Tuesday, March 31, 2009

"A Walkaway Escape Is Not Unambiguously a Crime of Violence"

In United States v. Ford, No. 08–5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky’s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1.2(a)(2). Court used some good language. For example, "[t]hat an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence." Court goes on to note that "all walkaway offenders have engaged in purposeful conduct." But there is no requirement of purposeful violence or purposeful aggressiveness. Court points out that "[t]he ‘otherwise’ requirement demands not just that the offense involve a similar risk of injury but also that it involve a similar type of crime." Finally, the Court finds that if any doubt remains the benefit of that doubt must go to the defendant under the Rule of Lenity. Court still notes the Shepard issue, which is an issue (see Mr. Strong’s post of March 16, 2009). The issue is a little different, as this offense is not a "reckless" one, but the analysis still seems unsettled in the Shepard area.

Tuesday, March 17, 2009

St. Patty’s Day Treat—924(c)s Not Always Consecutive in 2nd Cir.

(Pic in celebration of the Emerald Isle.)
Well, following up on my post of March 12, the Second Circuit (Judges Pooler, Hall, and Trager, of the Eastern District of New York) has held that a mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A) is inapplicable when a defendant is subject to a longer mandatory minimum sentence for a drug-trafficking offense that is part of the same criminal transaction as the firearm offense. United States v. Williams, No. 07–2436 (2d Cir. Mar. 5, 2009). The court had previously held in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), that the "except clause" of § 924(c) means that the minimum sentences do not apply when a greater sentence is otherwise provided by another provision of law. That case addressed the Armed Career Criminal Act (ACCA). The Williams court simply extended this holding to cover non-firearms minimum sentences and sentences provided by the predicate offense (i.e. a mandatory minimum for a drug-trafficking offense).

The Williams court cites United States v. Rodriquez, 128 S. Ct. 1738, 1788–89 (2008), to support the need to faithfully read statutory text and refrain from inserting language into statutes. The court also cites United States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001). The court notes that the 6th Circuit has cited with approval cases that have read the "except clause" as having a firearms limitation. It has cited cases that at least leave open the option that other firearms provisions could lead to a non-consecutive sentence under 924(c) (e.g., ACCA).

The Williams court points out that it is not unbridling the "except clause" to let it run wild. The court’s holding requires that the firearm was possessed in relation to the predicate offense—that the offenses arise from the same criminal transaction. The court also notes that the general rule is that 924(c) penalties are cumulative and that the "except clause" is just that: an exception.

The court made an interesting observation in a footnote. Case law does not point to any statutory provisions currently in force that could increase a sentence for a violation of § 924(c) that is not codified in that section. So really, the "except clause," as read by some courts, would allow for a greater minimum sentence in the event Congress enacts one in the future in some other section of the Code. They read it, essentially, as a hypothetical given the current state of the law.

What all this means for us. . . .

Well, first, seems to mean there’s a good cert. issue out there. But I think it also means we may actually have a little ground to challenge consecutive 924(c) sentences. As the Williams court points out, the Jolivette court cited United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000), with approval. In Alaniz, the Eight Circuit concluded that the "except clause" refers only to firearm-related conduct and would not apply to a drug-trafficking sentencing provision. The Jolivette court described this reasoning as "entirely correct." So, we might be able to argue that ACCA and 924(c) sentences should not be consecutive (as in Whitley). There’s bad language in Jolivette, but that case’s support of Alaniz is helpful. The bad language is dicta. ACCA was not the issue in Jolivette. (Nor, for that matter, was a mandatory minimum drug-trafficking sentence. . . . ) Maybe, with such an argument and the help of Whitley and Williams, cases like Guthrie, discussed below, could come out even better. See United States v. Guthrie, Nos. 07–6215/07–6286 (6th Cir. Mar. 2, 2009). Just a thought . . . I could not find a case out of the Sixth Circuit directly refuting this argument, but that does not mean it is not out there.

Monday, March 16, 2009

Reckless Endangerment Not a Crime of Violence, maybe

Today, a panel of the Sixth ruled in U.S. v. Baker, that reckless endangerment under Tennessee law does not qualify as a crime of violence for career offender and ACCA purposes. The Sixth found that since reckless endangerment by its definition penalizes reckless, rather than intentional, conduct it does not qualify as a crime of violence after Begay.

However, there is one troubling aspect about this opinion. The panel remands the case and allows that the district court, "may consider any of the additional factual evidence on remand, provided, of course, that it is limited to the 'charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.'" This seems to confuse the analysis of Shepard. Under Shepard, the prosecution does not get to present this additional evidence unless there is a possibility that the statutory definition of the crime penalizes both crimes of violence and non-crimes of violence. Think generic v. non-generic burglary. So if Begay requires that the predicate offense criminalize intentional conduct for it to qualify as a c.o.v., and reckless endangerment only criminalizes reckless conduct, why is there a need for additional fact finding? It would seem that the statutory definition would make any further factual finding pointless, in that the statutory definition does not criminalize any crime that could ever qualify as intentional conduct.

While this is just one troubling aspect of an otherwise good opinion, it makes me wonder if the Sixth can envision any way that reckless endangerment could qualify as a c.o.v. Any thoughts?

