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."