Tuesday, January 06, 2015

Sixth rules 922(g)(4) unconstitutional

Judges Boggs, Siler, and Gibbons all agree, for varying reasons, that 18 U.S.C. § 922(g)(4) is unconstitutional. Section (g)(4) is the one that prohibits people who have a prior mental health commitment from possessing firearms. The case is Tyler v. Hillsdale County Sheriff's Department, No. 13-1876. You can read it here. Lyle Denniston over at SCOTUSblog is far more articulate than I and discusses the case here.

While we do not see 922(g)(4) much in practice, the "strict scrutiny" test the Sixth applied to the statute is important and could be used in other gun-related settings.

Monday, January 05, 2015

New Child Porn decision with varying opinions

On Friday, January 2, 2015, the court released its first decision of the new year, United States v. Walters.   Although the case on one hand is uninteresting (the Court upheld the 151 month sentence and all imposed Guidelines enhancements), it is worth reviewing to show how the individual judges are struggling with CP sentences in general.

Judge Merritt wrote a strong dissent in the case, arguing that the 151 month sentence was "out of proportion" to the offense and violated the Eighth Amendment.  Judge Merritt cited to the Sentencing Commission and the DOJ's stances that sentences for these type of cases were outmoded, and noted that "[i]t seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts—unless the courts themselves find a solution that at least ameliorates the problem for the time being."

Judge White concurred in the decision to uphold the sentence imposed, but wrote a separate concurring opinion to voice her concerns.  In her opinion, she stated  "The appropriate judicial response in situations such as this one is not for appellate courts to reduce Guidelines sentences as a matter of course, but rather, for sentencing judges to recognize that Guidelines based on the Protect Act should be carefully scrutinized. Unfortunately, as the dissent observes, Walters’ counsel did not bring to the district court’s attention, or argue on appeal, that the Commission considers the sentence recommended here to be excessive. In the context of a sentencing proceeding in a child pornography case, competent counsel should be expected to bring to the district court’s attention that the Guidelines do not, as in other contexts, reflect the presumed superior expertise and breadth of information of the Commission, and in fact are contrary to the Commission’s considered judgment."  Thus, according to Judge White at least, it may be ineffective assistance for defense counsel to not challenge a CP Guidelines ranges as excessive.

CP sentencings are becoming more and more difficult for district court judges.  It seems that the Sixth Circuit is divided into numerous camps on what is appropriate.  The spectrum is varied, and leaves district court's squarely in the middle to figure out what is appropriate.

Friday, October 24, 2014

On issue preservation and non-guideline sentences

In United States v. Sherer, et. al (found here), a bank robbery case, the Sixth Circuit recently reminded folks how to properly preserve several issues, and also more extensively addressed variances based on mathematical accidents within the guidelines.

First, issue preservation:

- A motion to dismiss under the Speedy Trial Act cannot be filed until the Act has been filed. That is, the government has 70 days, post-indictment, to bring a defendant to trial. The motion cannot be filed until at least day 71. This is partly because filing the motion stops the speedy trial clock and it does not start again until after the court has ruled on the motion.

- A sufficiency of the evidence claim will be reviewed for plain error unless counsel moves for a judgment of acquittal at the end of trial. This feels odd, especially if you have not put on a defense. But you must move for it twice: at the end of the government's evidence, and then again at the close of the case. To win on plain error review, the "record must be devoid of evidence pointing to guilt."

- Admissibility of evidence arguments will be reviewed for plain error unless counsel objects to its admission at trial. To win on plain error review, a defendant must "show that the trial would have turned out differently but for the" objectionable evidence.

Variances based on mathematical accidents within the guidelines:

Mr. Sherer had robbed banks before the instant offense. A little over a decade before, he had robbed five banks and pled guilty to robbing two of them. Because he was sentenced on those pleas on the same day, the two sentences merged. Because they merged, they were counted as one offense rather than two, which would have qualified Mr. Sherer for Career Offender status. The district court used the Career Offender guideline anyway, noting Mr. Sherer had escaped the impact of the Career Offender range "simply by... accident or happenstance." The district court also noted Mr. Sherer had done this new robbery eight months after serving 10 years in jail for the last bank robberies and was at extremely high risk to recidivate. The Sixth Circuit discussed other guideline cliffs - for instance, being one dollar above a loss cutoff - and noted courts were free to recognize those cliffs and adjust sentences accordingly, provided they adequately explained their decision.

