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United States v. James

United States District Court, District of Columbia

June 17, 2019

UNITED STATES OF AMERICA
v.
ALLAN JAMES, Defendant.

          MEMORANDUM OPINION

          RICHARD J. DEON UNITED STATES DISTRICT JUDGE.

         Defendant Allan James ("James") pleaded guilty in this case to one count of unlawfully possessing a firearm and ammunition after being convicted of a crime punishable by imprisonment for a term exceeding one year. See 18 U.S.C. § 922(g)(1). He currently awaits sentencing and has objected to the Sentencing Guidelines range calculation that appears in his Presentence Investigation Report ("PSR"). The calculation in the PSR is based, in part, on conduct that was not alleged in James's indictment and that is evidenced only by social media posts and testimony about social media posts. See PSR ¶¶ 10a-10g [Dkt. # 18]. Indeed, James's Guidelines range quadrupled as a result of its inclusion. James argues that this social media evidence is not sufficiently reliable to be used as a basis for enhancing his Sentencing Guidelines range. I agree, and his objection will therefore be SUSTAINED.

         BACKGROUND

         The United States ("the Government") indicted James in October 2017 for a single count of violating 18 U.S.C. § 922(g)(1). See Indictment at 1 [Dkt. # 5]. The one-count indictment refers in turn to a single firearm-a Glock 22 .40 caliber pistol-and alleges that James possessed the gun, along with some .40 caliber ammunition, on or about July 12, 2017. See Id. James, as is his right, pleaded guilty to. the conduct charged in the indictment without first negotiating a plea deal with the Government. His Sentencing Guidelines range, if calculated based on the conduct described in the indictment, provides for twenty-one to twenty-seven months of incarceration. See Draft PSR ¶¶ 6-10, 75 n.4 [Dkt. #17]. That Guidelines range was reflected in the draft PSR prepared by the United States Probation Office ("Probation"). See id.

         After reviewing the draft PSR, the Government argued that James's Guidelines range should be significantly enhanced as a result of certain social media posts, most of which were recovered by executing search warrants for Facebook and Snapchat accounts. In particular, the Government contended that James's base offense level should be increased from fourteen to twenty because these social media posts involved a semiautomatic firearm capable of accepting a large capacity magazine, see U.S.S.G. § 2.K2.1(a)(4)(B); that James should be given an additional four-point enhancement because the posts linked him to at least eight firearms, [1] see U.S.S.G. § 2K2.1(b)(1)(B); and finally that James should be given another four-point enhancement because he trafficked firearms, see U.S.S.G. § 2k2.1(b)(5). According to the Government, images, videos, and messages posted to the social media accounts between January 2016 and June 2017 show James in possession of and, in some cases, trying to sell firearms. Ultimately, Probation adopted the Government's position in its final PSR, increasing James's Guidelines range to eighty-four to one hundred and five months of incarceration. See PSR ¶ 75.

         James, of course, strongly objects to this fourfold increase in his Guidelines range. The parties have filed memoranda setting forth their positions on the correct Guidelines range calculation, and the Government has been given multiple opportunities to identify all evidence that supports the calculation in the final PSR.[2] James's objection is now ripe for resolution.[3]

         ANALYSIS'

         Courts are naturally wary when prosecutors seek substantial sentencing enhancements based on conduct the same prosecutors declined to charge. Indeed, judges have "note[d] . ., continuing disagreement with the government's practice of charging relatively minor crimes, while using . . . 'relevant [uncharged] conduct' ... to argue for significantly enhanced terms of imprisonment." United States v. Magee, 834 F.3d 30, 38 (1st Cir. 2016) (Torruella, J., concurring) (quoting U.S.S.G. § lB1.3(a)); see United States v. Scheiblich, 346 F.Supp.3d 1076, 1082-85 (S.D. Ohio 2018) (citing cases in which judges express skepticism about this practice). One Court of Appeals has even gone so far as to expressly and repeatedly "remind prosecutors 'not to indict defendants on relatively minor offenses and then seek enhancement sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted."'[4] United States v. Spiller, 261 F.3d 683, 691 (7th Cir. 2001) (quoting United States v. Bacallao, 149 F.3d 717, 721 (7th Cir. 1998)).

         This judicial skepticism is, of course, rooted in the defendant's constitutionally protected rights. After all, by asking "judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose," prosecutors adopt a strategy that "seems a dubious infringement of the rights to due process and to a jury trial." United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring with denial of petition for rehearing en banc). To say the least, "trial by sentencing enhancements" was not what Congress had in mind when it blessed the federal Sentencing Guidelines regime !

