Wednesday, December 28, 2005

Standard of Proof Post-Booker

Reasonable doubt standard of proof in federal sentencing may continue to be alive and well post-Booker. This issue is one that may need to be preserved for further appellate review. In the face of business as usual post-Booker in many districts, a district court in Nebraska last month issued a decision on Fifth Amendment grounds holding that "it is not ‘reasonable’ [under Booker] to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt." United States v. Okai, ___ F. Supp.2d ___, 2005 WL 2042301 (D. Neb. 2005); see also United States v.Kelley, 335 F.Supp.2d 031 (D. Neb. 2005).
In Okai, the defendant pled guilty post-Booker without a plea agreement to using counterfeit securities. The indictment to which the defendant pled did not allege relevant conduct and instead charged a single incident of using counterfeit securities. The Presentence Investigation Report considered relevant conduct to increase the amount of loss. At sentencing, the defendant contested the loss for which he was being held accountable which exceeded his admissions during and after the plea entry at sentencing. The defendant objected citing Apprendi, Blakely, and Booker, arguing that these cases required prior notice and that the standard of proof be beyond a reasonable doubt relative to matters not admitted by the defendant.
The Okai district court imposed a sentence at the guideline range based only on the loss to which the defendant agreed. The government though given an opportunity at sentencing failed to introduce any evidence with respect to the controverted facts. The Okai opinion provides a good summary of issues relating to burden of proof that remain alive post-Booker. In reaching its decision, the district court noted that the Booker opinion ruled only on the Sixth Amendment right to jury trial, not the Fifth Amendment’s requirement of proof beyond a reasonable doubt. The court emphasized that certain facts are so important, regardless of whether they are characterized as elements or not, that a heightened certainty of beyond a reasonable doubt should apply. To avoid a constitutional ruling, the court instead conducted a Booker reasonableness analysis, stating, "[W]hatever the constitutional limitation on the advisory sentencing scheme, the court finds that it is not ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt."
The Okai case is merely a building block for defense attorneys to use in future cases. The reasoning in this case should apply equally if not more so in cases involving acquitted conduct. Whether courts can continue to use acquitted conduct in a post-Booker world is a question that needs to continue to be asked and at some point should be answered. Courts seem to be receptive to the concept that a district judge in conducting a Booker reasonableness analysis should not overrule a jury’s determination of not guilty. For instance, Judge J. Ronnie Greer (ED TN - Greeneville) in the case of United States v. Sheridan McMahan imposed a sentence within the lower calculated guideline range rather than the higher advisory guideline range provided for by the drug quantity calculated based on relevant conduct for which he had been acquitted by a jury. Though Judge Greer couched his decision more in terms of guidelines departure language, the case nonetheless represents one in which Booker has given relief to a defendant. The McMahan case had been pending on appeal when the Booker decision came down, resulting in a remand for resentencing in light of Booker.

Tuesday, December 27, 2005

Nothing was Stirring, Not Even a Mouse

As we come back from the holidays and continue our celebration until the new year, it is good to know that all is quiet at the appellate level for the Sixth Circuit. No new opinions have been released today. The most recently released criminal case will be of benefit to all defense lawyers who wish to argue sentencing disparities as a Booker factor for sentencing. It will also be insightful for those who represent illegal aliens and wish to argue sentencing disparity created by the lack of fast-track sentencing procedures in our districts.
In United States v. Juan Miguel Hernandez-Cervantes, No. 05-5414 (6th Cir. Dec. 23, 2005) (unpublished opinion), the Sixth Circuit affirmed the sentence imposed after conducting a Booker reasonableness review. Hernandez-Cervantes had argued that his sentence should be reduced to assimilate like sentences imposed in jurisdictions that had adopted fast-track sentencing procedures. It also rejected a claim that the refusal to lower the sentence violated the separation of powers by refusing to fast-track a sentence except on the Attorney General’s recommendation.
Of interest in the case is that the Sixth Circuit acknowledges that a disparity indeed occurs by the use of these fast track programs. The disheartening news is that the Sixth Circuit, albeit in an unpublished opinion, ultimately concludes the PROTECT Act is dispositive of the fast-tracking sentence disparity. Though not addressing the specific issue of whether fast-track disparity is an acceptable basis for sentence disparity, see fn.1, it recognized that sentencing disparity in general is among the § 3553(a) factors to be considered post-Booker. Noting that the defendant had presented no other arguments in support of a lesser sentence, the district court declined to deviate from the guidelines explaining that the defendant had committed several other serious crimes.
What this case should serve to remind us defense lawyers is to combine our § 3553(a) factors to achieve our sentencing goals. Don’t just put one egg in your basket. If you do, the government (or worse yet), the judge, may put other eggs in that basket that you don’t want in there. We need to put lots of OUR eggs in that basket, and if you run out of room, fill up several more baskets. You never know if the judge might pick up one or all of your baskets. At a minimum, the judge will have to think more about what kind of eggs he likes.

Thursday, December 15, 2005

Greetings and Apologies

T'is the season to be overwhelmed, and I am there. My apologies to the readers for failing to make regular posts this week.
Following is a list of some websites, most of which you probably visit, that provide some interesting reading and may give you ideas for creating defenses and sentencing arguments: At this point, everyone probably has Professor Berman's site bookmarked. I find it fun to see what scholars see as the important issues. Alan Ellis has many helpful sentencing hints. He also publishes a book about the federal prisons that is a good resource. I was not familiar with this one, but it has some good links and provides a forum for chatting. Everyone should be a member. This is an interesting site to visit. You can also sign up so that they send you bulletins about what is going on with the Sentencing Commission. The latest addition is the 2004 Source Book, a compilation of useful and not so useful statistics for FY2004.

Monday, December 12, 2005

Habeas Update

HABEAS UPDATE: Susanne Bales, Research and Writing Attorney, FDSET
During the most recently ended 2004 term, the United States Supreme Court handed down several rulings of interest to habeas and capital defense practitioners. In Roper v. Simmons, the Court decided that the execution of juvenile offenders violates the Eighth Amendment’s ban on cruel and unusual punishment. 125 S.Ct. 1183 (2005). The practical impact of the opinion was to remove seventy-two people from deathrow. The opinion is important (and also controversial) because it relies upon international law in holding that execution of juvenile offenders violates standards of decency. Also, the opinion is significant because it relies upon mental health evidence showing the juvenile brain is not completely formed and thus decision making ability is diminished. Practitioners undoubtedly will use the reasoning of Simmons to argue the Eight Amendment bans execution of the severely mentally ill.
The Supreme Court also reviewed ineffective assistance claims. In Rompilla v. Beard, the Court held that in a death penalty case, counsel has an absolute duty to review court records regarding prior convictions which may be used in aggravation. 125 S.Ct. 2456 (2005). The Court relied heavily upon ABA Standards for Criminal Justice in determining counsel’s duty. In Florida v. Nixon, on the other hand, the Court refused to find per se ineffectiveness in a capital case, where counsel conceded guilt without his client’s permission. 125 S.Ct. 551 (2004).
Two Batson claims were well-received by the Court. In Miller-El v. Dretke, the Supreme Court granted deathrow inmate Miller-El a new trial in light of the strong evidence of racial bias during jury selection. 1255 S.Ct. 2317 (2005). The opinion is noteworthy for its scathing criticism of the state court’s’ review of the claim, stating its holding of no discrimination "blinks reality." In a similar case, Johnson v. California, the Court found unconstitutional California’s standard for reviewing Batson claims. 125 S.Ct. 2410 (2005). The Court found the burden of proof placed upon the defendant was too demanding.
The Court also addressed several highly technical procedural issues regarding the Anti-Terrorism Effective Death Penalty Act. Those cases will be discussed in a future post.

Friday, December 02, 2005

For Whom Supervised Release Tolls

If you practice within the Sixth Circuit, and represent non-U.S. citizens in federal criminal proceedings on occasion, read on. Several years ago, in US v. Isong, 111 F.3d 428 (6th Cir. 1997) (and despite vehement opposition from AFPD Sumter Camp), the Sixth Circuit ruled that district courts have authority to order that a term of supervised release be tolled while a defendant is deported from the United States.

The Sixth Circuit is the ONLY circuit that has expressly approved the tolling of a defendant’s term of supervised release while the defendant is deported. Three other federal circuits subsequently ruled that this tolling practice exceeds the statutory authority of the court. See United States v. Balogun, 146 F.3d 141 (2nd Cir. 1998); United States v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000); United States v. Okoko, 365 F.3d 962 (11th Cir. 2004).

As the other circuits recognized, 18 USC § 3624(e) provides that: "the term of supervised release commences on the day the person is released from imprisonment." The statute provides just one exception to this rule: "[the] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." Section 3624(e) "is clear, direct and requires no interpretation: ‘The term of supervised release commences on the day the person is released from imprisonment.’" United States v. Cook, 329 U.S. 335, 338 (3d Cir. 2003). By tolling in cases where the defendant is deported, courts exceed their statutory authority.

Nonetheless, in the Middle District of Tennessee (where undersigned counsel practices), in all cases where the defendant will be deported after imprisonment, the federal probation office recommends in the pre-sentence report that the court impose a special condition that the term of supervised release be tolled. The district court judges regularly impose this special condition, although several judges have declined to do so in individual cases based on mitigating facts. The use of tolling also has been reported in the Southern District of Ohio, and no doubt elsewhere within within the Sixth Circuit.

Given the circuit split and the compelling logic of the cases from the Second, Eighth, and Eleventh Circuits, defense counsel in the Sixth should object to tolling in each case where it is proposed. Who knows, this could be the case that gets you to the that big court in DC.

Monday, November 28, 2005

Acceptance, judge-found facts, and Bradley waivers...all this and a one line concurrence!

In United States v. Larico Smith, -- F.3d --, 2005 Fed.App. 050452p, (6th Cir. Nov. 23, 2005) (No. 04-5669), (opinion available here), a panel of the Sixth Circuit, (Gwin, D.J., (author), Moore, C.J., and Cook, C.J.), rejected the defendant's claim that he was entitled to the full three point reduction for acceptance of responsibility, while at the same time, remanded the case for re-sentencing under Booker because the district court had relied on judicially found facts when it applied a cross-reference.

