Friday, December 29, 2006

Advance Notice Still Required Post-Booker for Upward Variance/Departure

Good news for the defense on an issue that has divided the circuits. Federal district courts in the Sixth Circuit must give advance notice to defendants under Rule 32(h), Fed. R. Crim. P., if they are considering imposing a sentence above the now advisory guideline range, even after the Supreme Court’s Booker decision which rendered the guidelines advisory rather than mandatory. This is not the case in all circuits. The 2-1 published decision can be found at: United States v. Collins, 469 F.3d 572 (6th Cir. 2006). Congratulations to Dennis G. Terez of the Federal Public Defenders office in Cleveland, Ohio, for making good law for the defense.

Thursday, December 07, 2006

Back to the (State) Drawing Board

Very interesting opinion issued today in US V. Morris, No. 05-2133 ( Dec. 7, 2006). The Sixth Circuit upheld the district court's dismissal of a federal drug and gun indictment, based on ineffective assistance of counsel at state level during early plea negotiations.

This was a Project Safe Neighborhoods case, with joint investigation/prosecution by feds and state law enforcement. The defendant initially was charged in state court, and received some sort of pre-preliminary hearing plea offer with a veiled threat of federal prosecution if the offer was not accepted. Both the state d.a. and defense attorney underestimated defendant's actual federal exposure, and conveyed the inaccurate federal guideline estimate to the defendant. The defendant only had short time with state defense attorney to accept or reject state's plea offer; he rejected it, then got sent to federal court.

The district court found that client received ineffective plea advice at state level and only way to remedy was to dismiss federal indictment.

There are more details and I recommend reading the opinion yourself.

Monday, December 04, 2006

En Banc Review of the Tolling of Supervised Release

Blog readers may recall a previous post about the district court practice of tolling the term of supervised release when a defendant will be deported after serving his term of imprisonment. The Sixth Circuit is the only circuit that has endorsed this tolling practice. At least three other circuits have rejected such tolling as exceeding statutory authority (for details, see previous post).

The Sixth Circuit recently granted a defendant’s request for rehearing en banc on the legality of tolling the term of supervised release while a defendant is deported, in United States v. Ossa-Gallegos, No. 05-5824. Mr. Ossa-Gallegos is represented by attorneys Ron Small and Jennifer Coffin at the Federal Public Defender in M.D. Tennessee, a district where many district judges do routinely toll the term of supervised release.

The order granted en banc review was entered in October. All supplemental briefs must be filed by December 13, 2006. Oral argument has not yet been scheduled.

Thursday, November 02, 2006

Objection to "harsh" sentence = preserved constitutional objection

In what is arguably dictum, a panel of the Sixth Circuit has adopted a standard for preserving constitutional objections to a sentence. In United States v. Triana, 06a0409p.06, No. 05-3173 (6th Cir. November 2, 2006), (available here), in an opinion written by District Judge Marbley, (sitting by designation), Judge Marbley and Judge Martin found that defense counsel's objection to the "harshness" of Triana's sentence was sufficient to preserve a constitutional objection to the sentence. Judge Ryan, concurred in the result and opinion, except with respect to the standard of review issue. Judge Ryan contended, perhaps correctly, that because the government conceded that even under a "plain error" standard of review, the case should be remanded, the issue of whether Triana preserved his constitutional objection should not have been reached.

Ironically, Mr. Triana was sentenced on January 12, 2005, the day the United States Supreme Court rendered the Sentencing Guidelines advisory in United States v. Booker,125 S. Ct. 738, 747 (2005). On appeal, Triana argued that he should be resentenced in light of Booker. The government argued that his claim was not preserved below and should be considered under the "plain error" standard of review. The defendant argued that his claim should be considered de novo under the "preserved error" standard of review. The panel noted that the Sixth Circuit had not previously considered "what amounts to a timely constitutional objection."

The panel considered, and adopted, the Eleventh Circuit's reasoning in United States v. Candelario, 240 F.3d 1300, 1303-04 (11th Cir. 2001). While Candelario dealt with an objection based on Apprendi v. New Jersey, 530 U.S. 466 (2000), the panel found the reasoning persuasive. The Eleventh Circuit determined that where an objection is not evidentiary in nature, then it can be deemed a constitutional objection especially where the case that raises the constitutional issue is mentioned. In Candelario, defense counsel had objected to the district court's failure to allow the issue of drug weight to go to the jury and had mentioned Apprendi.

In this case, the panel found that Triana's objection to the "harshness" of the Guidelines during his sentencing hearing constituted a timely constitutional objection, even though Booker had not even been decided. First, defense counsel referred to the Booker/Fanfan case, as it was pending a decision. Second, during the sentencing hearing, defense counsel made several evidentiary objections which were clearly distinct from his claim of "harshness." Instead of taking issue with factual interpretations, the "harshness" claim raised a broader constitutional question, according to the panel. Specifically, the objection raised the question of whether defendant's "Guideline sentence was disproportionate to the crime, i.e. harsher than he deserved." Finally, the majority also found significant the defendant's objections to the loss calculations. Joining the Fifth and Eighth Circuits, the majority determined that objections to the loss calculations, in the Booker context was sufficient to preserve a Booker claim.

If there is a practitioner's lesson in this case, it is to always say that the sentence is "harsh" or "disprorportionate to the crime." That way, when the case gets appealed, you can claim you preserved the constitutional error.

Wednesday, August 23, 2006

Cross-Referencing to Achieve a Higher Sentence

By: Julie Vandegrift, Paralegal for Federal Defender Services of Eastern Tennessee, Inc., Chattanooga

U.S.S.G. § 2K2.1, the guideline for being a felon in possession of a firearm, contains a section which allows for cross-referencing "if the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense" or with the knowledge that it would be so used. U.S.S.G. § 2K2.1(c). If the case fits that criteria, § 2X1.1 is used instead of § 2K2.1, if the resulting offense level is greater. The sentence calculation then crosses to the guideline for that other offense. As an example, if a felon possessed a firearm or ammunition during a murder, the murder guideline is used instead of the felon in possession guideline if it will result in a higher sentence. Based on this, a defendant convicted of being a felon in possession of a firearm or ammunition can serve a sentence for murder without ever being charged or convicted for the murder. No jury, no plea, no beyond a reasonable doubt.

More and more, defendants guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), are finding themselves receiving a sentence under the guideline for some other crime. That statement begs the question, how could this be happening? The answer is simply, through the federal Sentencing Guidelines, despite Supreme Court holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

In Booker, the Supreme Court extended its holding in Blakely to the federal Sentencing Guidelines, reaffirming the holding in Apprendi that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Booker, 125 S. Ct. at 756. The Booker requirement seemingly conflicts with earlier decisions that approve of cross-referencing to sentences for a crime different from that charged, and based solely on facts found under the preponderance of the evidence standard.

Under the Fifth Amendment of the United States Constitution, "[n]o person shall be held to answer for a capital, or otherwise infamous crime . . . without due process of law." In an insightful concurrence years before Apprendi, Blakely or Booker, Senior Circuit Judge Heaney wrote on this very issue in a felon in possession case, stating "[t]his case is but another in a growing list of cases in which the government charges an offender as a felon in possession with the knowledge that if the offender is convicted or pleads guilty to that charge, the sentencing will turn on some state law offense that the government will attempt to prove through hearsay at the sentencing hearing." United States v. Fleming, 8 F.3d 1264, 1267 (8th Cir. 1993). Judge Heaney further stated, "I remain firmly convinced that the use of so-called relevant conduct in this context violates Fleming’s right to due process of law." See also United States v. Wilson, 992 F.2d 156, 159 (8th Cir. 1993). "This sentencing regime turns federalism on its head, but more importantly, it violates the offender’s right to due process." Fleming at 1267. The state law conduct should be charged in state court where the defendant "would have the right to a jury trial, to confront witnesses, and to have the necessary findings made beyond a reasonable doubt." Fleming at 1267, quoting Wilson at 159. Apparently, many circuit courts do not feel the same as the cross-referencing to § 2X1.1 is being affirmed across the country.

The Sixth Amendment of the United States Constitution states an accused has the right to an impartial jury "and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor." Interestingly, the Sixth Circuit Court of Appeals has concluded in one case that application of a cross-reference based on judicially-determined facts violates the Sixth Amendment. In United States v. Smith, 404 F.3d 1019 (6th Cir. 2005), based upon an attempted robbery, the defendant was charged and tried for being a felon in possession of a firearm. Smith at 1021. The jury was instructed on more than one occasion that the only issue there was the defendant’s guilt on the felon in possession of a firearm charge. Id. The defendant was found guilty under 18 U.S.C. § 922(g). Id. In the Presentence Report, the probation officer in Smith determined that the defendant used the firearm in connection with an attempted robbery and applied the cross-reference to U.S.S.G. § 2X1.1, which in turn led to the robbery guideline. Smith at 1022. Instead of being placed at a base offense level of 14, with a criminal history score of VI (37-46 months) for the felon in possession charge, the defendant was placed at a base offense level of 25 under the attempted robbery guideline (110 to 137 months). However, the defendant in Smith never admitted to the robbery. Smith at 1023. The Sixth Circuit Court of Appeals held that Smith’s Sixth Amendment rights were violated because the court relied on judicially-determined facts to impose a sentence that could not have been imposed based solely on facts found by the jury beyond a reasonable doubt. Smith at 1023, citing United States v. McDaniel, 398 F.3d 540, 548 (6th Cir. 2005).

