Monday, March 22, 2010

Today's Summary---Crim Hist Points

Today's summary from our AFPDs: 


Direct Appeal


Defendant sought reversal of his sentence for violations of 18 U.S.C. §§ 922(g) and 924(c) on the grounds that he was erroneously assessed one extra criminal history point at sentencing for an aggravated assault conviction that he had incurred while he was a juvenile. Court found that the erroneous addition of the criminal history point did not affect the sentence and affirmed.

The Court decided that since the defendant was well above the base CHC points to be in category VI, the district court’s error in including a juvenile conviction for one point did not mean reversal was warranted.

The Court agreed with the defendant that the aggravated assault conviction did not qualify for inclusion in his criminal history calculation under U.S.S.G. § 4A1.2(d), and that the district court erred by including it. But the Court did not agree that this error required reversal.

The defendant also raised a claim in his reply brief that the district court might have sentenced him differently had it recognized that the aggravated assault conviction incurred before he turned 18 and was not properly included in the calculation of his criminal history. The record contradicted this claim. After listening to the defendant’s request for a lower sentence on the drug trafficking count and reviewing the facts of the offenses, the district court detailed the defendant’s criminal history and observed, “So his criminal history is grim.”

Friday, March 19, 2010

Today's Summary---DNA and Speedy (or Not) Trial

Some interesting movement today in the Circuit. Thanks, as always, to our AFPDs for their summaries.


Direct appeal of SRV case. Published.

The Circuit Court affirmed the district court’s finding of a violation despite never making such a finding on the record. More importantly, they found that providing a DNA sample under 42 U.S.C. § 14135a(d) does not violate Ex Post Facto standards. This is consistent with other Circuits, but represents the first published opinion here in this Circuit.



Direct appeal. Published.

In a follow up to the Circuit’s Tinklenberg opinion from last fall, the Court finds the Speedy Trial Act violated when the government failed to timely indict the defendant. Much of the delay was caused by delay in transporting the defendant for his forensic psychiatric evaluation (almost two months where the statute limits transportation time to 10 days generally).

Two counts of the indictment were required to be dismissed, but the Court leaves it to the district court to decide if it is with or without prejudice.

As a result of the dismissals, the case was also sent back for re-sentencing of the defendant, who had received 382 months (in a complicated guidelines case as well). The Circuit Court left it to the trial court to decide what, if any, effect the reversal might have on the sentence.

Interesting Civil Case re Alleged CP and Retaliation

Miller v. Mitchell, No. 09--2144 (3d Cir. Mar. 17, 2010) (published).

Kids had pics on cell phones at school: minors in bathing suits, bras, towels, etc. District attorney gave them a choice: either complete an "education program" or face felony charges. Parents sued, raising a constitutional, retaliation claim. Third Circuit affirmed grant of preliminary injunction enjoining the district attorney from bringing charges.

To state a claim under § 1983, a plaintiff must show that the defendant, under color of state law, deprived him/her of a federal constitutional or statutory right. The kids and parents (plaintiffs here) based their claims on retaliation for the exercise of constitutionally protected rights, an action which is itself a violation of constitutional rights and actionable under 1983.

To prevail on the retaliation claim, the plaintiffs had to show that they engaged in constitutionally-protected activity; (2) that the government responded to this activity with retaliation; and (3) that the protected activity caused this retaliation. At the preliminary injunction stage, the plaintiffs only needed to show a reasonable probability that their claims would succeed on the merits.

The court began by focusing on the act of retaliation urged by the plaintiffs and found two possibilities based on the plaintiffs’ complaint and argument: (1) the district attorney retaliated against the plaintiffs when he threatened prosecution; and (2) a future prosecution would be an unconstitutional act of retaliation. The court found that only the second theory was viable.

The court then agreed with the district court that the plaintiffs had shown a reasonable likelihood of establishing that coercing participation in the "education program" violated one of the parent's Fourteenth Amendment right to parental autonomy and one of the minor's First Amendment right against compelled speech (there was a required essay about the "wrongness" of the pictures).

The court agreed that an individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and/or gender roles. An essential aspect of a parent's right to raise their child is the responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship. The district attorney interfered with this right. And while it may have been constitutionally permissible for the district attorney to offer the "educational program" voluntarily, he was not free to coerce attendance by threatening prosecution.

The court concluded that one of the parents was likely to succeed in showing that the "education program" impermissibly usurped and violated her fundamental right to raise her children without undue state interference.

