Tuesday, May 26, 2009

Staving Off Attack—Child-Porn Sentencing Victory


In United States v. Cole, No. 07–4506 (6th Cir. May 22, 2009) (unpublished), the panel of Judges Kennedy, Norris, and Cole affirmed the judgment of the district court after the government appealed the defendant’s sentence. The defendant had pleaded guilty to transporting and possessing child pornography. The district court had declined to enhance the defendant’s sentence based on his previous state conviction "relating to" statutorily enumerated sex crimes with minors. The defendant had a 1999 conviction for possession of matter portraying a sexual performance by a minor, in violation of Kentucky law. The district court sentenced the defendant to 120 months of imprisonment.

The panel looked to the case of United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), in which the court applied the categorical/modified-categorical approach to determine whether a prior conviction was sufficiently similar to the federal offense to trigger the enhancement. The Cole panel considered that at the time of the Cole defendant’s prior conviction the statute under which he was convicted was overly broad because it criminalized every instance in which a child is photographed exhibiting his or her genitals—without requiring proof that the exhibition was volitional and in a lewd manner. The federal statutes, in contrast, require lascivious exhibition.

Because there was no proof under the categorical approach that the defendant’s prior conviction involved the "lewd manner" element, his prior conviction was not categorically equivalent to the federal offenses. The panel declined to adopt the broader reading of "relating to" urged by the government. The panel concluded it was bound by McGrattan.

Friday, May 15, 2009

Ghosts of Sentences Past---Procedural Reasonableness


Yesterday in United States v. Barahona-Montenegro, No. 08–1345 (6th Cir. May 14, 2009), the panel of Judges Moore, McKeague, and Forester (E.D. Ky.) vacated a sentence as procedurally unreasonable and remanded the case for resentencing. At sentencing, the defense had objected to the criminal-history category in the PSIR. The defense argued that the defendant should have been in category III rather than IV. At IV, the guidelines were 37 to 46 months. At III, they were 30 to 37 months.

The district court never resolved the objection. The court sentenced the defendant to 48 months, an above-guidelines sentence whether or not the objection was sustained. The court noted the seriousness of the offense (illegal alien in possession of a firearm) and that the defendant had five children, all born out of wedlock, whom he was not supporting.

Some two months after the hearing, the court issued its written judgment. In that judgment, the court assigned the defendant criminal-history category III and said the sentence was based on an upward departure under Section 4A1.3, as category III under-represented the defendant’s criminal history.

The appellate court found that the district court failed to properly calculate the guidelines and did not adequately explain the sentence it imposed. The panel found that the district court failed to focus on the Section 4A1.3(a)(2) factors to support an upward departure. The events and convictions the district court cited were already accounted for in the guideline scoring. The panel also found that it could not determine whether the above-guidelines sentence was based on an upward departure or a variance and that the explanation the district court provided focused on irrelevant factors such as the children being born out of wedlock.

The panel ruled that the statement of reasons provided with the judgment did not cure the defects. It was issued some two months after sentencing and did not provide the necessary explanation. The sentence was procedurally unreasonable because of the lack of guideline calculation and explanation of the sentence.

Friday, May 01, 2009

Void for Vagueness ruling withdrawn

The Sixth Circuit issued an opinion today in U.S. v. Davis, Case No. 07-1964, ruling that officers had reasonable suspicion to believe that Mr. Davis's vision was obstructed by a stuffed Tweety Bird hanging from the mirror. This would not be that exceptional if it wasn't for the fact that this opinion is in direct conflict with a prior opinion by the Court from last December ruling that the statute was void for vagueness. That opinion, written by Judge Martin, was withdrawn after the State of Michigan intervened to argue for the constitutional validity of the statute. Judge Martin apparently decided to punt by not addressing the constitutional validity of the statute after realizing that Mr. Davis had not raised the issue below.