Unfortunately, this holding is the exception in the Sixth, not the norm. Recently, in an unpublished decision United States v. Tracy Hughley, No. 05-5602 (6th Cir. Aug. 7, 2006) (unpublished decision), the Sixth Circuit upheld the statutory maximum sentence of 10 years for a defendant who pled guilty to being a convicted felon in possession of a firearm. Though convicted of being a convicted felon in possession of a firearm with an applicable guideline range of 77 to 96 months, the district court had used the cross-reference to apply the base offense level of 29 for the drug trafficking offense which had been dismissed by the government, resulting in a guideline range that exceeded the 10-year statutory maximum. Essentially, the defendant was sentenced for an offense to which he did not plead guilty nor had been proven guilty beyond a reasonable doubt to a jury. On appeal, the Sixth Circuit ruled that post-Booker, judicial fact-finding by the district court was permissible, even if it amounts to a sentence being imposed for a different offense.

There is hope. A recent article posted by Professor Douglas Berman on his infamous site,,/ contained a quote from a dissent authored by Justice Ginsburg. In Washington v. Recuenco, 126 S.Ct. 2546 (2006), Justice Ginsburg wrote, "In sum, Recuenco, charged with one crime (assault with a deadly weapon), was convicted of another (assault with a firearm), sans charge, jury instructions, or jury verdict. That disposition, I would hold, is incompatible with the Fifth and Sixth Amendments." While not a cross-referencing case, the situation in Recuenco is analogous.

The article where I read the quote is, as described by Professor Berman, an "extraordinary" work by Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders. The article, The Continuing Struggle for Just, Effective and Constitutional Sentencing after United States v. Booker, is a very good read and can be downloaded here

As we continue to advocate for our clients, objections to cross-referencing in sentencing need to be made. Convicted felons who are guilty of possessing a firearm or ammunition that has traveled in interstate commerce should be sentenced for the crime for which they are found guilty, not crimes that "more likely than not" happened. If they are to be sentenced for a different crime, they should be charged accordingly and afforded their Constitutional rights.

Wednesday, August 16, 2006

Retreat Toward Mandatory Guidelines - Part II

The next round of post-Booker litigation didn’t have to wait long – a day, in fact. In United States v. Cage, No. 05-5241 (6th Cir. 8/15/06), a panel of the Court finds that a "district court does not err in viewing the Guidelines as a presumptively reasonable starting point and ‘considering the Sentencing Guidelines and the Guideline ranges before the court does anything else.’" Slip p. 6.

At issue was the sentencing of the less-than-sympathetic Ms. Cage [sorry, April and Ed] who, while awaiting sentencing on her $132,000 worth of credit card and access device fraud committed another $108,126 worth of additional fraud. In imposing a sentence of 37 months the district court stated, "Under Booker, there is a presumption in favor of the Guidelines because the Guidelines express the public policy and the intention of Congress as to the court’s authority of these matters and the considerations that the court should address. And I think that . . . a sentence under the Guidelines would be a reasonable sentence." Slip p. 3. This appeal followed.

In responding to appellant’s argument that the district court erred by referring to the appellate standard of reasonableness in setting the sentence, the majority holds that her claim is foreclosed by the Court’s decision in United States v. Williams, 436 F.3d 706 (6th Cir. 2006), in which the presumption of reasonableness was first announced. The majority then spends a fair amount of ink defending the presumption before finding that the district court did not err in citing the reasonableness standard as appropriate for sentencing court consideration. As a final kick, the majority notes, "Cage has failed to identify a single factor that might support her claim that her sentence of 37 months in prison is unreasonable under the circumstances." Slip p. 7.

The dissent comes out gunning: "The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert [Booker] and to make the sentencing Guidelines de facto mandatory. . . . The majority’s holding in this case directly contravenes Booker, 18 U.S.C. § 3553(a), and this Court’s prior holdings that district courts are to consider all the § 3553(a) factors in arriving at a sentence sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)." Slip p. 8. (emphasis in original) The dissent, in footnote 2, directly challenges the binding effect of Williams given the refusal by the Court in Webb to adopt a per se reasonableness rule. The dissent would hold the sentence procedurally unreasonable due to the district court’s reliance on the appellate standard of reasonableness. "This method of calculating Defendant’s sentence violated Booker in that the district court mistakenly believed that it was required to start with a Guidelines sentence and could only depart upward or downward if some other § 3553(a) factor, or combination thereof, compelled a departure. That is not now, nor has it ever been, this Court’s understanding or treatment of the Guidelines post-Booker." Slip p. 11.

This most recent series of cases mirrors the struggle nationally as the Courts of Appeals try to determine what the Supreme Court’s decision in Booker means on a practical, day-to-day level. As highlighted in the Sixth Circuit’s latest series of cases, the fight is between those who think that federal criminal sentencing is business-as-usual with the Guidelines (and a nod and a wink to "advisory") and those who are taking Booker at its word that the Guidelines are just one factor among equals and are trying to fashion a sentencing approach that includes the Guidelines, but also focuses more on the defendant as an individual than the Guidelines ever did and gives more flexibility to the district court’s to craft an appropriate sentence. This leaves the federal criminal defense practitioner (or prosecutor) in a bind as the procedures and standards change from day to day. The only thing we know for sure is that Cage won’t be the last word in this struggle.

Monday, August 14, 2006

Sixth Circuit Retreats Further Toward Mandatory Guidelines

Today a panel of the Sixth Circuit has moved the Court further toward reinstating the old system of mandatory Guidelines in its first opinion reversing a sentence for being substantively unreasonable. United States v. Davis, No. 05-3784 (6th Cir. 8/14/06).

Davis had originally been sentenced to 33 months (the low end of the Guideline range), but on appeal his sentence was reversed due to an error in the version of the Guidelines that had been used and pursuant to Booker. On remand, in what the Court of Appeals describes as "a thorough application of the § 3553(a) factors by an experienced and well-regarded district court jurist," Davis was sentenced to 1 day of imprisonment, three years of supervised release (with one year of home detention) and 100 hours of public service. The factors that led the district court to this sentence were the fact that the criminal conduct had occurred 14 years before sentencing, the defendant was over 70 years old and retired, rehabilitation was not an issue, the lack of sentencing disparity due to the paucity of 70-year-old people brought before the court 14 years after the offense, that he was no danger to the public, and others.

After noting that, post-Booker, it is the duty of the Courts of Appeals to try to eliminate unwarranted disparities circuit-wide, the panel, writing through Judge Sutton, first adopts an appellate review standard that starts with the Guidelines sentence. Slip Op. at 5. (The logic to this is based on Judge Sutton’s concurrence in United States v. Buchanan, 449 F.3d 731 (6th Cir. 5/26/06), in which he argues that the Guidelines account for most, if not all, of the 3553(a) factors.) The majority then notes that a within-Guidelines sentence ("when the independent views of the sentencing judge and the Sentencing Commission align") is then accorded a presumption of reasonableness. Id. [It may be worth noting here that Judge Sutton was the author of United States v. Koch, 383 F.3d 435 (6th Cir. 2004), cert. granted, judgment vacated by Koch v. U.S., 125 S.Ct. 1944 (2005), supporting the constitutionality of the Guidelines by holding that Blakely did not require a finding that the Guidelines were unconstitutional and that is was unlikely that the U.S. Supreme Court would find the Guidelines unconstitutional in order to understand his continued support for the primacy of the Guidelines.]

The majority then adopts a new rule to be applied to any sentence outside the presumptively-reasonable Guidelines sentence: "when the district court independently chooses to deviate from the advisory guidelines range (whether above or below it), we apply a form of proportionality review: ‘the further the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’ must be." Id.

Having set the rules for review, the majority then posits, "Few would disagree that we have an extraordinary variance in this case – from a guidelines range of 30 to 37 months to one day, to what the government refers to as a 99.89% variance – so the question is whether extraordinary circumstances justify the full amount of the variance." Id. The majority found that it did not and reversed the sentence. [Whether a sentence of 12 months of home detention versus 30 months imprisonment is extraordinary may be a more open question than the majority here believes.]

Most notable in this opinion are the two new standards for review detailed above for hewing so closely to pre-Booker Guidelines standards. It is surely no accident that the majority talks in terms of "the further the [district] judge’s sentence departs from the guidelines." (emphasis added) The whole tenor of the majority’s approach here is as if it is dealing with a Guidelines departure. This is nowhere more apparent than the Court’s insistence that the variance be justified by "extraordinary circumstances." See, e.g., Introductory Commentary, Part H, Sentencing Guidelines Manual ("Furthermore, although these circumstances are not ordinarily relevant to the determination of whether a sentence should be outside the applicable sentencing range, they may be relevant to this determination in exceptional cases. They may also be relevant if a combination of such circumstances makes the case an exceptional one..."); §5K2.0(c) and Commentary thereto.