The court also agreed with the district court, at this preliminary stage, that one of the minors likely could show that the "education program" would violate her First Amendment right to be free of compelled speech. In that program, the minor would be required to explain why her actions were wrong (the court presumed on moral, rather than legal, grounds) in the context of a program purporting to teach what it means "to be a girl," "sexual self-respect," and "sexual identity."

The court saw a fundamental difference between such a requirement and the often used (and constitutionally sound) requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his/her criminal actions or admit wrongdoing.

It was uncontroverted that the district attorney would not have brought criminal charges had the minor attended and completed the program. While every offer of a pre-indictment diversionary program presents a choice potential defendants must make, and a prosecution brought after the offer of diversion is refused ordinarily is not considered retaliation, the difference was that the decision not to attend the program here was constitutionally protected.

The court could discern no indication from the record that the district attorney had any evidence that this minor ever possessed or distributed the photo at issue. She had to choose between asserting her constitutional rights and facing prosecution based not on probable cause but as punishment for exercising her constitutional rights, or forgoing those rights and avoiding prosecution. This choice was unconstitutional. While the government has broad discretion as to whom to prosecute, the decision to prosecute may not be based on arbitrary classifications, including the exercise of protected statutory and constitutional rights.

At this preliminary stage, the court concluded that the plaintiffs had shown a likelihood of success on their claims that any prosecution would not be based on probable cause that the minor committed a crime, but instead in retaliation for the minor's exercise of her constitutional rights not to attend the "education program." The court affirmed the grant of a preliminary injunction and remanded for further proceedings.

In closing, the court noted that its decision does not open the door to federal courts acting as screening mechanisms for state prosecutions. This case presented the unique circumstance of a prosecutor revealing unequivocally that a prosecution would be brought solely in response to a potential defendant’s exercise of a constitutional right. And as the Supreme Court has noted, these unambiguous admissions are likely to be rare.

Wednesday, March 10, 2010

BIG 924(c) Victory!!!

Today wasn't going that well . . . . But United States v. Almany, No. 08--6027 (6th Cir. Mar. 10, 2010) (published), has put a silver lining in the cloud.

Panel of Judges Merritt, Martin, and Cole.

Defendant pleaded guilty to cocaine charges and possession of a firearm in furtherance of drug trafficking. District court imposed mandatory minimum sentence of 10 (drugs) + 5 (gun) years. Consecutive.

Issue: does the plain language of Sec. 924(c)(1)(A) forbid the imposition of its mandatory minimum sentence when a defendant is subject to a higher mandatory minimum under another provision of law?

Counsel had filed an Anders Brief. Defendant proceeded pro se. The defendant cited United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). This case is on the this blog in March 2009.

Court considered United States v. Baldwin, 41 F. App`x 713 (6th Cir. 2002), and United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001), and found the cases uninstructive. Didn't involve a second mandatory minimum sentence. Court looked to Whitley and found it persuasive. Court states in the opinion:

"Reading the firearm statute literally, the Second Circuit held that the statutory language plainly forbade the imposition of the mandatory minimum contained the firearm statute in conjunction with another greater mandatory minimum sentence. The Second Circuit’s opinion in Whitley is the correct interpretation of the firearm statute."

Court rejects analysis in United States v. Collins, 205 F. App`x 196 (5th Cir. 2006), and United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000).

This issue relates to pending cert petitions. See January 2010 on this blog.

Case remanded.

Another interesting issue is that of the appellate waiver. It is plain error for a district court to fail to inquire into a defendant's understanding of an appellate waiver. Here, the district court's inquiry seemed to imply that the defendant had the right to appeal. Appellate waiver therefore unenforceable.

Monday, March 08, 2010

Today's Summary---More Standard of Review

OK, looks like our AFPDs have just one case summary today.



The Defendant challenged his 120-month sentence for conspiracy to defraud and false statements to a grand jury as part of a SBA scam. He challenged the leadership enhancement under U.S.S.G. § 3B1.1(a) and the abuse of trust enhancement under U.S.S.G. § 3B1.3. The Court affirmed both enhancements, finding that under any of the varying degrees of review the enhancements would appropriately be applied.

The Court concluded that it was unnecessary to decide which standard of review applied because the Defendant's sentence withstood scrutiny under either standard. The Court recognized that the standard of review which applies to U.S.S.G. § 3B1.3 is subject to debate. Court looked at United States v. May, 568 F.3d 597, 602 (6th Cir. 2009) ("We review de novo the District Court’s determination that [the defendant] occupied a position of trust for the purpose of the Sentencing Guidelines.") and United States v. Lang, 333 F.3d 678, 682 (6th Cir. 2003) (applying a clearly-erroneous standard when the District Court’s application of § 3B1.3 was fact-bound).

