Thursday, December 07, 2017

Don't Bring a Gun to a Felony

Consider the following interaction between three people: Darryl Jackson (the defendant); Cecil (the confidential informant), and Peter (the undercover police officer):

[Darryl emerges from a nearby house]

Cecil: Hey, Darryl, I’d like to buy a gram of heroin.
Darryl: Sure thing. That will be $120.

[After Darryl hands Cecil the heroin]

Cecil: Hey, I’m in a bit of a pickle. Do you know where I can pick up a pistol?
Darryl: Not really… Well, I might have one I can sell you.
Cecil: I’ll buy it from you for $300.
Darryl: How about $400?
Cecil: Deal.

[Darryl walks to a different house down the street and returns a few minutes later. Darryl and Cecil exchange the pistol for cash and depart.]

[A few days later]

Darryl: Hey, Cecil, I have another gun for sale for $500.
Cecil: Sure, let’s meet where we met up last time.

[The two meet and make the transaction.]

Cecil: Hey, I know someone else who wants to buy some heroin. Are you interested?
Darryl: Sure.
Cecil: Great, let’s meet at that car over there.

[Darryl walks to get heroin. Cecil leaves the area and gets into the police car with Peter. A few minutes later, Darryl gets in the car.]

Darryl: Here’s your half-gram of heroin. That’ll be $45.
Peter: Here you go. Thanks.

[End Scene.]

What do you think? Did Darryl use or possess those guns in connection with the drug transactions? That was the question the Sixth Circuit had to answer in United States v. Jackson.

U.S.S.G. § 2K2.1(b)(6)(B) requires increasing the offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense.” To answer that question, the Sixth Circuit helpfully outlined the typical circumstances where the enhancement applies:
  • Fortress: When guns are in close proximity to the drugs, and so the judge can infer that the defendant kept the guns nearby to protect the drugs or to intimidate buyers.
  •  Pot Sweetener: When guns and drugs are part of a package deal. For example, if the sale is for 60 pills and a shotgun in exchange for $600, instead of $400 for the pills alone.
  • Currency: Using firearms as currency in exchange for drugs. For example, 1 gram of heroin in exchange for one rifle.

The majority of the panel concluded that the events described above did not fit within any of these three theories. First, the majority asked, How is the gun offering any offensive or defensive protection down the street? Not much. There was also no evidence Darryl brought a gun and  drugs to the second meeting either. As far as anybody knew, the guns and drugs were always separated or even in different houses.

Second, even though the gun and drugs were technically present during the second meeting, Darryl had already sold the gun to Cecil, and so there was no risk he would use the gun to facilitate the drug sale. 

Third, the guns never sweetened any of the deals. Each sale was isolated: two sales where Darryl received cash in consideration for heroin; and two sales where guns were exchanged for cash. The separate sales for separate consideration could hardly be part of the same sweet pot.  Nor did Darryl and Cecil ever use the guns as currency.

Because Darryl did not come armed during the sales, store guns and drugs together, trade guns for drugs, or negotiate the gun and drug sales together, § 2K2.1(b)(6)(B) did not apply to him. That finding of fact has tremendous consequences for Darryl; his guidelines range dropped from 110-137 months to 77-99 months. If he receives a 10-month downward variance as he did before, he could serve 33 fewer months in prison. That's nearly three years. In sentencing, findings of fact matter.

Onward! The Sixth Circuit Denies Rehearing En Banc in Raybon

Practitioners know, but the public may not, that some of the most consequential decisions courts make are not reported in the news or even in publicly available opinions. Indeed, some of these decisions don’t even come with much explanation.

Many federal prisoners who were sentenced as career offenders when the guidelines were still mandatory have been trying to get courts to consider whether their sentences are unconstitutional according to the rule announced in Johnson v. United States. Johnson held that the so-called residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Supreme Court said that rule is retroactive, meaning that those who were serving sentences imposed because of the ACCA’s statutory mandatory minimum could have re-sentencing hearings. Although the Court held that Johnson’s rule did not apply to those who were designated career offenders under the advisory guidelines, the Court did not address the application of Johnson to the mandatory guidelines.