And what of the Court’s adoption of the government’s reference to the extent of the departure being 99.89%? It didn’t seem to matter to the Court when the district court in U.S. v. Scott Ferguson [see Randy Alden’s post, below] imposed a 100% higher sentence than the presumptively reasonable guidelines sentence. What will the break point be? 66%? 50%? 33%? Will there be a presumptively reasonable amount of variance?

This great march forward into the past seems to be at odds with other of this Circuit’s cases defining the scope of reasonableness review. In United States v. McBride, 434 F.3d 470 (6th Cir. 2006), for example, the court stated:
Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a) (footnote omitted). In Section 3553(a), there are numerous factors for a court to consider and under Booker's remedial holding, the sentencing guideline range is one of those factors. That is, while the guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant . .

Once the appropriate guideline range is calculated, the district court throws this ingredient into the Section 3553(a) mix. Considering, as Booker requires, all of the relevant Section 3553(a) factors, including the guideline range, the district court then imposes a sentence.

Instead of this approach, however, the majority in Davis suggests that, of all of the considerations in 3553(a), the Guidelines should be "first among equals." This presumption, when coupled with the new proportionality review noted above, would also seem to be contrary to the Court’s holding in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2000), that a sentence outside the Guidelines range is not presumptively unreasonable.

It is also worth noting that if Davis’ use of the presumption and its proportionality review prevail, we will find ourselves, as a practical matter, back at mandatory Guidelines. Mandatory guidelines, of course, could not support judicial fact-finding without running afoul of Booker. If the Court of Appeals has created a de facto mandatory guidelines system by presuming within-the-range sentences to be correct and establishing departure-like requirements for sentences outside the range, then defense attorneys in the Sixth Circuit should be objecting to any sentencing enhancements not found by a jury or admitted as a part of a plea.

In "vigorous" dissent, Judge Keith refers to the reversal of the sentence as "a complete miscarriage of justice." Slip p. 9. He also notes a disturbing pattern to post-Booker appellate review:

The current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range. This holding cannot be reconciled with Booker, which instructs the appellate courts to review a sentence for reasonableness regardless of where the sentence falls in relation to the advisory guidelines range.

Slip pp. 9-10.

Judge Keith details the many circumstances that support the sentence imposed by the district court. Addressing the majority’s approach to the review of sentences he states, "In engaging in this mechanical assessment, the majority starts this Court down the path of the pre-Booker days where the district courts were bound by an algebraic application of the guidelines." Slip p. 10.

Thus, Davis continues the Sixth Circuit’s tug-of-war between a new, post-Booker model of sentencing and review and a return to the business-as-usual Guidelines approach. Where from here? Stay tuned!

Wednesday, August 09, 2006

Reasonableness Review: The "Paradigm" and the "Peacekeeper"

Today a panel of the Sixth Circuit affirmed a 100% upward "variance" from an advisory Guideline range of 0 - 6 months to 12 months for (1) transporting in interstate commerce a motor vehicle that the defendant knew was stolen, in violation of 18 U.S.C. § 2312; and (2) selling a motor vehicle that the defendant knew was stolen and that had crossed state lines after the theft, in violation of 18 U.S.C. § 2313. United States v. Scott A. Ferguson, --F.3d--, No. 05-3998 (6th Cir. August 9, 2006)(opinion available here). While not an extraordinarilyly onerous sentence, this case is notable for the panel's use of what I call the "reasonableness review paradigm."

Mr. Ferguson was the Chief of Collections at the United States Air Force Museum located at Wright-Patterson AFB, Dayton, Ohio. Between 1994 and 1996, Mr. Ferguson acquired for the Museum, a Peacekeeper, (see picture above), from an Air Force Base in Plattsburg, New York, fraudulently removed it from the Museum's books, obtained a phony Ohio title, and proceeded to showed it at two Military Preservation Association shows. Mr. Ferguson then sold the Peacekeeper to an acquaintance for $18,000 in June of 1999. The acquaintance made some repairs and sold the Peacekeeper to the Eastern Band of Cherokee Indians for $38,000 in May of 2000.

The district court conducted a series of hearings and, after calculating the amount of loss caused by Ferguson's offenses, agreed to credit Ferguson with a two-level reduction for acceptance of responsibility. These calculations resulted in a total offense level of 8, which yielded a Guidelines range of 0-6 months.

The district court then "proceeded seriatim through most of the factors contained in 18 U.S.C. § 3553(a)." The judge weighed the factors and sentenced Ferguson to 12 months in prison and 3 years of supervised release, and ordered him to pay $29,000 in restitution. The district court stated that Ferguson had "taken advantage of his position at the museum to acquire a vehicle that 'while not on everyone's wish list, is a national treasure.'"

Ferguson made three arguments on appeal. First, he argued that the judge engaged in impermissible fact-finding. He then argued that the judge improperly sentenced him based in part on his socio-economic status. Finally, he argued that the sentence was unreasonable. The panel summarily rejected Ferguson's first two arguments.

Turning to the last argument, the panel spends a paragraph apparently adopting the term "variance" with respect to sentences that exceed the Guideline maximum. The court cites United States v. Barton, -- F.3d --, 2006 WL 2164260 (6th Cir. Aug. 3, 2006) and United States v. Matheny, 450 F.3d 633 (6th Cir. 2006). The panel also cites the Fourth Circuit Court of Appeals' opinion in United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006) which differentiated between "variances" from the Guidelines' range and traditional "departures" made pursuant to Guidelines' provisions.

The panel's opinion in Ferguson is mostly important for how it distinguishes between, and utilizes the concepts, of "substantive reasonableness" and "procedural reasonableness" -- the "reasonablness review paradigm." The panel essentially adopts the concepts that were fully explicated in Judge Sutton's concurrence in United States v. Buchanan, 449 F.3d 731, 735 - 741 (6th Cir. 2006).

Under this paradigm, the panel affirmed the 100% increase in Mr. Ferguson's sentence, stating:

The district court therefore did what it was obligated to do by both this court's caselaw and the governing statute -- it followed a congressional command and then "exercis[ed] independent judgment in sentencing [a] criminal defendant[] within statutory limits." See id.; Douglas A. Berman, Reasoning Through Reasonableness, 115 Yale L.J. Pocket Part 142 (2006), (reading Booker as requiring "district courts to exercise independent reasoned judgment when imposing a sentence"). Under these circumstances, we cannot say that the court's decision to impose a sentence six months above the advisory Guidelines range was unreasonable.
Whether this vehicle is indeed, a "national treasure," is questionable. What probably is not questionable is that the "reasonableness review paradigm" is alive, well, and should be carefully studied by the federal criminal practitioner to have a hope of defeating this type of upward "variance" in future cases.

UPDATE: Professor Berman, as always, has a thoughtful, (and perhaps slightly biased), critique of this opinion, (far better than mine, of course). His post is available here. Click and learn!

Monday, July 10, 2006

Guidelines Sentence Reversed As Unreasonable

The refinement of "reasonableness" review continues with the Sixth Circuit’s decision in United States v. Vonner, __ F.3d __ (6th Cir. 6/29/06), 2006 WL 1770095. Vonner was charged with distributing at least 5 grams of cocaine with a Guidelines range of 108 - 135 months (and a 5-year mandatory minimum). At the sentencing hearing, defense attorney Steve Johnson of Knoxville presented evidence of his client’s childhood of "abuse, abandonment, violence, neglect, and trauma", and argued further that a history of drug and alcohol abuse, the circumstances of Vonner’s involvement in the offense, the conditions of pretrial confinement, and assistance provided by Vonner to the government (but, apparently, not arising to the level of a 5K1.1 motion) justified a sentence below the Guidelines range. The district court imposed a sentence of 117 months, the middle of the Guidelines range, referencing the 3553(a) factors, but providing no further explanation.

Before addressing the particulars in Vonner’s case, the Court reviewed the status of "reasonableness" review in the Sixth Circuit. Alluding to the lack of continuity in the decisions that this blogsite has previously detailed, the majority notes that "without a reasoned explanation", the Williams panel imposed a presumption of reasonableness for sentences within the Guidelines range. Even the dissent notes that "[t]he numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike."

The district court’s explanation for the sentence in this case was, in full, as follows:

"With respect to the sentence in this case, the Court has considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines, as well as the other factors listed in 18 United States 3553(a). Pursuant to Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Alvin George Vonner, is hereby committed to the custody of the Bureau of Prisons for a term of imprisonment of a hundred and seventeen months. It is felt that this term is reasonable in light of the aforementioned, in light of the aforementioned factors and is a sentence, furthermore, that will afford adequate deterrent [sic] and provide just punishment." Slip Op. p. 4.