Mr. Smith was convicted for possession of ammunition and a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the government refused to move for the third point reduction for acceptance of responsibility, primarily because Mr. Smith's plea came a mere two business days prior to trial. The government had already prepared for trial and specifically had secured the attendance of witnesses. Mr. Smith argued that: 1. the court should have granted him the extra point because he timely pled; 2. that the government waived its ability to not move for the reduction because it did not object to the PSR's recommendation that he receive the extra point; and 3. that the government breached an oral agreement during pleanegotiationss that the government would move for the extra point reduction. The district court rejected these arguments and found that Mr. Smith did not warrant the reduction. The panel affirmed, stating that "[g]iven the record before us, we conclude that it would not be improper for the district court to deny the Defendant's motion and grant only a two-level reduction."

The lesson here is to plead early and often if you want to get your third point for acceptance of responsibility...or at least plead earlier than two days before trial.

Additionally, the Sixth Circuit remanded the case for resentencing under Booker. The district court had enhanced Mr. Smith's sentence based on judge found facts that Mr. Smith used the gun in committing another offense, assault with intent to commit murder, and that the victim suffered life-threatening injuries. The Sixth Circuit held that Mr. Smith did not admit these facts either in the plea colloquyy or in the plea agreement. Consequently, the Sixth Circuit found that Mr. Smith's sentence "exceeds the range authorized by his plea agreement and the facts admitted during his plea colloquy" and "constitutes plain error." In making this conclusion, the panel primarily relied on United States v. Oliver, 397 F.3d 369 (6th Cir. 2005), which held that a sentence imposed on the basis of unconstitutional judicial fact-finding constitutes plain error.

Finally, the government argued in a letter brief that Mr. Smith's Booker claim was barred by United States v. Bradley, 400 F.3d 459 (6th Cir. 2005). The panel rejected this argument and distinguished Bradley on two issues. First, Bradley had explicitly waived his appeal. Second, Bradley's plea agreement "included an agreement that vaguely said the obvious: that the sentencing guidelines applied to Bradley's case."

Of interesting note is that two panel members, Judge Karen Nelson-Moore and District Court Judge James S. Gwin, (the author of the opinion), expressed their apparent disagreement with the holding in Bradley. In footnote 5, Judge Gwin wrote: "we note our misgivings regarding any suggestion that, in a pre-Booker plea, a non-specific acknowledgment that the guidelines apply is sufficient to waive Booker challenges." In Judge Deborah Cook's concurrence, she succinctly disagrees with this assertion. She wrote: "I join the majority opinion other than its footnote #5."

Thursday, November 10, 2005

The Limits of Third-Party Consent

"For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case." United States v. Ross, 456 U.S. 798, 822 (1982).
Relinquish my wig satchel this instant you henchmen of the Crown!

In the above passage from Ross, the Supreme Court paraphrases the remarks of William Pitt the Elder (pictured), the first Earl of Chatham, a.k.a. "the Great Commoner," who was also known for his oratorical pronouncement that "every man's home is his castle." Pitt would likely have been heartened by the recent decision in United States v. Waller, 2005 WL 2708784 (6th Cir., 10/24/2005), where the Court upheld the privacy rights of those castle-deprived "sojourners in our midst," for whom "the suitcase or trunk may well constitute practically the sole repository of such expectations of privacy as are had." United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978). In this important decision, the Sixth Circuit clarifies the limitations and expectations of officers when they attempt to utilize the doctrine of third-party consent to justify a search of a container that does not belong to the consenting party. In this case, the container belonged to a transient who had not even been notified that a search was transpiring, let alone given the opportunity to consent (or object).

Mr. Waller, a convicted felon, was booted out of a temporary residence after a series of disputes with another occupant. These disputes culminated in a warrant for Waller's arrest. With the permission of Riley Howard, a friend, and Jacqueline Frazier, Howard's live-in girlfriend, Waller began storing a brown luggage bag, several garbage bags of clothing, and some food at Howard's one-bedroom apartment. After officers arrested Waller on the warrant as he was coming out of Howard's apartment building, and thereafter detained him in a police car, they sought and received Howard's verbal and written consent to search the premises. Ms. Frazier and another woman were also present at the time of the search. One officer located a brown luggage bag in the bedroom closet. The bag was closed, but not locked or otherwise secured. Without asking any questions, the officer opened the bag and discovered two firearms. Those occupants present denied ownership of both the bag and the weapons. All eyes turned to Mr. Waller, who, conveniently, was still sitting handcuffed in the back of a police car. He was charged with knowingly possessing a firearm after having been convicted of three violent felonies, in violation of 18 USC Sections 922(g)(1) and 924(a)(2) and (3).

The district court denied Mr. Waller's motion to suppress, holding that he did not have standing to contest the search, and rejecting the argument that Howard's consent failed to authorize a search of Waller's bag. The Sixth Circuit reversed.

The Court first found that Waller had an actual and reasonable expectation of privacy in the bag. The fact that there was no evidence that Waller had either informed the other occupants of the contents of the bag or given them the authority to look inside it indicated an actual expectation of privacy. Buttressing this conclusion, the bag was zipped, closed, and stored in the bedroom closet of the apartment. The Court also emphasized that the expectation of privacy is intensified, rather than diminished, when an individual's effects are temporarily stored on the premises of another. As a result, "Waller's transient state only enhance[d] his expectation of privacy in his luggage." See also 4 Wayne R. LaFave, Search and Seizure Sec. 8.5(d), at 231 (4th Ed. 2004)("[T]he articles which it would seem would most commonly be deserving of the 'high expectation of privacy' label in the host-guest context would be the overnight bag or suitcase or similar object brought to the premises by the guest"). Under these circumstances, Waller's expectation that his bag would not be subject to "invasive exploration by government officials" was reasonable.

With regard to the issues surrounding authority, the Government bears the burden of establishing the effectiveness of a third party's consent. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). According to the Supreme Court, common authority rests on "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." United States v. Matlock, 415 U.S. 164, 171, n. 7 (1974). In this case, it was unrebutted that the bag belonged to Mr. Waller and that Howard did not have permission to open it. As a result, the Government failed to establish that Howard had actual, common authority to allow a search of the bag.

As for apparent authority, "[w]hen one person consents to a search of property owned by another, the consent is valid if 'the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.'" United States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996), quoting Rodriguez, 497 U.S. at 188. Here, the Court emphasized that officers have a "duty to inquire in ambiguous situations." See also United States v. Salinas-Cano, 959 F.2d 861, 862, 865-866 (10th Cir. 1992). Whenever there is uncertainty regarding authority and control over a container to be searched, officers must ask questions and seek answers. Ignorance is no excuse. In this case, prior to the search, Howard told officers that Waller had some personal items in the apartment. There were also two women present in the apartment at the time of the search. So when the officer came upon the piece of luggage, he knew or should have known that either the defendant, Ms. Frazier, or the other non-consenting occupant could have had a protected privacy interest in the bag. As a result, the officer "should have sought the other occupants' consent." This he did not do. The officer's "deliberate ignorance of conclusive ownership," particularly when actual ownership could have been easily confirmed, quashed any notion that the officer had "apparent authority" to conduct the warrantless search.

After myself litigating this issue unsuccessfully in Illinois state courts, U.S. District Court in the Eastern District of Michigan, and the Sixth Circuit, it is bracing to see Mr. Waller's attorneys, Michael Holley and Ronald Small at the Nashville Federal Public Defender's Office, not only obtain relief for their client, but help establish some positive Fourth Amendment precedent on this issue. This is particularly so, because as the Court points out, "'all of us at one time or another'" have found ourselves in a "transient state." Quoting Block, 590 F.2d at 541.

Thursday, November 03, 2005

Booker Brainstorming - Session II

How better to learn what is reasonable under Booker than to learn from the efforts of others. Pre-Booker, defense attorneys could do nothing about mandatory guideline increases that seemed unfair. Meth cases is but one area where mandatory increases occurred, oftentimes causing disparity between offenders and offenses. Below is a creative idea used by Assistant Federal Defender Rita LaLumia, FDSET Chattanooga, in her effort to combat the mandatory offense level increase to 30 in a meth case involving conduct determined to have created a substantial risk of harm to the life of a minor pursuant to U.S.S.G. § 2D1.1(b)(5)(C) (now (b)(6)(C)):

"Because Mr. *** did not act with complete disregard for the health of others, he suggests that while it might be appropriate to increase his sentence by the six levels advised under § 2D1.1(b)(5)(C), a 14-level increase to offense level 30 is excessive.
Without any enhancement for risk of harm, Mr. *** would be at offense level 16. With a three-level reduction for acceptance of responsibility, an offense level of 13 and criminal history category I would result in a guideline range of 12 to 18 months. A six-level increase under § 2D1.1(b)(5)(C) results in an offense level of 19 (level 22 minus 3 levels for acceptance of responsibility) and criminal history category I, or 30 to 37 months guideline range. That six level "bump" more than doubles Mr. ***’s basic sentence. If Mr. ***’s offense level is increased to level 30 (level 27 after a 3-level reduction for acceptance of responsibility), he faces a guideline range of 70 to 87 months or almost six times the sentence he would receive at his base offense level.
Additionally, the automatic increase to offense level 30 creates a sentencing disparity among defendants with similar records who have been found guilty of similar conduct, something that should be avoided under 18 U.S.C. § 3553(a)(6). Any defendant who has a base offense level of 24 or higher receives only a six level increase for risk of substantial harm to a minor or incompetent. Any defendant who has a base offense level of 23 or lower receives a higher increase for the same criminal conduct, with that increase growing as the base offense level goes down. This example shows that while the Sentencing Commission may be in the best position to issue blanket policies regarding offenders as a group, the district courts are in the best position to fine tune a sentence to a particular defendant. This also supports the holding in United States v. Webb, 403 F.3d 373 (6th Cir. 2005) that a guideline sentence is not per se reasonable."