Tuesday, October 14, 2014

Court limits "use" a firearm in connection with another felony

In United States v. Norris, the Court remanded for resentencing with instructions to eliminate a enhancement for "using" a firearm in connection with another felony offense.  In Norris, the defendant plead guilty to selling a firearm to a prohibited person.  At some point after the sale, he called the buyer and told them to get rid of the firearm because it was evidence in a murder investigation.  But the buyer no longer had the firearm.

The Court found that this conduct could not meet the definition of "use".  The Court noted that Norris did not have authority or control over the buyer, and that the buyer did not possess the firearm; therefore, Norris's advice to the buyer could not be considered use.  Congrats to AFPD Laura Davis!!!

Tuesday, September 23, 2014

The Guidelines mean what they say and say what they mean (and, how to preserve your issue)

Yesterday, in United States v. Snelling, No. 12-4288, the Sixth Circuit affirmed USSG § 2B1.1(B)(1) and its commentary actually mean what is written.

The case concerned a Ponzi scheme that took in almost $9 million, but also paid out about $3.5 million. The district court set the loss for guidelines purposes at over $7 million, which raised Mr. Snelling's offense level by 20 points. It and the government reasoned the $3.5 million in returned funds were part of keeping the Ponzi scheme going and so the defendant should not benefit. Mr. Snelling argued the loss should be under $7 million, taking into consideration the funds returned, which would raise his guidelines 19 points. The district court calculated his guideline range as 121 to 151 months. Mr. Snelling's calculation put him at 97 to 121 months.

The Sixth Circuit agreed with Mr. Snelling. It noted Application Note 3(E) to § 2B1.1 stated loss shall be reduced by money returned prior to discovery of the crime. It further noted Application Note 3(F)(iv)"specifically states that "when calculating the loss figure in a Ponzi scheme, the 'loss shall not be reduced by the money or the value of the property transferred to any individual investor in the scheme in excess of that investor's principal investment.'" For example, if an investor put in $100 and received $80 back in "dividend payments" (or what have you), the $100 loss would be reduced by the $80 returned. However, if the investor put in $100 and received $130 back, the loss would only be reduced by $100.

This case is also interesting because it details how Mr. Snelling preserved the issue for appeal. The disagreement is noted in the plea agreement. The Presentence Report noted the disagreement. Mr. Snelling filed an objection to the PSR's guidelines calculation. At sentencing, Mr. Snelling further argued his objection.

Tuesday, September 09, 2014

Warning: Santobello works both ways

Coming soon to a Government's Brief on Appeal near you....

The Third Circuit just handed appellate AUSAs a nifty new tool to combat pesky defendants.  In a nutshell, United States v. Erwin, 3rd Cir. Case No. 13-3407 (Aug. 26, 2014), says that if a defendant signs a Rule 11 plea agreement in which he agrees not to appeal, but then appeals anyway (at least without a decent reason for doing so), he has breached the agreement and relieved the government of its own obligations, including its agreement to give the defendant consideration for cooperating.  The penalty for the breach may not just be a dismissal of the appeal; it could be a remand for a harsher sentence.