The Court of Appeals reversed the sentence in this case based on the lack of detailed explanation by the district court for the sentence that was imposed. In doing so the Court noted that under U.S. v. Richardson, 437 F.3d 550 (6th Cir. 2006), "[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it." 437 F.3d at 553. In Vonner, however, the district court apparently never addressed the mitigation proof offered by the defense or its reasons for rejecting that proof, or offered any other explanation for the sentence that it imposed other than the stock language above.

Addressing the statement that the district court did make, the Court of Appeals noted that while it had previously held that the district court need not engage in a "ritualistic incantation" of the 3553(a) factors in order for a sentence to be found to be reasonable, the reverse was also true – a ritualistic incantation of the 3553(a) factors will not insulate a sentence from being found unreasonable. Slip Op. p 7 n.4.

Judge Siler’s dissent would, disappointingly, put the burden for the explanation of the sentence on defense counsel where the district court didn’t explain its rationale. (The majority opinion also urged defense counsel to press for district courts to give "a thorough rationale for their sentencing determinations," but noted that they were not required to do so.)

The Court did not find that the 117-month sentence was itself unreasonable for the offense committed (and even noted in a footnote that the district court was free to impose the same sentence so long as it was explained), only that an insufficient explanation for the sentence prevented the Court of Appeals from performing its review function. However, in the development of reasonableness review this decision sheds more light on the district court’s obligations, especially where the defendant has raised specific mitigating circumstances.

Friday, June 30, 2006

REDUX: Tolling of Supervised Release During Deportation

Several months ago, this writer posted about the Sixth Circuit's position that the district court has authority to order that a term of supervised release may be tolled while a defendant is out of the United States after being deported. See US v. Isong, 111 F.3d 428 (6th Cir. 1997). Today, in US v. Ossa-Gallegos, No. 05-5824 (6/30/06) (appeal by attorneys Jennifer Coffin and Ron Small of M.D. Tenn), the Court reviewed this issue in detail. The Court noted the strength of Judge Moore's dissent in Isong and "the weight of authority" from the 2nd, 8th, and 11th Circuits, which all found that such tolling is unauthorized. The Court nonetheless found that it was bound by the holding in Isong, but noted that Mr. Ossa might want to seek en banc review.

At sentencing in cases where the client is to be deported, practitioners should continue to object to a special condition tolling supervised release while deported, raise it on appeal and then in an en banc petition and/or cert. petition to the Supreme Court.

Thursday, June 29, 2006


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, 423 F.3d 526 (6th Cir. 2005), 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." 423 F.3d at 534-35. 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 would be the reason that a written application is required in the first place – so that one would 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. This would seem to be confirmed by the Court’s recent decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006). In that case the district court found the search warrant deficient as being stale, but further found that the Leon good faith exception applied and denied the motion to suppress. The Court of Appeals held that despite the occurrence of a single controlled buy at the residence, the lack of recent information to measure whether or not the residence was a fixed drug distribution point rendered the warrant insufficient. It went on to hold that in determining good-faith reliance by the officer, a court can only consider the information in the four corners of the document. The limited exception in Frazier did not apply here to the inference that a recent controlled buy indicates that more drugs will be found in the location as there was no proof in the record that the magistrate knew or was told when the controlled buy took place.

Thursday, June 22, 2006

Sentencing Disparity in Meth Cases Involving § 2D1.1(b)(5)(C) Increase to Offense Level 30 for Creating a Substantial Risk of Harm to Life of a Minor

In the post-Booker world in which we live where most sentences are being upheld on appeal as being reasonable, it is even more important to be creative at the district court level in showing that a sentence within the advisory guideline range is not reasonable, especially in light of the Sixth Circuit’s Williams/Foreman decisions extending a presumption of reasonableness to sentences falling within the advisory guideline range. Below is an example of creative lawyering by my colleague, Assistant Federal Defender Rita LaLumia, in a methamphetamine case to combat the unfairness that results when the offense level is increased to Offense Level 30 pursuant to U.S.S.G. § 2D1.1(b)(5)(C) for having created a substantial risk of harm to the life of a minor. The reasoning applies equally to any mandatory guideline enhancement to a certain offense level where a less culpable offender is treated more harshly than a more culpable offender by the mandatory offense level increase. Because the Sentencing Guidelines are now merely advisory, the district court’s are no longer required to sentence within the guideline range and the below reasoning gives a good argument pursuant to 18 U.S.S.G. § 3553(a)(6) ("the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct) to impose a more reasonable sentence falling far below the advisory guideline range.

Pursuant to U.S.S.G. § 2D1.1(b)(5)(C), a 6-level increase in offense level is applied if the offense (1) involved the manufacture of methamphetamine, and (2) created a substantial risk of harm to the life of a minor. If the resulting offense level is less than 30, the offense level mandatorily is increased to 30, regardless of the drug quantity involved in the offense of conviction Given this provision and the district court’s determination that the enhancement applied, the offense level in this case rose to Offense Level 30 from Offense Level 14 (based upon the drug offense involving 7 grams of methamphetamine). With only a 6-level increase, the resulting guideline range would have been 30 to 37 months based on a total offense level of 19 and a criminal history category of I. Without any enhancement for risk of harm, the defendant faced an offense level of 16 based on the drug quantity alone, providing a guideline range of 12 to 18 months. Thus, the 6-level increase alone essentially more than doubled his guideline range. With the full 14-level increase to Offense Level 30, he faced a guideline range of 70 to 97 months or almost six times the sentence he would receive at his base offense level.

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 6-level increase for creating a substantial risk of 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 and appellate courts are in the best position to fine tune a reasonable sentence to a particular defendant as required by Booker.

Friday, May 19, 2006

Judicial Recommendation to BOP for up to 6 Months Halfway House - Will the BOP Listen?

Prior to December 2002, the Bureau of Prisons allowed an inmate to be placed in a Community Corrections Center (CCC, a.k.a. halfway house) up to six months, regardless of the total length of the inmate’s sentence. On December 13, 2002, the Office of Legal Counsel for the Department of Justice issued a memorandum stating that the practice was not consistent with 18 U.S.C. § 3624(c), which in its opinion, limited an inmate’s placement in a halfway house to the lesser of six months or ten percent of the inmate’s sentence. The BOP adopted this interpretation of the statute. In light of decisions in other circuits, Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004), and Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004), the created new regulations noting the BOP could exercise its discretion to "designate inmates to CCC confinement only . . . during the last ten percent of the prison sentence being served, not to exceed six months," requiring that it consider various factors (resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, any statement by the court that imposed the sentence, concerning the purpose for the sentence for the sentence of imprisonment was determined to be warranted, or recommending a type of penal or correction facility as appropriate, and any policy statement issued by the Sentencing Commission. 28 C.F.R. § 470.20-21.

Recently, two circuits have ruled the BOP’s February 2005 regulation invalid as it restricts its discretionary transfer and placement in a halfway house to those serving the last 10% of their incarceration term. See Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Fed. BOP, 432 F.3d 235 (3d Cir. 2005). These courts ruled that the BOP’s interpretation fails to consider the § 3621(b) factors "by excluding an entire class of inmates – those not serving the final ten percent of their sentences – from the opportunity to be transferred to a CCC." Fults, 442 F.3d at 1092.

In light of this developing law, it is recommended that among the request for judicial recommendations to be made at sentencing should be that the Bureau of Prisons consider placement of the client at a halfway house for 6 months. Several district courts are willing to include judicial recommendations (to include the 500-hour drug and alcohol - DAP - program, psychological treatment, vocational and educational training, participation in UNICOR, etc.). In the wake of Booker and the developing case law to "fix" Booker, a judicial recommendation of this sort will make a different to your client, especially if it is honored by the BOP. One client of this office has written asking for such a judicial recommendation, noting that his counselor explained to him that the BOP likely would honor the recommendation given his circumstances (completed 40-hour drug treatment program but he did not have a lengthy enough sentence for acceptance and completion of the 500-hour DAP program). Additions of judicial recommendations are more difficult after the entry of the judgment, and therefore, it is advisable to ask for these recommendations in the front end. Let's ask for the judicial recommendations then see if the BOP will listen.

"Ding Dong the Witch is dead?"

The trend of late in the Sixth Circuit Court of Appeals has been to cite to the "rebuttable presumption" language of United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) when affirming a criminal sentence upon appellate review, while still examining the sentencing process and findings of the district court. This reasoning has created confusion in the standard for appellate review of criminal sentences in the Sixth Circuit and has led many to question whether there is a split within the Circuit with respect to the correct standard. (See Sumter Camp's post "Williams' 'Per Se' Rule Clarified" February 8, 2006).

Just one of a number of examples of this confusion exists in the unreported case of United States v. John Jackson, 2006 WL 1208063, *1+, 2006 Fed.App. 0298N, 0298N+ (6th Cir. May 1, 2006). In this case, the defendant's sentence was affirmed over the defendant's claim that the "rebuttable presumption" was "overcome." The defendant argued that the presumption had been rebutted "because the court did not duly 'consider' the sentencing factors listed in 18 U.S.C. § 3553." In affirming the sentence, the Court cited to Williams, and stated: "[a]s this sentence is within the advisory guidelines range, it is credited with a rebuttable presumption of reasonableness." Yet, the panel still examined the district court's review process and reasons for imposing the sentence and determined that the district court had "clearly articulatet[ed] the reasons for the sentence imposed."