Friday, October 21, 2005

Brief update by Julie Anderson, FDSET Paralegal

Sentencing and Booker
United States v. Settle, 414 F.3d 629 (6th Cir. 2005) -
Affirming the defendant’s conviction as a felon in possession of a firearm, the court of appeals remanded the case to the district court for resentencing in light of Booker. On remand, the district court was instructed to consider the applicability of the cross-reference under U.S.S.G. § 2K2.1(c)(1) (use or possession of a firearm or ammunition in connection with the commission or attempted commission of another felony offense), to the circumstances of this case. The Sixth Circuit held that the weapon involved in the other felony offense, in this case attempted murder, need not be the same weapon underlying the § 922(g) offense. The guideline requires only that there be a relationship between the firearms that form part of the relevant conduct and the firearms that are part of the offense of conviction.
United States v. Hargrove, 416 F.3d 486 (6th Cir. 2005) -
The district court did not err by refusing to give a jury instruction on necessity or justification as a defense to a felon possession charge where the defendant failed to present sufficient evidence to support the defense. The prosecutor’s remark in closing argument, even if misleading or prejudicial, was harmless in light of overwhelming evidence of the defendant’s guilt. The defendant’s prior Ohio convictions for sexual battery were not violent felonies for purposes of determining his status as an Armed Career Criminal. See United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005), holding that not every crime involving sexual intercourse with a minor is a per se "violent felony" under the Armed Career Criminal Act.
United States v. Jones, 417 F.3d 547 (6th Cir. 2005) -
A sentencing court’s determination of the extent of the defendant’s downward departure for substantial assistance is discretionary and not subject to Sixth Amendment protections under Booker. The defendant’s 540-month sentence for carjacking was reasonable.
United States v. Cole, 418 F.3d 592 (6th Cir. 2005) -
The defendant’s prior convictions for being a minor in possession of alcohol are similar to juvenile statue offenses and should not have been used to increase his criminal history score. Remand for resentencing without the four additional points was necessary.
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005) -
A state felony drug possession conviction which does not contain an element of trafficking does not constitute an "aggravated felony" under the Immigration and Nationality Act unless it is punishable as a felony under federal law, i.e., punishable by more than one year imprisonment under applicable state law. Defendant Palacios-Suarez appealed his sentence following his conviction for illegal reentry after deportation, contending that his two prior state convictions for possession of cocaine did not constitute "aggravated felonies" for purposes of enhancing his sentence under 18 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b)(1)(C). As neither the Kentucky nor the Ohio statute under which the defendant was convicted contained a trafficking component, they did not qualify as a "drug trafficking crime" and could not be considered aggravated felonies under the INA. The application of the recidivist provision of the federal statute, providing for an enhanced penalty for a second offense, was not appropriate in this case where records demonstrated that the defendant’s second drug offense occurred before his first conviction became final. Judge Nelson concurred with the holding of the panel relying upon the rule of lenity, rather than legislative history, to reach the same conclusion.
United States v. Christopher, 415 F.3d 590 (6th Cir. 2005) -
In a remand for resentencing for the district court to detail the calculation of loss resulting from the defendant’s mail fraud, the court imposed two alternative sentences - one under the mandatory sentencing scheme and a second, identical sentence in the event that the guidelines were found to be unconstitutional. "This court has concluded that when a district court imposes alternative, identical sentences, one under a regime in which Guidelines enhancements are not mandatory, the harmlessness of any Booker error is established." See United States v. Strbac, 129 Fed.Appx. 235, 237 (6th Cir. 2005)." The defendant’s sentence was "reasonable" under Booker, and the district court’s failure to explicitly consider the factors under § 3553(a) was "understandable" because this was a remand for resentencing.
United States v. Chandler, 419 F.3d 484 (6th Cir. 2005) -
The district court did not err by enhancing the defendant’s sentence for being a felon in possession with a guideline enhancement for a prior felony conviction for a crime of violence. The defendant’s prior conviction for facilitation of aggravated assault was a crime of violence for purposes of the sentencing enhancement under U.S.S.G. § 2K2.1(a)(4). Remand was not required as the district court imposed two sentences, one treating the guidelines as advisory and one as mandatory, and the sentences were identical. The court’s statement at sentencing that the sentence imposed would afford adequate deterrence and just punishment was sufficient to meet Booker’s standard of reasonableness in this case.
United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1692 (2005) -
The defendant’s admission during his plea that he had been convicted of three previous violent felonies was not an admission that the prior felonies had been "committed on occasions different from one another," pursuant to 18 U.S.C. § 924(e)(2)(B). The question of whether a defendant’s prior felony convictions were "committed on occasions different from one another" for purposes of determining his status as an Armed Career Criminal need not be submitted to the jury or determined beyond a reasonable doubt.
United States v. Puckett ___, F.3d ___, 2005 WL 2123790 (6th Cir. 2005) -
The district court properly denied the defendant’s motion to suppress evidence seized from his vehicle during a traffic stop for speeding. A pistol, ammunition and a quantity of marijuana were discovered during a search of the vehicle following the defendant’s arrest for driving without a valid license. The defendant did not expressly waive his right to appeal in the plea agreement. Although the sentence departed from may be reviewed under Booker, the district court’s denial of his motion for a downward departure was a discretionary decision and not subject to appellate review "unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure." United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002). In a dissenting opinion, Circuit Judge Rogers opined that, after Booker, the sentence should be reviewed for reasonableness regardless of the court’s decision not to depart.

Tuesday, October 18, 2005

Prior Convictions and Mandatory Minimums

The Prior Conviction and Mandatory Minimum Exceptions
In a September 4, 2005, post at his sentencing blog (, Professor Douglas Berman called attention to the need in cases to preserve issues concerning the "prior conviction exception" and the "mandatory minimum exception" to the Apprendi-Blakely rule. These exceptions were set out in two Supreme Court cases, Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) and Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002). In light of the changing Court, the exceptions might no longer be as certain as they were.
In Almendarez-Torres, the defendant was an illegal alien charged under 8 U.S.C. § 1326. Mr. Almendarez-Torres had been found in the United States after having been deported. He pled guilty to the charge and admitted that he had been deported, that he later unlawfully returned to the United States, and that his earlier deportation had taken place subsequent to having been convicted of aggravated felonies. He argued at sentencing that because the Indictment did not mention his prior aggravated felonies, the convictions could not be used to increase his sentence, because an indictment must set forth all elements of a crime. The district court disagreed, holding that § 1326(b)(2) was a penalty provision and not a separate crime that must be proven. The court of appeals agreed. The Supreme Court also agreed, rejecting Mr. Almendarez-Torres’ constitutional claim that his recidivism must be treated as an element of his offense. Although the Supreme Court did develop the "prior conviction exception" in this case, the Court pointedly stated that it expressed no view on whether a higher standard of proof might apply to sentencing determinations that significantly affect the severity of sentence.
In Harris, the defendant was charged with use and carry of a firearm in relation to a drug trafficking crime. It was alleged that Mr. Harris was selling controlled substances while he had an unconcealed semiautomatic pistol at his side at his pawnshop. The charge carried a five-year mandatory minimum sentence, with a seven-year mandatory minimum sentence if the firearm was brandished. Mr. Harris objected to the seven-year mandatory minimum sentence on the ground that brandishing was not charged in the indictment nor was he convicted of brandishing. The district court overruled his objection and the court of appeals affirmed. The Supreme Court also affirmed and found that brandishing was not a separate crime but a sentencing factor to be found by the judge. Because the enhancement only altered the minimum sentence, not the prescribed statutory maximum as was the issue in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), allowing the judge to decide if a firearm had been brandished did not violate the 5th or 6th Amendments.
By Professor Berman’s count, with both Rehnquist and O’Connor off the bench, five of the remaining justices oppose Almendarez-Torres, and only two support it. As for Harris, four justices oppose it and at the most, three support it. New justices could sway decisions. The tip here is to be keenly aware that prosecutors may be seeking more admissions or jury findings on all necessary facts. By all counts, to advocate properly for the client, it is important to preserve these issues, because the retroactive applications of Apprendi and Blakely are questions that have not yet been taken up by the Supreme Court.

Monday, October 10, 2005

"She Said, She Said": How Far Can You Go to Save the Deficient Search Warrant?

An issue that has been up in the air in the Sixth Circuit is to what extent the written contents of an affidavit filed in support of a search warrant application can be supplemented at a later suppression hearing by claimed oral statements to the issuing magistrate. While the issue was resolved earlier this year, the recent decision in United States v. Frazier, No. 04-5719 (6th Cir. 9/6/05), 2005 WL 2123792, has created the potential for confusion.

The issue was framed in United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc) as "whether the search could have been saved under the ‘good faith exception’ on the basis that the officers had other information that was not presented to the issuing magistrate, but that would have established probable cause." 360 F.3d at 597. The majority of the en banc court did not reach the issue, however, finding instead that the information that was presented to the magistrate was sufficient.

Although not directly addressing this issue, the court did discuss what information could be reviewed in order to decide whether or not to uphold a search warrant. In United States v. Jenkins, 396 F.3d 751 (6th Cir. 2005) (decided January 28, 2005), the Court of Appeals was addressing whether the independent source rule could save the search in question. The court noted, "once the tainted information ... is eliminated, the probable cause analysis focuses on the written affidavit. A court determining the sufficiency of an affidavit in support of a search warrant is concerned only with the statements contained within the affidavit itself." 396 F.3d at 760.

