Friday, January 29, 2010

924(c)---Cert Pet Granted

Gould v. U.S., No. 09--7073 (2010)

Lower Ct: 329 F. App`x 569

Consolidated with Abbott (below)

Granted 1/25/2010

Question Presented:
Did the Fifth Circuit correctly hold, in direct conflict with the Second Circuit (but in accord with several other circuits), that the mandatory minimum sentence provided by 18 U.S.C. § 924(c)(1)(A) applies to a count when another count already carries a greater mandatory minimum sentence?

Abbott v. U.S., No. 09--479 (2010)

Lower Ct: 574 F.3d 203

Granted 1/25/2010

Questions Presented:
18 U.S.C. § 924(c)(1)(a) provides, in part, that an individual convicted of a drug-trafficking
crime or crime of violence shall receive an additional sentence of not less than five years whenever he or she "uses or carries a firearm, or * * * in furtherance of any
such crime, possesses a firearm" unless "a greater minimum sentence is * * *
provided * * * by any other provision of law." So:

1. Does the term "any other provision of law" include the underlying drug-trafficking
offense or crime of violence?

2. If not, does it include another offense for possessing the same firearm in the
same transaction?

Thursday, January 21, 2010

Career Offender

January 19, 2010, the Supreme Court GVR'ed in Vazquez v. United States, No. 09–5370, 2010 U.S. LEXIS 736 (2010).

The Court remanded because the government’s position on the matter required reconsideration by the Court of Appeals. The Eleventh Circuit had held that the career offender guideline is distinguishable from the cocaine guideline and that this distinction gave the former guideline additional weight. United States v. Vazquez, 558 F.3d 1224, 1229 (11th Cir. 2009). Distinction was supposed to be based on Sentencing Commission policy vs. statutory directive. The Court remanded for reconsideration. The government conceded in its brief that appellate court had erred.

Also, I may have posted before about United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009), but it is worth repeating. Section 4B1.1(b) relies on the statutory maximum sentence to determine offense level. When crack cocaine is involved in an offense, the statutory maximum sentence is driven by the crack—powder sentencing disparity. Michael recognizes this issue and leaves the door open to this attack on the guideline.

The impact of the disparity in career offender cases is recognized by jurists in other circuits beyond the Sixth. The Eighth Circuit implicitly recognized the impact of the disparity in United States v. Clay, 524 F.3d 877, 878 (8th Cir. 2008). That court noted, in the career offender sentencing context, that "the district court was authorized to consider the disparity between crack and powder cocaine sentences." Id. In United States v. Welton, 583 F.3d 494, 502 (7th Cir. 2009) (Williams, J., dissenting), the dissent found that "[t]he disparity between the crack and powder cocaine advisory ranges in both §§ 2D1.1 and 4B1.1 originates from the same statute, and I see no functional difference between the two guidelines." The government has, on occasion, conceded that sentencing courts "are free to consider the crack cocaine versus powder cocaine disparity when sentencing defendants who are career offenders." Id. at 503.

Friday, January 15, 2010

Shame on Whom?

Shaming sentences . . . shame on the offender or shame on society for imposing such sentences? This post is just a quick bit of musing. Recently on the Sentencing Law and Policy Blog by Professor Berman, there was a post regarding a shaming sentence in Florida. See (Jan. 13 post). A twenty-four-year-old student had to hold a sign saying she had battered a police officer.

This post follows on the heels of my reviewing United States v. Gementera, 379 F.3d 596 (9th Cir. 2004), which involved some alternatives to incarceration in a mail theft case. The sentence was 2 months of custody plus three years of supervised release with certain, non-standard conditions. At first, one condition was wearing a sandwich board outside a post office proclaiming the offender had stolen mail. Upon motion by the defense, this condition was changed to one requiring the offender to deliver lectures at high schools, write apology letters to victims, and spend 24 hours at postal facilities with lost-mail windows, so the defendant could observe postal patrons who had to inquire about lost or stolen mail. The sandwich-board condition was kept, but in a modified form. The defendant appealed the conditions. The 9th Circuit affirmed.

The dissent found the sandwich-board condition to be an abuse of discretion---that its sole function was to humiliate.

This case law and these punishments also raise questions about the purposes of sex-offender registration and DNA collection. Are they not, in some way, a form of shaming punishment? Is having a publicly accessible database of sex offenders on the Internet a form of shaming punishment? One that may have no end for some individuals. . . . What about the stigma of having ones DNA held in perpetuity in a law-enforcement database?

Just some Friday musings. . . .

Friday, January 08, 2010

Must Read---Standard of Review and Crack

Ok, not a lot of time to dissect this opinion here, but in United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), released November 23, 2009, the panel of Judges Boggs, Clay, and Bertelsman (E.D. Ky.) considered standard-of-review issues and the substantive reasonableness of crack sentences based on the 100:1 ratio.

The case revisits Vonner in a way and considers the Bostic question. Sentencing took place in 2007 and defendant got a within-guidelines sentence for a crack offense. Defense counsel argued against the disparate treatment of crack and powder prior to and at sentencing. The dist ct did not explicitly address the argument in imposing sentence. When asked for objections at the close of sentencing, defense counsel said she objected on procedural and substantive grounds.

On appeal, counsel argued that the sentence was procedurally flawed b/c the dist ct did not address the disparity argument.

Holding: Vonner requires plain-error review of procedural claims when a party affirms they object after the ct asks the Bostic question, but that objection is so general the dist ct does not have the opportunity to correct the alleged error and the appellate ct does not have a more detailed record.

No plain error in this case.

In terms of substance, the panel affirms the sentence, but remands for a look under Section 3582(c)(2) since this sentencing was in March 2007. Troubling aspect is the panel looks at old sources like 1995 Sentencing Commission Special Report to Congress and 2000 and 2006 cases to find that disparity is OK and that crack is a more addictive, dangerous drug.

Judge Clay dissented. It's a long dissent and worth a close look. He finds that Bostic put the onus on the dist ct to clarify the record regarding objections. He also finds that Vonner encourages a common-sense application of the plain-error rule.

He finds it is procedural error not to address a defendant's central argument for a below-guidelines sentence. Burden of developing adequate record should not be on defense. He finds that review should be in context. He recognizes the strategic issues involved in pressing a given argument in the dist ct once it has been raised.

He would find error even under plain-error review. No indication the dist ct considered the disparity argument.

Check this case out. It impacts our obligations regarding objections at the dist ct level and it impacts the crack--powder disparity arguments in this Circuit.