 882 (1992).
On November 1, 1992, a clarifying amendment to § 1B1.3 became effective. See, U.S. v. Butler, 41 F.3d 1435, 1443 (n.7). Section 1B1.3(a), as amended, provides that a defendant is responsible for:
(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 [.] U.S.S.G. Sec. 1B1.3(a).
The amendment also included commentary that explains how section 1B1.3 should be applied in cases of jointly undertaken criminal activity. Application note 2 of the commentary provides:
A “jointly undertaken criminal activity” is a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged in the conspiracy.

In the case of a jointly undertaken activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:

(A) in furtherance of the jointly undertaken criminal activity; and
(B) reasonably foreseeable in connection with that criminal activity.
Furthermore, the commentary states:
In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake ( i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that criminal activity, is not relevant conduct under the provision.

As such, reasonable foreseeability alone is no longer sufficient to establish accountability. Instead the defendants are only accountable for other conduct that was reasonably foreseeable and within the scope of the criminal activity that the defendant agreed to undertake.
That is, “to determine a defendant’s liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993) (citing U.S.S.G. § 1B1.3, cmt. (n.2)); United States v. Bush, 28 F.3d 1084, 1087 (11th Cir.1994) (same); see also United States v. Campbell, 279 F.3d 392, 400 & n. 5 (6th Cir.2002) (same, and cases cited therein); United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995) (“This determination, as it goes to prong one of the test, must be made before the issue of foreseeability, prong two, is reached.”). Only after the district court makes individualized findings concerning the scope of criminal activity the defendant undertook is the court to determine reasonable foreseeability. See Bush, 28 F.3d at 1087 (drug conspiracy); Studley, 47 F.3d at 574-75 (fraud case; citing Bush). U.S. v. Hunter, 323 F.3d 1314 (11th Cir., 2003).
In Hunter, the district court erred because it simply held that because each defendant knew that he or she was part of a ring, he or she should be held accountable for all of the acts of all of the members. Yet the Guidelines establish that the fact that the defendant knows about the larger operation, and has agreed to perform a particular act, does not amount to acquiescence in the acts of the criminal enterprise as a whole. Campbell, 279 F.3d at 400, 401; Studley, 47 F.3d at 575. The district court erred in not making particularized findings as to the scope of each Appellants’ agreement in the larger counterfeit check cashing operation.

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Combat Veterans with PTSD and Sensation Seeking Syndrome

Another excerpt from my Sentencing Memorandum for a combat veteran facing a 32 year minimum mandatory sentence.

Another component typically found in combat veterans with PTSD is the “sensation seeking syndrome”. This behavior is characterized by a tendency to engage in risky activities in order to recreate the level of arousal and excitement experienced in combat. It has been shown that this factor can lead to criminal behavior. The adrenaline rush of committing the robberies was consistent with the sensations (CLIENT) experienced on combat missions. (See, U.S. v. Tindall, No. 79-376-T 07 (D. Mass. Sept. 19, 1980), in which a helicopter pilot was smuggling drugs in order to regain the thrill, risk, and stress-induced adrenaline rush that he had flying in combat.) This is precisely the reason why (CLIENT) joined Blackwater after only two months as a civilian. Once he lost Blackwater, he turned to high stakes gambling as a fix which only made his life situation worse. It was at the point of desperation that committing a robbery replaced the rush he would get while on combat missions.

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Defending Combat Veterans with PTSD

Below is an excerpt from a Sentencing Memorandum I prepared for the federal sentencing hearing of a combat veteran that was facing a 32 year minimum mandatory sentence.