Perhaps today's opinion in United States v. Daniel Morris, -- F.3d --, No. 05-1623 (6th Cir. May 19, 2006), (opinion available here), sounds the death knell for the "rebuttable presumption." In a well reasoned and articulated concurrence, Judge Clay wrote:

The majority opinion cites United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), for the proposition that a sentence within the Guidelines range creates a "rebuttable presumption" of reasonableness. While the majority goes on to note that this "rebuttable presumption" does not relieve the district court of its obligation to articulate its sentencing rationale, I believe that the Williams' "rebuttable presumption" language is surplusage in light of controlling Sixth Circuit precedent that the district court must consider the §3553 factors and provide this Court with some indication that it has properly done so. See United States v. Webb, 403 F.3d 373, 385 n.8, n.9 (6th Cir. 2005)(requiring the district court to provide a reasoned explanation for its sentence and rejecting the proposition that a sentence within Guidelines ranges is per se reasonable). The Guidelines range is only one of a number of factors which §3553 requires sentencing judges to consider. Without an adequate statement from the sentencing court that it properly considered other relevant §3553 factors, and not just the Guidelines range, a sentence should not be credited with a "rebuttable presumption" of reasonableness.
Judge Clay continued by citing to Judge Martin's explanation of "Williams' proper place" in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006). Judge Clay concluded his concurrence with a forward looking desire for future panels to essentially abandon the "rebuttable presumption" when conducting appellate review of criminal sentences in the Sixth Circuit. Judge Clay wrote:

Hopefully, future panels of this Court will not attempt to use the "rebuttable presumption" language of Williams as semantic leverage simply to avoid the considered appellate review we are duty-bound to perform. It should be remembered that Circuit precedent which antedates Williams requires district courts to consider all relevant §3553 factors and make a record which provides this Court with some indication that such consideration was properly undertaken. See Jackson, 408 F.3d 305; Webb, 403 F.3d at 385 n.8, n.9.
The future of the "rebuttable presumption" in the Sixth Circuit continues to dim. Hopefully, as more panels conduct appellate review of criminal sentences, the "rebuttable presumption" will die, or at least fade away. . . .

Friday, May 05, 2006

Is Anyone Really Listening?

Do judges really listen to defense lawyers and give deference to their opinions, particularly where the subject matter relates to the defense lawyer’s opinion as an officer of the court? Two Sixth Circuit cases that were decided in April shed some light on this burning question.

First, the question came up in the context of a competency issue from a state court proceeding in Filiaggi v. Bagley, 04-3513 (4/14/06). In Filiaggi, the stun belt defendant was to wear during his state murder trial accidentally discharged. As a result, the defendant was evaluated by a psychologist who concluded that he was competent, but that further testing may be warranted. Based upon this information, and the testimony from a deputy guarding the defendant, the court decided that he was competent and proceeded to trial. The defendant’s two attorneys (one of whom was also a medical doctor!) then repeatedly, and incessantly, requested further psychological testing of the defendant because they both felt that defendant was incompetent to stand trial. All requests for further competency evaluations were denied and defendant was ultimately convicted and sentenced to death.

On appeal to the Sixth Circuit from the denial of the habeas petition, Judges Batchelder and Gibbons ruled that no further competency testing or hearing was required and affirmed the conviction. In so holding, the court noted: "Although the evidence before the court was mixed, evidence in favor of finding [the defendant] incompetent came solely from his attorneys." Id.

Judge Cole, writing in dissent, took the majority to task for discrediting the representations of the two attorneys for the defendant: ""Yet when defense counsel – one of whom was a licensed physician and all of whom were, in the words of the Ohio Supreme Court, ‘officers of the court whose assertions cannot be dismissed,’ – repeatedly asked for further evaluation upon specific, verifiable, and relevant bases, the trial court repeatedly denied the requests." Id.

Although the Sixth Circuit majority in Filiaggi completely discredited the two defense attorneys’ opinions, the court took a much more favorable view of a defense attorney’s judgment in Gillard v. Mitchell, 03-4261 (4/26/06). Defendant and his brother were being investigated for murder. An attorney undertook representation of the brother during the course of the state investigation, and the brother ultimately was not prosecuted. Defendant, however, was charged with murder and the same attorney represented him throughout his court proceedings. At defendant’s state murder trial, the attorney called the brother as a witness. The prosecutor objected, claiming that the attorney may have a conflict of interest. The attorney told the court that he did not feel a conflict existed. Based upon the attorney’s representation, the court allowed him to proceed. Nonetheless, just to be safe, the court appointed separate counsel for the brother during his testimony.

Eventually, in a habeas petition, defendant claimed that his attorney acted under an actual conflict of interest and that he was ineffective for failing to raise the defense that the brother, not defendant, was the perpetrator of the offense. The district court granted habeas relief on this ground. On appeal Judges Siler, Daughtrey, and Sutton found that the attorney was not operating under an actual conflict of interest. The miraculous nature of this conclusion aside, of importance for this blog is that the court emphasized how the trial court "properly deferred to [the attorney’s] judgment that no conflict existed." Id.

It would seem that an attorney’s concern that her client may be incompetent and an attorney’s opinion regarding a conflict of interest among her clients both are matters that rely on the attorney’s representations as an officer of the court, as opposed to the attorney’s role as advocate. Yet in Gillard, the attorney’s opinion that he had no conflict (when it would appear that he obviously did) was entitled to deference, while in Filiaggi, the two attorneys concerns that their client was not competent to proceed were discredited. Reading the two decisions, one is left with the distinct feeling that a defense attorney’s opinion is important when it happens to fit within the court’s agenda in deciding the case, but that it otherwise may be completely disregarded. Or maybe I read too much into this, and should simply remind myself of the important, unwritten, long-standing principle of jurisprudence: The law is always construed against the obviously guilty defendant.

Monday, April 03, 2006

The Fourth Amendment: Swiss Cheese and Cannonballs

In December, the Sixth Circuit ruled in United States v. McClain, 430 F.3d 299 (6th Cir. 2005) that under the facts of that particular case, the Leon good faith exception to the warrant requirement should apply to a warrant obtained with evidence arising from a police search of a residence even though the initial police search violated the Fourth Amendment.

Last Friday, the Sixth Circuit issued an order denying the defendants’ request for rehearing or rehearing en banc. In a spirited, well-reasoned 18 page dissent that traces the history of the good-faith exception, Judge Martin (joined by Judges Moore, Cole, and Clay) argued that the McClain panel opinion should be overturned because it misinterprets and over-extends the good-faith exception to the exclusionary rule. In Judge Martin’s words, "Because the Fourth Amendment already has more holes in it than a piece of Swiss cheese and the panel’s decision adds another errantly-fired cannon-ball sized hole, I dissent from the Court’s decision denying rehearing en banc."

As Judge Martin’s dissent points out, the McClain decision appears to be in conflict with Sixth Circuit precedent, particularly United States v. Davis, 430 F.3d 345 (6th Cir. 2005) (published ten days prior to McClain). In Davis, police obtained a warrant using information from an unlawfully extended traffic stop. The Court found that after removing the unlawfully obtained information from the affidavit in support of the warrant, no probable cause existed, and the warrant therefore did not cure the initial illegal seizure. In footnote 4, the Court stated that "we agree with the numerous other circuits that have held that the Leon good-faith exception is inapplicable where a warrant was secured in part on the basis of an illegal search or seizure." (Citations omitted).

To minimize the damage wrought by McClain, criminal defense practitioners should continue to cite and reply upon Davis, which is still good law and was not addressed at all in McClain. Further, the McClain panel itself noted that it is was presented with "unique circumstances," 430 F.3d at 306, and practitioners should argue that McClain is limited to the precise factual scenario of that case.

Wednesday, March 22, 2006

DR. EVIL’S GUIDELINES CRIMINAL HISTORY CALCULATION or The Challenge of Finding “Related Cases” in The Sixth Circuit

In United States v. Martin, No. 04-6428 (6th Cir. 2/21/06), the Court of Appeals has refused to find that four auto thefts in three weeks were related despite proof of similar modus operandi in the commission of the offenses. (Here, The court found that the commission of a series of individual, similar crimes does not mean that the resulting multiple convictions are combined for criminal history purposes. In his concurrence, however, Judge Martin argues that "the inquiry in these cases has become so narrow that it now exists only as a nebulous concept." He finds that about the only person who would benefit from the Guidelines’ definition of "related cases" would be Dr. Evil from the Austin Powers movies. (See extensive dialogue quotation in footnote 1 of the concurrence.) What could drive an otherwise mild-mannered jurist to not only quote Michael Meyers, but also beg the forgiveness of PETA for flogging a long-dead horse one more time? Perhaps a body of caselaw that renders impossible one provision of the Sentencing Guidelines.

