Friday, June 18, 2010

Formatting Issues

I apologize for the odd looking formatting that occasionally presents itself (e.g., the large text at the end of the Dillon post below). No matter what I do, the blog likes to throw in these bugs occasionally. I have tried to fix them, but I've struck out.


Thursday, June 17, 2010

Disappointment in Dillon

The Supreme Court decided Dillon v. United States, No 09--6338 (June 17, 2010), today. Justice Sotomayor delivered the opinion of the Court. Justice Stevens was the lone dissent. Justice Alito took no part in the decision. Booker does not apply to make Section 1B1.10 non-binding.

Court concludes that, by its terms, § 3582(c)(2) does not authorize a sentencing/resentencing proceeding. The section provides for the modification of a term of imprisonment---it gives courts the power to reduce an otherwise final sentence in the circumstances the Commission specified.

Majority does not respond to the dissent's separation-of-powers discussion because that issue was not encompassed in the questions presented and was not briefed.

Section 3582(c)(2) proceedings do not implicate the Sixth Amendment right to a jury finding of essential facts. Rejects Hicks reasoning.

Because 3582(c)(2) does not permit resentencing, correcting other sentencing errors is beyond the scope of such a proceeding.

Justice Stevens closes his dissent: "I had thought Booker dismantled the mandatory Guidelines regime. The Court ought to finish the job."

Wednesday, June 16, 2010

6th Cir Weighs in on 3582(c)(2) Circuit Split

Last Friday, the Sixth Circuit weighed in on an interesting circuit split over what constitutes the "applicable guideline range" in the crack-resentencing context.
In United States v. Pembrook, No. 08--6452 (6th Cir. June 11, 2010) (to be published) (panel of Judges Boggs, Suhrheinrich, and Rogers), the Sixth Circuit joined the Eighth and Tenth Circuits in finding that the applicable guideline range at the original sentencing was the initial range, not the range determined after downward departures to the crack-guideline level. This conclusion conflicts with decisions in the Fourth and Second Circuits.
Basic issue: defendant was a career offender, but district court (at original sentencing) departed to the crack-guideline range because the CO range overstated the defendant's criminal history. Should such a defendant be able to get a reduction in sentence under 3582(c)(2) based on the crack-guideline amendments?

Conclusion: the CO guideline range was the applicable range, so no reduction allowed.

The Second and Fourth Circuits allow a reduction in such circumstances: United States v. Munn, 595 F.3d 183 (4th Cir. 2010); United States v. McGee, 553 F.3d 225 (2d Cir. 2009). Sixth Cir., however, followed the Eighth and Tenth. See United States v. Darton, 595 F.3d 1191 (10th Cir. 2010); United States v. Blackmon, 584 F.3d 1115 (8th Cir. 2009); United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009).

Interesting considerations: the panel relies on Sections 1B1.10 (policy statement on resentencings) and 1B1.1 (application instructions for guidelines). Seems that the weight of such authority could be impacted by Dillon, depending on what the SCOTUS decides.

Judge Rogers provides a strong dissent. Sees two different "applicable guideline ranges" that apply at different stages of the guideline-calculation process. The crack amendments lowered the guidelines that actually, in the end, applied to the defendant. Dissent looks to other guideline contexts and case law in which the "applicable guideline range" is the range after departures. Also looks to the rule of lenity.

Tuesday, June 15, 2010

Limited Extent of Protection of Proffer Letter

United States v. Quesada, No. 08-2183 (6th Cir. 2010), released today, adds another layer of complexity to representing cooperating defendants in federal court. Prior to his plea, Quesada proffered to the government under the standard proffer letter which prevented disclosure of the contents of the proffer except for certain limited circumstances. After receiving the PSR, Quesada objected to several upward adjustments. The government then gave notice that it was going to use information from the proffer because it contradicted the positions that Quesada was taking in his objections. Quesada's plea agreement contained a provision ("the integration clause") that read:
This agreement, which includes all documents that it explicitly incorporates, is the complete agreement between the parties. It supersedes all other promises, representations, understandings, and agreements between the parties concerning the subject matter of this plea agreement that are made at any time before the guilty plea is entered in court. Thus, no oral or written promises made by the government to defendant or to the attorney for defendant at any time before defendant pleads guilty are binding except to the extent they have been explicitly incorporated into this agreement.

It has previously been the rule in the Sixth Circuit that "an integration clause normally prevents a criminal defendant, who has entered into a plea agreement, from asserting that the government made oral promises to him not contained in the plea agreement itself." This certainly makes sense as it is the whole reason for reducing agreements to writing in the first place. In Quesada, the Court of Appeals now extends this rule to apply to prior written proffer agreements.

The lesson here for defense counsel is that from now on, in any case in which a client has proffered to the government, counsel must make sure that either the above language (or anything like it) is not included in the plea agreement or that a copy of the proffer letter (or any other document which should in fairness bind the government) is attached to the plea agreement and specifically incorporated into the plea agreement.

Friday, June 11, 2010

No Suppression---the Decor Was Telling

United States v. Hinojosa, No. 08–1393 (6th Cir. June 9, 2010) (published).

Bench trial. Defendant convicted of sexual exploitation of a child and CP charges. Appealed denial of motions to suppress evidence.


* Were the police entry into his home and the arrest based on a non-existent warrant constitutional violations requiring suppression?

* Was uninvited and warrantless intrusion into the home (which enabled the police to observe evidence used to obtain a search warrant) a constitutional violation?

* Should evidence seized pursuant to a search warrant have been suppressed because of constitutional violations involved in obtaining the warrant?



