Friday, August 16, 2019

§ 2255 waiver does not bar an ACCA challenge

Today's published decision in Vowell v. United States giveth and taketh away. It "giveth" in the form of some very helpful published law disambiguating conflicting precedent regarding whether and when a knowingly-entered § 2255 waiver in a plea agreement bars a § 2255 motion asserting that a defendant was wrongly designated as an armed career criminal. A prior published decision in Slusser v. United States suggested the waiver could bar such a motion. However, the Vowell panel found that Slusser improperly considered even earlier precedent (in Untied States v. Caruthers) to be dicta when in fact it was not. The upshot? An improper ACCA designation falls squarely within the category of cases in which a defendant is challenging an increased sentence above the statutory maximum, and thus the waiver does not bar the motion.

That huge procedural win notwithstanding, the Vowell decision "taketh away" in concluding that Mr. Vowell's Georgia burglary was still an ACCA-predicate. The statute is divisible, and a Shepard analysis revealed that his conviction fell into the portion of the statute that would require entry into a "dwelling house" and thus meet the standard for generic burglary.

A few final notes:

1. Numerous footnotes are doing a lot of heavy lifting in this decision.

2. It is not clear when judges started referring to armed career criminals as having been "sentenced as a career offender under the ACCA," as this decision does 13 times, but this is incredibly confusing for criminal practitioners.

Monday, August 12, 2019

Missouri third-degree assault not an ACCA predicate violent felony

In a per curiam decision in (Derrick) Johnson v. United States today, the Sixth Circuit holds that Missouri third-degree assault does not require the requisite level of force to be considered a violent felony under the Armed Career Criminal Act. The panel (a lucky draw by any standards) noted that under Missouri law, the third-degree statute could be satisfied by merely "[s]neezing at someone with the intent to transmit a minor illness." Accordingly, it did not meet the violent physical force required by the ACCA. Bless you.

No qualified immunity for officers who shot a man trying to kill himself

Officers received a call about a man who was trying to kill himself by slitting his wrist with a knife. When four officers confronted the bleeding man, he held a knife up to his neck as if to kill himself. From a distance of 30 feet away, two of the officers shot the man, killing him.

In today's decision in Studdard v. Shepherd, the Sixth Circuit describes the legal question raised by the officers' unusual mental-health intervention rather dryly: "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others?" The court easily answers in the negative, and thus affirms the district court's denial of qualified immunity. So let this be a lesson to officers everywhere: do not fatally shoot someone to stop him from killing himself.

Thursday, August 08, 2019

A Mortgage Company Not Being a Bank the Sixth Circuit Reverses Bank Fraud Convictions

“In this case the government charged the defendants with the wrong crimes,” begins the Sixth Circuit’s opinion in United States v. Banyan, where it reverses the defendants’ bank fraud convictions. The reason: the government didn’t show the defendants got any money from a bank.

The defendants were a homebuilder and a mortgage broker. The builder fell into financial distress, and the two submitted a number of fraudulent mortgage applications to two different mortgage companies, which were wholly-owned subsidiaries of two different banks, Sun Trust and Fifth Third. After things fell apart, the defendants were charged with bank fraud in violation of 18 U.S.C. § 1344 and conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. A jury found them guilty; the government did prove the defendants got money by way of fraud.

The problem with the government’s case was that neither of the mortgage companies had deposits that were federally insured, and, therefore, neither was a “financial institution,” which is the type of entity to which sections 1344 and 1349 apply. The court labeled as “nearly frivolous” the government’s argument that the mortgage companies should be considered banks “because each of them is a wholly owned subsidiary of a bank” for two reasons. One being “a basic tenet of American corporate law” that a corporation (the mortgage companies) and their shareholders (the banks) are “distinct entities.” The second reason was Congress' pains to define “precisely” the term “financial institutions” as “institutions that hold federally insured deposits – which the defrauded mortgage companies undisputedly did not.”

The court found no evidence supporting a peek beyond or behind the corporate structure distinguishing the parent banks and their subsidiary mortgage companies. First, “the government offered no evidence that the banks here in fact had ‘some duty’ or power or authority to ‘guide or manage’ the mortgage companies’ funds.” Second, the court rejected the argument that the loss would be ultimately the parent banks, as an “economic” argument inconsistent with statutory text. Third, there was no evidence either of the banks funded any of the loans or that any agent or employee of either considered the fraudulent mortgage applications.

