Monday, June 15, 2009

Defense Attorneys, As Well As Judges and Prosecutors, Must Get Their Heads In The Post-Booker Process

In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), when a proffered plea agreement required her to plead guilty to additional conduct that she denied committing in order for the government to file a §5K1.1 motion for assistance she had provided, Blue decided to accept an offer that did not require her to admit the additional conduct, but which did not include the filing of the §5K1.1 motion. In the post-Booker landscape, so far so good. Blue filed a motion for downward departure under §5K1.1, and argued that the district court should depart downward based on her assistance to the government. When the district court declined the invitation, and sentenced her to 292 months, Blue appealed.

In an opinion written by Judge Martin, the Court notes that, "post-Booker, the government's failure to file a Section 5K1.1 departure does not necessarily preclude a sentencing court from taking into account substantial assistance when considering the appropriate sentence in light of the Section 3553(a) factors." (557 F.3d at 685) What does matter, however, is whether the district court is considering the issue as a §5K1.1 departure motion, or a request for a variance under § 3553(a). And this is where the case goes off the track for Ms. Blue.

"Even after Booker, absent an unconstitutional motive, a district court may not award a Section 5K1.1 departure pursuant to the Guidelines without a government motion." (Id. at 686.)(emphasis in original) And a district court's refusal to depart downward is still, after Booker, not reviewable on appeal.

Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.

Blue's Lesson for the Rest of Us: Always present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing. If we fail to do this, then not only will our clients not get the lower sentences they deserve, but all of our appellate efforts will be in vain.

Thursday, June 11, 2009

Three Quick Notes on Cases---Rule 35(b), Fleeing and Eluding, and Explanations of Sentences

United States v. Grant, No. 07–3831, 2009 U.S. App. LEXIS 12330 (6th Cir. June 9, 2009) (panel of Judges Gibbons, Keith, and Merritt):

* "What factors a district court may consider when ruling on a Rule 35(b) motion is an issue of first impression in this circuit, though we have stated in an unpublished opinion that ‘[i]n evaluating a Rule 35(b) motion for reduction, a district court can consider a broad array of factors.’"

* "It stands to reason that a defendant’s substantial assistance will be the predominant factor in a district court’s decision to reduce a sentence pursuant to Rule 35(b). But that does not mean that a district court is precluded from considering other factors at the same time, whether those factors ultimately militate in favor of a larger, smaller, or identical sentence to the one it would have imposed on the basis of substantial assistance alone."

* So, the door is open for broader consideration of the issues.

United States v. LaCasse, No. 06–2212 (6th Cir. June 4, 2009) (panel of Judges Gibbons, Norris, and Rogers):

* Begay analysis does not change earlier holding that Michigan Fleeing and Eluding is a crime of violence. (Note—check your subsection. Fourth-Degree F and E not categorically a crime of violence.)

* Holding seems to be in tension with other recent conclusions.

United States v. Grams, No. 08–1697 (6th Cir. May 29, 2009) (panel of Judges Clay, McKeague, and Holschuh [S.D. Ohio]):

* Sentencing courts must clearly identify any deviations from the guideline range. Was this deviation a departure or a variance?

* District courts must provide specific reasons for departures and variances.

* Good discussion of the need to explain sentences.

Friday, June 05, 2009

Michigan R and O NOT a C of V

Hooray! Published opinion that Michigan Resisting and Obstructing a Police Officer is not a crime of violence! In United States v. Mosley, No. 08–1783 (6th Cir. June 5, 2009), panel of Chief Judge Boggs and Judges Moore and Sutton considered Michigan R and O under M.C.L. § 750.81d(1) and held that it’s not a crime of violence. No force, not an enumerated offense, and doesn’t fit into "otherwise clause." In terms of the Begay analysis, the panel found that, even though the offense may be purposeful, the statute does not require violence or aggression.

In Michigan, one can commit R and O by failing to obey a lawful command. This aspect of the statute was important in the decision.

Two things to keep in mind:

* Offenses under other subsections of 750.81d may involve crimes of violence. See United States v. Alexander, 543 F.3d 819 (6th Cir. 2008) (finding that a violation of Section 750.81d(2) is a crime of violence—that subsection has as an element causing bodily injury).

* The panel still remanded for review of the Shepard docs. The opinion allows for a review of the docs to determine whether the defendant did indeed assault an officer.