Thursday, February 26, 2009

Sentence Vacated in Child-Porn Case—Helpful Ruling Re. Section 3B1.2 for Mitigating Role

Opinion in U.S. v. Groenendal, No. 07–2430 (6th Cir. Feb. 26, 2009) (panel of Judges Gibbons, McKeague, and Shadur, who is a district judge in Northern Illinois), helpful on issue of application of Section 3B1.2—Mitigating Role—in child-porn cases.

Basically, the defendant uploaded three pictures in the space of five minutes to join a porn/child-porn chat group on the Internet. He deleted his account within weeks of joining and was not questioned by law enforcement until almost two years later. He confessed his behavior to those close to him and sought professional help for his pornography addiction, spending thousands of dollars on group and individual counseling. Four and a half years after deleting his account, the defendant was charged with possessing child pornography. Because of some advantageous application of the law as it was at the time of his offense, and a downward departure, he received a sentence of 42 months.

The panel rejected the defendant’s argument that the old cross-reference to the trafficking guideline should not apply to him, finding that the uploading of pictures constituted trafficking. He "shipped" the pictures over the Internet. The panel also rejected the defendant’s objection to the enhancement for sadistic/masochistic depictions. (I won’t go into details, but the standard is low. As a note, the picture was not part of the record, but the defendant did not dispute the description of the conduct—the parties stipulated that the picture was as described—so the court ruled on the issue based on the description.)

The key issue is that of the district court’s decision not to apply the decrease in offense level for mitigating role under Section 3B1.2. The panel held that the reduction can apply: "In other words, [the defendant] cannot be guilty of trafficking for purposes of sentencing enhancements and guilty of only possession for purposes of sentencing reductions." The fact that the defendant was the only charged participant did not bar application of the reduction. The panel reasoned that "[t]he government cannot have it both ways and view [the defendant’s] conviction as trafficking for the applicability of sentencing enhancements but as possession for the applicability of reductions." The district court’s language was ambiguous concerning whether the district court felt it could apply the enhancement in the defendant’s circumstances, and it had erred because once it found the defendant had participated in trafficking for sentencing purposes it had to consider the reduction.

The panel remanded the case for the district court to consider applying the reduction. The panel seems to lean toward application, citing the compelling facts of the case.

Monday, February 23, 2009

Judge Breen of W.D. Tenn Rules Reckless Endangerment not Crime of Violence

Today Judge Breen of the Western District of Tennessee ruled that felony reckless endangerment under Tennessee law is not a crime of violence in United States v. Jessie Rogers, Case No. 08-10036. Just a heads up. I'll try to link to the written order but am not sure if pacer will let everybody get there.

Friday, February 13, 2009

The Emperor's New Clothes

In the development of the Supreme Court’s post-Booker caselaw, culminating in Kimbrough, the Court has challenged the defense bar to put the Guidelines to the test. The Sentencing Resource Counsel of the Federal and Community Public Defenders have taken up the challenge in a series of papers. The first, Amy Baron-Evans’ The Continuing Struggle For Just, Effective and Constitutional Sentencing After United States v. Booker, released in August 2006, took on DOJ's and the Sentencing Commission’s post hoc justification for the Guidelines as already including all the § 3553(a) factors and, therefore, needing be the only thing consulted in determining a sentence. (This theory has been accepted by some members of the Sixth Circuit. See, e.g., United States v. Buchanan, 449 F.3d 731, 735 (6th Cir. 2006) (Sutton, J., concurring) ). The Continuing Struggle, using the Commission’s own studies and data, show this for the fallacy that it is.

Since then, the Sentencing Resource Counsel have developed a series called Deconstructing the Guidelines which looks at the legal/theoretical underpinnings of specific Guidelines sections to examine whether or not the Commission, in crafting that guideline, was acting in "the exercise of its characteristic institutional role." Kimbrough, 128 S.Ct. 575. (These can be found on the Sentencing Resource Page of The sections addressed so far include career offender, the child pornography guidelines, firearms, and relevant conduct, particularly the use of uncharged and acquitted conduct.

But what will happen when the defense bar has exposed the Guidelines as a sham? To apply Jasna’s metaphor in a slightly different fashion, what happens when we show that the emperor has no clothes? Will the courts, including the Court of Appeals, reevaluate their approach to the value of Guidelines sentences, including their own use of the presumption of correctness on appeal for within-Guidelines sentences? Or will the courts instead say, "All hail the naked emperor!"? That remains to be seen. In the meantime, the challenge for the defense bar is to be the child saying the emperor has no clothes – and proving it to the adults unwilling to accept reality.

The problem, of course, is what do we have to offer the courts to take the place of the Guidelines? If we have nothing to offer, the courts will default back to the Guidelines – worthless or not – because they are better than nothing. Very few sitting district judges have experience sentencing defendants before the implementation of the Guidelines. As a result, the remainder may feel cut loose from their moorings without the Guidelines. Therein lies the challenge.

