Thursday, August 23, 2012

Alteration of Positive Letters Presented at Sentencing Supported Sentence Enhancement

U.S. v. Bishop, 2012 WL 3538526 (8/17/12) (Okl.) (unpub'd) - The d. ct. properly imposed the interference-with-the-
administration-of-justice enhancement under § 2J1.2(b)(2) where the defendant altered 11 of the 40 or so letters filed in support of a lenient sentence. The alterations were discovered after the defendant had already been sentenced for a drug conspiracy. For the enhancement to stand, the government did not have to show the sentence would have been higher absent the alterations. It only had to show the alterations interfered with the proceedings. That was shown by the d. ct.'s repeated references to the persuasive value of the letters. Because the record supported the enhancement, the 10th did not need to embarrass the second judge by deciding if it was erroneous for the new judge to rely on a personal discussion with the prior sentencing judge, who assured the second judge s/he had been influenced by the alterations. And it was okay to impose an enhancement under § 2J1.2(b)(3) for altering a substantial number of documents. The term "substantial" was not unconstitutionally vague, even though it was not so clear that the alteration of less than half the letters would be "substantial." It was not arbitrary for the d. ct. to find altering about 25% of the letters was "substantial."