Friday, June 27, 2014

Citing to Presentence Report

The Eastern District of Tennessee has started filing a sealed copy of the Presentence Report in ECF. This means there is a docket entry for the document, and attorneys are sent a filed copy with the PageID#. The copy that goes to the Sixth Circuit does not always have the PageID# on it. Either check with your case manager, or continue citing to the PSR as you did prior to it appearing in the electronic record.

Thursday, April 24, 2014

False distress signal = $489,000

Not much happening this week (so far) in the Sixth, so thought I would share this nugget with you.  Yesterday, the Court upheld the sentence in the case of United States v. Kumar. 13-3970  

Kumar was a 19 year old student at Bowling Green University who was studying aviation technology.  He dreamed of becoming a pilot for the Coast Guard after his graduation.  As part of his training, he was ordered to fly from an airport in Bowling Green, Ohio to Cleveland in back.  On the way back, flying over Lake Erie, he thought he saw a flare from a boat, and radioed it in.  He was then instructed by the airport to fly in for a closer look - he did not see a boat or anything, but he was fearful that he would be accused of "sounding stupid", so he told the airport that he saw a 25 foot boat with persons in life vests, with a strobe light activated.

This understandably prompted a response by more than the cavalry.  The United States Coast Guard and the Canadian Armed Forces spent the next 24 hours searching for the fictitious boat.  A month after the search,  Kumar admitted he had lied.  The United States subsequently prosecuted him for a Class D felony "making a false distress call".

Kumar of course plead guilty.  But his punishment was far from light.  He was sentenced to 3 months incarceration, and 3 years supervised release.  But possibly even more importantly, Kumar was ordered to pay restitution to the United States and Canada for all of their expenses for the entire operation - $489,007.70

On appeal, Kumar challenged the imposition of the entire cost of the vessels, manpower, etc. for the time period.  He also challenged the court's authority to impose restitution for a foreign entity (Canadian Armed Forces).  The Sixth Circuit affirmed, finding that "all costs incurred as a result", as outlined in the statute, was broad enough to include all expenses and costs.

The precedential value of this decision is minimal, as there will not be too many cases handled for this type of offense.  But it is worth noting the facts - a 19 year old kid panicked, made a mistake, and will now pay the rest of his life for it.  He has what amounts to a $500,000 house payment, he has a felony conviction, and he has served 3 months in prison - all because he did not want to seem stupid.

Tuesday, April 22, 2014

April 14 through 18, a busy week for the Sixth Circuit

Compared to most weeks, the 6th Circuit was very active this past week. There were five published cases, which appear to be noteworthy. I will provide a brief synopsis of all five.

1) Teresa Prewett v. Stanley Weems, Case No. 12-6489.

The defendant pled guilty to child pornography production offenses, and later the victim filed a civil against him for damages pursuant to 18 USC 2255(a). The allegation was that Weems produced 7 videos, and alleged each video entitled the victim to $150,000 of compensation. The question before the court was whether the victim could seek $150,000 for each individual video (totaling over $1 million), or for the entire criminal offense (a total of $150,000). Because the victim did not bring separate suits for each individual video and the suit arose out of a single “unbroken chain of events,” the victim was only entitled to one single cause of action for all 7 videos, and the total amount recoverable was $150,000.

2) United States v. Barbour, Case No. 13-5653.

This case concerned the Armed Career Criminal Act and how to define predicate offenses of crimes of violence. At issue was the defendant’s prior state conviction of two aggravated robberies. At the state level, both aggravated robberies were indicted in a single count. Ten years later, he was indicted for a federal firearms offense. The federal court found the two aggravated robberies each counted as a single predicate crime of violence for the purposes of the ACCA, resulting a 15 year mandatory minimum sentence under 18 USC 924(e). On appeal, the defendant challenged this, arguing that the robberies could not be separated. The 6th Circuit agreed with the defendant and vacated the sentence.