Thursday, March 12, 2009

So Hot-Off-the-Press that Further Details Will Have to Follow—924(c)s Not Always Consecutive?!

There’s some inauspicious Sixth Circuit case law out there like United States v. Jolivette, 257 F.3d 581, 586–87 (6th Cir. 2001), but good things may be happening. Second Circuit just found that the mandatory minimum under 924(c)(1)(A) is inapplicable when the defendant is subject to a higher mandatory minimum sentence for a drug-trafficking offense when that latter offense is part of the same criminal transaction. United States v. Williams, No. 07–2436 (2d Cir. Mar. 5, 2009). I will look at the case and get back to you (yes, I’m pretty much just gossiping right now).

Good News from the Categorical-Approach Front

Nice result in United States v. Medina-Almaguer, No. 07–4254 (6th Cir. Mar. 12, 2009) (panel of Judges Keith, Sutton, and Griffin). Defendant sentenced to 27 months for illegal reentry after deportation. Got the 16-level bump for prior drug-trafficking offense. Guideline range was 37 to 46 months. Downward variance to 27 months because predicate offense for bump was nearly 18 years old and defendant had stayed out of trouble for the most part after that prior offense.

Issue: was defendant’s 1989 California conviction a drug-trafficking conviction to justify the bump.

California Health and Safety Code Section 11352(a) (1989) makes it a crime to transport, import, sell, furnish, administer, or give away a controlled substance or to offer to do those things. This broad reach means the statute covers more than just the conduct that makes an offense a drug-trafficking offense. The district court relied on a transcript of the preliminary examination in that earlier case to determine that the offense qualified as a drug-trafficking offense. Transcript showed that the defendant had been arrested after selling heroin to an undercover agent.

Appellate-court conclusions: court documents reviewed to determine nature of prior offense must establish that the defendant "necessarily admitted" the elements of a predicate offense when he/she pleaded guilty. Court assumed for the sake of argument that a district court may consult a preliminary-examination transcript. But panel found that the transcript at issue did not demonstrate that the defendant necessarily admitted the elements of a drug-trafficking offense.

Key points:
—Preliminary examination involves gateway step in criminal process—determining whether probable cause exists to detain suspect.
—It takes place before the individual is charged.
—Purpose is to determine if there is probable cause to believe the individual committed a felony.
—The transcript may show that the magistrate properly concluded there was sufficient cause to think the defendant violated Section 11352(a). But the defendant did not admit the conduct.
—Transcript does not show that he necessarily admitted the conduct when he later pleaded guilty.
—Defendant did not testify at hearing. His attorney did not concede anything on his behalf.
—Panel did not determine whether the transcript is even an appropriate source because this transcript is not helpful even if it could be reviewed.
—It is clear that "Shepard requires more than probable inferences and likely implications." Need judicial record.

Court distinguishes United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006). Jones allows limited use of an affidavit of complaint. May be used only for purpose of determining whether prior offense constitutes a single criminal episode or multiple episodes. Court looked to United States v. Wells, 473 F.3d 640, 647 n.5 (6th Cir. 2007), for clarification. Relates to ACCA. Jones did not address whether a sentencing court may use an affidavit of complaint to determine the conduct the defendant necessarily admitted when he or she pleaded guilty.
Remanded for resentencing.

A Brave New World—Sentencing Review

The panel of Judges Martin, Kethledge, and Carr (Chief District Judge, N.D. Ohio) clarified the nature of sentencing review in United States v. Blue, No. 07–5296 (6th Cir. Mar. 9, 2009). The case is somewhat unremarkable in terms of the facts and issue. Defendant pleaded guilty to three counts of crack-related offenses. The plea agreement did not commit the government to moving for a downward departure based on the defendant’s substantial assistance. An earlier plea agreement would have so committed the government, but it also would have required the defendant to plead to a charge to which she did not want to plead. Offense level was 35; criminal history category was VI. Guideline range was 292 to 365 months. Defendant got 292 months.

Prior to sentencing, the defendant filed a 5K1.1 motion for a downward departure. The district court denied this motion. This denial was the focus of the appeal. The panel upheld the district court’s denial, finding that the sentence was reasonable. This outcome is not remarkable, but the panel focused on the nature of appellate review of sentences post-Booker. In Footnote 1, the panel makes clear the need for reasonableness review and the limited utility of pre-Booker case law.

The panel cites the Seventh Circuit case of United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006), that found that post-Booker departures are no longer necessary—a district court may simply impose a below-guideline sentence if such a sentence is appropriate. The panel does stop short of finding, as the Seventh Circuit did, that "departures have become obsolete." The panel finds this language a bit strong. It describes departures as exemplifying "a special discretion because it is anticipated by the Guidelines Commission."

The panel points out that absent an unconstitutional motive a sentencing court may not award a 5K1.1 departure under the Guidelines without a government motion. It notes that a properly granted 5K1.1 motion would reflect "a proper application of the Sentencing Guidelines" and thus be entitled to a presumption of reasonableness on appellate review. The panel concludes that a variance imposed under 3553(a), one that could be granted without a government motion, would not be entitled to the same presumption.

