P.S. This picture has nothing to do with the case, but it’s copyright-free and I’m freezing in Michigan!
A blog by federal public defenders and criminal defense lawyers practicing in the Sixth Circuit.
Quick Note on Another Crackerjack Dissent by Judge Merritt
P.S. This picture has nothing to do with the case, but it’s copyright-free and I’m freezing in Michigan!
Good Child-Porn Opinion
Spears v. U.S.---Getting the Kimbrough Point Across
Per Curiam reversal of the Eighth Circuit on Kimbrough grounds.
Very helpful decision and can be applied in other contexts—career offender, child porn, etc. When a guideline is not the product of the Sentencing Commission’s characteristic institutional role, a mine-run-case variance from the guideline range is not suspect. This opinion brings into even brighter light the need to deconstruct the guidelines that are not based on empirical support, attack them, and argue that disagreement with these suspect guidelines is not untoward.
Spears calls into question the validity of this summer’s holding in United States v. Funk, 534 F.3d 522 (6th Cir. 2008). It does not sink Funk out-of-hand; however, it provides much ammunition to question the holding. It seems to be a matter of attacking a guideline in the correct manner—really demonstrating that it is not a product of the Commission’s characteristic institutional role. What we need to do is give sentencing courts reasons to support policy disagreements with the Guidelines. And you will find GREAT reasons and resources at fd.org. Check out the Sentencing Resources and all the deconstruction materials.
Constructive Possession---Gun Under Driver's Seat Insufficient
Granted petition for rehearing and amended portions of panel opinion. Reversed the defendant’s convictions under Sections 922(g)(1) and 924(c)(1)(A)(i). Affirmed conviction under Section 841(a)(1).
Some points of note:
firearm is not enough to establish dominion over the premises and thereby dominion and
control over the firearm." Id. at 9.
*To determine that a defendant had "constructive possession" over a firearm requires "additional circumstantial evidence beyond the defendant’s having driven the car in which the firearm was found." Id.
*The defendant did attempt to evade arrest, but this evasion "proves little because [defendant] might well have taken this action in an effort to evade detection of the two bags of crack cocaine found in his pants." Id. at 6.
*A holding that driving a car as its lone occupant suffices to establish "constructive possession" of a firearm found beneath the driver’s seat would "institute an untenable strict-liability regime for constructive possession" under there firearm statutes. Id. at 10.
*"Because the evidence in this case is limited to the fact that [defendant] was driving the
car in which police found the loaded gun, there exists insufficient evidence for any
rational factfinder to conclude beyond a reasonable doubt that [defendant] had constructive
possession of the gun." Id. at 12.
*Evidence admitted only for impeachment purposes cannot be considered by a court considering the sufficiency of the evidence to support a conviction. Id. at 12–13.
There was a dissent/concurrence by Judge Griffin:
Disagreed with conclusion that without the impeachment evidence (as substantive evidence) "the evidence is insufficient for any rational juror to find [defendant] guilty of possession of a
firearm" in violation of the statutes. Id. at 15 (Griffin, J., dissenting in part and concurring in part).
Failure-To-Report is no Violent Felony
The conduct in question-- failing to report to serve a sentence, or failing to return to custody-– frequently is categorized as an "escape" under state and federal law. Most federal circuits have concluded that escapes of any nature categorically qualify as a "crime of violence" or "violent felony."
The Supreme Court has now distinguished ‘failures to report/return’ from ‘actual escapes from custody,’ noting that "[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody." Id. at 4.
Most importantly, the Court cited its recent decision in Begay v. United States, 553 U.S. ___ (2008), and noted that the action/inaction of failing to report is "far cry" from the purposeful, violent and aggressive conduct associated with the offenses specifically named in the ACCA as violent felonies (use of explosives against property, arson, burglary, extortion).
Given the developing line of Supreme Court cases which continue to narrow the definition of "violent felony" and "crime of violence," practitioners must carefully examine their clients’ prior convictions. If a prior offense is not specifically enumerated as a "violent felony" in the ACCA or a "crime of violence" under the U.S.S.G. 4B1.2, the career offender guideline, then counsel must analyze whether the prior offense can used as a predicate offense. In many situations, offenses that met the previously expansive definition of "violent felony" and "crime of violence" cannot be categorized as such in the post-Begay/Chambers world.