Under the criminal history provisions of Chapter Four of the Guidelines, cases that are "related" to each other do not receive separate criminal history points. Application Note 3 to §4A1.2 defines "related cases" as any cases not separated by an intervening arrest and "that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing." (Emphasis added) Seems fairly straightforward. What could be so hard to apply?

In fact, not only have the cases contrived the most narrow possible reading of the above phrases, but, in one case, have also nullified one of the Commission’s categories.

A. Occurred on the Same Occasion

This category from the Application Note has received little to no attention in the Court of Appeals. This may perhaps be because as a practical matter it would be easier to determine whether or not prior convictions occurred "on the same occasion" and the resulting decisions don’t get appealed.

B. Part of a Single Common Scheme or Plan

In United States v. Irons, 196 F.3d 634 (6th Cir. 1999), defendant argued the his prior convictions for violating a protective order against his ex-girlfriend on one occasion and breaking-and-entering her house and stealing from her brother on another occasion were "related." The Court notes that "common scheme or plan" is not defined in the Guidelines and adopts the definition from other circuits that "‘"scheme" and "plan" are words of intention, implying that [offenses] have been jointly planned, or at least that ... the commission of one would entail the commission of the other as well.’" 196 F.3d at 638. Labeling defendant’s argument as being that the convictions are related because they are part of a crime spree, the Court goes on to note that, "‘We are not persuaded that the Commission intended criminal behavior prompted by the same root causes of criminal deviance, even a spree of such crimes, to constitute a "single common scheme or plan" as contemplated by §4A1.2.’" Id. "[C]rimes are not ‘related’ merely because each was committed with the same purpose or common goal. ... This is true even if the prior convictions have the same victim." 196 F.3d at 639.

Using this same logic, the Court decided in United States v. Alford, 436 F.3d 677 (6th Cir. 2006), that the defendant’s prior convictions for robbery were not "related" despite the fact that all occurred in a single night within blocks of each other. The Court held that the crimes could be part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one of the offenses necessarily requires the commission of the other. Offenses are not necessarily related merely because they were committed within a short period of time or are part of a crime spree.) See, also, United States v. Horn, 355 F.3d 610 (6th Cir.), cert. denied, __ U.S. __, 124 S.Ct. 2436 (2004) (crimes are part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one offense necessarily requires the commission of the other; the simple sharing of a modus operandi cannot alone convert separate offenses into one offense by virtue of their being a single common scheme or plan; merely because crimes are part of a crime spree does not mean that they are related); United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (for two convictions to be related due to having been part of a single common scheme or plan, they must have been jointly planned or the commission of one offense necessarily requires the commission of the other); United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002) (cases cannot be considered as "part of a single common scheme or plan" because the three prior drug offenses were not jointly planned in the inception and the commission of one offense did not entail the commission of the others).

While the Guidelines list them as separate reasons for finding cases to be "related," the Court of Appeals’ caselaw on "single common scheme or plan" reads more like "occurred on the same occasion." Yet the fact that the Sentencing Commission included them in the alternative surely means that two offenses that didn’t occur on the same occasion could still be considered related if the were part of a common scheme or plan. It is difficult to see from the above cases just what that could be.

C. Consolidated for Trial or Sentencing

What should be the most straightforward of the three categories has likewise been limited out of existence.

While the Court of Appeals noted in United States v. Coleman, 964 F.2d 564 (6th Cir. 1992), that "[n]o federal court has provided an all-encompassing definition of the term "consolidated for sentencing", it refused to take such opportunity, stating, "and we do not purport to do so here." 964 F.2d at 566. Coleman had two prior convictions for armed robbery, one occurring the day after the other. They were charged separately, and Coleman went to trial in the first case and was convicted by a jury. He thereafter pleaded guilty in the other case, they were sentenced on the same day, and, apparently, concurrent sentences were imposed. In upholding the district court’s finding that the two prior cases were not "related," the Court of Appeals finds "that the two convictions were, at all relevant times, treated separately and distinctly. There was no order by the trial court expressly or implicitly consolidating the cases for sentencing. In each case, there was a separate criminal complaint and separate indictment. The cases proceeded under separate court numbers." Id.

In United States v. Odom, 199 F.3d 321 (6th Cir. 1999) (Norris, Keith, Clay, JJ.) Defendant appealed his career offender status, pursuant to § 4B1.1, arguing that his two prior felony convictions had been "consolidated" for sentencing as contemplated by Application Note 3 to § 4A1.2, and should, therefore, only count as one conviction as "related cases." Defendant, after being made aware that if his priors were consolidated he would not be a career offender, had asked his prior state counsel to file a motion to consolidate the two prior convictions and the state court signed an order of consolidation. Using Coleman, (above), as a guide, the convictions were found to be unrelated because they occurred over a period of months, involved different victims, did not constitute a "single common scheme or plan", were charged in five different indictments with different cases numbers and different (although concurrent) sentences. The Court discounted the order of the state court for consolidation because it did not indicate any nunc pro tunc effect, was obtained in an ex parte proceeding, did not indicate whether the prosecutor agreed to it, and did not indicate whether the judge had any background information on which to base his decision, and the Court recognized that the order was only given to the state court judge to help reduce defendant’s federal sentence. [in footnote 2, the Court states that such an order will have probative value if the record reflects that the prosecutor was apprised of the motion to consolidate and that the state court judge was aware of the circumstances of the case, as well as the significance of the order with respect to the pending federal sentence.]

Defendant in this child pornography case had three prior drug convictions occurring on 3 different days in a 17-day span. Despite the fact that the offenses were charged in separate indictments, they were all sentenced at the same time, the sentences were run concurrently, and the judgments each listed all 3 dates as the date that the events occurred, the Court in United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002), held that the cases cannot be considered as "consolidated for trial or sentencing". The court’s rationale was that "the fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the offenses were consolidated. [cite omitted] Further, given the separate entries of judgment and the absence of on order of consolidation, the record below does not demonstrate an intention on the part of the trial court to consolidate the cases." Id. at 758.

The defendant in United States v. Horn, 355 F.3d 610 (6th Cir.), cert. denied, __ U.S. __, 124 S.Ct. 2436 (2004), faired no better. He was found to be a career offender in this bank robbery case based on 2 robbery convictions that had been charged in separate informations, set for the same trial date, to which guilty pleas were entered at the same time, and which had sentences imposed at the same time. The cases had been docketed separately and no order was entered consolidating the cases for trial or sentencing. The Court of Appeals held that cases are not consolidated when offenses proceed to sentencing under separate docket numbers, the cases are not facially related, and there was no order of consolidation. The fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the cases were in fact consolidated. "We require some explicit indication that the trial court intended to consolidate the prior convictions." See, also, United States v. (Edward) Carter, 374 F.3d 399 (6th Cir. 2004) (refusing to find prior convictions "related" despite the fact that they were pleaded and then sentenced together, citing Horn, and noting that there was no order of consolidation.)

In United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005), Hazelwood argued that his prior convictions for car theft and robbery offenses were ‘related’ under the Guidelines in part because there was no intervening arrest, and because they were effectively consolidated for sentencing. The Court held that although it was true that a formal consolidation order need not be entered in order for cases to be considered functionally consolidated for sentencing, sentences are not functionally consolidated ‘when offenses proceed to sentencing under separate docket numbers, cases are not related, and there was no formal order of consolidation.’" (This certainly appears to say that, although a formal consolidation order need not be entered in order for cases to be considered functionally consolidated, sentences cannot be considered functionally consolidated where there is no formal order of consolidation.)

This language of "functional consolidation" comes from Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001). While the issue in that case was what was the appropriate standard of appellate review for cases questioning whether prior convictions were "related", the Supreme Court’s ruling stated, "[t]he district court is in a better position than the appellate court to decide whether a particular set of individual circumstances demonstrates ‘functional consolidation.’" 532 U.S. at 64, 121 S.Ct. at 1280. As can be seen from the above-cited cases, what the Sixth Circuit has done through its cases is to insist on literal consolidation; there is no room for "functional consolidation."

Despite the fact that the Guidelines provide for considering as related any cases that were "consolidated for ... sentencing," such a finding would be impossible under Horn and the other cases just described unless a number of other judicially-created hurdles could be overcome. Under the express language of the guideline commentary, three indictments charging the defendant with a series of drug sales which indictments are all arraigned together, are pleaded out on the same date, are sentenced on the same date and are ordered to run concurrently would clearly be functionally "consolidated for sentencing." Not in the Sixth Circuit, however.

Potential for Disparity

In United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002), although upholding the district court in finding the prior convictions to be not "related" for §4A1.2 purposes, the Court discusses the large potential for sentencing disparity that can result from application of the principles that were used to affirm the district court. Specifically, the Court found that "charging decisions, rather than the criminal conduct itself," could determine whether or not prior convictions were "related," thus warranting an increase in criminal history. The Court notes with approval those other circuits that have adopted a definition of "common scheme or plan" from the "relevant conduct" provisions of the Guidelines, §1B1.3, in determining whether prior convictions are part of a "single common scheme or plan" for criminal history purposes. While this approach may, in fact, have some appeal, and is certainly a move in the right direction, it also addresses only that one category and doesn’t speak to the category ("consolidate for trial or sentencing") that is the most divorced from common sense and practice and, therefore, has the greatest potential for creating disparity.

