Friday, August 26, 2016

Proffer Me This: Counsel is Not Ineffective for Approving Broad Proffer Agreement

In Fifer v. United States, the Sixth Circuit confirmed that proffer agreements can vary in scope and in the latitude they afford the Government in using the defendant's statements should he or she decide to take their case to trial.  The Court's decision also serves as a reminder that proffer meetings also present risks for the defendant and his or her counsel.

Upon his indictment for being a felon in possession of a firearm and possessing with intent to distribute approximately 13 grams of crack cocaine, Demarcus Fifer retained James Ball, who had previously represented him and with whom he had a personal relationship.   Fifer's criminal history was far from pristine.  This fact, along with the strength of the Government's case, convinced Ball to recommend that Fifer pursue a plea bargain and by cooperating in an effort to obtain a § 5K1.1 motion for a sentence below the then-mandatory Guidelines range.

As with any proffer, the Government presented Fifer and Ball with a two-page letter setting forth the terms of the proffer meeting.  Aside from reciting the language typical for a proffer agreement, the letter also stated that the Government could use Fifer's statement "to rebut any evidence, argument, or representations offered by or on [his] behalf...in the government's case-in-chief in connection with the trial and/or sentencing...."  After reviewing the letter with Ball, Fifer proceeded with the proffer meeting during which he admitted to possessing the firearm at issue and to possessing crack cocaine.

Before reaching plea deal with the Government, Fifer made the fateful decision to not change his plea and to take his case to trial.  At the same time, he fired Ball and requested new counsel, which the trial court subsequently appointed for him.

Although he did not testify, Fifer suggested through the cross-examination of one of the Government's witnesses that he did not possess the firearm or the drugs at issue.  The Government moved to admit Fifer's proffer statements, and the trial court overruled his objections to the same.  A jury subsequently convicted Fifer of both counts of the indictment, and the Court sentenced him as career offender to concurrent sentences on each count of 120 and 292 months, respectively.

After finding no success during his direct appeals, Fifer turned his ire to Ball, filing a §
 2255 motion to vacate his sentence for ineffective assistance of counsel.  The trial court subsequently overruled his motion.

In an unpublished decision, the Sixth Circuit affirmed the trial court's decision and found that Ball's representation of Fifer with respect to the proffer was not ineffective.  In reaching its decision, the Court rejected Fifer's argument that it was objectively unreasonable for Ball to recommend what he deemed to be an "unusually broad" waiver.  After finding that Ball understood the broad waiver provisions contained in the proffer letter, the Court also found that the provision was not so broad as to make it objectively unreasonable for Ball to have advised Fifer to agree to it as a condition of the proffer.  In examining the scope of the waiver, the Court found that it had upheld similarly broad waiver language in other proffer agreements.

This case serves as a reminder that the decision to recommend your client participate in a proffer meeting in anticipation of a plea agreement is fraught with risks for both the defendant and his or her counsel.  Perhaps Ball described it best by explaining it is "a little like Russian Roulette...."


Sunday, August 21, 2016

Johnson Is Retroactive For Career Offender Determination, But Still Must Wait For Beckles

The Sixth Circuit will authorize second or successive § 2255 petitions to address Johnson issues related to application of the career offender enhancement. In In re: Antonio D. Patrick, the Sixth Circuit found that Johnson announced a substantive change that applied retroactively and on collateral review—a holding permitting successive petitions.

The Government argued that the petition should not be permitted because Johnson is procedural. The Court rejected that argument as contrary to the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“under this framework, the rule announced in Johnson is substantive.”). As explained in Welch, Johnson changed “the range of conduct or the class of persons” punishable under the ACCA—a substantive change. Under Pawlak, the Sixth Circuit found that the same reasoning applied to the career offender residual clause.

The Court also rejected the Government’s argument that Johnson must be procedural in regard to the Guidelines because the Guidelines themselves are procedural. Finding that sentencing courts lack discretion to forego reference to the Guidelines, the Court concluded: “that the Guidelines are not mandatory is a distinction without a difference.” In re Patrick (quoting Pawlak, 822 F.3d at 907).

In reaching this result, the Sixth Circuit joined the Second, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits (though Judge Sutton previously asserted that the Fifth Circuit has rejected arguments akin to Patrick’s in In Re: Alford D. Embry). Significantly, consistent with In Re: Alford D. Embry (discussed in this blog’s July 29 post), the Court found that further consideration of Patrick’s petition must be held in abeyance pending the Supreme Court’s decision in Beckles v. U.S. (where the Supreme Court granted certiorari to review the Eleventh Circuit’s decision that Johnson is inapplicable to the Sentencing Guidelines). Hence, Patrick and similarly situated persons must watch for the Supreme Court decision in Beckles (the Government’s brief is currently due September 19, 2016).

Career Offender Clarifications

Adult convictions, even if committed and obtained before a defendant is eighteen, may be used when determining career offender status. In U.S. v. Doxey, the Sixth Circuit (in a published opinion) joined the Fourth and Tenth Circuits in finding that the plain language of Committee Note 1 to 4B1.2 requires that result.