The issue left open in Carpenter was finally squarely addressed in United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) (decided May 17, 2005), which also arose in the context of the application of the Leon good faith exception. After finding the affidavit insufficient, the court addressed whether the search could be saved by application of Leon. It noted that "[i]n reaching its decision, the district court explicitly considered not only what was in the affidavit, but also what other facts were known to the deputy, but not included in the affidavit." 409 F.3d at 751. The court noted that while it had postponed deciding this issue in the en banc decision in Carpenter, it could no longer do so. "We further conclude that a determination of good-faith reliance, like a determination of probable cause, must be bound by the four corners of the affidavit. Whether an objectively reasonable officer would have recognized that an affidavit was so lacking in indicia of probable cause as to preclude good faith reliance on the warrant’s issuance can be measured only by what is in that affidavit." 409 F.3d 751-52. The court noted that this ruling was consistent with the Supreme Court’s dictate in Leon "‘that the relevant question is whether the officer reasonably believed that the warrant was properly issued, not whether probable cause existed in fact.’" 409 F.3d at 752 (quoting Carpenter, 360 F.3d at 598 (Gilman, J., concurring)).

This clarity of authority lasted not quite 4 months. In Frazier, a separate panel of the Sixth Circuit addressed a drug case in which the case agent sought six different search warrants, one of which was for the defendant’s home. The magistrate instructed the officer to include in the affidavits information that two of the buys by the confidential informant had been recorded. For reasons not explained, the agent made changes to five of the warrant applications, but not to the one for defendant’s home. In reviewing the affidavit as submitted, the court finds that it is insufficient to establish probable cause. The panel goes on to find that the search is saved by Leon. While noting that Laughton held that "the good faith exception to the exclusionary rule does not permit consideration of information known to a police officer, but not included in the affidavit, in determining whether an objectively reasonable officer would have relied on the warrant", the panel decides that "we interpret Laughton’s holding as limited to answering the question that this court, sitting en banc, explicitly left open in Carpenter." (Slip Op. at 6) In other words, because this case did not involve information that wasn’t presented to the magistrate, the rule doesn’t apply. The reason for the exception is the panel’s perception that the agent’s failure here didn’t amount to anything more than "a scrivener’s error". (Id.)
In justifying its decision, the panel notes "[W]e are unable to envision any scenario in which a rule excluding from the Leon analysis information known to the officer and revealed to the magistrate would deter police misconduct. ... Because a judge’s initial probable cause determination is limited to the four corners of the affidavit [cite], an officer has no incentive to exclude from the affidavit information that supports a finding of probable cause only to reveal this information to the magistrate by parole." (Id.) (Emphasis in original)

This explanation betrays a naivete about the realities of the search warrant process and challenges thereto. The concern is not so much about whether the officer will supplement the facts with oral information at the time he applies for the warrant, but whether he will lie about what information he knew and/or conveyed to the magistrate when he is later challenged in a suppression hearing. This is, I suggest, the reason that a written application is required in the first place – so that we will know later exactly what (and no more!) was presented to the magistrate. To allow parole evidence to supplement the written application throws the process open to widespread abuse. And, as the Laughton panel noted, to allow into evidence proof of what was in this officer’s mind, but not reduced to writing, is inconsistent with the Leon "reasonable officer" test, which is based on the four corners of the affidavit.

It is most likely that Frazier has little application outside of the unusual and unique factual circumstances on which it is based. The fact that it involved a "scrivener’s error" and that the information was included in the other five warrants will, one hopes, rarely, if ever, be repeated. This ruling should not be taken as an open invitation to supplement search warrant applications with oral evidence that bolsters an otherwise weak affidavit, especially where that information was not even told to the issuing magistrate at the time of the application for the warrant.

Tuesday, October 04, 2005

A Pair of Notable Capital Dissents

In two unrelated death-penalty cases, Moore v. Parker, No. 03-6105 (6th Cir. Oct. 4, 2005) and Clark v. Mitchell No. 01-4210 (6th Cir. Oct. 4, 2005), the Sixth Circuit denied habeas petitions that featured claims of ineffective assistance of counsel at the sentencing phase. In particular, in denying relief both cases distinguished Wiggins v. Smith, 539 U.S. 510 (2003), where the Supreme Court held that counsel's failure to investigate mitigating evidence for capital sentencing could constitute ineffective assistance.

Moore was issued over Judge Martin's dissent that was both rigorous and vigorous. After explaining what Strickland and Wiggins require, he closes: "I have been a judge on this Court for more than twenty-five years. . . . After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Moore, at 17 (Martin, J., dissenting). "[T]he bad lawyering and incomprehensible arbitrariness that permate the system of should disgust any person concerned with the fair administration of criminal justice." Id. And he notes there is merit in the argument "that the death penalty violates the Fourteenth Amendment because it is so transparently arbitrary that the system entirely fails to satisfy due process." Id.

Clark was issued over Judge Merritt's dissent, which relied primarily on Rompilla v. Beard, 125 S. Ct. 2456 (Jun. 20, 2005), to explain that capital-defense counsel that has some notice of a client's mental defect must engage in further investigation: "With notice of Clark's brain damage, counsel's failure to conduct further investigation is all the more outrageous. Our Court's opinion to the contrary simply refuses to apply ABA Guidelines and the Rompilla case."
Clark at 20 (Merritt, J., dissenting).

Thursday, September 29, 2005

Sixth Circuit: Recall mandate to apply Booker? No way.

In US v. Saikaly, -- F.3d --, 2005 Fed.App. 0402P, (6th Cir. Sept. 28, 2005) (No. 01-4001)(opinion available here), the Sixth Circuit issued an order rejecting the defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in 2004. The panel noted that the 1st, 2d, 7th, and 10th Circuits all have ruled similarly.

The panel's order, however, wholly ignores the Ninth Circuit's recent ruling in United States v. Crawford, -- F.3d --, 2005 WL 2030497 (9th Cir. Aug. 24, 2005), ( opinion available here ) which appears to allow the use of these motions to recall the mandate as a means to have Booker applied to cases that were final before January 2005. The Ninth Circuit's Crawford decision indicated that some defendants may obtain a form of what Prof. Berman calls "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing. Prof. Berman's always thoughtful and insightful analysis of this issue is available here and here.

Tuesday, September 27, 2005

Good Time Credit -- BOP's interpretation affirmed

The Sixth Circuit, in Petty v. Stine, --- F.3d ---, 2005 WL 2258042, 2005 Fed.App. 0396P, (6th Cir. September 19, 2005) (No. 05-5379), (opinion available here), held that the BOP's interpretation of 18 U.S.C. §3624(b), the "good-time credit" statute, is reasonable. This statute permits the BOP to award federal prisoners 54 days of "good-time credit" per year, to be awarded based on time actually served by the prisoner. Mr. Petty filed a 28 U.S.C. §2241 petition challenging the manner in which the BOP calculates good-time credit. He argued that the credit should be awarded based on the sentence imposed, not the time actually served. Unfortunately for Mr. Petty, (and all other federal prisoners in the Sixth Circuit), the Court held that the BOP's interpretation was reasonable. The Sixth Circuit joins with the 1st, 3rd, 4th and 7th Circuits in this view.

Tuesday, September 06, 2005

Let's Booker Brainstorm Together

The remedy provided by Booker makes the federal Sentencing Guidelines no longer mandatory. Now, a district court must impose a reasonable sentence considering the applicable guideline range in an advisory manner among the statutory factors set forth in 18 U.S.C. § 3553(a). So, how do we convince the federal judges we practice before what we believe is a reasonable sentence IS in fact a reasonable sentence? We must do it together through Booker brainstorming. The Sixth Circuit covers Ohio, Michigan, Kentucky and Tennessee - big states & lots of districts within those states. Booker brainstorming is but one way we talented criminal defense lawyers in these states can help each other. We should strive to continue to share our ideas in a group effort to do the best job we can for our clients. I encourage you to e-mail these ideas to me as well for collection and distribution -

Sentencing Disparity for Crack Cocaine - Pre-Booker, we all tried it, and we all failed in an effort to challenge the harsher guideline ranges for crack cocaine on grounds of due process, etc. Booker opens a door that has been shut for so long. We can now argue that this same sentencing disparity warrants a sentence below the advisory guideline range. See 18 U.S.C. § 3553(a)(6) ("the need to avoid unwarranted sentencing disparity"). In the right case with the right facts, this argument will indeed work. Ask CJA Panel Attorney David M. Eldridge who recently convinced Judge Greer to reject the advisory career offender guideline range for Nicholas Clay who was convicted by a jury of conspiring to distribute 50 grams or more of crack cocaine. See United States v. Clayton Wilkins, et. al, No. 2:03-CR-73 (ED TN Apr. 15, 2005) . Judge Greer imposed a reasonable sentence - 156 months imprisonment followed by 4 years of supervised release, down from the applicable advisory career offender guideline range of 360 months to life imprisonment. In a sentencing memorandum submitted to the court before the sentencing hearing, David details the disparity in treatment of crack cocaine and powder cocaine in the application of mandatory minimum terms of incarceration and sentencing guideline calculations, often called the 100 to 1 quantity ratio (50 grams of crack is treated the same as 5,000 grams of powder cocaine). He cited a recent study by the United States Sentencing Commission documenting the disparity, see U.S. Sentencing Commission, Fifteen Years of GuidelinesSentencing, pp. xv-xvi (Nov. 2004) (available on the Commission’s website at: In that study, the Commission reports that "the harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine." David did not rely on the sentencing disparity alone. He also presented a full mitigation workup within the sentencing memorandum after having received CJA funds for a mitigation specialist. See United States v. Clayton Wilkins, et. al, No. 2:03-CR-73 (ED TN Mar. 15, 2005) (Sentencing Memorandum). The sentencing disparity simply gave Judge Greer the means by which to reach the end he wanted, a lesser more reasonable sentence. Several other district courts have applied this sentencing disparity argument to reach a more reasonable sentence below the advisory guideline range. See United States v. John Smith, ___ F. Supp.2d ___, 2005 WL 549057, *6-*10 (ED Wis. Mar. 3, 2005); Simon v. United States, ___ F.Supp.2d ___, 2005 WL 711916, (ED NY Mar. 17, 2005); United States v. Harris, 2005 US Dist. LEXIS 3958 (DC Mar. 7, 2005).

Discretionary Departures on Appellate Review -- No Jurisdiction?