As American troops have started to return from Iraq and Afghanistan, there has been a steady stream of media accounts focusing on veterans that commit crimes after returning home. A high percentage of these veterans have been diagnosed with PTSD or traumatic brain injury (TBI). In 2008, the RAND Corp. study found that one in five veterans returning home had PTSD or major depression. A 2012 study of combat veterans found that 23% of the veterans studied who had PTSD and high irritability had been arrested for a criminal offense since their combat deployment. The study showed that combat trauma in the form of PTSD significantly raises the risk of criminal arrest. The Department of Veteran Affairs estimates that between 13% and 20% of those deployed have or will someday develop PTSD, which translates to more than 475,000 of the roughly 2.5 million troops who have served in Iraq or Afghanistan. The research demonstrates the need to expand the local veteran’s courts across the country, which guide veterans into treatment rather than into jail. The establishment of more than 168 veterans treatment courts nationwide is evidence that the problem is substantial.
Post Traumatic Stress Disorder was officially recognized as a distinct anxiety disorder by the American Psychiatric Association in 1980. (DSM-III). In June 2013, the release of DSM-V placed PTSD in a new category entitled Trauma and Stress Related Disorders which emphasizes that PTSD is a complex disorder that exerts influences far in excess of anxiety symptoms. The DSM-V recognizes that PTSD effects mood, cognition, awareness, affect, and physiological responses. PTSD is conceptualized as a complex manifestation of multiple symptoms.
The disorder stems from a stressor or traumatic event that commonly results in one of the following; dissociative flashbacks, hyper-arousal, survivor guilt, sensation-seeking behaviors, impaired impulse control, hyper-vigilance, over-estimation of danger. There are three typologies that closely correspond to criminal behavior in PTSD sufferers; dissociative reaction, sensation-seeking syndrome, and depression-suicidal syndrome. Research provides that there is a direct correlation between developing PTSD and participation in heavy combat. Post-Vietnam research showed that 25% of the soldiers that participated and survived heavy combat had been charged with a criminal offense.

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19 Actual Statistics About America’s Prison System

The U.S. imprisons a larger percentage of its black population than South Africa did at the height of apartheid. There is a reason for it — but not a good one.

Michelle Alexander is a civil rights lawyer, advocate, legal scholar and author of the highly acclaimed 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The book is an impressive work of nonfiction in which Alexander disproves common misconceptions about criminal justice in the United States and paints an appalling picture of where the system stands today.

Alexander builds a compelling case through her thorough research: “We have not ended racial caste in America; we have merely redesigned it.” She swiftly awakens her readers to the harsh reality that they may not have realized they were living in. Public intellectual Cornel West wrote in the book’s foreword that it is a “grand wake-up call in the midst of a long slumber of indifference to the poor and vulnerable.”

The predicament of mass incarceration is, in Alexander’s words, “a human rights nightmare.” Sadly, she is not exaggerating — the facts are startling. And our politicians are dropping the ball. Below is a mere snapshot.

1. The United States has 5% of the world’s population, but 25% of the world’s prisoners.

2. The total incarcerated population in the U.S. is a staggering 2.4 million — a 500% increase over the past 30 years.

3. One in every 108 adults was in prison or jail in 2012.

4. One in 28 American children has a parent behind bars.

5. At the end of 2007, 1 in 31 adults was behind bars, on probation or on parole.

6. Currently, 65 million Americans have a criminal record.

7. There are more people behind bars today for a drug offense than there were in 1980 for all offenses combined.

8. The U.S. spent $80 billion on incarceration in 2010 alone.

9. About as many people were returned to prison just for parole violations in 2000 as were admitted in 1980 for all reasons combined.

10. Parole violators accounted for more than 35% of all prison admissions in 2000. Of those, only one-third were returned for a new conviction; the rest were returned for a technical violation, such as missing a meeting with the parole officer.

11. A first-time drug offense carries a sentence of 5-10 years. In other developed countries, that sentence would be six months of jail time, if any at all.

12. The vast majority of those arrested with a drug offense are not charged with serious offenses. For example, in 2005, 4 out of 5 drug arrests were for possession, not sales.

13. In the 1990s, marijuana possession accounted for nearly 80% of the spike in arrests.

14. Three out of four young black men in Washington, D.C., can expect to serve time behind bars. This is despite the fact that people of all races use and sell drugs at the same rate.

15. African-Americans comprised 12% of regular drug users, but almost 40% of those arrested for drug offenses.

16. More than 96% of convictions in the federal system result from guilty pleas rather than decisions by juries.

17. Conservative estimates put innocent people who plead guilty between 2% and 5%, which translates to tens of thousands of innocent people behind bars today.

18. Eighty percent of defendants cannot afford a lawyer. Tens of thousands of people go to jail every year without ever talking to a lawyer or going to trial.

19. A public defender will routinely have a caseload of more than 100 clients at a time.

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