Thursday, February 12, 2009

Sixth Circuit Protects us from Guys with Jobs

Today's opinion in United States v. Kontrol, illustrates how the current federal supervised release system fails to truly achieve the purpose for which it was created. Instead of protecting the public from the dangerous actions of Mr. Kontrol, the district court violated a man's supervised release for not telling his probation officer of new employment, then sentences him to a 15 month term of imprisonment. Granted there were some rather inappropriate remarks regarding his probation officer made by Mr. Kontrol, but at its heart, the district court sentenced the guy, not for not having a job, but for not telling the probation officer about it soon enough. Is this justice?

I recognize that the supervisee has a very tough row to hoe when he is on appeal of a revocation, but the Sixth Circuit's reasoning behind affirming the revocation and sentence is spurious. Namely that, "failing to report new part time employment, to be sure, often will pose little danger to the public. But when a three time felon neglects to tell his probation officer about a job that involves obtaining social security numbers (and other sensitive information) from individuals for what the prosecution described as a 'predatory foreclosure company,' JA 176, the risk of harm to the public is more acute." This is complete bunk. If Mr. Kontrol had been convicted of identity theft, maybe the Sixth Circuit's concern regarding persons sensitive information may be at issue. But the decision does not point to any specific supervised release condition that limited Mr. Kontrol's working with sensitive information. Such a condition does exist, is often imposed by district courts, and obviously was not imposed in his case. Mr. Kontrol had been convicted of the crime of "interstate and foreign travel in aid of drug-related racketeering," not identity theft. The Sixth Circuit's concern that every person ever convicted of a felony working at a job where person's sensitive information is at issue seems to be them considering an inappropriate factor and making blanket characterizations about all former felons, regardless of their crime of conviction.

But what this and all supervised release cases call into question is whether the over-arching supervised release system we have crafted in this country is achieving its goals. We ask a person to serve 85% (at best) of rather lengthy sentences as service of their debt to society, then when they get out, probation officers are there looking over their shoulders waiting to find violations to send them right back to prison. Do probation officers often try to help his supervisees transition back into life after prison, or are they just looking for a reason to send their supervisees back to prison so that they can get them off their case load? My gut feeling is more of the latter as opposed to the former. Maybe with some of the recent (although yet to be seen on the street) changes outlined in the Second Chance Act we will see actual reform to how federal courts treat persons recently released from prison on supervised release, but right now, I wonder if the current system is achieving the purpose for which it was created, i.e. protecting the public from other crimes of ex-cons? Or is it just a way of imposing a second sentence using the preponderance of the evidence standard on guys recently released from custody who the probation officers just don't like?

Friday, February 06, 2009

Rita 101

Rita 101—a district court may not presume that a sentence within the Guideline range is reasonable, said the Supreme Court once again in Nelson v. United States, No. 08-5657 (January 26, 2009)

In Nelson, the petitioner was convicted of various drug offenses. The district judge sentenced him at the bottom of the Guideline range, stating that a sentence within the Guidelines is presumptively reasonable, so unless there is a good reason to depart, the Guideline sentence is the reasonable sentence. The Fourth Circuit affirmed. The Supreme Court granted the writ, reversed, and remanded for consideration in light of Rita, which held that the appellate court, but not the district court, may presume that the Guideline sentence is reasonable. On remand, and without further briefing, the Fourth Circuit again affirmed the sentence. Interestingly, the Fourth Circuit acknowledged Rita’s holding, but then affirmed the district court, stating that the district court did not treat the Guidelines as mandatory. True, but beside the point, said the Supreme Court in a very short per curiam opinion. "The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable."

This ruling, together with Rita, enhances the district court’s authority to sentence outside of the Guidelines. But I wonder how much of that authority is likely to be exercised, given Rita’s ruling that a sentence within the Guidelines is presumed reasonable on appeal. The real life message is that if the district court judge does not want to be reversed (and who wants to be reversed), the judge should sentence within the Guidelines. Indeed, a cursory review of Sixth Circuit cases reveals that it is the sentences outside of the guideline range that are reversed on appeal. No wonder.

If the district court is to have real authority to sentence outside of the Guidelines, a sentence within the Guidelines should not be presumed reasonable at all. Not in the appellate court, and not in the district court. Otherwise, the district court’s purported authority to sentence outside of the Guidelines is illusory, nothing more than the emperor’s new clothes. We might admire it in the district court, but on appeal, the emperor—the district judge who had the courage to sentence outside of the guidelines—is standing naked in front of the scrutiny of the appellate court.