In August, the Sixth Circuit held that these prisoners sentenced during the pre-Booker years under mandatory guidelines could not use Johnson to get new sentences because their petitioners were not “timely.” A § 2255 motion is timely when filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The court reasoned that these prisoners, like Jerome Raybon, who filed their § 2255 petitions within one year of the Johnson opinion had filed too soon because the Supreme Court has not yet said explicitly that Johnson’s holding applies retroactively to the mandatory guidelines. (Full disclosure: my office represents Mr. Raybon.)

Mr. Raybon filed a petition for rehearing en banc. Since that time, many prisoners who happen to reside in the Sixth Circuit have been denied the opportunity to litigate the legal questions raised in their petitions. The First Circuit has criticized the Sixth Circuit’s approach. But, on December 6, 2017, the Sixth Circuit denied Mr. Raybon’s petition because less than a majority of the judges voted to hear the case en banc.

That small decision carries significant consequences for prisoners in the Sixth Circuit. Attorneys representing these people should continue to argue that Raybon was wrongly decided. Maybe the full court will address the question at some other time. Until then, however, Raybon remains the law in Michigan, Ohio, Tennessee, and Kentucky unless the Supreme Court intervenes. The men and women sentenced pre-Booker must wait patiently in prison until that time if it comes at all.

Wednesday, December 06, 2017

Prosecution's use of cell-site location analysis upheld

Last week, the Sixth Circuit, on the government's motion, published the previously unpublished decision in United States v. Pembrook (which -- full disclosure -- I worked on). There are issues preserved for Supreme Court review -- claims related to Carpenter and Dimaya -- so I won't go into too many details. But because of the government's request to publish, I think it's useful to flag the case here.

In a nutshell, Pembrook was a four-defendant consolidated appeal in a Hobbs Act robbery case, with stacking 924(c) counts. Each defendant received 33 years in prison. A big part of the government's case was historic cell-site location information (from a "tower dump") that prosecutors used to argue that the defendants traveled from Philadelphia to the West-side of Michigan (where one robbery occurred) and then to the East-side of Michigan (where a second occurred) before returning to Philadelphia.

We challenged the reliability of the cell-site analysis on appeal, citing among other things the Sixth Circuit's criticism of cell-site analysis in United States v.Reynolds. But the court distinguished the type of analysis criticized in Reynolds by emphasizing that the cell-site analysis in Pembrook's case spanned "a much larger geographical area" -- i.e., state-to-state, East v. West side of Michigan. In the court's view, "[a]t this level of geographic distance, cell-site analysis is established as reliable."

The motion to publish argued that "[l]itigants have inundated federal courts in this circuit with claims challenging the propriety of testimony about cell site location analysis." The motion provides a snapshot of how the government may try to use this case in the future. Particularly, the prosecutor asserted that the court found "cell site analysis—generally—is sufficiently reliable to satisfy Daubert and Rule 702" and "is objectively tested and subject to peer review, and the absence of an error rate is irrelevant." The prosecutor added that "[t]he real question . . . is whether cell site location analysis is reliable in a particular case."

So at the end of the day, litigators still need to test the reliability of cell-site analysis in each particular case. But this opinion underscores, as the Supreme Court did recently at oral argument in Carpenter, that the ubiquity of cell phones and location data provides the government with a potentially powerful tool against criminal defendants.

No Right to Try

The Immigration and Nationality Act is a swampy mess of numbers, letters, and Roman numerals big and small. Trying to make sense of it is a challenge. For that reason, many people who have been served with a notice of removal retain counsel to guide them through the removal, a.k.a. deportation, proceedings.

When facing the possibility of deportation after serving one year in prison for being a drug user who possessed a firearm, Emilio Estrada decided to retain a lawyer to help him navigate the proceedings and to help interpret INA alphabet soup. Unfortunately, the lawyers he retained did not advise him that green-card holders who have been convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(E)(ii), can beg an immigration judge to allow them to remain in the United States, see id. § 1182(h) (INA § 212(h)). That provision of the INA permits an immigration judge to allow an immigrant to remain in the United States if his deportation would cause extreme hardship to his spouse, child, or parent who is a U.S. citizen or lawful permanent resident. The immigration judge did not inform Mr. Estrada of this fact. Mr. Estrada’s lawyer didn’t either. Instead, Mr. Estrada’s counsel admitted to all facts in the removal order, and Mr. Estrada was deported to Mexico.