Wednesday, August 07, 2019

The Sixth Circuit Once More Analyzes Whether Ohio State Law Convictions are “Crimes of Violence” Under the Guidelines

The Sixth Circuit waded once more into the question of whether state convictions qualified as crimes of violence under U.S.S.G. § 2K2.1(a)(2) in United States v. Johnson. At issue were convictions under Ohio law for robbery and for complicity to commit aggravated robbery.

The defendant, Lawrence Johnson, was convicted of one count of being a felon in possession of a firearm. He had at least four prior felony convictions in Ohio, in 1982 for attempted robbery, for robbery in 1983 and in 1997, and in 2005 for complicity to commit aggravated robbery. A prior appeal had successfully vacated a district court finding that Johnson was subject to the Armed Career Criminal Act and a statutory minimum sentence of 15 years. United States v. Johnson, 708 Fed.Appx. 245 (6th Cir. 2017). On remand, however, the district court determined that the 1997 robbery conviction, which was under a different statutory subsection than the 1983 robbery conviction, and the 2005 conviction for complicity to commit aggravated robbery did constitute “crimes of violence” under the guidelines, a finding that increased his base offense level. A sentence of 71 months, one at the top end of guidelines range, was imposed and appealed.   

The Sixth Circuit held that the 1997 robbery conviction qualified as a “crime of violence” because the relevant statute, ORC § 2911.02(A)(2), “requires violent force, that is, force capable of inflicting pain or injury.” This requirement was drawn from Johnson v United States, 559 U.S. 133, 141-42 (2010), where the Supreme Court defined “physical force” under the ACCA to mean “force capable of causing physical pain or injury to another person” and the incorporation of that definition for guidelines analysis by the Sixth Circuit in United States v. Evans, 699 F.3d 858, 863 (6th Cir. 2012), abrogated on other grounds by United States v. Havis, 927 F.3d 382 (6th Cir. 2019)(en banc)(per curiam). Furthermore, the court noted that a conviction driven by a reckless use of force could still qualify as a crime of violence.

The Sixth Circuit also held that the 2005 conviction for complicity to commit aggravated robbery qualified as a crime of violence. First, the court noted a prior decision, United States v Patterson, 853 F.3d 298 (6th Cir. 2017) holding that an Ohio conviction for aggravated robbery under the relevant statutory subsection qualified as a crime of violence under the ACCA and, therefore, also under the guidelines. The real question was whether the conviction “of complicity to commit aggravated robbery makes a difference.”

This Sixth Circuit noted that Ohio law equated complicity with aiding or abetting another in committing the offense and that the underlying substantive offense “must have been either attempted or completed for a complicity conviction to stand.” Since the underlying offense, aggravated robbery, included the element of “use, attempted use, or threatened use of physical force” a conviction for complicity likewise included that element.

As a final point, the Sixth Circuit rejected Johnson’s argument “that the guidelines commentary is what brings [his] aiding and abetting offense” in as a “crime of violence” under § 4B1.2(a) of the guidelines. Indeed, the commentary does advise that a crime of violence “includes ‘the offenses of aiding and abetting.’” U.S.S.G. § 4B1.2, Application Note 1 (2015). But this, as the court noted, was of no matter and the en banc court’s caution in United States v. Havis about over-reliance on guidelines commentary immaterial because the “express text” of § 4B1.2(a) compelled the result.

Saturday, July 27, 2019

A Bridge Too Far: Court Limits Scope of First Step Act in Felon-in-Possession Case

Early one morning, Joey Wiseman woke to the sound of someone attempting to break into his apartment.  Using his video surveillance system, Wiseman discovered that the individual was armed with a handgun  Wiseman, who was armed himself, encountered the assailant, knocked the gun out of his hand, and then shot him.  With his would-be robber bleeding on his living room floor, Wiseman, who was a convicted felon, faced a difficult choice: should he first call 9-1-1 or hide both the gun and the multiple grams of cocaine that were in his apartment?  He chose the later.  After hiding the cocaine and gun in a safe in his car, Wiseman called 9-1-1.  In a subsequent interview, however, Wiseman admitted to the police that he hid the handgun and cocaine in his car, and the police subsequently seized both items after obtaining a search warrant.