The panel concludes that the defendant waived her argument that her sentence was procedurally unreasonable because the sentencing court did not consider her substantial-assistance argument under 3553(a).

Thursday, March 05, 2009

Child Exploitation—Refining Definitions

In United States v. Shafer, No. 07–2574 (6th Cir. Mar. 3, 2009), Judges Moore, White, and Tarnow (E.D. Mich.) remanded a child-exploitation case for resentencing.

Conviction: Guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depiction of such conduct, and depiction was produced using material transported in interstate commerce—violation of 18 U.S.C. § 2251(a).

Original Sentence: 360 months.

Guidelines: Section 2G2.1. BOL 32. Final OL 41. CHC I. Range of 324 to 405. Stat max of 30 years.

Facts: Bad. Charge involved defendant photographing eleven-year-old boy masturbating.

Issue: Defendant objected to enhancement under Section 2G2.1(b)(2)(A)—if offense involved commission of a sexual act or sexual contact, +2 levels. Defendant argued sexual act/contact do not encompass self-masturbation. Need another person involved.

District Court: Applied enhancement. Found that sexual act requires one individual to make contact with another. But sexual contact is broader and covers self-masturbation. Also found that the entire pattern of conduct involving the victim was all part and parcel of the offense. There was "grooming" conduct to make the victim engage in the sexual behavior.

Appellate Court: 1) Sexual contact includes self-masturbation. But 2) requirements for sexual contact include an intent element. The person who is doing the touching must have a specific intent—e.g., to abuse, humiliate, or arouse the sexual desire of someone. District judge did not make findings regarding the eleven-year-old boy’s intent. Because of the boy’s age, appellate court unwilling to infer necessary intent. Could have been that boy sought only to please the defendant in a non-sexual way. Remanded for findings on intent. 3) There was no evidence that the defendant committed a sexual act or sexual contact during the commission of the offense, in preparation for the offense, or in the course of attempting to avoid detection/responsibility for the offense. Earlier sexual abuse may have made offense of conviction easier to commit, but that fact does not support a finding that the defendant committed the previous abuse with the intent to later have the victim self-masturbate for the offense.

Short Holding: Section 2G2.1(b)(2)(A) does not apply given this record.

Dissent: Judge White would affirm because she thinks the district court found the requisite intent.

Tuesday, March 03, 2009

Trial Issues and Sentencing Win

In United States v. Guthrie, Nos. 07–6215/6286 (6th Cir. Mar. 2, 2009), the panel of Judges Martin, Moore, and Gwin (N.D. Ohio) considered a number of trial issues presented by the defendant and a sentencing challenge by the government. A jury convicted the defendant of car-jacking, discharging a firearm during a crime of violence, possessing a sawed-off shotgun, and being a felon in possession of a firearm. The court sentenced the defendant to 300 months of incarceration total. This sentence accounted for the mandatory minimum sentences at play.

The defendant challenged several aspects of the trial proceedings: 1) The AUSA being able to speak with the victim-witness during her cross-examination; 2) introduction of audio recordings of 911 calls; 3) introduction of video of a police pursuit; 4) the trial court’s refusal to issue a writ to produce a witness at trial; 5) the court’s instruction on "intent to cause death or serious bodily injury;" and 6) the denial of his motions for a judgment of acquittal based on the insufficiency of the evidence.

The government challenged the sentence, which included a variance from the guideline range. The government argued that the sentencing court varied because of the impact of the statutory mandatory minimums on the overall sentence and that the court did not adequately explain the grounds for the sentence.

The panel affirmed the conviction and sentence.

I will focus on two issues here: the witness-sequestration issue and the sentencing issue. The sequestration issue is interesting for a number of reasons. In our office in the Western District of Michigan, we recently brought a similar challenge because of conduct during a trial. This Guthrie decision does recognize the viability of such challenges. The Guthrie defendant characterized the error he raised as a failure to sequester the witness and as a violation of his Sixth Amendment right to confront his accuser. In rejecting the challenge, the panel pointed out that the district court merely had called a routine recess at the end of the day and that the defense did not object to the handling of the situation as the decision was made—the defense only objected as the witness was being dismissed and asked that the prosecutor not talk to the witness.

The panel concluded that sequestration orders do not prohibit witnesses from speaking with counsel. The panel noted that the defense did not question the witness regarding potentially improper communications when the witness took the stand the following day. Finally, the defense did not, on appeal, allege that anything improper occurred. I think these facts are what decided the issue. Perhaps on different, less benign, facts the situation could have come out differently.

As to sentencing, the government had argued for a 40-year sentence. The guideline recommendation was for 360 months and an additional 10 years because of the 10-year, consecutive minimum for the use of the firearm during a violent crime. The appellate court upheld the 25-year sentence imposed. It found that the district court was not trying to "negate" the mandatory minimum sentence for the use of the firearm during a crime of violence, as is prohibited by United States v. Franklin, 499 F.3d 578 (6th Cir. 2007). The panel found that the sentencing court had concluded that a 40-year sentence was just too long. The panel refused to impute an improper analysis to the district court and concluded the sentence was reasonable.