Six years later, federal agents found Mr. Estrada in the United States, and he was charged with two counsel of illegal reentry following deportation. Mr. Estrada decided to put up a fight. He filed a motion to dismiss the indictment, collaterally attacking the fundamental fairness of his earlier removal proceedings.

To succeed, Mr. Estrada had to demonstrate all three of the following: (1) that he exhausted all available administrative remedies; (2) that the deportation proceedings deprived him of the opportunity for judicial review; and (3) that the entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326(d). A fundamentally unfair removal hearing is one that deprives the deportee of due process, i.e., life, liberty, or property, and resulted in prejudice.

The Sixth Circuit held that Mr. Estrada could not prevail because the immigration judge and his attorney did not deprive him of any life, liberty, or property interest because the relief provided by § 212(h) is just discretionary. In essence, § 212(h) grants only an opportunity to try, not an affirmative right to remain. But, unlike the Second and Ninth Circuits, the Sixth Circuit does not believe the right to try is a constitutionally protected interest. Because Mr. Estrada was not deprived of life, liberty, or property, the court reasoned, the immigration judge did not deprive him of due process. The court also held that Mr. Estrada had no constitutional right to accurate and complete attorney advice either.

Unless the Supreme Court takes up this question that has caused a circuit split, Mr. Estrada will likely be convicted, sentenced to prison, and then deported. What hardship may befall his family members if he is deported remains unknown.

Court enforces plea waiver of future retroactive sentencing reductions

Regular readers of this blog will know that the Sixth Circuit has a history of broadly construing appeal waivers in plea agreements. Consider our posts on United States v. GriffinUnited States v. Keller, and United States v. Luebbert.

This week's published decision in United States v. Clardy is in the same vein as those decisions but with a twist --  rather than challenging his appeal waiver, the defendant challenged the waiver of his right to take advantage of a sentencing reduction under 18 U.S.C. § 3582(c)(2).

Unfortunately for Clardy, his plea agreement explicitly referred to § 3582(c), stating that he "knowingly waives the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c)."

Clardy argued that this waiver was ambiguous for three reasons: (1) it was titled "Waiver of Appellate Rights," (2) it confusingly referred to a § 3582(c) motion a "collateral attack," and (3) authority to reduce sentences belongs to the district court so defendants can't waive it. The Sixth Circuit rejected each argument.

This decision serves as an important reminder that defense attorneys need to carefully explain all provisions in a plea agreement to clients. 

I'd note also that the decision is limited to those situations where § 3582(c) is explicitly named in the plea agreement. If the text of a plea agreement never mentions § 3582(c), the defendant should still maintain the ability to take advantage of a subsequent change in the sentencing law that is made retroactive. In such cases, the plea agreement is at best ambiguous with respect to whether the defendant is waiving this important right, and any ambiguity in the agreement is construed against the government. See United States v. Goodloe, 388 F. App'x 500, 503 (6th Cir. 2010) (refusing to construe appeal waiver not explicitly naming § 3582 as sufficient to waive a defendant's right to file a § 3582(c) motion); United States v. Monroe, 580 F. 3d, 552, 556–57 (7th Cir. 2009) (same); United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003) (same).

Thursday, November 30, 2017

For purposes of issuing a certificate of appealability, the Sixth Circuit applies Slack v. McDaniel to determine if a habeas petition states a “valid claim” of the denial of a constitutional right.

