Friday, January 30, 2009

Quick Note on Another Crackerjack Dissent by Judge Merritt

In United States v. Young, Nos. 07–5600, 07–5608 (6th Cir. Jan. 30, 2009), Judge Merritt considered two sentences for marijuana offenses and had to concur in part and dissent in part in regard to the final outcome of the appeal. The defendants had grown marijuana and distributed it off and on for a period of some years. They were sentenced to 17 and 19 years imprisonment. Judge Merritt found the sentences to be excessive and admonished that they serve no rational purpose. He hits on disparity between state and federal sentences and between individual federal judges. Also bemoans the cost of such incarceration. Finally, concludes that the use of acquitted conduct and judge-found, offense-conduct facts to support sentencing enhancements is unconstitutional. Expresses expectation that United States v. White, 05–6596 (6th Cir. Dec. 24, 2008) (an en banc opinion addressing these issues), will be reversed and concludes that the defense should keep the case open pending the Supreme Court’s decision in White.

P.S. This picture has nothing to do with the case, but it’s copyright-free and I’m freezing in Michigan!

Thursday, January 29, 2009

Good Child-Porn Opinion

It’s out-of-circuit and a district court opinion, but United States v. Grober, No. 06–CR–880, 2008 U.S. Dist. LEXIS 103392 (D.N.J. Dec. 22, 2008) (slated for publication), is worth a read if you’ve got a child-pornography case. Guideline 2G2.2 put defendant at level 38; he was in criminal history category I. Range of 235 to 293 months. Court concluded that 2G2.2 is just too flawed to apply. Court imposed mandatory minimum sentence of five years (18 U.S.C. § 2252(b)(1) provides sentencing range of 5 to 20 years). Opinion cites Troy Stabenow’s excellent work (available at and a must-read!). The opinion provides a lot of raw material if you have a child-porn sentencing.

Thursday, January 22, 2009

Spears v. U.S.---Getting the Kimbrough Point Across

Spears v. United States, No. 08–5721 (Jan. 21, 2009).

Per Curiam reversal of the Eighth Circuit on Kimbrough grounds.

District Court had used a 20:1 crack-to-powder ratio (pre-amendments) to sentence a "mine-run" offender. Eighth Circuit said that the district courts may not categorically reject the guideline ratio. The Supreme Court reversed.

Court affirms that the cocaine guidelines are merely advisory and that it is NOT an abuse of discretion for a district court to find that the crack-powder disparity yields an excessive sentence in a MINE-RUN case. A district court may vary downward from the advisory sentencing range based solely on the view that the guideline ratio is at odds with Section 3553(a). A sentencing court need only find that the ratio creates unwarranted sentencing disparity. A categorical disagreement with the Guidelines and a variance from the guideline range is NOT suspect (at least for the crack guidelines).

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 Check out the Sentencing Resources and all the deconstruction materials.

Tuesday, January 20, 2009

Constructive Possession---Gun Under Driver's Seat Insufficient

United States v. Bailey, No. 06–5576 (6th Cir. Jan . 20, 2009).

Opinion by Judge Moore.
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).

Defendant raised sufficiency-of-the-evidence claim. Court found that any conclusions it had made based on evidence only admitted for impeachment purposes were erroneous. Without this evidence, there was insufficient evidence to uphold firearms convictions. Issue was whether there was sufficient evidence that defendant "possessed" the firearm. Opinion goes into "constructive possession."

Some points of note:

*The mere fact that the defendant "was driving the car in which the police found the
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).
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Tuesday, January 13, 2009

Failure-To-Report is no Violent Felony

Today the U.S. Supreme Court concluded that "failure to present oneself for detention on a specified occasion" is not a violent felony and therefore cannot serve as a predicate offense under the Armed Career Criminal Act. Chambers v. United States, No. 06-11206 (Jan. 13, 2009).

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.