A federal grand jury subsequently indicted Wiseman for two counts of possession with intent to distribute cocaine and one count of being a felon in possession of a firearm and ammunition.  In addition, the Government filed an 851 notice that Wiseman had prior felony drug convictions it would rely upon in enhancing his maximum sentence from twenty to thirty years pursuant to 21 U.S.C. §§ 841(b)(1)(C).

A jury subsequently convicted Wiseman of all three counts.  The District Court, after finding that he was a career offender, sentenced Wiseman to 262 months imprisonment.

On appeal, Wiseman turned to the First Step Act as a basis for many of his arguments. First he challenged the enhancement of his sentence, arguing that he was not eligible for the sentencing enhancement under 21 U.S.C. §§ 841(b)(1)(C) and 851(a) because he had not committed any "serious drug felonies" as defined under the First Step Act.  He also argued that the District Court erred in denying his request for a justification instruction and in overruling his objection to testimony during his trial from a special agent that he had received "a call from Adult Parole Authority."  Finally,  citing the First Step Act, Wiseman argued the District Court erred in finding he was a career offender under the Guidelines because he had served less than a year imprisonment on each of his supposedly qualifying charges.

In its decision in United States v. Wiseman, the Court rejected all of Wiseman's arguments and affirmed both his conviction and sentence.  First, the Court held that the First Step Act, which became effective after his conviction, was not retroactive, and, even if it was, it did not alter the language for qualifying convictions under 21 U.S.C. § 841(b)(1)(C).

The Court also concluded that the District Court properly rejected Wiseman's request for a justification instruction.  Wiseman, the Court noted, failed to show that he was justified in possessing the firearm because he possessed it long before he saw the would-be robber enter his home.  In addition, the Court noted that Wiseman continued possessing the gun after the danger had passed by placing the weapon in a safe before the police arrived.

The Court similarly rejected Wiseman's challenge to the admission of the special agent's testimony implying that he was on parole status.  The jury, the Court concluded, was already well aware that Wiseman had a prior felony conviction because he had been charged under 18 U.S.C. § 922(g)(1) and because he had stipulated prior to trial that he had felony convictions.  The Court thus held that any error was harmless.

 Finally, in challenging the District Court's finding that he was a career offender, Wiseman argued that the District Court should have considered the definition of a "serious drug felony" under the First Step Act in its analysis.  The Court disagreed and noted that the Act did not alter the definition of offenses that qualify for career offender status under the Guidelines.

Less than a year into its implementation, courts are still addressing the scope of the First Step Act. We will no doubt continue to see cases like this one addressing creative arguments under the Act.


United States v. Bailey: Court Holds Guidelines Cross-Reference Provision Covers Attempts to Obstruct

After a jury convicted her then-boyfriend, Michael Clayton, of sexually exploiting a minor, Davi Bailey used Facebook Messenger to send threatening messages to one of the testifying witnesses and her sister.  Bailey subsequently pleaded guilty to one count of witness retaliation in violation of 18 U.S.C. § 1513(b)(1), (c) and 18 U.S.C. § 1591(a)(1), (b)(2) for threatening the witness's sister after the trial.  She subsequently appealed the 78-month sentence imposed by the District Court.

On appeal, Bailey challenged both the procedural and substantive reasonableness of her sentence.  In particular, she argued that the District Court erred in applying the cross-reference pursuant to USSG § 2J1.2(c)(1) because it does not apply to attempted obstruction and Clayton was ultimately convicted.

The Court disagreed.  Citing language from the obstruction of justice provision, USSG § 2J1.2, dicta in its prior decision in United States v. Roche, and case law from other circuits, the Court held that cross-reference provision covers attempted obstruction.  It also did not matter, the Court concluded, that Bailey made her threats after Clayton had been convicted since the prosecution did not end until he had been sentenced.

You can find the Court's opinion here.