          The Supreme Court held in Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added) that when a habeas corpus petition is denied on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability (COA) should issue when the petitioner makes a showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” In Dufresne v. Palmer, the Sixth Circuit addressed the meaning of Slack’s “valid claim” language.
          The district court denied Mr. Dufresne’s habeas petition (28 U.S.C. §2254) because two of his claims were procedurally defaulted and he was not entitled to relief on the merits of the remaining three claims. Mr. Dufresne filed a notice of appeal which the Sixth Circuit construed as an application for a COA under Fed.R.App.Proc. 22(b)(2). The Sixth Circuit said it could not overturn the denial of a COA unless reasonable jurists could debate whether it “states a valid claim of the denial of a constitutional right.” Consequently, it had to determine what constituted a “valid claim” under Slack.
To meet Slack’s standard the Sixth Circuit said a habeas petitioner cannot simply allege claims that are “arguably constitutional,” those claims “must also be arguably valid or meritorious.” (Sixth Circuit’s emphasis). The Sixth Circuit found such an approach consistent with the text of the Anti-Terrorism and Effective Death Penalty Act (AEDPA – see 28 U.S.C. §2253(c)(2) and §2254(d)) and Slack’s interpretation of its meaning. Since a COA can be issued only if the habeas petitioner makes a substantial showing of the denial of a constitutional right, a circuit court’s inquiry goes to the procedural component of the district court’s decision as well as the underlying merits. In addition, Slack’s standard is framed in terms of what “jurists of reason would find … debatable.” The Sixth Circuit cautioned against a full-blown merits inquiry at the COA stage. After examining the decisions of other circuit courts of appeals the Sixth Circuit concluded, “All that matters for our purposes is that a modest assessment of the merits of the claim is required.” The Sixth Circuit made that assessment of Mr. Dufresne’s claims and denied his application for a COA.



Wednesday, November 15, 2017

Johnson is still dividing the Court

Much has changed since the Supreme Court issued its Johnson decision in June 2015, but one thing remains the same: we still have no comprehensive understanding of how the decision applies, and the law surrounding the Armed Career Criminal Act remains as murky as ever. Two decisions in the last week at the Sixth Circuit exemplify this murkiness, revealing stark divisions within the appeals court and unusual allegiances among the judges.

Perhaps most notably, last Friday's decision in United States v. Harper saw a panel of judges reluctantly following---then lambasting---the Court's out-of-the-blue Verwiebe decision, which had held that the Supreme Court's decision in Voisine negated a decade of ACCA jurisprudence prohibiting the use of reckless conduct as an ACCA predicate. In Harper, Judge Kethledge noted that the panel was bound by Judge Sutton's decision in Verwiebe, but then devoted the large majority of the Harper decision to "explain[ing] why, in our view, the decision in Verwiebe was mistaken." The fact that the panel chose to publish the Harper decision criticizing the (also published) Verwiebe decision may indicate that at least these three judges would be inclined to grant en banc review of Verwiebe.

We see this same inter-chambers conflict in a single decision in today's decision in Brian Williams v. United StatesThere, a three-judge panel managed to produce a majority opinion, a concurrence, and a dissent, all on the same subject as as Verweibe and Harper: what constitutes "violence." Specifically, the panel addressed Ohio's felonious assault statute, which potentially allows conviction "based on a showing of purely mental injury." In a 2012 published decision, the Court had determined that the statute did qualify as a violent felony; however, in a 2016 order, the Court granted Mr. Williams leave to file a second-or-successive petition because "much has changed in the four years" since the earlier decision, and ordered the district court to determine whether the statute was still categorically violent under the ample new precedent. The district court found no reason to upend the existing precedent. Neither did the Sixth Circuit. Judge Moore's majority opinion held that the question was "of little import here," because the prior precedent addressed the elements clause rather than the residual clause of the ACCA, and thus "the holding of Johnson [] is not implicated in this case." Judge Moore concurred, noting that she agreed that the panel was bound by prior published precedent, but arguing that the prior published precedent was wrong and should be reconsidered en banc.

Judge Merritt dissented, saying what we're all thinking at this point:

"Perhaps this confusion is not surprising because, as Justice Breyer said, the Armed Career Criminal Act creates a 'time-consuming legal tangle.' Justice Alito agreed and referred to the analytical process simply as a 'mess.'"

Whatever analytical "mess" these decisions point to, it is helpful to remind ourselves that there are very real consequences. In both cases, the individuals raising these arguments will spend many more years in prison as a result of these decisions.