The opinion provides a good overview of the 6th Circuit’s stance on how to define separate offenses in the context of 924(e). Offenses can be separately counted if: 1) it is possible to discern the point at which the first offense is completed, and the subsequent point at
which the second offense begins, 2) it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense, or 3) the offenses are committed in different residences or business locations. Page 5 of opinion. The court also made clear that the burden to prove whether the offenses were separate was on the government. Concluding the evidence before the district court was not clear as to when one robbery ended and the other began, the court vacated the sentence.

3) Gunner v. Welch, No. 13-3996

This was an appeal of the denial of a 2254 habeas corpus petition. The petitioner was convicted of drug trafficking and given a ten year sentence. The evidence showed that prior to trial, the prosecution offered a plea bargain to his counsel, but the petitioner claims he encouraged him to go to trial. He was convicted, given ten years, and appealed.

On appeal, his appellate counsel failed to inform him of his post-conviction rights, and specifically the fact that he had only a 180-day limit to file a post-conviction petition. As a result, the petitioner missed his post-conviction filing deadline. Petitioner filed a 2254 petition raising ineffective assistance of appellate counsel. The district court denied.

The 6th Circuit reversed finding that appellate counsel's failure to advise the defendant about his post-conviction rights, and the 180-day time limit, amounted to ineffective assistance of appellate counsel. The court's opinion is unique, and gets its Agency law issues, but ultimately reverses and remands. There is a discussion of Martinez v. Ryan claims (on ineffective assistance of post-conviction counsel) as well. This case is interesting in evaluating the duties of appellate counsel, which include the right to inform a defendant of their post-conviction rights and deadlines as well.

4) United States v. Bryon Taylor, Case No. 12-3730

This is my case, so I will try to tether my editorializing, but probably won’t. Mr. Taylor was convicted in 2004 of crack cocaine offenses. His offense subjected him to a 120-month mandatory minimum, but the government filed an enhancement, setting him mandatory minimum at 240 months. He was able to pierce the mandatory minimum due to 5K, and got a sentence of 151 months.
After the retroactive crack cocaine amendments, a 3582 sentence reduction motion was filed, alleging his guideline range had been lowered 2 levels and that he was eligible for a reduction to 130 months.
The district court denied, and the 6th Circuit affirmed. Judge Boggs wrote the opinion, but Judge Donald wrote a dissent. Judge Boggs concluded that under USSG 1B1.10, which discusses eligibility requirements for reduction, prevented relief. The key term is whether a defendant’s “applicable guideline range” has been lowered. The majority concluded that under USSG 1B1.10, 1B1.1, and 5G1.1, all make clear that if the defendant was subject to a statutory mandatory minimum, then that mandatory minimum IS the applicable guideline range. Essentially, the 5K departure has no bearing on the reduction analysis, and as the Court says “the helpful defendant has bottomed out” at the mandatory minimum. This holding is consistent with another one of my appeals, United States v. Joiner.

Judge Donald’s dissent essentially argues that the statutory mandatory minimum becomes “inoperative” when the defendant cooperates and pierces the mandatory minimum. Because it is inoperative, it cannot act continue to act as a floor for 3582 eligibility. This is consistent with the holdings of the 7th Circuit (US v. Wren), 3rd Circuit (US v. Savani) and DC Circuit (In re Sealed Case).

A petition for rehearing will be filed, but one thing should be made clear. This appeal, and many like it, concern on the definition of “applicable guideline range” found in USSG 1B1.10. The majority, and the corresponding similar appeals, all conclude that the mandatory minimum = the applicable guideline range, regardless of any subsequent departures or 5K grants. BUT, the Sentencing Commission, days before the issuance of this appeal, issued new sentencing guideline amendments. Specifically, the Commission changed 1B1.10, to add the following language:

If the case involves a statutorily required minimum sentence and the court had the authority to impose a sentence below the statutorily required minimum sentence pursuant to a government motion to reflect the defendant's substantial assistance to authorities, then for purposes of this policy statement the amended guideline range shall be determined without regard to the operation of §5G1.1 and §5G1.2.

So, this new amendment, which takes effect on November 1, 2014, essentially adopts Judge Donald’s position (and my position). In total, a cooperating defendant will not be hampered by their pierced mandatory minimum in seeking a sentence reduction. More to come.......

