As usual, sentencing issues occupy the court in its most recent pair of per curiam opinions.
In Brown v. United States, No. 09-3495-pr (2d Cir. March 1, 2011) (Winter, Livingson, Lynch, CJJ) (per curiam), an appeal of the denial of a § 2255 motion, the court rejected an argument that the Sentencing Guidelines’ treatment of prior convictions affected the application of the Armed Career Criminal Act (“ACCA”). ACCA counts predicate convictions for crimes “committed on occasions different from one another” separately, even if the offenses happened on the same day, were not separated by an intervening arrest and concurrent sentences were imposed on the convictions in a single proceeding. For ACCA, the relevant considerations are only whether the victims and locations were different, and the degree to which the offenses were separated by the passage of time.
Brown had two prior robbery convictions that, under Guidelines section 4A1.2 – which is part of the basic criminal history rules – would be treated as a single conviction because he was sentenced on them simultaneously and the offenses were not separated by an intervening arrest. Nevertheless, the two convictions were properly considered as separate ACCA predicates. “Section 4A1.2 speaks only to the calculation of criminal history points and does not bear on the calculation of Brown’s ACCA sentence.”
United States v. Akinrosotu, No. 09-2333-cr (2d Cir. February 28, 2011) (Cabranes, Chin, CJJ, Crotty, DJ) (per curiam) considers the district court’s ability to modify a fine, but does not reach a firm conclusion. At sentencing, the court had imposed a $50,00 fine – due immediately – and imposed a condition of supervised release requiring the payment of any balance that remained unpaid as of the defendant’s release from prison. Years later, the defendant, still serving his thirty-year sentence, unsuccessfully petitioned the district court for remission of the fine. Addressing a question of first impression, the court of appeals concluded that, if § 3583(e)(2), which permits the district court to modify a condition of supervised release, confers any authority to modify a fine at all, that authority is limited to the amount that remains unpaid at the commencement of the term of supervised release. Here, the prison sentence is likely to outlive the fine, since under the law applicable to Akinrosotu – since amended – the fine will expire twenty years after its imposition, but Akinrosotu will not yet be on supervised release. Thus, concluding that there will be no unpaid balance when Akinrosotu starts his term of supervised release, the court dismissed the appeal.