The Court affirmed the sentence.

Friday, March 05, 2010

Just a Couple

Two summaries today. Have a great weekend!



In a very short opinion, the Court accepted the findings of the District Court as to the Defendant’s motion for acquittal/new trial and affirmed the District Court’s ruling denying both.




The Court denied the Defendant’s appeal of summary judgment granted in favor of the USA and FDIC on an issue of res judicata. Basically, the Defendant sought to void a restitution order based upon a subsequent bankruptcy discharge. The Court, in essence, said he should have raised the claim earlier.

The Defendant appealed the District Court’s dismissal of his declaratory judgment action. He sought to avoid the enforcement of a $19 million dollar criminal restitution order levied against him for defrauding a savings and loan institution, a debt he then owed to the Federal Depository Insurance Corporation (FDIC). The Defendant claimed that the restitution was discharged in his later bankruptcy proceeding. The Court had ruled previously that the Defendant owed the debt to the FDIC. The Court agreed with the District Court that the Defendant's discharge defense was claim-precluded, based on the Court's earlier ruling in Dover I.

Wednesday, March 03, 2010

Can't Quite Catch Up

I'm running short on time, so I'm just going to start posting the current summaries from our AFPDs. Here's today's summary. Enjoy!



Court ruled in this published opinion that a district court may consider whether a defendant has established ‘exceptional circumstances’ for release on bond under 18 U.S.C. § 3145(c) despite 18 U.S.C. § 3143(a)(2).

The defendant did not dispute that his guilty plea mandated his detention under § 3143(a)(2). Rather, he argued that he could be released under § 3145(c). Court had never explicitly held in a published decision that the district court has authority to release defendants being detained pursuant to § 3143(a)(2) upon a showing of "exceptional reasons" under § 3145(c). Court had reached that conclusion in an unpublished decision. United States v. Cook, 42 F. App’x 803, 804 (6th Cir. 2002). Given that holding, the unanimous agreement of other circuits that have considered the issue, and the government’s concession of error in the case, the Court held that the district court erred in not considering whether the defendant established exceptional reasons to support his release pending sentencing.  



State Habeas


Over the course of several months leading up to trial, the prosecution failed to comply with defense counsel’s repeated requests to view a tape from a convenience store. A few days before trial, the prosecution showed the tape to defense counsel, but when counsel viewed the tape,"[t]here was nothing on it." The trial transcript reflects that there was considerable confusion regarding the tape’s condition. At a sidebar prompted by a prosecution witness’s mention of the tape, the prosecutor told the court that the videotape could not be viewed due to a problem with the prosecutor's office equipment. Neither the defense nor the jury saw the tape.

The jury convicted the defendant on both charges. The defendant filed motions in the Wayne County Circuit Court requesting a new trial and a Ginther hearing. At the evidentiary hearing, the trial court watched the convenience store security tape, which could now be viewed, for the first time and granted the defendant a new trial due to the prosecution’s failure to provide the defense with a usable copy of the tape. The Michigan Court of Appeals vacated the trial court’s grant of a new trial, citing the lower court’s lack of jurisdiction to grant such a motion, and affirmed the convictions. The defendant then filed a pro per application for leave to appeal to the Michigan Supreme Court. The state supreme court denied this application. The defendant then filed a pro se petition in federal court. The district court denied habeas relief, but the Court of Appeals granted a certificate of appealability to consider the defendant’s Brady claim.

The Court, however, affirmed the judgment of the district court because the defendant failed to show a reasonable probability that the suppressed videotape would have produced a different outcome.



State Habeas


Warlick filed a nine-claim habeas petition in the Eastern District of Michigan pursuant to 28 U.S.C. § 2254. The district court dismissed three of the claims for failure to exhaust state appeals. These dismissed claims were improper: (1) jury instruction, (2) endorsement of a state witness, and (3) admission of a 911 tape. The district court later denied the six other claims after the case was transferred to another judge. Warlick appealed, alleging: (1) insufficiency of convicting evidence, (2) improper admission of his statement to the police, (3) improper withholding of evidence,(4) prosecutorial misconduct and ineffective assistance of counsel, (5) deprivation of his right to testify and ineffective assistance of counsel, and (6) erroneous dismissal of the three claims for failure to exhaust available state appeals.