Contributed by Jasna Tosic, Western District of Michigan

Thursday, February 05, 2009

New Study to Blast Forensic Lab Standards

The New York Times is reporting today the imminent release of a study conducted by the National Academy of Sciences, at the request of Congress, reviewing the methodology employed by many crime labs across the country. The article states that "the National Academy wrote that the field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics, or other empirical disciplines." The news report also states that "the National Institute of Justice, a research arm of the Justice Department, tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication." Obviously this will be huge news when it is actually released, and defense attorneys should be looking for its release in the near future. Unfortunately the Times does not give any indication when that release might actually occur.

ACCA and Career-Offender Provisions—6th Cir. Gets Inconsistent

In U.S. v. Hawkins, No. 08–5138 (6th Cir. Feb. 4, 2009), Judges Kennedy, Cole, and Gilman issued a five-page opinion finding that possession of a sawed-off shotgun is a crime of violence under Guideline 4B1.2 and can be used to make a defendant a career offender for sentencing purposes. The court distinguishes U.S. v. Amos, 501 F.3d 524 (6th Cir. 2007), saying Amos was an ACCA case. The court finds that the guidelines and application notes define crime of violence to include possession of a sawed-off shotgun. It finds the Commission’s statement on the issue authoritative.


1) Court assumes in a footnote that Congress approves guideline commentary because the Commission is supposed to endeavor to include amendments to policy statements and commentary when it submits amendments to guidelines to Congress.

2) No mention of Begay or U.S. v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008), a case that made it pretty clear that ACCA and CO provisions are "interpreted in a consistent manner." At least, the court should have addressed Begay/Bartee.

3) Court goes into a discussion of guideline commentary and looks at Stinson, concluding that the commentary is authoritative unless it violates the Constitution or a federal statute or is a plainly erroneous reading of the guideline. Seems to give too much weight to guidelines and especially the commentary given the recent case law. And even under such a reading, the commentary at issue contravenes federal statutes setting up the career-offender enhancement and defining crime of violence. These statutes clearly mean to include less conduct than that covered by the commentary. See, e.g., 28 U.S.C. 994(h) and 18 U.S.C. 16. Also check out’s sentencing resources on deconstructing the career-offender guideline.

There are problems with this opinion and counsel should be ready to fight tenaciously the crime-of-violence/violent-felony battles to cabin this reasoning.

Tuesday, February 03, 2009

Unpublished Case that is Helpful in Begay analysis

Yesterday, the Sixth Circuit issued an unpublished opinion in U.S. v. Johnson, No. 06-6445, that will be of interest to attorneys looking to challenge prior offenses with a negligent or reckless mens rea as predicate offenses for the career offender enhancement, especially those in Tennessee. Mr. Johnson was challenging the use of his prior conviction for reckless endangerment under Tennessee law as a predicate, relying on the Supreme Court's decision in Begay requiring violent felonies to "involve purposeful, violent and agressive conduct." U.S. v. Begay, 128 S.Ct. 1581 at 1586 (2008). The Sixth in Johnson doesn't definitively decide the issue of whether reckless endangerment under Tennessee or any other law would qualify as a predicate offense for career offender or ACCA, instead relying upon a distinction in Tennessee law between misdemeanor reckless endangerment and felony reckless endangerment to determine that further factual findings were necessary by the district court. They then punt the case back to the district court because "the district court's determination in this case that defendant's reckless endangerment conviction constituted a 'crime of violence' should be revisited in light of the recent pronouncements in Begay." Johnson at *14.

While this case doesn't definitevly decide the issue, it is a clear indication that it is necessary for attorneys to be challenging any purported violent felony that only requires a negligent or reckless mens rea. Negligent homicide, vehicular homicide, reckless endangerment come to mind off the top of my head. Johnson represents to me that the Sixth Circuit is amenable to these kinds of challenges post-Begay. If you have any cases in the pipeline that have any of these types of predicates, it would be imperative to keep them alive while the Supremes and the Sixth work through the ramifications of Begay.

Monday, February 02, 2009

Spears Applied in Sixth Circuit

Quick note on Sixth Circuit’s recent application of Spears. In United States v. Johnson, No. 07–2447 (6th Cir. Jan. 26, 2009), court held that it would remand a crack case because the district court did not have the benefit of Spears when it imposed sentence. Court wanted to give district court the opportunity to impose sentence with a full recognition of its ability to reject and vary from the crack guidelines based solely on policy issues. Court found that Spears has preemptively halted the spread of an overly restrictive view of Kimbrough. Noted that Spears applies with equal force to sentencing decisions made under the new crack guidelines. Court careful to "express no opinion on whether the principles articulated in Spears may apply outside of the crack-cocaine context." Court does note that it has heeded the Supreme Court’s instructions to give district courts wide latitude in imposing sentences outside the guideline range even in mine-run cases if these sentences are adequately explained under 3553(a). This case appears to mean that one may be able to get a remand just for being a pre-Spears crack case on appeal.