So what does "consolidated for ... sentencing" mean? Although the Court of Appeals appears in Hazelwood to back off some from the requirement of an "order of consolidation," all of the earlier cases use the lack of such an order to justify finding cases that have otherwise proceeded through the criminal justice system together as not "related." However, when the defendant in Horn argued that the Court had never explicitly held that prior convictions must be formally consolidated in order to be "related," the Court stated, "We have stated several times that ‘cases are not consolidated when offenses proceed to sentencing under separate docket numbers, cases are not factually related, and there was no order of consolidation.’ [cites omitted] Those cases make it clear that we require some explicit indication that the trial court intended to consolidate the prior convictions. In each of those cases, there was no order from the trial court consolidating the earlier offenses, nor was there any statement by the trial court implying they should be considered consolidated." 355 F.3d at 614. This, of course, raises the question why isn’t the trial court’s handling of two cases on the same track, taking guilty pleas at the same time, imposing sentence at the same time, and/or imposing concurrent sentences not an implicit statement that the trial court considers the two cases to be considered consolidated? This is not explained.

What is this "order of consolidation" and how did such a requirement get grafted onto the definition in Application Note 3? This writer can only speculate, because such an order is unknown to the practice in Tennessee. (It also appears that the attempt in Hazelwood to get an "order of consolidation" was motivated by the Sixth Circuit’s insistence on having one before cases could be declared "related," and not because that was otherwise the practice.) Does this also mean that, since there is no such practice in Tennessee, defendants with Tennessee convictions will be punished more harshly than defendants with convictions from some jurisdiction which has an order by that name that is routinely used whenever cases are put together for plea and sentencing? It would seem likely to be true. Perhaps what is needed is proof in the record at sentencing about the local plea bargaining and sentencing practices in the state court system from which the defendant’s conviction come showing that for all intents and purposes, the prior cases were "consolidated for sentencing." Until something else happens, this category continues to be impossible to reach in this Circuit.

Tuesday, March 07, 2006

Survey of Post-Booker Sentences Reviewed In The Sixth Circuit

Recently, there was discussion about conducting circuit-centric surveys of post-Booker sentences and then compiling them for an upcoming House hearing on March 16th. That idea was quashed because of difficulties presented in classifying and compiling the information in certain circuits. Ultimately, the goal was to establish that appellate review is ensuring sufficient uniformity. In other words, that no Booker "fix" is necessary because nothing is broken. Before this ambitious project was scrapped, curiousity got the best of me (as it often does), and I compiled the stats for the Sixth Circuit.

As of March 7, 2006, there have been 11 decisions reviewing sentences imposed post-Booker (after 1/12/2005) -- four published and seven unpublished. Of those eleven, two involved above-Guideline sentences and both were affirmed as "reasonable" in unpublished orders; seven involved within-Guideline sentences (two published) and all seven were affirmed as "reasonable." The final two decisions (both published) were Government appeals of below-Guideline sentences: one of the sentences was affirmed, the other vacated.

In sum, thus far in the post-Booker era, the Government is prevailing in 100% of defendant appeals of within- and above-Guideline sentences, and 50% of its own appeals of below-Guideline sentences.

Wednesday, March 01, 2006

Technology Advances - E-mail from Clients in BOP Custody

Did you know your client in Bureau of Prison custody now has the option of adding you to his approved e-mail list? This new invent is coming to a prison near you, but with the added warning that all content will be monitored. I recently received a letter from a client asking that I give approval to be added to his e-mail list. You too may receive a similar request. If you choose to do so, a letter must first be forwarded to the client noting the approval for e-mail purposes. You will then receive an e-mail (both in English and in Spanish) giving you three options: (1) approve the prisoner for message exchanges, (2) refuse the specific prisoner's request for message exchange, or (3) refuse this and all future federal prisoners' request for message exchanges. If approval is given, you will later receive a confirmation that the request has been granted. With each e-mail received from the client, you have the following options: (1) take no action which results in your remaining on the prisoner's contact list, (2) remove yourself from this specific prisoner's contact list, and (3) removing yourself form this specific contact list and refuse all future federal prisoner request's for message exchanges. Messages may not exceed 4,000 characters (approximately 2 pages) or have any attachments. If this requirement is not followed, the message will be rejected with such notification of rejection by return e-mail. For additional information related to this program, you can visit the Frequently Asked Question page.

Be forewarned of the small print (as with any contract): "By approving this transaction, you consent to have Bureau of Prisons staff monitor the content of all electronic messages exchanged." If you choose to accept e-mail, you likely will want to warn your client not to exchange messages that relate to confidential matters, as this information will be learned by the staff. Matters of confidential information should instead be discussed through arranging a conference call through the client's inmate case manager at the prison.

Tuesday, February 28, 2006

Learn from the Doctor, Portland Oregon Federal Defender What to Do for What He Calls the "Presumption of Reasonableness Virus" (PRV)

Check out the Ninth Circuit's blog by Portland Oregon Federal Defender Steve Sady addressing what he calls the Presumption of Reasonableness Virus (PRV) that has infected this and several other circuits.

Also, NACDL has submitted an amicus brief in the First Circuit case addressing presumptive reasonableness that is now being considered en banc. See United States v. Lenny Jimenez-Beltre, No. 05-1268 (1st Cir. 2006) (en banc rehearing)

Wednesday, February 22, 2006

How a Guidelines sentence can be unreasonable

United States v. Martin, No. 04-6428 (Feb. 21, 2006). This case provides two useful theories to note for future use. First, in his concurrence, Judge Martin suggests that a Guidelines sentence may be unreasonable when common sense and fairness calls for imposing a criminal-history category that is less than what the Guidelines formally call for. Second, the majority opinion explains how the meth precusor conversion ratio guideline, and perhaps other guidelines, could be successfully challenged on procedural grounds.

Judge Martin starts by lamenting how the Court has unwisely interpreted USSG 4A1.2(a)(2)'s provision that defines what is a "related" offense for purposes of calculating criminal history. Indeed, counsel for the government was asked at oral argument for an example of two offenses that could be "related" under the current doctrine: "Counsel had no idea." Judge Martin finds an example in Dr. Evil from Austin Powers (because he has announced his precise common scheme before embarking on his plan), and notes the absurdity that the commonplace insophisticated federal offender who commits a string of similar crimes to support a habit is treated more harshly than a Dr. Evil because that offender's crimes will not be deemed related. "It seems to me we apply the antithesis of common sense in these cases."

Judge Martin goes on to explain that the sentencing court must calculate the Guidelines by treating such offenses as not "related;" however, the sentencing court is then obligated to impose "a sentence sufficient, but not greater than necessary to comply with the purposes" set forth in 3553(a). "That is, a district court may look beneath the specific criminal history score and determine whether [the defendant's series of offenses] merit the increase sentence that the Guidelines suggest."

Finally, and most importantly, it seems that Judge Martin suggests that, in certain circumstances, it would be unreasonable for purposes of appellate reveiw for a sentencing court to decline to impose a sentence shorter than the suggested Guidelines range: "In such circumstances [where the related-offense doctrine overstates the criminal history], there is nothing that would preclude a Guidelines sentence from being declared unreasonable."

The majority opinion gives an important roadmap for a challenge to the Guideline's 2:1 ratio for meth precursors. Anyone with a meth-precursor case can try to mount a renewed challenge to this Guideline using the rule in Martin. Martin indicates that the ratio would be found to be invalid if the defendant can prove that the DEA report upon which the Sentencing Commission relied when arriving at the 2:1 ratio does not contain scientific data.

Martin also establishes a new rule that may be useful in challenging other guidelines: When Congress describes a procedure for the Commission to arrive at a guideline, then the Commission must follow that procedure to the letter or else the guideline is invalid. The burden of proof of deviation from the required procedure is on the party challenging the guideline.

Wednesday, February 15, 2006

Crawford Not For Sentencing

In United States v. Katzopoulos, the Sixth Circuit affirmed the district court's imposition of sentence. The most important holding is that the confrontation clause does not apply at sentencing. The Court also found that district court's alternative sentence not violative of Booker under its previous holding in Christopher.

In Katzopoulos, the defendant argued that pursuant to the Supreme Court’s 2004 ruling in Crawford v. Washington, the district court’s admission of a postal inspector’s hearsay evidence at the sentencing hearing, which helped establish the sentencing enhancements, as a violation of his Sixth Amendment right to confrontation. 541 U.S. 36 (2004).

In denying defendant's claim, the Sixth Circuit indicated that the issue was still somewhat in the air in that it has not been specifically addressed by the Supreme Court. I suppose we all need to object at sentencings to preserve the issue and then continue to appeal the issue until the Supremes finally make an affirmative ruling on this issue.