From Julie McGrain at our sister blog in the Third Circuit:

Defendant Erwin plead guilty, pursuant to a cooperating plea agreement, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. His plea agreement included a waiver of right to appeal his sentence if it was within or below the advisory Guidelines range resulting from a total offense level 39. In exchange for Erwin's plea, the government agreed not to bring further criminal charges against Erwin in connection with the criminal conspiracy, and it also agreed to seek a downward departure under U.S.S.G. §5K1.1.
At sentencing, the district court agreed with the parties and the PSR that Erwin's total offense level was 39. With an offense level 39 and Criminal History Category I, Erwin's initial Guidelines range was 262 to 327 months. This range was, however, capped at 240 months due to the statutory maximum for the offense of conviction. The government moved for a five-level downward departure under §5K1.1, requesting that the court depart from offense level 39 to offense level 34, as opposed to departing from the statutory maximum of 240 months, and sentence Erwin within the resulting range (151 to 188 months). Erwin did not object. The court granted the government's motion and sentenced Erwin to 188 months imprisonment.
Erwin appealed, arguing that the district court's use of offense level 39 as its starting point for the downward departure was error because, when combined with criminal history category I, offense level 39 yielded an advisory Guidelines range above the statutory maximum. The government did not cross-appeal, but argued in response to Erwin's appeal that Erwin's sentence should be vacated and remanded for de novo resentencing where, in light of Erwin's breach of the appellate waiver, the government would seek a "modest" increase in Erwin's sentence.
The Third Circuit began by considering the nature and scope of Erwin's appellate waiver. It concluded that Erwin's appeal was within the scope of the waiver, the waiver was knowingly and voluntarily executed, and Erwin failed to raise any meritorious grounds for circumventing the waiver. The Court noted that its ordinary procedure in such a situation would be to enforce the waiver by dismissing the defendant's appeal, thereby affirming the defendant's sentence. Here, however, the government asked the Court to vacate Erwin's sentence so that it could pursue the remedies specified in the breach provision of the plea agreement, i.e., bring additional criminal charges or withdraw its §5K1.1. motion. The Court found that Erwin's decision to appeal despite waiving that right in his plea agreement resulted in a clear breach of the terms of the agreement. The Court further concluded that the appropriate remedy for Erwin's post-sentencing breach of the plea agreement was specific performance, i.e., de novo resentencing with the government relieved of its obligation to seek a downward departure.
In rendering its opinion, the Third Circuit also decided two procedural questions of first impression. First, the Court concluded that cross-appeal rule did not apply and consequently did not bar the government from seeking de novo resentencing. Second, the Court named its source of authority to grant a de novo resentencing in this case as 28 U.S.C. § 2106, which permits the Court to modify, vacate, set aside, or reverse any judgment lawfully brought before it for review and remand the cause for further proceedings.

For Scott Greenfield's colorful (and critical -- of everyone involved) commentary, see here.

Tuesday, August 12, 2014

Federal Prosecutors in Lexington, Kentucky: "Oops"

There is a lot to like about United States v. Noble, No. 13-6056, though I doubt many federal prosecutors share my excitement.  Particularly federal prosecutors in Lexington, Kentucky.

Courtney Noble was a passenger in a Chevrolet Tahoe driven by Marcus Adkins.  Law enforcement suspected the vehicle to be associated with a drug trafficking ring and conducted a traffic stop. Noble was "very nervous."

Adkins consented to a search of the vehicle. In order to conduct the search, police "removed Noble from the Tahoe and frisked him for weapons on the basis of Noble's nervousness, the fact that the Tahoe was suspected in a DEA investigation, and that [an officer's] training told him that drug traffickers are often armed."  Police discovered drugs, paraphernalia, and a firearm on Noble's person. Both men were charged with conspiracy, along with Dena Brooks, who was later found in a hotel room associated with the conspiracy.

Noble moved to suppress the evidence found during the frisk, and Adkins and Brooks joined the motion. The district court denied the motion to suppress, and all three defendants appealed.

The Sixth Circuit found that the search of Noble was unreasonable under the Fourth Amendment and vacated Noble's conviction.

But that left the court with "an awkward problem": neither Adkins nor Brooks can "explain[] how the frisk of Noble impacts their Fourth Amendment rights."  And that is because they obviously lack Fourth Amendment "standing" to object to the unreasonable search of Noble.  Their motions to suppress had no merit.

But it was their lucky day.

At both the district court and in its brief on appeal, prosecutors neglected to argue that Adkins and Brooks lacked standing to object to the search of Noble's person.  Thus, in a letter to the court after oral argument, the appellate chief of their office ("and to its credit") acknowledged that the government had "waived" the issue for appeal.

