Tuesday, October 23, 2018

Does Operating an Airplane Include Preflight Activities?

In a case of first impression, the Sixth Circuit interpreted the term “operate” under 18 U.S.C. § 342, which criminalizes operating a common carrier while intoxicated.  The defendant—a commercial airline pilot—arrived to work drunk.  Scheduled to fly that day, he prepared the plane for flight, including calibrating and programming instruments and requesting clearance from traffic control.  However, before passengers boarded, the co-pilot informed authorities that the defendant was drunk, and he was arrested.

Charged with operating a common carrier while under the influence of alcohol, the only issue at trial was whether the defendant “operated” the plane through his preflight preparations.  The district court ultimately instructed the jury that “[f]or a commercial pilot [“operate”] includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if . . . the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight.”  The jury subsequently convicted the defendant.

On appeal, a divided panel affirmed the conviction.  Noting that the no federal court of appeals had interpreted the term “operate,”  the Court held that the district court properly instructed the jury.  It rejected an interpretation of “operating” that would include only flight itself.  The Court held that such a definition would problematically excluded the preflight operations needed to fly safely. Thus, considering an airplane pilot's role and the statute's “public safety purpose,” the district court properly instructed the jury.

The dissent argued that the defendant’s actions were merely an attempt to operate the plane, a situation that the statute does not criminalize.  Focusing on the common law definition of “common carrier,” the dissent noted that not all airplanes are common carriers; only those transporting public passengers or freight qualify.  Accordingly, the key function of a common carrier is to transport such passengers or freight, and “operating” a carrier means controlling its functions. 

Thus, under the dissent’s view, the defendant never operated a common carrier.  While the defendant conducted preflight activities, no passengers boarded and the plane never moved.  Therefore, he never controlled the transport of passengers.

Instead, the defendant merely attempted to operate the carrier.  However, 18 U.S.C. § 342 fails to criminalize attempts.  Thus, the dissent would have reversed.

Given the divided panel and the issue of first impression, it will be interesting to see whether the Sixth Circuit reviews the decision en banc.  Opinion available here.

Thursday, October 11, 2018

We Repeat, Time-Served Sentences Are Unlawful

In United States v. Mitchell, the Sixth Circuit addressed cross-appeals from a grant of habeas relief under 2255 based on the inapplicability of the Armed Career Criminal Act. Mr. Mitchell was resentenced at the district-court level, because he no longer qualified as an armed career criminal. Because he had already served a seventeen-year term of incarceration, more than the maximum sentence that applied to him without application of the ACCA, the district court imposed a sentence of "time served" and released Mr. Mitchell.

On appeal, the Sixth Circuit reminded the parties that "this precise issue" had already been decided in United States v. Nichols, 897 F.3d 729 (6th Cir. 2018). In Nichols, the Sixth Circuit held that a time-served corrected sentence is unlawful, because it makes the length of actual incarceration served the length of the sentence imposed, even though that amount of time is beyond the applicable Guideline range and often beyond the statutory maximum sentence available. The Court also took pains to point out the four different options available to a district court in habeas: 1) discharge the petitioner, 2) grant the petitioner a new trial, 3) resentence the petitioner, or 4) correct the sentence.

A corrected sentence is subject to reasonableness review. But interestingly, a full resentencing is not needed. Instead, the district court may "impose a corrected sentence based on a brief order, a hearing that resembles a de novo sentencing proceeding, or anything in between." Mitchell (quoting Nichols at 738). In other words, not ever habeas revision of a sentence requires a full resentencing - and what degree of corrected process is required is based on the individual situation at hand. It is also a matter of judicial discretion.

It is worth noting that Mr. Mitchell also attempted to challenge his three-year term of supervised release, presumably because he served additional time beyond the lawful sentence. However, the Sixth Circuit declined to address the question in light of the remand. Instead, it directed the district court to "take the opportunity to provide an appropriate rationale for its supervised release decision."

Sunday, October 07, 2018

Appellate Waivers and the Elephant in the Room

This site does not often comment on unpublished cases, but, from time to time, an unpublished decision will provide guidance, and, in this case, a warning, for appellate counsel.  This is just such a case.

In United States v. Mason, the defendant, Mason, entered into a written plea agreement with the United States wherein the parties stipulated to a Guidelines range of 145-175 months.  In exchange, Mason agreed to waive his right to appeal his sentence so long as it did not exceed 175 months.

Prior to his sentencing, Mason raised numerous objections to this Guidelines calculations, which the district court subsequently denied.  This did not work to Mason's detriment, however, since the district court imposed a below-Guidelines sentence of 125 months.  Dissatisfied with this result, Mason appealed.