The Sixth Circuit also confirmed that plain error review is required if a defendant fails to make a Johnson claim at sentencing. In Doxey’s case, he objected to the career offender enhancement because his two prior drug convictions involved a relatively insubstantial amount of drugs, but he did not contest his conviction for third-degree fleeing and eluding a police officer. The Court found no record evidence that the sentencing court relied on the flight conviction when applying the career offender enhancement. As such, the Court found no error.

Friday, July 29, 2016

J. Sutton: Wait for Beckles

In today's opinion in In Re: Alford D. Embry, Judge Sutton notes the differing opinions on whether Johnson v. United States, 135 S. Ct. 2551 (2015), applies to the Guidelines and whether it applies retroactively to the Guidelines. There is also some interesting discussion of when the statute of limitations for a 2255 on the issue would start to run: Johnson? Pawlak? Beckles?

Happy note: Making the argument that Johnson applies retroactively to the Guidelines meets the gatekeeping requirements for a second or successive 2255 petition. So people petitioning the Sixth for Johnson relief for Career Offender or 2K2.1 or suchlike will get remanded to the district court to litigate the issue.
CORRECTION: Upon closer reading - the gatekeeping question isn't even answered. The panel recognizes that the district court is also able to determine whether the gatekeeping requirements are met, and because of the restricted appeal rights, perhaps the district court is the best court to make gatekeeping decisions.

Frustrating note: Judge Sutton endorses waiting for the Supreme Court to rule in Beckles so that courts can have a definitive ruling on how Johnson applies in Guidelines cases. Furthermore, the best place to do that waiting is in district court.

Friday, July 22, 2016

The Gang's All Here - I see em in Court!

In cases where multiple defendants are allegedly members of gangs, the Government loves to bring in "expert" witnesses on how gangs operate, hierarchy, etc.  It makes for compelling testimony for the jury.  But sometimes the Government takes its witnesses a little too far.  In United States v. Rios, the Court held that a witness will not be a proper FRE Rule 702 witness where they mix fact with their expert testimony on the particular gang under indictment.  In Rios, one of the witnesses testified as the lead investigator, as well as an expert witness on gangs.  The witness not only informed the jury about how the particular gang worked, but peppered in his personal observations to support the expert testimony.  The Court found that " it is difficult to parse what came from Haglund the expert and what came from Haglund the investigator because there was no clear demarcation between his fact and expert testimony during the trial. This confusion regarding the capacity in which Haglund was testifying is independently problematic. The district court did not delineate Detective Haglund’s testimony—and Haglund himself never distinguished between his fact and expert testimony."  Therefore,  "even if Haglund’s testimony did not exceed the scope of Rule 702, his overall presentation as a dual fact-expert witness without further demarcation or explanation to the jury was in error."  Unfortunately for the defendants, however, the Court went on to find such error harmless under the circumstances of the case.   

Monday, July 18, 2016

Pointing a Gun Is A Crime of Violence; Johnson v. United States Shrinks Further

The Sixth Circuit in United States v. Rafidi again grappled with what constitutes a “crime of violence” under 18 U.S.C. § 924(c), a question that has divided sharply the courts of appeals in the wake of the Supreme Court’s decision in Johnson v.United States, 559 U.S. 133 (2010). Rafidi presented directly the question of whether a violation of 18 U.S.C. § 111(b)(assault on a federal officer) constituted a “crime of violence” under § 924(c).

The case arose from execution of a search warrant at defendant’s residence by a number of law enforcement officers including federal agents. The officers knocked and announced and, according to the trial testimony, observed defendant through a glass window pick-up a silver gun. Defendant approached and swung open the front door and pointed the gun at a federal agent, which provoked another officer to open fire on defendant, although he was not hit. He retreated inside his residence, then emerged unarmed and surrendered.

Rafidi was charged and found guilty of two offenses: (1) forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b); and, (2) using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(ii). He was sentenced to 10 months on the § 111 charge and a consecutive 84 months on the § 924 charge. Defendant’s main appeal issue was whether a violation of § 111 is a “crime of violence” for purposes of § 924(c).

The Court began its analysis by dissembling § 111, a “rather convoluted statute,” that sets forth three separate crimes: (1) misdemeanor simple assault; (2) felony assault; and, (3) aggravated felony assaults involving a deadly or dangerous weapon or causing bodily injury. The third of these applied to defendant, so the question, as the Court framed it based on Johnson, was “whether § 111(b) has as an element the use or attempted use of ‘violent force – that is, force capable of causing physical pain or injury to another person.’”

Key, the court asserted, was that a violation of § 111 requires that a defendant act forcibly. This element is satisfied in two ways, both of which establish § 111(b) as a “crime of violence.” First, the force element could be satisfied by proof of actual physical contact, which combined with use of a deadly weapon is sufficient to establish § 111(b) as a “crime of violence.” Second, even in the absence of physical contact, the force element is established by proof of a threat or display of physical aggression sufficient “to inspire fear of pain, bodily harm, or death.” Pointing a gun at a federal officer did this so the court held that the defendant’s conviction for § 111(b) constitutes a “crime of violence” under § 924(c)(3).