5) United States v. Kilgore, No. 13-5623

Defendant was sentenced to 70 months for being a felon in possession of a firearm. While performing community service at a police station, he stole two firearms from the evidence room. At sentencing, he was given a 2-level enhancement for “stealing” the firearms (2K2.1(b)(4)). He was also given a 4-level enhancement under 2K2.1(b)(6)(B), for possessing the firearm in connection “with another felony offense.” He challenged the 4-level enhancement, stating the stealing of the firearms was not an other felony offense. The Sixth Circuit agreed, finding the act of stealing the firearms could not amount to another felony offense is connection with the illegal possession of the same firearms. His sentence was reversed and the case was remanded.

Tuesday, April 15, 2014

Policy and Perjury and Leadership, oh my!

Last week, the Sixth Circuit ruled in United States v. Kamper and Head, 12-5167 and 12-5800. The cases concerned an MDMA distribution conspiracy. Kamper was the "administrator" of the conspiracy and Head, a chemist, was "in charge of manufacturing." The conspiracy was Kamper's idea and he provided the start up funds. Head had access to chemicals and knew how to make the drug. Other co-conspirators were involved.

Policy disagreements
Kamper pled guilty. He argued at sentencing (well, pre-sentencing and at sentencing) that the MDMA-to-marijuana ratio in the guidelines was based on discredited science. He asked the district court to select a new ratio, or to vary from the Guidelines. The district court concluded "that the Sentencing Commission is in a better position than this Court to take into account all of the various value judgments involved in adopting a particular guideline." The district court provided other rationales as to why it could not reject the ratio established in the Guidelines.

The Sixth Circuit ruled the district court was wrong. It ruled "district judges may exercise their discretion to reject Guidelines ratios because of policy disagreements in all aspects of the Guidelines." It clarified its ruling in Bistline: "the courts have the authority to reject the Guidelines range selected by Congress," provided they articulate their refutation of the particular Guideline. Most of all, "The district court must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

The Sixth decided the district court was wrong, but had otherwise sufficiently justified Kamper's sentence as to not warrant remanding for a new sentencing hearing.

Head went to trial. He testified on his own behalf and "flatly stated that he had never produced MDMA." He had "no idea" how the stuff was made. The jury convicted him, and his presentence report recommended a two-level obstruction-of-justice enhancement for the perjury. The district court applied the enhancement, over Head's objection.

The Sixth Circuit reversed this decision. District courts must go through a two-part evaluation: (1) identify the portions of the testimony that are perjurious, and (2) make a specific finding for each element of perjury. Perjury, in turn, has three elements: (1) false statement under oath (2) concerning a material matter (3) with the willful intent to provide false testimony. The district court ruled the statements were false, but failed to make factual findings about the other two elements of perjury: materiality of the matter or Head's intent.

Head also objected to the three-point bump for being a manager or supervisor of the conspiracy. The district court ruled the enhancement applied because each of the three co-conspirators was "jointly the manager or supervisor of the entire operation."

The Sixth Circuit reversed. To qualify for the enhancement, a defendants "must have managed or supervised one or more other participants and not merely the criminal scheme." So the district court misapplied the law when it ruled the three co-defendants were "jointly the manager or supervisor of the entire operation." The Sixth Circuit acknowledged "the record arguably demonstrates that Head was responsible for directing other individuals in menial tasks" but asserted the district court erred when it did not make a factual finding that Head managed or supervised other individuals involved in the conspiracy.

Friday, March 21, 2014

Holder Memo on Appeal

United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence.  The COA rejected the argument.

Crack case.  Defendant was a career offender.  GLs 151 to 188.  D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer).  Dist ct granted downward variance and sentenced D to 130 months of imprisonment. 

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"   

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement.  Confers no rights.  Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender).  Also said that he was not a candidate for the policy b/c of his lengthy criminal history.    

Sentence affirmed. 

Seventh Circuit on GPS

Following up on the post below, I think it is worth noting that the Seventh Circuit remains undecided on the GPS good-faith issue.  United States v. Brown, No. 11-1565, 2014 U.S. App. LEXIS 4076, at *7 (7th Cir. Mar. 4, 2014).