Wednesday, July 24, 2019

Voisine and Verwiebe Strike Again: Court Denies Rehearing but Notes Circuit Split

James Walker, a convicted felon, found employment managing a rooming house.  One day, he discovered thirteen bullets on the property and removed them for safekeeping.  This resulted in his subsequent indictment by a federal grand jury and his ultimate conviction in 2010 for being a felon in possession of ammunition.  During his sentencing, the District Court held he was subject to the fifteen-year mandatory minimum (180-month) sentence under the ACCA.

After the Supreme Court issued its opinion in Johnson v. United States in 2015, Mr. Walker sought habeas relief by arguing he was not an armed career criminal because several of his prior convictions no longer qualified as "violent" felonies.  The District Court agreed and resentenced him to 88 months imprisonment.  The Government appealed.

On appeal, Mr. Walker argued that his 1982 Texas robbery conviction did not constitute a "crime of violence" because it also included reckless conduct.  In an unpublished opinion, the Court, citing its decisions in Verwiebe and Davis, held that the conviction qualified as  a "violent" felony under the ACCA -- even though it included reckless conduct -- and remanded the case for resentencing.  Judge Stranch issued a concurring opinion criticizing the Court's decision in Verwiebe for improperly expanding upon the Supreme Court's decision in Voisine but holding that the Court was nevertheless bound to existing precedent.

In a recent order, the Court denied Mr. Walker's petition for rehearing en banc, and, unlike its original opinion, agreed to publish its decision. Judges Kethledge, Moore, Stranch, and White would have granted rehearing, however, and Judges Kethledge and Stranch entered separate dissenting opinions.  In their dissents, both judges acknowledged that, prior to Voisine, courts uniformly held that crimes including the reckless use of force did not qualify as violent felonies under the ACCA.  They also agreed that some circuits, including the Sixth Circuit, have incorrectly expanded Voisine's reach, resulting in a circuit split.  Judge Kethledge noted that Voisine construed a different provision -- a "misdemeanor crime of domestic violence" -- and that the Court has incorrectly applied the same construction to the definition of a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i).

Judge Stranch wrote separately to state that the Supreme Court in Voisine left open the possibility for "divergent" readings of the use of force requirement.  This, she explained, gave the Court an avenue to rehear Mr. Walker's case.

Sadly, Mr. Walker, who is now 65-years old, must return to prison to serve the remainder of his fifteen-year mandatory minimum sentence under the ACCA for possessing thirteen bullets.  His case reminds us that there are divergent opinions about the application of Voisine to the reckless use of force and that defense counsel should continue litigating such issues.

You can find the Court's order here.

Thursday, June 13, 2019

Carpenter on Remand: Good Faith Exception Applies

On remand from the Supreme Court, the Sixth Circuit considered United States v. Carpenter, the subject of the Supreme Court’s groundbreaking decision on the use of cell-site location data.  In light of the Supreme Court’s holding that such data requires a warrant, the Sixth Circuit considered whether the data should be suppressed.  Unfortunately for Mr. Carpenter, the court held that the good faith exception applied. 

The Sixth Circuit held that the FBI agents relied in good faith on the Stored Communications Act when they obtained the defendant’s cell-site data. The court reasoned that there is little logical difference between an agent relying in good faith on a faulty warrant and an agent relying in good faith on a faulty law.

Going forward, the government must obtain a warrant to compel a wireless carrier to provide cell-site location data, but data obtained under the SCA prior to Carpenter falls under the good faith exception. 

Opinion available here.

Possessing Ammunition Does Not Bar a Defendant from Safety Valve

18 U.S.C. § 3553(f) allows courts to sentence defendants below the mandatory minimum in certain situations.  One requirement is that the defendant must not possess a firearm or a dangerous weapon in connection with the offense.  In United States v. Penny, the Sixth Circuit decided whether possessing ammunition constituted possession of either a firearm or a dangerous weapon.

In a straightforward opinion, the court held that a defendant with only ammunition does not possess a firearm or a dangerous weapon.  Barring a defendant from the safety valve provision requires actual or constructive possession of a firearm, not just ammunition.  Further, possessing ammunition does not allow the sentencing court to infer possession of a firearm.  The Sixth Circuit also clarified that ammunition itself is not a dangerous weapon.  Ammunition without a firearm cannot be used to inflict death or serious injury.

Opinion available here.