Today, the Sixth Circuit held, in US v. Puckett, No. 04-5988 (6th Cir. Sept. 6, 2005) ( opinion available here), that the Court lacks jurisdiction to review discretionary denials of departures. The Court stated:

In light of our own precedent, and the recent decisions by the other circuits, we hold that ... although the sentence departed from may be reviewed under Booker, we shall not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.

What does this holding mean for sentences in a post-Booker world? Prof. Berman, in a post here, argues that such a conclusion cannot "be sensibly squared with the new reasonableness standard of review that Booker creates." As Prof. Berman notes, this raises critical issues with respect to how the Court will review so-called "variances" in sentences under the new regime.

In light of Judge Rogers' dissent, however, this holding may not even address Booker review, as it appears to upon first glance. Judge Rogers notes that the defendant raised the Booker issue in reply and the majority refused to remand the case for consideration in light of Booker.

Thursday, August 25, 2005

Damned if you do, damned if you don't

Once again, there are no new published Sixth Circuit cases. So, we will borrow words of wisdom from the 7th Circuit so as to have a thought for the day.

"Gilding the lily, the officer testified that he was additionally suspicious because when he drove by Broomfield in his squad car before turning around and getting out and accosting him he noticed that Broomfield was ‘staring straight ahead.’ Had Broomfield instead glanced around him, the officer would doubtless have testified that Broomfield seemed nervous or, the preferred term because of its vagueness, ‘furtive.’ Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited."
~ United States v. Broomfield, No. 04-4180,
(7th Cir. July 29, 2005).

Wednesday, August 24, 2005

Booker Vacation?

Things are very quiet in the world of Sixth Circuit Booker law. In fact, yesterday there were no criminal opinions, published or unpublished, released by the court. Is this the calm before the storm? If you need a Booker fix, visit Professor Berman's BLOG at (He has not even mentioned the Sixth Circuit since August 14.)

Tuesday, August 23, 2005

Has hell frozen over?

So you thought that it was impossible to have a ruling from the bench of the Sixth Circuit in favor of a defendant? Not so! On August 9, 2005, in the case of U.S.A. v. Samuel Brinson, No. 04-6052, the Court ruled from the bench that the case should be remanded for re-sentencing, contrary to the position of the government. Even though there is not yet an order, the stunned assistant defender thinks that the Sixth Circuit was saying that unless the district court makes a clear statement on the record that it would have imposed the same sentence, then a remand is appropriate. And, we know from yesterday's post that saying just those few magic words is all that it takes.

Monday, August 22, 2005

When judges are grumpy

On August 16, an ill-tempered panel found that a Tennessee facilitation of aggravated assault conviction was a crime of violence for purposes of U.S.S.G. 2K2.1(a)(4), because the specific felony underlying the facilitation charge provides the substance of the criminal conviction. In this case, because it was aggravated assault, it was, of course, a crime of violence. The judges then dismissed the alternative theory of the fearless assistant defender by finding that even though a person does not have to possess the requisite intent to be guilty of the underlying felony, there was still the serious potential risk of physical injury to another. Therefore, it was still a violent felony.

Then, in what seems to be contrary to other decisions, the panel did not remand for resentencing based on Booker. They picked up bits and pieces of language from the sentencing hearing and found that the district judge has sufficiently considered 3553(a). They looked at the fact that he said that the defendant could get his GED and vocational training and that he also said that if the guidelines were found to be advisory, he would have imposed the same sentence pursuant to the factors set out in 18 U.S.C. 3553(a). A decision about whether to pursue an en banc hearing is pending. U.S.A. v. Grady Chandler, Jr., No. 04-6203 (August 16, 2005).

Monday, August 15, 2005

Sixth Amendment Right to Jury Trial Applies to Corporations

In an unpublished decision, United States v. Four Pillars Enterprise Company, Ltd., et al, No. 03-4091, -92, -93 (6th Cir. 8/12/05), the Sixth Circuit has found that the Sixth Amendment right to jury trial applies to corporations. With the individual defendants under fugitive status after fleeing to Taiwan, the corporate defendant raised a Booker claim in a letter brief. Noting that it needed to decide "whether the Sixth Amendment right to a trial by jury applies to corporations", the Court pointed out that the Supreme Court has provided little guidance in this area, but that the Sixth Circuit had applied the Sixth Amendment in "serious" criminal contempt cases. With those precedents in mind, the Court held "that Four Pillars's status as a corporation does not render the Sixth Amendment inapplicable.
Without attempting to define precisely at what point a fine becomes "serious" (and, so, implicates the Sixth Amendment right to jury trial), the Court found that a $2 million fine was stringent enough to meet that standard, and that since the amount of the fine had been enhanced for amount of loss under the Guidelines, its imposition was plain error under Oliver, necessitating remand for re-sentencing.

Supervised Release Revocation Hearings -- No Crawford protections

The Sixth Circuit decided today, in United States v. Kirby, No. 04-6226 (6th Cir. August 15, 2005), (opinion available here), that the rule in Crawford v. Washington, 541 U.S. 36 (2004), (right to confrontation) was not violated when a probation officer testified to out-of-court statements made by police officers and others familiar with Kirby's case. The 6th Circuit joins the 2nd and 8th Circuits in so holding. With respect to hearsay testimony at supervised release revocation hearings, the touchstone remains "reliability." A district court can consider hearsay testimony where it has been "proven to be reliable." United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).

Sunday, August 14, 2005

Restitution-- No Sixth Amendment Problems Here

In United States v. Sosebee, Nos. 03-1923/2219 (6th Cir. August 12, 2005), the Sixth Circuit joined several other circuits and concludes that restitution does not present any Sixth Amendment/Booker problem. Recognizing that "under Sixth Circuit case law, restitution consitutes punishment," the court nonetheless found no Sixth Amendment/Booker violation occurs when a judge imposes restitution, for several reasons: there's no statutory maximum under the restitution statutes; restitution is authorized by statute; and the VWRA and MVRA specifically state that the restitution should be "determined by the court."

Wednesday, August 10, 2005

United States v. Kappell, No. 04-1333(8/9/05)
In this difficult case, the defendant was convicted of nine counts of child sex abuse, and ultimately received a sentence of life imprisonment. The Sixth Circuit considered first whether Kappell's right to confrontation was violated because the children testified in a room outside the courtroom and the jury viewed their testimony over close circuit monitors. The Sixth Circuit found that testimony in this manner did not violate the defendant’s right to confrontation. Second, the court held that Federal Rule of Evidence 803(4) covers statements that are made to psychotherapist for purposes of medical diagnosis or treatment, even if the therapist is not a physician or nurse. Lastly, the Court concluded that the District Court properly relied upon a state criminal complaint, a transcript of the state plea proceedings, and the defendant’s acceptance in those proceedings of factual statements in the complaint, to determine whether the enhancement for life imprisonment should apply. The Court found that the documents considered by the District Court satisfied the standards of both Taylor and Sheppard.

Grandma + Gun = No Exigency

United States v. Keys, No. 03-6041(6th Cir. 8/9/05)
In this unpublished decision, the appeals court elaborates on United States v. Chambers, and what constitutes exigent circumstances that would justify a warrantless entry into a home. The facts: A Memphis cop called out to Keys, who was banging on the door at a duplex and shouting for someone to let him in. Keys decided to drop a gun on the ground and run away. After chasing Keys, the officer returned to the area and saw that the gun was gone, but someone told him that "grandma" had taken the gun into the duplex. As the officer testified, he knocked on the duplex door, and grandma told him in a loud clear voice that the gun was in the kitchen, so the officer went inside and retrieved it. Apparently, however, grandma had her larynx removed in 1979, and was unable to speak out loud at all. The holding: There was no valid consent to enter the home. More importantly, exigent circumstances did not justify the officer’s warrantless entry into the home. The main piece of evidence sought by the police was a gun, and "[f]eared concealment of the firearm is not enough to evade the warrant requirements." Further, it is doubtful that a firearm could actually be destroyed in the time it would have taken to obtain a warrant. This case is full of good cites and language concerning the very limited circumstances in which exigency will justify warrantless entries into homes.

Friday, August 05, 2005

Booker Update: Episode III

In the last couple of months the handling of Booker claims by the Sixth Circuit has settled out into a fairly predictable pattern, with a few exceptions here and there. Objections to the alteration of the "plain error" standard are no longer being noted, and the examinations of whether or not plain error is involved have become shorter and shorter until, in some cases, they are simply stated as a conclusion.

Generally speaking, those cases in which there was a Sixth Amendment violation and there is no clear evidence of an inclination by the district court not to sentence higher, the cases are being remanded under the holding in Oliver. (See Remand, below) In those cases where there is no Sixth Amendment violation, but in which the district court treated the Guidelines as mandatory and there is no clear evidence the court wouldn’t sentence higher, remand is being granted under the holding in Barnett. (See Remand, below) Some cases cite to both decisions without distinction, despite the foundational differences in Oliver and Barnett. See, e.g., United States v. Franklin, No. 03-2439 (6th Cir. 7/19/05), 2005 WL 1706957; United States v. Dexta, No. 03-6602 (6th Cir. 7/28/05), 2005 U.S.App. 15508; United States v. Tate, No. 03-3498 (6th Cir. 6/10/05), 2005 WL 1385461 (unpublished); United States v. (Belita) Bush, No. 04-3613 (6th Cir. 6/15/05)2005 WL 1400197 (unpublished).

Some cases have also been remanded because they had petitions for certiorari pending when Booker was decided, and were remanded by the Supreme Court to the Court of Appeals for further consideration in light of the opinion in Booker. United States v. Dunbar, 411 F.3d 668(6th Cir. 6/8/05) (Order) (On certiorari, the judgment was vacated and remanded for consideration in light of Booker; the case is, therefore, remanded to the district court for re-sentencing); and, United States v. (James S.) Oliver, No. 03-5586 (6th Cir. 7/12/05), 2005 WL 1639613 (On certiorari, the judgment was vacated and remanded for consideration in light of Booker; the case is, therefore, remanded to the district court for re-sentencing).

