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).