Citing the waiver in Mason's plea agreement, the Court promptly dismissed his appeal.  In its unpublished decision, the Court noted its annoyance with one critical fact: Mason failed to raise the appellate waiver as an issue.  "An unsuspecting reader," the Court noted, could waste his or her time reading the briefs only the discover that the appellant had waived all of the issues raised.  Judge Kethledge noted he was the unsuspecting reader, that Mason failed to respond to the issue after the United State raised it in its response brief, and that, were it a civil case, the appellant could face sanctions.  Ouch!

This author detests appellate waivers in plea agreements, especially the all to frequent language being employed by the United States where the parties try to play a guessing game about the defendant's Guidelines range.  Nevertheless, it is best not to ignore the elephant in the room on appeal.

Thursday, October 04, 2018

A Better (Plea) Deal: Court holds Defendant can Show Strickland Prejudice by Losing the Right to Negotiate a Better Plea Deal

Although the Court has been light on published opinions this week (so far), it has managed to issue one habeas win.  In Rodriguez-Penton v. United States, the Court reversed the District Court's denial of Mr. Rodriquez-Penton's 2255 motion and remanded it for additional proceedings, holding that Mr. Rodriquez-Penton, who was told pleading guilty would not adversely impact his immigration status, could meet the Strickland prejudice prong by showing that, had he known about the risk to his immigration status, "he would have bargained for a more favorable plea."

Mr. Rodriquez-Penton moved from Cuba to the United States when he was only fifteen years old.  At the time of his indictment in 2011, he was living in Louisville, Kentucky as a permanent resident with a green card.  The Government subsequently made two separate plea offers to him in the year after his arrest.  Ultimately, Mr. Rodriquez-Penton entered an open guilty plea in October 2012.  In March 2013, the district court sentenced him to 121 months imprisonment.  According to Mr. Rodriquez-Penton, he did not learn his guilty plea would possibly lead to his deportation until he spoke with his prison counselor.

After the Sixth Circuit rejected his argument that his plea was not knowing and voluntary, Mr. Rodriquez-Penton filed a 2255 motion arguing his trial counsel was ineffective for not explaining the adverse immigration impacts of his guilty plea.   A magistrate judge, and subsequently the district court, concluded Mr. Rodriquez-Penton met the first Strickland prong, finding his counsel's performance deficient because, by his own admission, he could not recall informing Mr. Rodriquez-Penton that deportation was a possibility.  However, both the magistrate judge and district court found that Mr. Rodriquez-Penton could not satisfy the second Strickland prong because he could not show prejudice.  Crucial to this decision was Mr. Rodriquez-Penton's testimony that he would have gone to trial, even if he could have negotiated a better plea agreement.  Thus, the district court dismissed his 2255 motion and Mr. Rodriquez-Penton appealed.

On appeal, the Court quickly agreed that Mr. Rodriquez-Penton demonstrated deficient performance.  The critical issue, however, was whether he could show actual prejudice.  Noting a question raised, but not answered by the Supreme Court in United States v. Lee, and smartly raised by Mr. Rodriquez-Penton, the Court held that he could demonstrate Strickland prejudice by demonstrating that, absent his attorney's deficient performance, he would have bargained for a more favorable plea.

Judge Thapar began his lengthy dissent by stating the obvious: "[b]eing a criminal defense attorney is not easy."  Noting that criminal defense attorneys often have the odds and resources stacked against them, Judge Thapar criticized the majority for creating a new "right" that made their jobs only harder.  Noting that defendants do not have a constitutional right to a plea offer, Judge Thapar said the majority's opinion would open the flood gates for numerous 2255 motions claiming that defendants would have negotiated a better plea deal had their counsel not been ineffective.

Time will only tell whether Judge Thapar's fears hold true.  In the meantime, look for future habeas appeals to cite this case in an effort to undue plea agreements.

Wednesday, September 19, 2018

Hobbs Act Robbery Ruled Not a "Crime of Violence" Under Sentencing Guidelines

The Sixth Circuit ruled recently that Hobbs Act robbery, a violation of 18 U.S.C. § 1951(a), is not a "crime of violence" under the sentencing guidelines in United States v. Camp. As a result, the court held that the district court erred in finding that the defendant was a career offender under the guidelines and remanded the case for resentencing.