While the great majority of cases are being remanded for re-sentencing, there are still a handful of cases in which remand is being denied, based either on the facts or on waiver grounds. (See No Remand, below) In some cases, denial of remand was based on the fact that, given the mandatory minimum nature of the sentences, Booker wouldn’t change the sentence. (See No Remand, below) We are also beginning to see those cases that were sentenced in between Blakely and Booker (and before Koch) in which the district judges were imposing alternative sentences and the impact that is having on remand (or no). See, e.g., United States v. Briceno, No. 04-4493 (6th Cir. 6/22/05), 2005 WL 1513101 (unpublished).

Attacks on sentencing enhancements based on the nature of prior convictions have been roundly rebuffed. United States v. Thomas, No. 04-5871 (6th Cir. 7/12/05), 2005 WL 1634374 (unpublished) (Rejecting application of Booker to determination of "controlled substance offense" for career offender purposes); United States v. Butler, No. 04-5899 (6th Cir. 6/22/05), 2005 WL 1515361 (unpublished) ( life imprisonment sentence for "third strike" drug offender); United States v. Zabawa, No. 03-2592 (6th Cir. 6/7/05), 2005 WL 1386485 (unpublished) (following Barnett's holding re a district court's characterization of a prior conviction as a "violent felony"). Despite this, though, some cases have still been granted remand for reconsideration after Booker. See, e.g., United States v. McKinney, No. 04-6083 (6th Cir. 7/1/05), 2005 WL 1579505 (Armed Career Criminal Act); United States v. Pearson, No. 04-5906 (6th Cir. 7/12/05), 2005 WL 1634437 (unpublished) (Armed Career Criminal Act); United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005) (ACCA); United States v. Thomas, No. 04-5871 (6th Cir. 7/12/05), 2005 WL 1634374 (unpublished) (career offender); but, see, United States v. Zabawa, No. 03-2592 (6th Cir. 6/7/05), 2005 WL 1386485 (unpublished) (ACCA; no remand).

Finally, there has also been some discussion of the scope of remand and statutory problems left unresolved by Booker (see, Williams, below), and what "reasonable" might mean in post-Booker appellate review (see, Jackson and Christopher, below).


Remanded based on Sixth Amendment violation under Oliver.

United States v. Caraway, No. 04-5115 (6th Cir. 2005) (remanding without discussion based on Oliver and the government’s concession at oral argument); United States v. Merkosky, No. 02-4332 (6th Cir. 6/14/05), 2005 WL 1400201 (unpublished) (remanded for re-sentencing for Sixth Amendment violation for increasing sentence for drug quantity and obstruction of justice, and finding plain error under Oliver analysis); United States v. (Bryan) Miller, No. 03-6496 (6th Cir. 6/14/05), 2005 WL 1389191 (unpublished) (though enhancements based on facts admitted by the defendant do not violate Booker’s rule, the admissions that defendant made as part of his plea agreement are not sufficient to support either of the enhancements imposed by the district court; the Sixth Amendment violation in this case constitutes plain error; Judge Batchelder noting her disagreement with what she sees as Oliver’s shifting of the burden on plain view from the defense to the government); United States v. Canon, No. 04-5310 (6th Cir. 6/17/05), 2005 WL 1432778 (finding Sixth Amendment violation based on enhancements for amount of loss, more than minimal planning and number of victims, and remanding under Oliver); United States v. (Armand) Wright, No. 04-1685 (6th Cir. 6/17/05), 2005 WL 1432969 (unpublished) (since defendant conceded the drug quantity in the district court that enhancement cannot justify a remand under Booker; however, the contested enhancements for possession of a firearm and obstruction of justice would so qualify; based on those enhancements and holding in Oliver, remand is appropriate); United States v. Penson, No. 04-3482 (6th Cir. 7/1/05), 2005 WL 1579499 (unpublished) (remanded where, after Booker, both parties agree that appellant’s sentence constituted plain error and that remand was appropriate under Oliver); United States v. Malone, No. 04-6352 (6th Cir. 7/7/05), 2005 WL 1579780 (unpublished) (remanding for re-sentencing under Oliver based on the Sixth Amendment violation based on the Guidelines loss calculation determined by the district court); United States v. (Ivan) Smith, No. 04-3422 (6th Cir. 7/12/05), 2005 WL 1653440 (unpublished) (remanding based on obstruction of justice enhancement; finding plain error under Oliver, noting the sentence in the middle of the range); United States v. (Willard) Smith, No. 04-5334 (6th Cir. 7/18/05) , 2005 WL 1704949 (unpublished) (finding Sixth Amendment violation for vulnerable victim and organizer/leader enhancements, and plain error under Oliver, and remanding for re-sentencing); United States v. Franklin, No. 03-2439 (6th Cir. 7/19/05), 2005 WL 1706957 (finding Sixth Amendment violation for the multiple upward adjustments plainly erroneous under Oliver and the use of mandatory Guidelines clearly erroneous under Barnett and remanding for re-sentencing); United States v. Walls, No. 03-1272 (6th Cir. 7/21/05), 2005 USApp. Lexis 15393 (unpublished) (Finding Sixth Amendment violation based on several enhancements neither admitted by him or proved to a jury, vacating and remanding under Oliver for re-sentencing); United States v. Brika, No. 02-4329/04-3982 (6th Cir. 7/27/05), 2005 WL 1761524 (remanding for re-sentencing as plain error under Oliver based on multiple judicially-applied enhancements); United States v. Dexta, No. 03-6602 (6th Cir. 7/28/05), 2005 U.S.App. LEXIS 15508 (remanding under Oliver and Barnett based on enhancements for drug quantity and obstruction of justice when neither were based on facts admitted by the defendant or found by the jury); United States v. Tate, No. 03-3498 (6th Cir. 6/10/05), 2005 WL 1385461 (unpublished) (Remanding, after plain error analysis after finding Sixth Amendment violations under Oliver, for re-sentencing under advisory Guidelines scheme); United States v. (Belita) Bush, No. 04-3613 (6th Cir. 6/15/05), 2005 WL 1400197 (unpublished) (Remanding after finding Sixth Amendment violation for enhancing fraud sentence for abuse of position of trust, and finding plain error under Barnett)

No Sixth Amendment violation, but remanded under Barnett because sentenced under mandatory Guidelines.

United States v. Jefferson, No. 03-2546 (6th Cir. 6/3/05), 2005 WL 1386471 (unpublished) (although appellant raised Blakely in his brief and filed supplemental brief citing Booker, since he didn’t raise the issue at his sentencing hearing, review is for plain error; under Barnett, error was plain, particularly where district court commented on restraint imposed on it by precedent in fashioning sentence); United States v. (Marsha) Hughes, No. 04-5659 (6th Cir. 6/8/05), 2005 WL 1389567 (unpublished) (remanding for re-sentencing under Barnett where request for remand made on appeal due to now-advisory nature of the Guidelines [no discussion of plain error beyond cite to Barnett]); United States v. Meeker, 422 F3d. 736 (6th Cir. 6/17/05) (remanding under Barnett for failing to treat the Guidelines as advisory, despite fact that district court departed upward 6 levels); United States v. Whitehead, No. 04-1831 (6th Cir. 6/17/05), 2005 WL 1693708 (remanding under Barnett based on the government concession as to defendant's convictions for felon-in-possession and possession with intent to distribute cocaine, but refusing to remand defendant's 924(c) conviction due to the mandatory minimum sentence imposed); United States v. Akers, No. 02-6033 (6th Cir. 6/17/05), 2005 WL 1432743 (unpublished) (after receipt of counsel’s Anders brief, Court requested a letter brief addressing validity of defendant’s sentence in light of Booker; finding plain error, remanded for re-sentencing pursuant to Barnett); United States v. Broucek, No. 04-2451 (6th Cir. 6/22/05) (unpublished), 2005 WL 1515364 (Remanded for re-sentencing despite sentence above the Guidelines range because district court premised its sentencing decisions on the fact that the Guidelines were mandatory); United States v. Grenoble, No. 04-3469 (6th Cir. 6/29/05), 2005 WL 1524447 (finding plain error under Barnett based on the failure to sentence under advisory Guidelines and remanding based on his sentence at the low end of the Guidelines range); United States v. McKinney, No. 04-6083 (6th Cir. 7/1/05), 2005 WL 1579505 (unpublished) (although error might have been harmless because fact-based enhancements were subsumed by the application of Armed Career Criminal, remanded because district court might impose a lower sentence under the now discretionary scheme); United States v. Pearson, No. 04-5906 (6th Cir. 7/12/05), 2005 WL 1634437 (unpublished) (remanding under Barnett because of mandatory nature of Guidelines, despite application of Armed Career Criminal Act); United States v. Bondurant, No. 04-5935 (6th Cir. 7/14/05) (unpublished) (finding no Sixth Amendment violation, despite several upward adjustments, because defendant admitted to the facts; although defendant made a Blakely objection before the district court, he did not contest at sentencing the facts on which the enhancements in the PSR were based; the district court is allowed to accept as true all factual allegations in a PSR to which the defendant does not object; therefore, there was no Sixth Amendment violation; however, under Barnett, it was still plain error to sentence defendant under a mandatory sentencing scheme, so the case is remanded for re-sentencing); United States v. Henderson, No. 04-1285 (6th Cir. 6/17/05), 2005 WL 1432847 (unpublished) (upholding the waiver of appeal in defendant’s plea agreement, where he agreed not to challenge the constitutionality of the Guidelines, to his Sixth Amendment argument, but remanding for re-sentencing based on the mandatory nature of the Guidelines, despite the fact that, due to the mandatory minimum, there would only be a 1-month difference in the Guidelines range); United States v. Garner, No. 04-5532 (6th Cir. 7/20/05) (unpublished) (remanding under Barnett based on the mandatory nature of the Guidelines, and noting the sentence imposed at the low end of the Guidelines); United States v. Bernal-Aveja, No. 04-3743 (6th Cir. 7/21/05), 2005 WL 1693961 (remanding under Barnett based on the mandatory nature of the Guidelines, the sentence imposed at the low end of the Guidelines and the district court's expressions of sympathy for the reasons that defendant illegally re-entered the United States); United States v. Sawyers, 409 F3d. 732 (6th Cir. 2005) (ACCA case being remanded for reconsideration of the validity of one of the qualifying convictions; while noting that Booker did not render invalid the ACCA, the Court notes that the district court can also address the sentencing guidelines in light of Booker, etc.); United States v. Thomas, No. 04-5871 (6th Cir. 7/12/05), 2005 WL 1634374 (unpublished) (Rejecting application of Booker to determination of "controlled substance offense" for career offender purposes, but remanding; defendant’s Sixth Amendment objection to the career offender determination was broad enough to preserve for appeal his challenge to the sentence based on Booker, especially given the sentence at the low end of the range); United States v. Gales, No. 04-5800 (6th Cir. 6/28/05), 2005 WL 1515096 (unpublished) (remanded under Booker based on government’s concession for resentencing under non-mandatory Guidelines); United States v. Rone, No. 04-5682 (6th Cir. 7/27/05), 2005 U.S.App. LEXIS 15505 (unpublished); United States v. Durham, No. 04-5666 (6th Cir. 7/27/05) (unpublished); United States v. (Andre) White, No. 04-1393 (6th Cir. 8/2/05) (unpublished) (no Sixth Amendment violation where defendant, during his guilty plea, admitted all facts necessary to apply the challenged Guidelines enhancement, thus establishing those facts without need for "judicial determination"; but remanding under Barnett based on mandatory nature of Guidelines).


