U.S.S.G. § 4B1.3
Criminal Livelihood
If the defendant committed an offense as part of a pattern of criminal conduct engaged in as a livelihood, his offense level shall be not less than 13, unless §3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11.
Commentary
Application Notes:
1. "Pattern of criminal conduct" means planned criminal acts occurring over a substantial period of time. Such acts may involve a single course of conduct or independent offenses. 2. "Engaged in as a livelihood" means that (A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (B) the totality of circumstances shows that such criminal conduct was the defendant's primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant's legitimate employment was merely a front for the defendant's criminal conduct). Background: Section 4B1.3 implements 28 U.S.C. § 994(i)(2), which directs the Commission to ensure that the guidelines specify a "substantial term of imprisonment" for a defendant who committed an offense as part of a pattern of criminal conduct from which the defendant derived a substantial portion of the defendant's income.Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (amendment 50); November 1, 1989 (amendment 269); November 1, 1990 (amendment 354); November 1, 2010 (amendment 747).
Notes of Decisions
Cited in 52
cases (9 in the last 5 years), 1990–2026 · leading case: United States v. Gordon, 852 F.3d 126 (1st Cir. 2017).
United States v. Gordon, 852 F.3d 126 (1st Cir. 2017). “See U.S.S.G. § 4B1.3 app. n.2. - 3 - U.S.C. § 841(a)(1), (b)(1)(B), and conspiring to do the same, id.”
United States v. Thomas J. Reed, 951 F.2d 97 (6th Cir. 1991). “l(a); and (2) whether the district court erred in finding, pursuant to U.S.S.G. § 4B1.3, that defendant committed the offense as part of a pattern of criminal conduct he engaged in as a livelihood.”
United States v. Rodney Kellams, 26 F.3d 646 (6th Cir. 1994). “Following his guilty plea to the offense of mail fraud, the defendant, Rodney Kellams, appeals to this Court and challenges the determination that his sentence should be enhanced pursuant to the “criminal livelihood” provision of U.S.S.G. § 4B1.3. For the reasons detailed in…”
United States v. Moran, 941 F.3d 44 (2d Cir. 2019). “2 For a defendant to have engaged in criminal activity as a livelihood, he or she must have "derived income from the pattern of criminal conduct that in any twelve- month period exceeded 2,000 times the then existing hourly minimum wage under federal law.”
United States v. Sanford Eugene Johnson, III, 980 F.3d 1364 (11th Cir. 2020). “21 USCA11 Case: 17-15259 Date Filed: 11/19/2020 Page: 22 of 46 U.S.S.G. § 4B1.3 cmt. n.2 (emphasis added).”
United States v. Willie James Blake, Jr., 81 F.3d 498 (4th Cir. 1996). “See U.S.S.G. § 4B1.3. It concluded the offense level calculation by recommending that Blake receive a two-level reduction for acceptance of responsibility.”
United States v. Kitroy Buchanan, 933 F.3d 501 (6th Cir. 2019). “See USSG § 4B1.3, comment. (n.2). The district court did not make any such finding because it was unaware of the requirement.”
United States v. David Casillas, 830 F.3d 403 (6th Cir. 2016). “He was scored another two-level enhancement for engaging in a pattern of criminal conduct as a livelihood under U.S.S.G. § 4B1.3. See id. ¶ 1085 (Page ID #20712).”
United States v. Michael Angelo Irvin, 906 F.2d 1424 (10th Cir. 1990). “U.S.S.G. § 4B1.3 (Oct.1988). Defendant claims that the district court erred in applying this section to defendant for two reasons.”
United States v. Douglas Eugene Morse, 983 F.2d 851 (8th Cir. 1993). “At sentencing, the court applied the criminal livelihood provision of U.S.S.G. § 4B1.3, which increased Morse’s base offense level to 13, resulting in a sentencing range of 12 to 24 months.”
United States v. Patrone, 985 F.3d 81 (1st Cir. 2021). “" U.S.S.G. § 4B1.3, cmt. n.1. Application Note Two to § 4B1.”
United States v. Oscar Bueno, 703 F.3d 1053 (7th Cir. 2013). “The commentary to the Guidelines states that “pattern of criminal conduct” and “engaged in as a livelihood” have the meaning given to those terms in U.S.S.G. § 4B1.3. U.S.S.G. § 2D1.1, cmt. n.”
— U.S.S.G. §4B1.3(a) — 1 case
United States v. Gonzalez, 322 F. App'x 963 (11th Cir. 2009).
— U.S.S.G. §4B1.3(b)(3)(A) — 1 case
Butler v. USA-2255 (D. Maryland 2019).
— U.S.S.G. §4B1.3(c)(3) — 2 cases
United States v. Casamayor, 643 F. App'x 905 (11th Cir. 2016).
Lewis v. United States (S.D.W. Va 2017).
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