United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), the once helpful Third Circuit case, is up for rehearing en banc on May 28, 2014. 

I think we can expect to hear of cert petitions going up. . . .  We just have to stay tuned.   

Friday, March 14, 2014

No suppression of use of GPS before Jones

Keeping in line with the Supreme Court's decision in Davis v. United States, 131 S.Ct. 2419 (2011), the Court today held that, while use of a GPS device violated the Fourth Amendment, exclusion of the evidence was not an appropriate remedy, as at the time of the use of the device, the uncontradicted case law allowed for such use.  United States v. Fisher, 13-1623

At the time the police placed the tracking device on Fisher’s vehicle, the training and guidance provided to these officers by various police agencies and prosecutors all indicated that such conduct was consistent with the Constitution; no circuit authority had indicated that the use of a GPS tracker was unconstitutional, and three circuits had held that such conduct was lawful; the relevant Supreme Court case law had indicated such a practice was lawful; and our precedent also provided binding authority permitting such conduct. These are not the type of circumstances that warrant the application of the “bitter pill” that is the exclusionary rule. As it is apparent that the police acted in reasonable, good-faith reliance and that their conduct was lawful, the exclusionary rule does not apply.

Thursday, February 20, 2014

Pinholster and Habeas Evidentiary Hearings

There remains a bit of confusion over whether district courts have the authority to conduct evidentiary hearings in Section 2254 habeas corpus cases in which the state courts have previously adjudicated a petitioner's claim "on the merits."  While not settling the matter for good, two important Sixth Circuit decisions this week have provided a bit of clarity.

Historically, habeas corpus has allowed federal courts to conduct de novo review of federal constitutional claims arising out of state court convictions. This included wide latitude to conduct evidentiary hearings. Much of this changed with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 

The confusion arises out of the interplay between two AEDPA provisions in particular. The first, Section 2254(d), provides (crudely speaking) that only "unreasonable" state court merits decisions are reviewable in habeas corpus proceedings. The second, Section 2254(e), allows federal evidentiary hearings so long as the petitioner was diligent in attempting to develop his facts while litigating his claim in the state courts.  Williams v. Taylor, 529 U.S. 420, 432 (2000). The issue arises when a federal court is tasked with assessing the "reasonableness" of a state court decisions based on a factual record that the state court itself never considered.
For years, many courts reconciled these provisions by concluding that Section 2254(d)'s deferential standard simply does not apply where the federal court is assessing a more complete factual record. See, e.g., Winston v. Kelly, 592 F.3d 535, 555-556 (4th Cir. 2010) ("judgment on a materially incomplete record is not an adjudication on the merits"). Other courts, such as the Sixth Circuit, held that some form of "modified AEDPA deference" applies. Hawkins v. Coyle, 547 F.3d 540, 547 (6th Cir. 2008).

The Supreme Court rejected both approaches in Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." The Court explained,

Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time -- i.e., the record before the state court.

Because the Court in Pinholster declined to overrule Williams, evidentiary hearings remain appropriate in habeas corpus proceedings so long as the petitioner tried to develop his evidence in state court. But because Section 2254(d) precludes consideration of newly-developed evidence, it is not obvious what purpose those hearings could actually serve.

There are actually several purposes, as Justice Breyer’s concurring opinion in Pinholster explains. These include the following:
§ 2254(d)(1) does not leave AEDPA's hearing section, § 2254(e), without work to do. An offender . . . must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test . . . , then an (e) hearing may be needed.

For example, if the state-court rejection assumed the habeas petitioner’s facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing might be needed to determine whether the facts alleged were indeed true.

Under Justice Breyer's reasoning, Pinholster created a two-step review process for any case in which the state court denied a prisoner the opportunity to prove the facts supporting his claim, and instead ruled solely on the basis of his factual allegations. First, a petitioner must show that the state court decision was unreasonable under Section 2254(d) on the basis of the evidence (or allegations) before the state court. Second, if the petitioner can satisfy Section 2254(d), he must prove as a factual matter -- and under a de novo standard of review -- that he is entitled to habeas corpus relief under Section 2254(a), i.e., that he "is in custody in violation of the Constitution or laws or treaties of the United States."