For a number of evidentiary and procedural reasons, the Court of Appeals denied relief.

Monday, March 01, 2010

Last Week

As I said in the post below, I've been at a conference. I am, however, trying to catch up on posting our AFPDs' summaries, which kept coming while I was gone. Here are summaries from the 22nd.

There are three cases. One was published; two are unpublished. The published case is a state habeas case. The two unpublished cases provide an interesting contrast in how similar 262-month, career offender, low-end guideline cases are viewed by two panels. The first one has a lengthy dissent that seems to presume ineffectiveness of counsel when a low-end guideline sentence was requested, and therefore, questions the reasonableness of the judge’s sentence in giving the Defendant what was asked for by counsel. The second case accepts the sentence of 262 months with little discussion.



Kevin Tolliver was convicted in Ohio state court in 2002 of murdering his live-in girlfriend in the early morning hours of December 29, 2001. On January 18, 2008, the district court dismissed Tolliver’s petition for a writ of habeas corpus, but certified two issues for appeal:

(1) whether Tolliver’s statements to police on the night of the death were unconstitutionally obtained and thus were improperly admitted at trial; and

(2) whether Tolliver established cause and prejudice for procedural default of an ineffective assistance of appellate counsel claim.

The Court concluded that, while portions of the interview with the police were obtained unconstitutionally, the trial court’s error in admitting these unconstitutionally-obtained statements was harmless. Tolliver did not demonstrate good cause for procedural default of his ineffective assistance claim. The Court affirmed the district court’s denial of the petition for a writ of habeas corpus.




Michael Sorrell appealed his sentence of 262 months of imprisonment.

He asserted that the district court did not adequately explain the sentence and that it was unreasonable. The Court affirmed.

During the preparation of the PSIR, which classified the Defendant as a career offender under § 4B1.1, the parties discovered that the written agreement inaccurately calculated the Defendant's guideline range. With application of the career-offender enhancement, the guideline range was 262 to 327 months. The district court gave the Defendant the opportunity to withdraw his plea, but the Defendant declined to do so and chose to move forward, knowing that he would be subject to an advisory guideline range of 262 to 327 months.

On appeal, the Defendant claimed that the district court’s explanation for his sentence was inadequate. But because he did not challenge the adequacy of the explanation before the district court during the sentencing hearing, even after that court asked if he had any objections, the appellate court reviewed the challenge for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008); United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). (Look at posts below re. standard of review for more on this topic.)

The Court found the sentence to be reasonable as well.

The dissent:

The district court imposed a sentence of 262 months without taking the time to fully explain the sentencing factors that motivated the court to conclude that the Defendant should spend almost 22 years in prison. The majority opinion is almost bare bones and fails to consider copious amounts of relevant precedent pertaining to sentencing issues. It ignores the well established rule that a sentencing court must explain the sentence it imposes. Looks to Rita and Simmons.

The majority cannot point to any part of the sentencing transcript that "makes clear" that the sentencing court listened to each argument and considered the supporting evidence. The district court merely accepted the Defendant’s counsel’s statements without exercising its own independent judgment and failed to create a meaningful record, as required by the Supreme Court and the circuit’s precedent.

The district court’s reliance on the Defendant’s attorney's statements is particularly troubling because a defendant’s counsel may be ineffective. Creating a blanket assumption that adopting the Defendant’s argument is procedurally reasonable is extremely problematic. A defendant’s rights are not protected when the district court fails to perform an independent analysis and exercise its own discretion. The majority’s holding encourages sentencing courts to abdicate their responsibility at sentencing and to parrot whatever defense counsel says.

The dissent finds the sentence to be procedurally unreasonable, even under the plain-error standard.




Jermaine McBee challenged his 262-month sentence and his status as a career offender. The Court affirmed.

The Defendant pleaded guilty (1) to possession of crack cocaine with the intent to distribute it and (2) to being a felon in possession of a firearm. Over the Defendant's

objection, the district court determined that he had at least two prior felony convictions of "a crime of violence," which made him a career offender.

After further adjustments, the sentencing court calculated an advisory guideline range of 262 to 327 months. The district court sentenced him to 262 months of incarceration and to 5 years of supervised release.

The defendant challenged the CO status, but the Court found he had two qualifying convictions, as his prior burglary conviction under Ohio law was categorically a C of V. Because the Defendant waived his right to appeal a ‘within the guideline’ sentence, he could not challenge the substantive reasonableness the 262 months.

