Tuesday, December 29, 2009

S Ct Issue to Preserve---Crack

Supreme Court has granted cert in Dillon v. United States, No. 09–6338 (U.S. 2009).

Appellate court decision: 572 F.3d 146 (3rd Cir. 2009)

Cert granted on 12/7/2009


I. Whether the Guidelines are binding when a district court imposes a new sentence under 18 U.S.C. § 3582;
II. Whether a § 3582(c)(2) sentencing is limited such that a district court must impose sentence based on an admittedly incorrectly calculated guideline range.

Have a great New Year!!!

Wednesday, December 16, 2009

Seriously, a Turkish Prison.

This sentence comprises Footnote One of a piece of legal prose that is totally worth a read!

Judge Boyce F. Martin, Jr., dissents from a denial of rehearing in Parlak v. Holder, No. 05–4488 (6th Cir. Nov. 24, 2009). This published order and dissent in an immigration case do not bear much on federal criminal law, but take a break and check it out.

Judge Martin does not agree with the way Mr. Parlak’s case was handled and would have granted rehearing en banc. Key excerpts:
* "[T]he government relied heavily upon evidence that no one genuinely disagrees was obtained by torture twenty-one years ago in a Turkish prison."
* The opinion issued in the lower tribunal "did little more than cut and paste from the government’s briefs, typographical errors and torture-induced admissions included."
* "I would describe it [the analysis used] as grossly over-inclusive and as having sprung, unwanted and uncontrollable, from the collective mind of the Board like Athena from the head of Zeus, except without Athena’s wisdom and elegance."
* "[W]e will not be accomplices in the government’s unprincipled slamming of doors on those ‘tempest-tost’ who, like Mr. Parlak, seek nothing more than to ‘breathe free.’"

Friday, December 04, 2009

A New Wave Washes Over Appellate Waivers and Related Cases

Interesting decision yesterday in United States v. Atkinson, No. 07–2144 (6th Cir. Dec. 3, 2009). It is unpublished, but it is worth a look. Panel of Judges Guy, Clay, and White.

* Defendant caught with drugs and gun.
* Charged with being a felon in possession, possession with an intent to distribute crack, and a § 924(c).
* Defendant was going to plead guilty with a plea agreement that dismissed the drug charge. Decided not to do so and requested new counsel.
* Defendant did plead a month later with new counsel.

Sentencing and Appellate Waiver:
* GL determination left open in second plea agreement.
* This second plea agreement did contain an appellate waiver. Pretty broad—waived right to appeal "any sentence which [wa]s at or below the maximum of the guideline range as determined by the Court." Also waived right to appeal sentence and manner in which it was determined in any collateral attack.
* PSIR scored the defendant as a career offender. Defendant objected based on his prior convictions being related. District Court rejected this argument, finding the offenses were not consolidated for trial/sentencing. (This case was pre-2007 amendments to Section 4A1.2(a)(2).)
* GL range of 262 to 327 months. OL 34, CH VI.
* Sentence of 240 months total.

* Defendant challenged his sentence.
* Government moved to dismiss the appeal because of the appellate waiver.
* Court concludes that under these circumstance, it could not be satisfied that the appellate waiver was knowing and voluntary. Circumstances included: uncertainty about whether the defendant would plead guilty, recent change in counsel, only passing reference to career-offender issue at time of plea.
* Regarding actual consolidation issue, Court found it was close call and that consideration of 2007 amendment might have led to different result in the District Court because of the District Court’s discretion. The Court so concluded even though it noted that the amendment would likely not be found to be retroactive.
* Case remanded.