The following is a quote from the opininon that may come in handy when arguing against the use of the testimonial hearsay not subject to prior cross examination:

"Courts have questioned the continuing validity of allowing testimonial hearsay at sentencing post-Crawford and post-Booker. The Eleventh Circuit noted, "[w]hile [the Crawford rule] may eventually be extended to the sentencing context, that has not happened yet." Chau, 426 F.3d at 1323. In ruling that Crawford did not apply at the sentencing in the particular case, a West Virginia District Court stated, "[f]or hotly contested issues, however, the truth-seeking function of the Confrontation Clause deserves attention at sentencing." United States v. Gray, 362 F.Supp.2d 714, 725 (2005). This Court has recently stated that "[i]t is an open question in this circuit whether our rule that ‘confrontation rights do not apply in sentencing hearings. . . ’ applies after Crawford." Ston, 432 F.3d at 654 (quoting Silverman, 976 F.2d at 1510). Though the cases may be a broad signal of the future, there is nothing specific in Blakely, Booker or Crawford that would cause this Court to reverse its long-settled rule of law that Confrontation Clause permits the admission of testimonial hearsay evidence at sentencing proceedings.

Bottom line is expect to lose at the district court, expect to lose at the Sixth Circuit, file for writ and hopefully by the time that the Supreme Court finally decides the issue your case is still ongoing. If you fail to do this, your client may be out of luck if there is no retroactive application.

[Thank you to attorney Ned Germany of the Memphis Federal Public Defender's Office for this post]

Wednesday, February 08, 2006

Williams' "Per Se" Rule Clarified

The Sixth Circuit's caselaw on the scope of "reasonbleness" review was advancing in a fairly straight line until the release of United States v. Williams, __ F.3d __, No. 05-5416 (6th Cir. 2006), on January 31, 2006, appeared to throw a wrench in the works by announcing that a sentence within the Guidelines range would heretofore be considered per se reasonable. In a decision released today (February 8, 2006), however, another panel of the Court clarifies the holding in Williams. United States v. Foreman, No. 04-2450 (6th Cir. 2/8/06) (found here, addresses a Booker remand and concludes by holding the following:

Finally, in United States v. Williams, we held that a Guidelines sentence is afforded a
presumption of reasonableness. – F.3d –, No. 05-5416 (6th Cir. January 31, 2006). Although this statement seems to imply some sort of elevated stature to the Guidelines, it is in fact rather unimportant. Williams does not mean that a sentence outside of the Guidelines range – either higher or lower – is presumptively unreasonable. It is not. Williams does not mean that a Guidelines sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors. A sentence within the Guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as mandatory, a district court was not required to consider the section 3553(a) factors. It would be unrealistic to now claim that a Guideline sentence implies consideration of those factors.

Moreover, Williams does not mean that a sentence within the Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to "impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing in section 3553(a)(2). Nor is it an excuse for an appellate court to abdicate any semblance of meaningful review. Appellate review is more important because the Guidelines are no longer mandatory. Under the mandatory Guideline system, appellate review was not integral to assuring uniformity. Now, with the advisory Guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board. See S. REP. NO. 98-225, at 151 (1983); United States v. Mickelson, – F.3d –, 2006 WL 27687 (8th Cir. January 6, 2006).

United States v. (Marco) Foreman, No. 04-2450 (6th Cir. 2/8/06), Slip Op. at pp. 5-6.

While this decision is more in keeping with the Circuit's decisions before Williams having to do with the scope of review for "reasonableness", and is, therefore, helpful in soothing the waters that Williams had disturbed, it appears to hold that Williams doesn't say what it says. While one might be tempted to argue that Foreman violates the Court's rule that one panel cannot overrule the decision of another panel (only the en banc court can), see, Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985); and Meeks v. Illinois Central Gulf R.R., 738 F.2d 748, 751 (6th Cir. 1984), there is an argument that Williams violated the rule first and that Foreman only restores the proper balance. (See, Randy Alden's January 31st post "Peer Pressure? Guidelines Presumptively Reasonable in the Sixth Circuit" and comment by this author that follows) The Foreman decision is consistent with the Court's earlier decisions in United States v. Webb, 403 F.3d 373, 385 fn 9 (6th Cir. 7/19/05), and United States v. McBride, __ F.3d __, 2006 WL 89159 (6th Cir. 1/17/06), in describing "reasonableness" review as a process related to the 3553(a) factors, and not one that is overly-deferential to the Guidelines.

What all of this may presage is an en banc review of Williams. It is anticipate that a petition for rehearing will be filed in Williams and the decision in Foreman may make it more likely than not that the full court would be willing to grant rehearing to clear up any lingering confusion. The refusal to grant rehearing en banc could be taken as approval of Foreman's clarification of the Williams ruling. Stay tuned for more on that!

Footnote 1 of the decision in Foreman contains an important point for keeping sentencings in district court in perspective: "It is worth noting that a district court’s job is not to impose a 'reasonable' sentence. Rather, a district court’s mandate is to impose 'a sentence sufficient, but not greater than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." Foreman, Slip Op. at p. 5.

Wednesday, February 01, 2006

Proposed Demise of the Proof Brief

The proof brief may soon be a distant memory. The Sixth Circuit has proposed changes to the local rules that would eliminate the proof brief and change the way the joint appendix is prepared. Comments on the proposed amendments may be submitted to the court until Friday, February 10. This is the notice posted on the Sixth Circuit's website:

Notice of Proposed Amendment to Sixth Circuit Rules 28, 30, and 31The United States Court of Appeals for the Sixth Circuit is proposing a change in the procedures for the filing of the briefs of parties, by eliminating the “proof” brief requirement addressed in Rules 28 and 31. In addition, the appendix procedure addressed in Rule 30 would be modified.To effect these changes the court has preliminarily approved, subject to later modification if warranted, several amendments to the local rules. By clicking on the following links to Sixth Circuit Rules 28, 30, and 31, you will be able to view the text of each rule in its current form (text in black) and the proposed amendment (text in red). Rule 28 , Rule 30, Rule 31The court will be accepting comments on the proposed rule amendments until Friday, February 10, 2006. Comments can be e-mailed to or sent by mail to the Clerk's Office.

Tuesday, January 31, 2006

Peer Pressure? Guidelines Presumptively Reasonable in the Sixth Circuit

Today the Sixth Circuit succumbed to peer pressure and held that the guidelines are presumptively reasonable. In today's opinion, United States v. Leonard Williams, -- F.3d --, No. 05-5416 (6th Cir. January 31, 2006), (opinion available here), Judge Cook writing for the panel stated:

Although several of our sister circuits have concluded that any sentence within the applicable Guidelines range garners a presumption of reasonableness, this court has yet to articulate what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a). See United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005) (declining "to indicate what weight the district courts must give to the appropriate Guidelines range, or any other § 3553(a) factor"); see also id. at 385 (Kennedy, J., dissenting). We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness. Such a presumption comports with the Supreme Court’s remedial decision in Booker. See United States v. Booker, 125 S. Ct. 738, 757 (2005) (holding that the modified Federal Sentencing Act "requires a sentencing court to consider Guidelines ranges, but . . . permits the court to tailor the sentence in light of other statutory concerns as well" (citation omitted)).

Judge Cook went on to illustrate that this presumption shifts the burden to the defendant to prove that the guideline sentence is unreasonable. The last line of the opinion sums it up:

In the absence of a showing that the district court imposed an “unreasonable” sentence, we affirm.
What is notable about the adoption of the rebuttable presumption standard in this case is the total lack of any real legal reasoning and a passing reference to Booker as support for shifting the burden to the defendant to show that a guideline sentence is unreasonable. One might argue that to shift the burden to the defendant to show that a guideline sentence is unreasonable is nothing more than another way of approving of a mandatory guideline regime, which, Booker clearly prohibits.


February 1, 2006, 11:55 a.m. CST

One of my esteemed colleagues, Sumter Camp, added some comments to my post and I thought they were important enough to place in the post itself so that everyone could benefit. Sumter wrote:

This opinion is contrary to a number of other Sixth Circuit
cases defining either the standard of review or the procedure the Court will use to review for reasonableness. See, e.g. Webb, 403 F.3d 373, 385 fn 9 (6th Cir. 7/19/05), which states, "we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of 'reasonableness’, (cite omitted), but is also inconsistent with the Supreme Court’s decision in Booker, as such a standard ‘would effectively re-institute mandatory adherence to the Guidelines.’"; See, also, the description of appellate review in United States v. McBride, __ F.3d __, 2006 WL 89159 (6th Cir. 1/17/06), e.g., "A district court’s failure to explicitly consider the section 3553(a) factors without other evidence in the record demonstrating that they were thoroughly considered by the district court would result in a procedurally unreasonable sentencing determination requiring us to vacate and remand for resentencing." Slip Op. 4, fn. 3. The court in Williams goes out of its way to reach an issue that should have been precluded by the Circuit's rule prohibiting one panel from over-ruling another panel's decision. Hopefully, Williams will ask for rehearing and/or rehearing en banc given that the Circuit's law was clear before this opinion, but has now been muddied.

Thanks Sumter!

Note: Mr. Williams is represented by Dianne Smothers, AFPD, Western District of Tennessee, who has assured me that rehearing and/or reahearing en banc will be sought.