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 One was published; two are unpublished.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 The two unpublished cases provide an interesting contrast in how similar 262-month, career offender, low-end guideline cases are viewed by two panels.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.

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