The defendant, Desmond Camp, pleaded guilty to three charges: (1) Hobbs Act robbery; (2) using a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He received a mandatory statutory minimum sentence of 25 years on the 924(c) charge owing to a prior conviction under that statute. The district court determined that Camp was a career offender under the guidelines finding that the Hobbs Act robbery conviction and his prior convictions -- a 2003 federal bank robbery conviction and a 1990 convicting in Michigan for armed robbery -- all qualified as crimes of violence. As a result, Camp received sentences of 72 months on the Hobbs Act robbery and felon in possession charges to run consecutively to the 25 years on the 924(c) charge.

The court considered whether Hobbs Act robbery was a "crime of violence" under the guidelines § 4B1.1 by applying the categorical approach to both the use-of-force clause and the enumerated offense clauses As an initial matter, the court discussed whether the categorical approach should be applied to both prior and instant offenses and concluded that it should.

The court held that Hobbs Act robbery was not a crime of violence under the Guidelines' use-of-force clause, because Hobbs Act robbery included use of force against property, not just a person as under the guidelines.

Turning to analysis under the enumerated offense clause the court saw two offenses, robbery and extortion, listed in § 4B1.2 that potentially were a categorical match to Hobbs Act robbery. The generic definition of robbery applied, the court concluded, and Hobbs Act robbery was broader than generic robbery for two reasons: (1) generic robbery includes a requirement of immediate danger; and, (2) it criminalizes threats to property alone untethered by any temporal immediacy. 

The Guidelines define extortion, see USSG § 4B1.2, comment. (n. 1), and it "does not include threats against property and, as a result, Hobbs Act robbery -- which plainly does -- is not a categorical match with Guidelines extortion." 

The court joined the 10th Circuit, United States v. O'Connor, 874 F.3d 1147 (2017), in holding that Hobbs Act robbery is not a crime of violence under the Guidelines.

Camp also argued that Hobbs Act robbery did not qualify as a crime of violence for purposes of 18 USC § 924(c), a contention the court found foreclosed by its holding in United States v. Gooch, 850 F3d 285 (6th Cir.), cert. denied, 137 SCt 2230 (2017).

Wednesday, August 29, 2018

            Sixth Circuit construes 18 U.S.C. §3583(h) in a case of first impression

             In United States v. Price, Andre Price pleaded guilty to bank robbery and was sentenced to 60 months imprisonment followed by 36 months of supervised release. Shortly after his release from prison he twice tested positive for cocaine. No action was taken regarding those violations. Within two weeks of those violations, Mr. Price twice tested positive for cocaine. At the revocation hearing Mr. Price proposed inpatient substance abuse treatment rather than imprisonment. The district court considered the sentencing options and imposed a below-Guidelines sentence of 2 months of imprisonment followed by 34 months of supervised release.

Two weeks after Mr. Price was released from imprisonment, he violated the terms of his supervised release by possessing and using crack cocaine and being absent from his halfway house without permission. At the revocation hearing, Mr. Price again sought treatment instead of incarceration. The district court considered that option inappropriate and sentenced him to 24 months imprisonment and a 12 month term of supervised release. The conditions of supervised release included 6 months in a halfway house. Inpatient treatment could possibly be substituted for time in the halfway house “on a month-for-month basis.” (Op. at 3).

On appeal, Mr. Price argued that his term of supervised release was procedurally unreasonable because it exceeded the maximum authorized by 18 U.S.C. §3583(h). That claim was reviewed for plain error since there was no objection in the district court to the length of the term of supervised release.

Section 3583(h) provides that the length of a term of supervised release “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” The statute’s last clause not only requires the district court to subtract “the length of any newly-imposed period of incarceration from a term of supervised release” but it also requires the court to “subtract the length of any term of imprisonment imposed upon a prior revocation of supervised release related to the same underlying offense.” (Op. at 5).

Applying §3583(h) in Mr. Price’s case, the district court correctly noted that the maximum term of supervised release on the bank robbery conviction was 36 months. The court then subtracted the most recent 24 month term of imprisonment and determined that the maximum for any new term of supervised release was 12 months. The district court, however, erred by failing to reduce the term of supervised release by the 2 month term of imprisonment that was imposed when Mr. Price was initially revoked. The panel majority determined that plain error occurred and had to be corrected on remand.

Mr. Price also argued that his 24 month sentence was substantively unreasonable because he was not granted inpatient treatment rather than incarceration. The Sixth Circuit found no abuse of discretion because the district court “explicitly considered” the treatment option under 18 U.S.C. §3583(d) and determined it was inappropriate under the circumstances. Thus, Mr. Price failed to rebut the presumption that his within-Guidelines sentence was reasonable.

Accordingly, Mr. Price’s 24 month term of imprisonment was affirmed but the panel majority vacated the 12 month term of supervised release and remanded the case for the imposition of a new term of supervised release that did not exceed the maximum allowed by §3583(h).