         But concerns about this practice extend beyond outright violations of the Constitution. "Many judges and commentators" who have questioned prosecutors' zeal to punish defendants for conduct that has never resulted in a conviction argue that the use of uncharged or "acquitted conduct to increase a defendant's sentence undermines respect for the law and the jury system." United States v. Settles, 530 F.3d 920, 924 (D.C. Cir. 2008). Our Circuit Court has specifically acknowledged that it "understand[s] why defendants find it unfair for district courts to rely on" such conduct at sentencing-even while reiterating that "long-standing precedents of the Supreme Court and [the Circuit] Court" often allow it.[5] Id. at 923. And so it seems obvious, as pointed out by Judge, now Justice, Kavanaugh, that "district judges would" be wise "to heed . . . concern[s]" about unfairness and, "in appropriate cases," to "avoid basing any part of [a defendant's] ultimate sentence on acquitted or uncharged conduct." Bell, 808 F.3d at 928 (Kavanaugh, J., concurring with denial of petition for rehearing en banc); see also Id. ("[F]ederal district judges have power in individual cases to disclaim reliance on acquitted or uncharged conduct" by "vary[ing] the sentence downward to avoid basing any part of the ultimate sentence on acquitted or uncharged conduct."); Settles, 530 F.3d at 924 ("[E]ven though district judges are not required to discount acquitted conduct, the Booker-Rita-Kimbrough-Gall line of cases may allow district judges to discount acquitted conduct in particular cases ... . ." (citing Kimbrough v. United States, 552 U.S. 85, 101 (2007)) (emphasis in original)).

         Moreover, the Government's requested sentence in this particular case deserves considerable scrutiny because its use of uncharged conduct is compounded by the weakness of the evidence it offers to prove the conduct. To say the least, social media posts:-with little else-can hardly justify the quadrupling of a defendant's Guidelines range. How so?

         Courts, and commentators, have explained why determining the accuracy of information posted to social media is far from straightforward and hence of questionable reliability. Facebook records, for example, are "no more sufficient to confirm the accuracy or reliability of information posted to the website "than a postal receipt would be to attest to the accuracy or reliability of the contents of the enclosed mailed letter." United States v. Browne, 834 F.3d 403, 411 (3d Cir. 2016). Indeed, Facebook can actually make photographic evidence less useful because it "'strips . . . metadata as the photograph is uploaded' . . . rendering [its] date of creation unknown." United States v. Farrad, 895 F.3d 859, 867 (6th Cir. 2018) (quoting testimony from a police officer trained in social media investigations). Snapchat is similarly problematic as some of its "key function[s]" give users the ability to edit images before sharing them. Agnieszka McPeak, Disappearing Data, 2018 Wis. L. REV, 17, 34 (2018) ("A key function within Snapchat is the use of Filters, which allows users to add multiple overlays to their images. Lenses also allow 'real-time special effects and sounds' to be added to images." (footnote omitted)). Even determining who posted a particular message, image, or video to Facebook or Snapchat is difficult "because of the great ease with which a social media account may be falsified or a legitimate account may be accessed by an imposter." Browne, 834 F.3.d at 412. For these reasons, courts usually "consider[] . . . extrinsic evidence to determine whether the government [can meet] its authentication burden" before permitting the introduction of social media evidence against a defendant at trial. Id. at 413.

         Not surprisingly, the reliability standard applicable at sentencings, see U.S.S.G. § 6A1.3(a), [6] counsels in favor of requiring extrinsic corroboration before social media evidence is used to resolve a dispute relevant to a sentencing determination. Because social media posts may contain false information and doctored images, and because posters may be using hacked accounts or stolen identities, uncorroborated social media posts will not often establish, with any degree of reliability, that the information in the posts is accurate or that the posts are what they purport to be.

         The Government here has not offered sufficient extrinsic corroboration to establish the necessary reliability of its social media evidence. While it has pointed to reasons to believe James had access to the Facebook and Snapchat accounts from which it collected . evidence, see Declaration of Special Agent Robert Mayo ("Mayo Decl.") at 22 [Dkt. #38-1 ] (reporting that photos found on James's cell phone had been uploaded to the social media accounts), account access, alone, cannot possibly justify the sentence enhancements the ...


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