Facing an open question in the Sixth Circuit and a split of authority elsewhere, the court "join[ed] the majority of circuits to have considered this issue" and held that "the government may forfeit or waive its objection" to Fourth Amendment standing.  The court explained,
we would allow the government to raise an objection to a defendant's Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would "seriously affect[] the fairness, integrity or public reputation of judicial proceedings." However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived. 
Here, because the government missed the issue of Fourth Amendment standing not only at the district court but also in the opening brief on appeal, both Adkins and Brooks got a windfall. Their convictions were vacated just like Noble's.

Judge Moore wrote the opinion and Judge Tarnow joined. Judge Kethledge dissented from the Fourth Amendment analysis alone, finding the "question . . . close" but ultimately concluding that the police were reasonable to ensure that Noble was not armed during the search of the vehicle.

Alleyne Error Not Harmless

In United States v. Hackett, No. 12-2248, the Sixth Circuit rejected the government's argument that a violation of Alleyne v. United States, 133 S.Ct. 2151 (2013), was harmless because the defendant admitted the facts giving rise to the greater mandatory minimum.

The defendant was charged in an indictment with using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), a crime carrying a five-year mandatory minimum sentence. At trial, he admitted to firing a handgun but disputed his motive for doing so. He was convicted.  Instead of sentencing him to the five-year mandatory minimum charged in the indictment, the district court sentenced him under Section 924(c)(1)(A)(iii), which raises the mandatory minimum to ten years "if the firearm is discharged."

There is no serious dispute that the sentence violated Alleyne, since the defendant's mandatory minimum sentence was increased on the basis of facts not found by the jury.  But the government nevertheless maintained that the error was harmless, given the defendant's admission to discharging the firearm.  Put differently, there is no question that the jury would have convicted the defendant of the ten-year offense if it had been given the option.  The problem with this argument, the court found, is that it would allow for a constructive amendment to the indictment, which can never be harmless.

Household Chores ≠ Forced Labor

United States v. Toviave, No. 13-1441, is a case about prosecutorial discretion -- and overreach.  Toviave appears to be an unsavory character, but his conduct didn't actually violate the federal statute under which he was charged.  Happily, Judges Rogers (writing), Sutton, and Suhrheinrich do not trust "the discretion of prosecutors" to protect law abiding citizens from similarly misplaced prosecutions.

The essential facts are as follows:
Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules. 
Federal prosecutors in Detroit charged Toviave with visa fraud, mail fraud, and forced labor in violation of 18 U.S.C. § 1589. Toviave pled guilty to the fraud charges but went to trial on the forced labor charges and was convicted.

While calling the defendant's conduct "deplorable" and "reprehensible," the Sixth Circuit found that prosecutors were wrong to make a federal case out of what appeared to be nothing more than child abuse --"a state crime, but not a federal crime."

The court explained,
The government’s interpretation of 18 U.S.C. § 1589 would make a federal crime of the exercise of these innocuous, widely accepted parental rights. Take a hypothetical parent who requires his child to take out the garbage, make his bed, and mow the lawn. The child is quarrelsome and occasionally refuses to do his chores. In response, the child’s parent sternly warns the child, and if the child still refuses, spanks him. The child then goes about doing his chores. There is no principled way to distinguish between that sort of hypothetical labor and what Toviave made the children do in this case. 
The court drew heavily from Bond v. United States, 134 S. Ct. 2077 (2014), in which the Supreme Court "recently reemphasized that we should be cautious in inferring Congressional intent to criminalize activity traditionally regulated by the states."  In Bond, the government argued that the defendant's conduct -- which amounted to "garden-variety assault" between spouses, albeit with a chemical weapon -- fell within the "very broad scope of the chemical weapon statute."  But due to the "deeply serious consequences of adopting such a boundless reading" of the statute, the Supreme Court disagreed and vacated the conviction.  The Sixth Circuit found "[t]he reasoning of the Supreme Court appears to apply directly to Toviave's case."