Court Reverses Some Enhancement Imposed on Defendants Convicted of Civil Rights Offenses
United States v. Egbert, ___ F.3d ___, 2009 WL 983054 (10th Cir. 2009)
Three white supremacists convicted of conspiracy to violate civil rights and, in the case of one of the three Ds, a substantive civil rights offense, launched unsuccessful and successful challenges to guideline calculations.
1. Because the overt acts of the conspiracy count included the single substantive assault offense that involved only one of the three Ds, that one assault was relevant conduct for the other two Ds–the assault was a reasonably foreseeable act of the conspiracy to beat up non-whites. The guidelines allow the overt acts, because they involve two different victims, to be grouped as if separate counts, even though they are part of a single conspiracy count. Read the opinion and the GL if you have a multiple overt act conspiracy and wonder how the guidelines might be calculated.
2. Demonstrating that it can be fairly exacting in how it reads the language of the GL and the evidence that satisfies that language, the COA reverses the sentence on the ground that there was insufficient evidence of serious bodily injury to support the SBI GL enhancement. Looking to the definition for SBI, and reviewing cases in which the extent of the injury necessitated medical care, the COA found that the statements of witnesses about the blows they saw the victim receive and that fact that he seemed unconscious afterwards was insufficient (the victim apparently left and was not found afterwards). Also, there was no evidence that the unconsciousness was protracted as required by the SBI enhancement.
3. The COA reverses the “organizer and leader” enhancement to the D who was the head honcho of the white supremacist group. The fact that he was the titular head was not enough to show leadership in relation to the crime, and no other evidence was sufficient to establish his leadership role in the assaults–specifically, no evidence that he controlled the others.
Three white supremacists convicted of conspiracy to violate civil rights and, in the case of one of the three Ds, a substantive civil rights offense, launched unsuccessful and successful challenges to guideline calculations.
1. Because the overt acts of the conspiracy count included the single substantive assault offense that involved only one of the three Ds, that one assault was relevant conduct for the other two Ds–the assault was a reasonably foreseeable act of the conspiracy to beat up non-whites. The guidelines allow the overt acts, because they involve two different victims, to be grouped as if separate counts, even though they are part of a single conspiracy count. Read the opinion and the GL if you have a multiple overt act conspiracy and wonder how the guidelines might be calculated.
2. Demonstrating that it can be fairly exacting in how it reads the language of the GL and the evidence that satisfies that language, the COA reverses the sentence on the ground that there was insufficient evidence of serious bodily injury to support the SBI GL enhancement. Looking to the definition for SBI, and reviewing cases in which the extent of the injury necessitated medical care, the COA found that the statements of witnesses about the blows they saw the victim receive and that fact that he seemed unconscious afterwards was insufficient (the victim apparently left and was not found afterwards). Also, there was no evidence that the unconsciousness was protracted as required by the SBI enhancement.
3. The COA reverses the “organizer and leader” enhancement to the D who was the head honcho of the white supremacist group. The fact that he was the titular head was not enough to show leadership in relation to the crime, and no other evidence was sufficient to establish his leadership role in the assaults–specifically, no evidence that he controlled the others.
posted by Anonymous at 10:31 AM
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