Tuesday, November 07, 2017

When is a Special Supervised Release Condition Appropriate?

United States v. Blake Childress
In 2012, Blake Childress pled guilty to being a convicted felon in possession of a firearm. At the time of sentencing, he had a pending state incest charge. After his federal sentencing, he was tried and convicted on the incest charge.  However, the Tennessee Court of Criminal Appeals reversed the incest conviction and remanded for a new trial.  He pled to a reduced charge of aggravated assault.  Based on his guilty plea, the federal district court held a hearing on the probation officer’s petition to modify Childress’s supervised release order.   The district court subsequently added two modifications to his special conditions of supervised release, including a psychosexual assessment.   Blake Childress appealed the modification that required him to submit to a psychosexual assessment because he was merely convicted of aggravated assault.

The Sixth Circuit reviewed the imposition of the special supervised release condition from a procedural and substantive dimension.  The procedural dimension requires the district court to state in open court at sentencing the reasons and rationale for the imposition of the special condition.  This dimension was not challenged by Childress. 

From the substantive dimension, the condition must be reasonably related to the factors applicable to supervised release as detailed in 18 U.S.C. § 3583(d)(1) and must involve no greater deprivation of liberty than reasonably necessary to comply with the sentencing purposes. 18 U.S.C. § 3583(d)(2).  Finally, the special condition must be consistent with any pertinent policy statement. 18 U.S.C. § 3583(d)(3). 

Childress challenged the condition from the substantive dimension and disagreed with the district court’s conclusion that the psychosexual assessment was reasonably related to “the history and characteristics of the defendant.”  However, the Sixth Circuit upheld the district court’s conclusion that his history and characteristics warranted imposing a sex-offender evaluation.  The Sixth Circuit relied on United States v. Carter, 463 F.3d 526 (6th Cir. 2006) and held that “the question is not whether the title of the offense denotes a sexual offense but whether the defendant ‘actually committed the offense…in a sexual manner.’”

Friday, November 03, 2017

We've joined Twitter! Hello 21st Century.

As Oprah famously posted in her first tweet:
The Sixth Circuit Blog is officially joining the Twitter-verse, under the handle "6thCirBlog."
If you are a Twitter person, please consider following us or tweeting to us. Jonathan Zittrain, Harvard law professor, once remarked, "The qualities that make Twitter seem inane and half-baked are what makes it so powerful." We just hope to expand the conversation about criminal appellate law in the Sixth Circuit. 

We'll primarily be posting links to our summaries and analysis of Sixth Circuit published criminal opinions. We may also occasionally share news of note to criminal appellate practitioners in the circuit. 

Nothing will change about the blog or the RSS feed. So if you sympathize with former Daily Show host Jon Stewart, who said about Twitter -- "I have no idea how it works, or why it is" -- then you have no need to worry.

Wednesday, November 01, 2017

Evenly divided Sixth Circuit allows 10-year mandatory minimum to stand for minor player in drug conspiracy

This week in United States v. Gibson, the judges of Sixth Circuit, after hearing en banc argument, announced that they were evenly divided on the question whether a co-conspirator who only directly handled a very small amount of drugs should be held accountable for the total amount of drugs involved in the entire conspiracy. That means that, because the original panel decision affirmed the co-conspirator's sentence and conviction, the sentence and conviction remain affirmed.

The background of the case is laid out in Laura's post from April last year (The en banc reviews keep coming!):
Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:

"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents." 
Judge Rogers also noted the Circuit split on the issue.
Robert had noted in a comment to that article:
Three issues to watch with this case: (1) en banc review is rare, but all the more so in cases (such as this) where plain error review apparently applies; (2) Gibson received the mandatory statutory minimum for the offense to which he pled; and (3) the Government argued that further review was unnecessary because current prosecutorial guidelines prescribe charging an individualized drug quantity and seeking a jury instruction for a finding of an individualized drug quantity. ...
Frustratingly, we don't get to know how the vote count went down, or why exactly the court was split on the case. But I have to imagine that the concerns Robert raised might have had something to do with it, so it would seem that this issue is still one we need to watch out for and preserve.