No remand based on mandatory minimum sentence that would remain unaffected despite Booker.

United States v. Whitehead, No. 04-1831 (6th Cir. 6/17/05), 2005 WL 1693708 (refusing to remand defendant's 924(c) conviction due to the mandatory minimum sentence imposed); United States v. Goliday, No. 04-3834/3897 (6th Cir. 6/8/05), 2005 WL 1389532 (unpublished) (no remand where defendant sentenced to 20-year mandatory minimum on one count and Blakely/Booker error on other count would not reduce total sentence below 20 years as sentences for two counts were ordered to run concurrently); United States v. Butler, No. 04-5899 (6th Cir. 6/22/05), 2005 WL 1515361 (unpublished) (defendant sentenced to life imprisonment as "third strike" drug offender; Held: the jury specifically found the drug amounts beyond a reasonable doubt and prior convictions need not be proven to a jury beyond a reasonable doubt; moreover, defendant admitted his previous drug felony convictions at trial; therefore, his Sixth Amendment claim has no merit because he was sentenced to a statutory mandatory minimum; no remand).

No remand because enhancement based on prior convictions doesn’t implicate Booker remedy.

United States v. Butler, No. 04-5899 (6th Cir. 6/22/05), 2005 WL 1515361 (unpublished) (defendant sentenced to life imprisonment as "third strike" drug offender; Held: the jury specifically found the drug amounts beyond a reasonable doubt and prior convictions need not be proven to a jury beyond a reasonable doubt; moreover, defendant admitted his previous drug felony convictions at trial; therefore, his Sixth Amendment claim has no merit because he was sentenced to a statutory mandatory minimum; no remand); United States v. Zabawa, No. 03-2592 (6th Cir. 6/7/05), 2005 WL 1386485 (unpublished) (following Barnett's holding that a district court's characterization of a prior conviction as a "violent felony" as defined by the ACCA did not violate the defendant's Sixth Amendment rights under Booker).

No remand because proof, per Barnett, that district court would not have sentenced lower on remand.

United States v. Loggins, No. 04-5477 (6th Cir. 6/6/05), 2005 WL 1385932 (unpublished) (no Sixth Amendment violation based on 12-level enhancement for loss because value of vehicles stolen was included in the presentence report; defendant did not object to the PSR findings, and is therefore deemed to have admitted the facts therein; although district court erred in determining sentence based on presumption that Guidelines were mandatory, no remand because defendant didn’t argue that district court erred by treating the Guidelines as mandatory; also, substantial rights not affected where district court not only "actually considered" an upward departure, but in fact departed upward); United States v. Briceno, No. 04-4493 (6th Cir. 6/22/05), 2005 WL 1513101 (unpublished) (there is no Sixth Amendment violation at issue here, as the district court did not engage in fact-finding that would increase the sentence above that statutorily allowed by the facts proven to the jury; although the court did sentence defendant under the mandatory Guidelines, it indicated that the defendant would have received the same sentence absent the existence of the Guidelines; no remand; the district court’s sentence, which included a 6-level downward departure to a 5&5 split sentence was "reasonable"); United States v. Lepird, No. 04-6093 (6th Cir. 7/26/05), 2005 U.S.App. LEXIS 15393 (unpublished) (remand denied where, although the district court violated the Sixth Amendment by enhancing defendant’s sentence based upon a factual finding to which defendant did not admit, the error was harmless because the court indicated it would impose the same sentence even if the Guidelines were declared unconstitutional; though the court said nothing about what it would do under an advisory Guidelines regime, the record makes clear that the court considered the Guidelines and imposed a reasonable sentence); United States v. Christopher, No. 04-3946 (6th Cir. 7/28/05), 2005 U.S.App. LEXIS 15428 (the district court issued two alternative sentences: one in the event that the Guidelines remained binding in the aftermath of Blakely, and the other in the event that the Guidelines were invalidated; the two sentences were identical; any error in defendant's sentence was harmless, because the district court adequately conveyed that it would impose the same sentence in the absence of mandatory sentencing enhancements; as noted in the unpublished opinion in Strbac, when a district court imposes alternative, identical sentences, one under a regime in which Guidelines enhancements are not mandatory, the harmlessness of any Booker error is established).

No remand – Other

United States v. Sloan, 411 F3d. 643 (6th Cir. 6/3/05) (no remand where defendant did not raise Booker issue, defendant had already served custodial sentence (and length of supervised release is already discretionary), and no "indication from the defendant that he seeks such relief"); United States v. (Orlando) Jackson, No. 04-3015 (6th Cir. 8/2/05) (unpublished) (finding Booker issue to be moot where defendant had already been released from BOP custody).

No Remand - Waiver of Appeal in Plea Agreement

United States v. Luebbert, 411 F3d. 602 (6th Cir. 6/1/05) (finding that provision of defendant's plea agreement "waiv[ing] the right to appeal his sentence on any ground ... other than any sentence imposed in excess of the statutory maximum" referred to upper limit of statute charged in the indictment, and not upper limit of applicable Guidelines range, and, therefore, applied to Sixth Amendment Booker claim as well); United States v. Ginn, No. 04-5321 (6th Cir. 6/9/05), 2005 WL 1389575 (unpublished) (no Booker review due to appeals waiver in plea agreement); United States v. Clark, No. 04-5896 (6th Cir. 6/10/05), 2005 WL 1385462 (unpublished) (approving withdrawal of Booker claim where plea agreement contained waiver of all appeal rights except for reserved suppression issue); United States v. Hicks, No. 03-2393 (6th Cir. 6/14/05), 2005 WL 1400203 (unpublished) (no Booker review where plea agreement contained provision that, if defendant was sentenced within the Guidelines range or less, he waived any right to appeal the conviction or sentence, despite district court’s comments that he wanted to give defendant a shorter sentence, but couldn’t do so under the Guidelines; the change of law in Booker is insufficient to undermine the validity of Hick’s plea agreement); United States v. Burgess, No. 03-4234 (6th Cir. 6/22/05), 2005 WL 1515327 (unpublished) (no Booker review due to appeals waiver in plea agreement; no ineffective assistance of counsel based on counsel’s failure to predict the decisions in Blakely and Booker).

Remand - Scope of

United States v. Williams, 411 F3d. 675 .(6th Cir. 2005) (defendant objected to the particular Guideline used in this child pornography case, and sought remand under Booker; resolution of the case required deciding which version of the Guidelines should be used on remand; Held: Booker complicates this inquiry because, while the Supreme Court excised § 3742(e) in its remedy in Booker, it left intact § 3742(f) and (g); the former provides that the court of appeals must remand a case for further sentencing proceedings where it finds that a sentence was imposed as a result of an incorrect application of the Guidelines; the latter provides that a district court to which a case is remanded shall re-sentence in accordance with 3553 except that it shall apply the guidelines that were in effect on the date of the original sentencing; we believe that the most appropriate post-Booker understanding of these sections is to require the district court, upon remand, to consult the same Guidelines under which the district court originally sentenced the defendant; the range that results from that consultation is an advisory range).

Sentencing -- Post-Booker -- "Reasonableness"

United States v. Jackson, 408 F3d. 301 (6th Cir. 5/24/05) (the district court granted defendant's motion for 8-level downward departure and the government appealed; Held: prior to Booker the district court's explanation of the reasons for its grant of defendant's request for downward departure would almost certainly have been problematic under the Guidelines; Booker, however, greatly change the realm of federal sentencing; the issue is now what quality of analysis and explanation, if any, is necessary where the district court exercises its discretion to vary a defendant's sentence from the applicable range provided by the now-advisory Guidelines; ultimately, Booker requires that the sentence imposed be reasonable; district courts are required to consider the applicable Guidelines sentence range, but only as one factor of several laid out in 3553(a); in this case, the district court's reasoning did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed; even post-Booker, the list provided by the district court, without any accompanying analysis, is insufficient to justify the sentence imposed, as it renders our reasonableness review impossible; Booker requires an acknowledgment of the defendant's applicable Guidelines range as well as a discussion of the reasonableness of a variation from that range; the district court must consider the advisory provisions of the Guidelines and the other factors identified in 3553(a); on remand, to the extent that the district court in re-sentencing relies on factors which are deemed by the Guidelines to be prohibited or discouraged, the district court will need to address these provisions and decide what weight, if any, to afford them in light of Booker); United States v. Christopher, No. 04-3946 (6th Cir. 7/28/05), 2005 U.S.App. LEXIS 15428 (reviewing the sentence for "reasonableness"; a sentence may be unreasonable when the district judge fails to consider the applicable guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration [citing Webb].)