Senior Circuit Judge Andre Davis, visiting from the Fourth Circuit, concurred in result and in dubitante. Judge Davis’ expressed concern that “the use of a dangerous weapon in ‘forcibly,’ but not ‘violently,’ resisting arrest by an FBI agent, for example, categorically elevates the kind of non-violent force sufficient to satisfy § 111(a) into ‘violent force’ within the meaning of” Johnson’s holding. Nevertheless, Judge Davis concurred based on the court’s prior decision in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and on the grounds that a violation of § 111(b) is a predicate offense under the residual clause of § 924(c)(3)(B).

Thursday, July 07, 2016

Johnson applies to Immigration and Nationality Act’s residual clause

         The Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that the Armed Career Criminal Act’s (ACCA) residual clause’s definition of “violent felony” was void for vagueness. See 18 U.S.C. § 924(e)(2)(B)(ii). In Shuti v. Lynch, the Sixth Circuit extended Johnson’s reach to the Immigration and Nationality Act’s (“INA”), 8 U.S.C. § 1101 et seq., residual clause’s definition of a “crime of violence.”  

          Altin Shuti, a lawful permanent resident of the United States, was convicted of unarmed robbery which Michigan law defines as ‘“larceny of any money or other property’ accomplished by using ‘force or violence against any person who is present’ or ‘assault[ing] or put[ting] the person in fear.’” Mich. Comp. Laws § 750.530. After Mr. Shuti was sentenced to a prison term of more than a year, the Department of Homeland Security initiated proceedings to remove him to his home-country of Albania.  

          Under the INA, a non-citizen “convicted of an aggravated felony at any time after admission,” 8 U.S.C. § 1227(a)(2)(A)(iii), is ineligible for most forms of discretionary relief from removal. An “aggravated felony” means “a crime of violence (as defined in section 16 of title 18 …) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,” as defined by 18 U.S.C. § 16(b), includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  

          In Mr. Shuti’s case, an immigration judge ordered his removal to Albania. Although the Supreme Court decided Johnson while Mr. Shuti’s case was on appeal, the Board of Immigration Appeals (BIA) stated that it did not address the constitutionality of the laws it administered. The BIA concluded that the void-for-vagueness doctrine did not apply to civil removal proceedings and affirmed the removal order.  

          In an opinion by Chief Judge Cole, the Sixth Circuit rejected the notion that the void-for-vagueness doctrine did not apply to removal proceedings because they were civil in nature. The court examined the residual clauses of the ACCA and the INA and found that they “undeniably bear a textual resemblance.” Chief Judge Cole noted that “both provisions combine indeterminacy about ‘how to measure the risk posed by a crime’ and ‘how much risk it takes for the crime to qualify’ as a crime of violence or a violent felony.” Thus, the court found that the INA’s residual clause fell “squarely within Johnson’s core holding” and that its definition of a “crime of violence” was void for vagueness.

Friday, July 01, 2016

The death by a thousand cuts of Johnson v. United States

This is the way the world will end. Not with a bang but with a series of dispiriting unpublished opinions. If you thought that Johnson would usher in a new era of sentencing jurisprudence based on close analysis of the remaining provisions of post-residual-clause sentencing statutes, you are now waking up to the dystopian reality suggested by today's opinion in United States v. Jackson. Jackson addresses whether a Georgia conviction for conspiracy to commit voluntary manslaughter is a violent felony under the Armed Career Criminal Act. You have already guessed the answer.

The Georgia voluntary manslaughter statute punishes murder when committed "as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." The first way you know that this case will not turn out well is when the conviction is for conspiracy to commit voluntary manslaughter, but the opinion does not discuss conspiracy. How could merely conspiring to do something ever have as an element the use, attempted use, or threatened use of force? The opinion has no intention of answering that question. (Come to think of it, how could you even conspire to commit a murder under a "sudden, violent, and irresistible passion"? The state of Georgia is going to have to answer that one.)

But even after the opinion dedicates itself to addressing a different crime than the one the defendant was convicted of, it finds ways to shoot down a few sacred cows of Johnson jurisprudence. It simply shrugs off the notion that you can easily kill someone in ways that do not involve "force" as defined by the Supreme Court, "like poisoning or laying a trap" or through "deceit or fraud," suggesting that this issue is already settled in the Sixth Circuit. The panel alights on United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), but it ignores cases like United States v. Jones, 673 F.3d 497 (6th Cir. 2012) (acknowledging that Tennessee attempt to commit second degree murder could not have an element of force because it "includes poisoning, which need not involve direct physical contact or force").

Even though Jackson was relegated to the unpublished opinions, defenders will need to sharpen their pencils and be prepared to distinguish this case -- and the inevitable bad cases to follow -- if they want Johnson to have any appreciable impact on clients.