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." 

https://twitter.com/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.

Monday, October 30, 2017

Tapia applies to revocation sentences

In United States v. Rucker, the defendant had his term of supervised release revoked  because he couldn't stop using methamphetamine.  The judge imposed a sentence of 24 months incarceration upon revocation, based in part because the Bureau of Prisons would not allow Rucker to get intensive drug treatment unless he received a sentence of 22 months or more.   The Court found that. pursuant to the Supreme Court's decision in  Tapia v. United States, 564 U.S. 319, 332 (2011), this was an improper basis for sentencing.  The Court rejected the Government's argument that the language of18 U.S.C. § 3582(a) did not apply.  The Court held that "by its plain terms, § 3582(a) applies not only when a district court determines “whether to impose a term of imprisonment,” but also “in determining the length of the term[.]”   The Court therefore remanded for resentencing.


Friday, October 20, 2017

Poisoning is a Use of Force and Recklessness Is Sufficient, So Sayeth Judge Sutton

In an amended decision analyzing the federal assault statute, 18 U.S.C. 113, the Sixth Circuit concluded the offenses of assault with a deadly weapon - 113(a)(3) - and assault resulting in serious bodily injury - 113(a)(6), are both crimes of violence under the Guidelines. United States v. Verwiebe, Case No. 16-2591 (6th Cir. Oct. 20, 2017). The original decision issued in late September.

Of particular note, opinion author Judge Sutton concluded that a crime that already includes some use or threat of force automatically becomes an offense involving violent force (and satisfying the force/elements clause) when a dangerous weapon is involved. Put another way, a dangerous weapon element, under this opinion, seems to make the offense a violent use of force offense per se. Specifically, the Court noted that 113(a)(3) "involves violent force because it proscribes common law assault with a dangerous weapon, not simple common law assault."

In looking at the stickier question of serious physical harm, the Court reasoned that the language itself is all that is required. The Court opined, "How could it be possible to suffer serious bodily injury without force capable of producing such injury?" The Court reached that conclusion, in part, by referring to their pre-Johnson decisions in United States v. Anderson, 695 F.3d 390, 401 (6th Cir. 2012), and United States v. Evans, 699 F.3d 858, 864 (6th Cir. 2012).

The Verwiebe decision is particularly significant, because it holds that even indirect force can be sufficient to satisfy the definition of crime of violence in the Guidelines. The well-worn scenario used by many defense attorneys is that of a poisoner - the defendant violates the statute by poisoning another but is not using violent physical force to do so, rendering the statute more broad that the crime of violence (or ACCA) definition. The Sixth Circuit disagreed. Instead, it reasoned, "The 'use of physical force' is not the drop of liquid in the victim's drink; it is employing poison to cause serious bodily harm." As Judge Sutton has noted in other violent felony/ crime of violence predicate opinions, the Court is not interested in every conceivable scenario: "Sentencing law does not turn on such fine, reality-defying distinctions."

Not to bury the lead, but this decision also includes a very important holding regarding the requisite mens rea of predicates. The Sixth Circuit has traditionally recognized that a crime involving only recklessness is not a crime of violence under Guideline 4B1.2. United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010). However, the Verwiebe Court concluded that McFalls is presumptively overruled by the Supreme Court's decision in Voisine v. United States, 136 S. Ct. 2272, 2280 (2016). The Voisine decision considered the use of physical force required for a misdemeanor domestic violence offense as defined in18 U.S.C. 921(a)(33)(A)(ii). The Sixth Circuit read Voisine to stand for the proposition that a use of force can be satisfied by recklessness alone and that its conclusion "applies with equal force to the Guidelines."The Sixth Circuit's opinion also outlined the Circuit split on this issue.

Friday, October 13, 2017

News Flash: A Defendant has a Due Process Right to Receive a Sentence Based Upon Accurate Information.




In United States v. Earnest Adams, the Sixth Circuit confirmed the obvious: courts should sentence defendants based upon credible information.  Ernest Adams is a seventy-one-year old opiate addict with a lengthy criminal history (approximately twenty prior convictions) and an even lengthier history of drug abuse.  Mr. Adams ultimately received a five year federal sentence an a three year term of supervised release.  After repeatedly testing positive for opiates, the United States Probation Office ultimately recommended that the District Court revoke Mr. Adams's supervised release.  Mr. Adams subsequently admitted his violation, and the District Court revoked his supervised release.


During sentencing, the parties, and the District Court, spent a significant time discussing Mr. Adams's lengthly history of drug abuse.  The Government apparently caught the District Court's eye, however, by arguing that a shorter sentence would not prove effective by claiming that there was evidence that the brains of addicted persons take at least eighteen months to "reset," i.e. to break them of their addiction.  Not coincidentally, the District Court sentenced Mr. Adams to eighteen months imprisonment with no supervised release to follow.

On appeal, Mr. Adams argued that his sentence was both procedurally and substantively unreasonable.  Specifically, he argued that the sentence was procedurally unreasonable by relying upon the Government's "reset" argument, by sentencing him to a term of imprisonment that would help him gain access to the RDAP program, and by concluding that the United States Sentencing Commission's recent recidivism study was limited to violent offenders.

The Government audaciously responded that a defendant "does not have a due-process right 'to be sentenced based on accurate information...beyond the facts of the defendant's own actions and criminal record.'"  The Court summarily rejected this argument.  Of particular importance to the Court was the District Court's reliance upon the Government's "reset" argument.  Noting that the Government did not cite a specific study or provide support for its assertion either during the sentencing hearing or in its appellate brief, the Court concluded that Mr. Adams's sentence was procedurally unreasonable because he District Court erred in relying upon an unsubstantiated assertion that had "the veneer of accuracy due to its supposed status as a product of scientific research."  Because the District Court based its sentence on the Government's erroneous "reset" argument, the Court also concluded that Mr. Adams's sentence was also substantively unreasonable since it based his sentence on rehabilitative grounds.  The Court vacated Mr. Adams's sentence and remanded the matter for resentencing.

Although this author pokes fun of the Government's response here, one can ascribe sincere concern by the District Court toward Mr. Adams and his struggle with addiction.  Here is to hoping that the District Court, and Mr. Adams, can fashion a sentence upon remand that will truly help him beat his addiction and avoid further trouble.