[author's note: in those cases with more extensive discussion of the holdings, I have tried to use, as much as possible, the language of the opinions. In those cases, I have excised quotation marks, internal cites, etc. in order to focus on the holding.]

Wednesday, August 03, 2005

Post-Booker Burden of Proof

The Sixth Circuit, in United States v. Gardner, No. 04-1161 (6th Cir. Aug. 1, 2005) (opinion available here), discusses the burden of proof in a post-Booker world. Thanks to Prof. Berman at Sentencing Law and Policy, we have some scholarly analysis of this opinion. Prof. Berman's observations are available at:

Friday, July 29, 2005

The "Three Amigos": alternative sentences, harmless Booker error, and the reasonableness standard

The Sixth Circuit has joined the 1st, 3rd, 4th, 7th, 8th, and 10th Circuits in finding that the announcement of alternative sentences by the district court can render Booker error harmless. United States v. Christopher No. 04-3946 (6th Cir. July 28, 2005) (Rogers, C.J., Sutton, C.J., and Forester, D.J.) (opinion available here).

This case was on appeal for the 2nd time. Originally, the district court had sentenced the defendant after adopting the PSR which had recommended a total offense level of 20. The court sentenced the defendant to 33 months’ imprisonment and a three-year period of supervised release. It also ordered him to pay $1,573,062.50 in restitution. The defendant appealed and the 6th Circuit reversed finding that the district court had not made adequately specific findings concerning the amount of loss. United States v. Christopher, No. 02-4004, 91 F.App’x 471, 477 (6th Cir. Mar. 4, 2004).

Upon resentencing, the probation officer revised the PSR and recommended a custody range of 30-37 months, based on a total offense level of 19. The defendant objected to the PSR’s findings on the amount of loss pursuant to Blakely. The district court adopted the PSR’s recommendations as to offense level and amount of loss and sentenced him to 30 months, the low end of the range. The court gave two alternative bases for imposing the sentence due to what the court described as "the sentencing mess that has been created by the Supreme Court." The court gave the defendant one sentence "under the guidelines" and one "under the statute." Thus, the district court imposed a “statutory sentence” identical to the one issued under the Guidelines, “in the event an appellate court finds that the Sentencing Guidelines should not be applicable.” The district court, however, failed to anticipate the Supreme Court's decision in Booker that made the Sentencing Guidelines advisable, rather than throwing them out altogether.

Despite explicitly finding that the district court erred in each of the alternative sentences under Booker, the Sixth Circuit concluded that the alternative sentences by the district court rendered any Booker error harmless, "because of the way in which the district court imposed [the] alternative sentences." The panel found that the court’s alternative sentence "makes clear that either in the absence of the Guidelines or in an advisory Guidelines system, the district court would have imposed on Christopher the same sentence as the mandatory Guidelines required."

The panel then examined whether the sentence was reasonable citing United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005) and United States v. Webb, 403 F.3d 373, 382 (6th Cir. 2005). Although the district court wholly failed to mention the factors set forth in 18 U.S.C. § 3553(a), the panel felt that it was "understandable" because the case had been remanded for a re-determination of the amount of loss. Moreover, the panel felt that it was the defendant's burden to show which statutory factors the district court should have considered and how they would have made a difference in the defendant's sentence.

Does this case call into question the reasonableness standard previously set forth in Jackson and Webb? It may, given that this panel appears to put an affirmative duty on the defendant to show, on appeal, how the district court's sentence would have been different, rather than requiring the district court to explicitly state the 18 U.S.C. § 3553(a) factors and the reasons for the sentence that was imposed as set forth in Jackson.

Thursday, July 28, 2005

Sixth Circuit has sent mixed messages about whether a defendant "admits" to PSR facts by not objecting to them.

As a previous post mentioned, a Sixth Circuit panel recently issued an unpublished decision holding that a defendat "admits" to PSR facts by not objecting to them. United States v. Bondurant, No. 04-5935, (6th Cir. 7/13/2005). But that holding is questionable in light of prior Sixth Circuit decisions.

United States v. Oliver, 397 F.3d 369 (6th Cir.), r’hrg en banc denied, 2005 U.S. App. LEXIS 8415 (6th Cir. May 6, 2005). In Oliver, the defendant was convicted on drug trafficking charges. Id. at 374. During his trial, the jury was presented with evidence that, after Oliver’s arrest, he left a Community Alternatives Program (CAP). Id. The jury did not explicitly find that Oliver had left the CAP. Id. Oliver’s PSR proposed a two-level enhancement under § 3C1.1 for obstructing justice by leaving the CAP. Id. Oliver did not object to the PSR’s factual allegation that he left the CAP. See id. at 374, 381 n.4. Rather, he objected that leaving the CAP legally did not constitute an obstruction of justice. Id. at 374. The District Court imposed the enhancement. Id. On appeal, Oliver raised for the first time a Blakely objection to the enhancement, arguing that it was improperly based on a finding of fact. Id. at 377. The Court held that the District Court plainly erred by enhancing Oliver’s sentence under a mandatory Guidelines regime based on a judge-found fact. Id. at 378.

United States v. Bucheit, 2005 U.S. App. LEXIS 9805 (6th Cir. May 23, 2005) (taking the same approach as Oliver while specifically noting that the defendant failed to object to the PSR’s factual allegations)

Bondurant's approach contradicts the plain language of Rule 32, which states that the district court is making “findings of fact” when it adopts undisputed PSR allegations, not that it is merely acknowledging admissions. Fed. R. Crim. P. (32)(i)(3)(A). Rule 32 is not the equivalent of Federal Rule of Civil Procedure 36, which creates a procedure for procuring admissions through a litigant’s silence. Rather, it merely creates a procedure for permitting the sentencing court to make factual findings based on the hearsay evidence in a PSR when the criminal defendant does not object.

Bondurant's approach may violate a defendant's Fifth Amendment right against self-incrimination, which prevents the sentencing judge from drawing adverse inferences from the defendant's silence at sentencing. See Mitchell v. United States, 526 U.S. 314 (1999)

Tuesday, July 26, 2005

Definition of "Aggravated Felonies" for Guidelines Enhancement in Illegal Re-entry Cases Clarified

United States v. Palacios-Suarez, No. 04-4187 (6th Cir. 7/22/05) (Moore, & Restani (U.S.Ct.Int.Tr.), JJ.; Nelson, J., concurring)

Defendant was convicted in Ohio and Kentucky of possession of controlled substances, both of which were, in the state courts, felonies. His Guidelines were increased under §2L1.2(b)(1)(C) based on a finding that these convictions amounted to "aggravated felonies". Defendant argued that, since these offenses would've been misdemeanors if prosecuted under federal law, they couldn't be considered "felonies" for purposes of this enhancement.

Held: a state felony conviction which does not contain a trafficking component must be punishable as a felony under federal law in order for it to constitute an "aggravated felony" under the Immigration and Nationality Act (INA), and, thence, for purposes of the enhancement under §2L1.2(b)(1)(C). Since both prior convictions would have been treated as misdemeanors under 21 U.S.C. § 844(a), they could not be counted as "aggravated felonies" for purposes of the enhancement. In so ruling, Judge Moore, noting the Circuit split on this issue, adopted the "hypothetical felony" approach of the 2nd, 3rd and 9th Circuits. In so doing, the panel rejected the "guideline approach" of the 1st, 4th, 5th, 8th, 10th, and 11th Circuits. The opinion, while dense with competing statutory and Guidelines definitions, is well-reasoned and well-presented. Congratulations to AFPD Richard Smith-Monahan of Cincinnati who briefed and argued the case.

Thursday, July 14, 2005

Failure to object to PSR facts constitutes Booker "admission"

In a per curiam unreported opinion, United States v. Bondurant, No. 04-5935, (6th Cir. 7/13/2005)(Boggs, C.J., Gibbons, C.J., Quist, D.J. (WD Mich.)), a panel of the Sixth Circuit held that Bondurant's Sixth Amendment rights were not violated under United States v. Booker, __U.S.__, 125 S.Ct. 738 (2005), because there were no factual objections to the presentence report. The panel affirmed the district court's Guideline applications. Yet, the panel vacated and remanded the sentence "for resentencing under Booker." The panel, citing to United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005), found that there was plain error in the sentence because it was given "under the presumption that the Guidelines were mandatory."

The panel asserts that there were no objections to the facts contained in the PSR and that these "admissions" properly lead to an enhanced advisory Guideline range. In footnote 1 of the opinion, the panel asserts that Bondurant's objections "rested upon a Blakely argument and not that the facts contained in the presentence report were inaccurate." Id. n. 1. The panel cited, in part, to the Sixth Circuit's recent opinion in United States v. Williams, __ F.3d__, 2005 WL 1384355, at *2 (6th Cir. June 9, 2005), in finding that Bondurant "admitted the facts that gave rise to the enhancements." Even if the Blakely objection was insufficient to challenge the facts of the PSR, the panel never discusses how Booker contemplates that the failure to object to facts contained in a PSR are proper admissions sufficient to warrant Guideline enhancements under the Sixth Amendment.

Furthermore, the panel's citation to Williams is inaccurate. Williams pled to an indictment that contained the facts of the enhancement. Specifically, Williams had admitted to using a computer in the commission of his offenses, a fact that was charged in the indictment, and which resulted in a 2 level enhancement under the Guidelines. Williams, at *3. Bondurant, on the other hand, made a Sixth Amendment objection to the process in which the facts were determined under the then existing precedent of Blakely v. Washington, __U.S.__, 124 S.Ct. 2531 (2004). Thus, Bondurant squarely contested the procedure used by the district court to find that these facts were indeed accurate, which can hardly be characterized as an admission or failure to object.

This case, although unreported, raises serious questions about what can be considered an admission under Booker. This is an area that has not received much attention in the Sixth Circuit, yet, but surely will in the future. Practitioners would be wise to write PSR objections with this unreported case in mind.