Catching Up

I was at a conference last week and have some great info to post regarding discovery and other hot topics. But let me try to catch up with our AFPDs' posts. They kept right on summarizing while I was gone.

Feb. 19:



The Court affirmed the Defendant’s conviction and the sentence of 684 months (57 years!). Seven claimed errors in the district court proceedings:

(1) Defendant was denied an unbiased jury by the district court’s failure to excuse juror number four for cause;

(2) the jury instructions on the § 856(a)(1) charges for maintaining a drug-involved premises were improper in their definition of "purpose";

(3) his conviction for maintaining the Nagold home (count 6) was based on insufficient evidence;

(4) because count 6 was based on insufficient evidence, count 7, possession of a firearm in furtherance of maintaining the drug house at Nagold, must also be reversed;

(5) the jury instructions on the § 856(a)(1) counts constituted a constructive amendment to the indictment because they included more possible activities than "maintaining" the property;

(6) his conviction for possession of crack cocaine with intent to distribute was based on insufficient evidence; and

(7) the district court abused its discretion by converting the $11,375 in cash to cocaine base to determine the applicable base offense level.

After a lengthy discussion of all the issues, the Court affirmed the conviction and sentence.





Artemia Stewart was convicted of second-degree murder, armed robbery, and felony firearm. Stewart was sentenced to concurrent terms of 39 to 60 years of imprisonment on the murder and robbery convictions and two years on the firearm charge. After the Michigan appellate courts denied Stewart all post-conviction relief, Stewart filed a petition for federal habeas corpus relief.

Holding that there was insufficient evidence to convict Stewart of second-degree murder, the district court granted his petition. The Court reversed the judgment of the district court and remanded the case with instructions to deny the petition for a writ of habeas corpus.


Sufficiency of the evidence to convict Stewart as an aider and abetter. Court found that it was not fundamentally unfair to imply malice to aider and abetter.




James Hardison challenged his 81-month sentence for conspiring to defraud mortgage lenders and for identity theft. The Court affirmed.

Procedural reasonableness.

A district court must consider the applicable sentencing guideline range and the factors listed in 18 U.S.C. § 3553(a), accurately calculate the sentence, and adequately explain it. The district court fell short on this front, the Defendant charged, because it did not allow him to introduce evidence showing that "he did not intend . . . to cause a loss in the amount of the loans sought."

Clearly erroneous review applied to the district court’s loss calculation, and fresh review applied to its legal interpretations.

Problem one with the argument was that the Defendant never asked for an opportunity to present this evidence or, for that matter, any other evidence in support of his sentencing-mitigation arguments. Soon after the proceeding started, the district court asked the Defendant whether he wanted to object to the PSIR, which recommended that the intended loss amount should be $1,005,967. The Defendant claimed that the PSIR’s figure "was not supported by the evidence at trial," as he personally received only about $10,000 and because he allegedly "took affirmative steps to renounce . . . his participation" in two of the loans. The Defendant never asked the sentencing court for leave to introduce additional evidence regarding the "intended loss." Instead, he chose to rely solely on the evidence that already had been introduced at trial. Any complaint that the sentencing court refused to let the Defendant introduce evidence in support of his sentencing arguments thus misstate what happened at sentencing.

Problem two with the argument is that it merely represented another way of attacking the district court’s calculation, not the evidence permitted to be introduced in support of it.

Problem three with the argument was that no authority supported it. The one case on which the Defendant relied was United States v. Confredo, 528 F.3d 143 (2d Cir. 2008), and did not help him.

Problem four with the argument was that the district court’s ultimate sentence accounted for most, if not all, of the Defendant's concerns.

And the variance eliminated any prejudice from the court’s initial "intended loss" calculation and the Defendant’s arguments on appeal.




Defendant Jerry Wood argued that he received ineffective assistance of counsel when his lawyer advised him to plead guilty rather than pursue a long-shot defense at trial. The Court rejected this argument and affirmed.

When deciding the issue of the ineffective assistance of counsel claim on direct appeal, the court basically rejected a good faith belief that one is not a felon as a defense to a Sec. 922(g) charge.

The court said:

Wood now argues that "he would have been acquitted" if his counsel had only presented a defense based on his "good faith belief that his 1978 conviction had been expunged." By failing to present that defense, the Defendant says, his counsel rendered ineffective assistance.

This argument, however, is predicated on an unrealistic view of the case law.