Several courts have adopted this interpretation. The Seventh Circuit, for example, has found that "[a]lthough a state court decision that stems from an unreasonable application of federal law will usually meet § 2254(a)’s requirement . . . [the federal] court will engage in de novo review after a finding of unreasonableness to answer the 2554(a) question as if the state court never reached the merits." Quintana v. Chandler, 723 F.3d 849, 852 (7th Cir. 2013). See also Newman v. Harrington, 726 F.3d 921, 932 (7th Cir. 2013) (because "the state court’s decision denying post-conviction relief violated § 2254(d)[]," it was appropriate to consider de novo "the evidence presented at the federal evidentiary hearing"); Stitts v. Wilson, 713 F.3d 887, 895-86 (7th Cir. 2013) ("[t]his procedure is not inconsistent with . . . Pinholster . . . . We do not remand for an evidentiary hearing to determine whether the state court unreasonably applied Strickland pursuant to § 2254(d)(1); we have already found that it did, without going outside the state court record. Instead, we remand to reach an issue that the state court never addressed . . . .").

The Fifth Circuit adopted a similar approach in Smith v. Cain, 708 F.3d 628, 631 (5th Cir. 2013), explaining that "Pinholster's restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1) . . . ." See also Morris v. Thaler, 425 Fed. Appx. 415 (5th Cir. 2011) ("a hearing is necessary not to evaluate the state court's decision, but to determine whether Morris's allegations are true. This is the precise scenario contemplated by Justice Breyer . . . .").

But not the Sixth Circuit. In fact, in Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013) (discussed previously on this blog), the court seemed to say the opposite -- that under Pinholster, "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits with respect to the claim at issue." Not only was this language dicta (the petitioner did not satisfy Section 2254(d) based on the state court record alone, so there was no need to consider whether he otherwise would have been entitled to an evidentiary hearing), but it was also wrong, for the reasons explained by Justice Breyer in Pinholster.

Two decisions this week appear to represent an appropriate retreat from Ballinger's misguided discussion of Pinholster. First, in Parks v. Klee, No. 11-2531, a per curium unpublished decision by Judges Moore, Gibbons, and Sutton, the panel remanded the case for resolution of a Batson/Strickland claim in spite of a prior state court merits adjudication. Parks involved a claim that trial counsel was ineffective for failing to raise a Batson challenge to the Kent County Prosecutor's improper dismissal of all four African-American jurors. The petitioner supported this claim with affidavits and detailed factual allegations, and asked repeatedly for an evidentiary hearing. The state courts rejected this claim on the merits, and on the basis of these allegations alone. In federal court, the petitioner maintained that the state court decision was unreasonable, but conceded that the existing record did not entitle him to relief. Instead, he argued, a de novo federal evidentiary hearing was necessary in order to prove the truth of his allegations -- i.e., to prove that a Batson challenge would have been successful.  The Michigan Attorney General argued that a remand would be pointless because the "plain language of Pinholster and Ballinger preclude an evidentiary in the district court." The court apparently disagreed. While its four-paragraph opinion does not discuss these issues, it necessarily rests on the conclusion that a hearing would be appropriate if the state court decision was unreasonable and essential facutal questions remain unresolved.

Second, in King v. Berghuis, No. 12-1486, Judge Keith issued a dissenting opinion which (unlike the majority) reached the issue of whether an evidentiary hearing was appropriate to resolve the petitioner's claim. Judge Keith strongly endorsed the view espoused by Justice Breyer, finding that a federal evidentiary hearing was both appropriate and necessary in order to resolve "[l]egitimate issues" of fact. He explained, "While I am satisfied that the record is sufficient to make an assessment as to whether the state court judge unreasonably applied [federal law], I am not satisfied that it is sufficient to reach a conclusion with respect to the merits of King's due process claim."

While no Sixth Circuit case has yet said definitively whether Ballinger's dicta is the law in this Circuit, there appears to be a growing recognition that federal evidentiary hearings will remain an important component of the adjudication of habeas corpus cases -- particularly those in which the state courts have reached the merits of a claim without allowing for necessary factual development.