In a separate opinion, Judge Batchelder agreed with the majority that Mr. Price’s 24 month sentence was not substantively unreasonable. She would have joined the majority’s ruling on Mr. Price’s procedural reasonableness challenge if the issue were reviewed de novo but she dissented because in her view the error was not “plain” or “obvious or clear.” Judge Batchelder noted that the interpretation of §3583(h) is a matter first impression in the Sixth Circuit and the Supreme Court has not addressed the issue. Under Sixth Circuit plain error precedent Judge Batchelder viewed that as “fatal” to Mr. Price’s procedural reasonableness challenge. (Concurring-Dissenting Op. at 9).   

Tuesday, August 28, 2018

Shepard documents are used to establish Tennessee aggravated assaults as ACCA predicate offenses. 

The use of Tennessee’s aggravated assault statute as an ACCA predicate offense is again at issue in the Sixth Circuit.

In Davis v. United States, Jeremiah Davis pleaded guilty in 2001 to being a felon in possession of a firearm under 18 U.S.C. §922(g)(1). On the basis of three prior Tennessee aggravated assault convictions he was sentenced as an armed career criminal under the ACCA. In 2016, Mr. Davis filed a habeas petition seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). He contended that the earlier of those assault convictions were not ACCA predicate offenses.

            The district court agreed with Mr. Davis. The court relied on United States v. McMurray, 653 F.3d 367, 376 (6th Cir. 2011) which held that reckless aggravated assault was not a violent felony under the ACCA’s use of physical force clause. 18 U.S.C. §924(e)(2)(B). The court concluded that Mr. Davis was entitled to Johnson relief because he could only have been sentenced under the ACCA’s residual clause.

            The Sixth Circuit reversed the grant of habeas relief. The court noted that Mr. Davis argued in the district court that the prior convictions were not predicate offenses under the ACCA’s use-of-force clause because aggravated assault could be committed with a reckless mental state. But that argument was mostly abandoned on appeal “and for good reason.” (Op. at 4). The Sixth Circuit observed that McMurray was effectively overruled by Voisine v. United States, 136 S.Ct. 2272 (2016) in which the Supreme Court “found recklessness sufficient to constitute a crime that has, as an element, the use or attempted use of physical force.” (Op. at 4).

            Subsequent to Voisine, the Sixth Circuit held in United States v. Verwiebe, 874 F.3d 258, 264 (6th Cir. 2017) that reckless conduct can qualify a conviction as a crime of violence under U.S.S.G §4B1.2’s use-of-force clause. Verwiebe was applied in United States v. Harper, 875 F.3d 329 (6th Cir. 2017) to support the conclusion that reckless aggravated assault in Tennessee is a crime of violence under §4B1.2’s use-of-force clause. Although Verwiebe and Harper involved §4B1.2’s use-of-force clause, their holdings applied to the ACCA’s use-of-force clause because both clauses are construed to have the same meaning. (Op. at 4). In Mr. Davis’s case, the Sixth Circuit said Harper was binding and Tennessee’s aggravated assault statute (Tenn. Code Ann. §39-13-101(a)(1)) “is categorically a crime of violence.” (Op. at 4). (Note – Harper (17-7613) and Verwiebe (17-8413) are pending on petitions for writs of certiorari and are scheduled for the Supreme Court’s conference on 9-24-18).

            Against that backdrop, Mr. Davis argued that he was entitled to Johnson relief because the government failed to show that his convictions were under a subsection of the statute that brought him within the ACCA’s scope. The Sixth Circuit found that the juvenile petitions on which the government relied showed that Mr. Davis was charged with aggravated assaults that stemmed from two separate shootings in which the victims sustained “serious bodily injury.” (Op. at 5). The court rejected Mr. Davis’s contention that the juvenile petitions were not Shepard documents because, “after a bench trial, the sentencing court can consider only the judge’s formal rulings of law and findings of fact.” (Op. at 6). The Sixth Circuit found that charging documents can be considered whether a bench trial or a guilty plea occurs.

            Mr. Davis further argued that one of the juvenile petitions could not be considered because it originally charged him with attempted first degree murder and he was convicted of the lesser included offense of aggravated assault. In the Sixth Circuit’s view, however, the only possible lesser included offense was contained in the subsection of the aggravated assault statute that qualified as an ACCA predicate.

            Thus, the Sixth Circuit concluded that Mr. Davis was not entitled to Johnson relief because Tenn. Code Ann. §39-13-101(a)(1) is a crime of violence under the ACCA’s use-of-force clause.