Defendant became a target in an international CP investigation. Undercover Canadian officials communicated with the defendant on-line; defendant claimed to have engaged in sexual activities with his 13-year-old daughter. Defendant transferred to the agents CP, including CP he claimed showed him and his daughter. ICE agents ran the defendant’s criminal history. LEIN and NCIC reports differed. LEIN report indicated an outstanding warrant.

Despite inconsistencies in the reports, officers went to defendant’s house to execute the outstanding warrant. Defendant’s then-wife answered the door. Officers requested permission to enter and she granted it. Officers followed the wife to the bedroom, found defendant, and arrested him (on the way, the officers recognized the decor from the videos). Defendant waived his Miranda rights and confessed.

At the evidentiary hearing and bench trial, the defendant did not let his attorney present evidence or argue. District court denied the motions to suppress, convicted the defendant, and sentenced him to 1,440 months.


* Resolution of the issue of the non-existent warrant (it was for someone else) was unnecessary, because even assuming that the officers’ reliance on the warrant was unreasonable the defendant could not obtain relief. The officers had consent to enter the residence; the arrest warrant was not a prerequisite for the entry.

* Despite having the arrest warrant, the officers sought and received consent from the defendant’s wife prior to entering the residence, and again before proceeding from the entryway of the residence to the bedroom.

* Based on the totality of the encounter, the initial interrogation did not present a custodial environment such that Miranda warnings were required prior to questioning. The defendant’s pre-Miranda statements were properly included in the affidavit for the search warrant (executed later).

* At the time of the defendant’s arrest, the officers were aware of the information gathered prior to entering the residence and the corroborating facts learned while inside (e.g., the decor) and the defendant’s responses to their initial questioning. The district court correctly determined that probable cause to arrest the defendant existed independent of the mistaken arrest warrant.

* Following the valid arrest, the officers immediately advised the defendant of his Miranda rights, and he waived these rights. The defendant did not argue that this waiver was involuntary or coerced. So, these post-arrest statements were properly included in the affidavit for the later search warrant.

* The officers received consent to enter the house and to proceed down the hallway and into the bedroom. Everything that the officers observed was in plain view from their lawful position, so no constitutionally improper search occurred. The officers did not violate the defendant’s constitutional rights by observing the decor of his residence, and those observations were properly included in the later search-warrant affidavit.

* Prior to entering the residence, the officers had established that: 1) videos and images involving child pornography were transferred to undercover agents from a specific IP address; 2) the IP address was registered to the defendant at a Lansing, Michigan, address; and 3) the defendant resided at that Lansing address. This evidence would have established the required "fair probability" that evidence of criminal activity would be found inside the defendant’s residence, and it would have justified the issuance of a search warrant.

* Defendant questioned why a search warrant was not initially sought by the agents if probable cause existed prior to the entry. The appellate court found, however, that the agents’ prudence in seeking a search warrant does not negate the existence of probable cause.

Monday, June 07, 2010

Published Cases from Last Week +

Thanks to our AFPDs for their summaries. I'll try to get the unpublished cases up soon.... Also, new format: each case will be an individual, labeled post for easier reference.


State Habeas


Jury convicted defendant of murdering his neighbor, and the trial court sentenced him to life in prison. Unable to obtain relief from the state courts, the defendant petitioned the district court for a writ of habeas corpus. The district court granted the writ, and held that the state courts denied the defendant his constitutional right to present a complete defense when he was unable, under state evidentiary rules, to present propensity evidence designed to show that someone else (namely, the prosecution’s key witness) committed the murder. Appellate Court reversed.

The issue decided in the petitioner’s favor by the district court was reversed by the Circuit Court, which was relying on case law that developed after the District Court had decided to grant the writ. A concurring opinion reads more like a dissent, arguing that the intervening case law was wrongly decided and that, but for following precedent, this would have been a dissent.

Appellate Jurisdiction


State Habeas


The appeal by the State of Michigan challenging the district court’s decision to allow the petitioner’s exhausted state claims to proceed in federal court (while staying the unexhausted state claims for disposition by the state courts) was dismissed for lack of appellate jurisdiction.

Consecutive vs. Concurrent Time


Direct Appeal


Defendant appealed the district court’s decision ordering that his 46-month sentence for being a felon in possession of a firearm be served consecutively to an undischarged state sentence on an unrelated conviction for voluntary manslaughter. Court of Appeals affirmed.

The only issue on appeal was the reasonableness of the sentence in terms of its consecutive nature, as opposed to the requested concurrent time. Applying plain-error review to the procedural aspect because objection was not specific, the Appellate Court found no procedural error. A review of the substantive aspect of the sentence, under an abuse of discretion standard, found no abuse.

Death-Penalty Habeas


State Habeas---Death Penalty


In a lengthy opinion (33 pages), the Circuit Court affirmed the district court’s denial of habeas relief. A strongly worded dissent argued that the trial-court attorney had failed to investigate and present mitigating evidence that was or should have been available to him (and thus to a jury). As with many habeas cases, the lengthy, fact-specific inquiry is beyond the scope of this short summary.

Right Record on Right Against Self-Incrimination


Direct Appeal


Defendant appealed his conviction and sentence, arguing that the district court violated his right against self-incrimination when the court failed to ensure affirmatively that he knowingly and voluntarily chose to testify on his own behalf. Court of Appeals affirmed.

Claim failed because defendant had no right to such a district court record.

Suppression Depression


Direct Appeal


Defendant was pulled over by Nashville police around 11:00 p.m. after officer observed the car standing for approximately three minutes at an L-shaped intersection in a deserted, high-crime, industrial neighborhood. The defendant was a convicted felon and admitted that he had been rolling a marijuana cigarette. Subsequent search of the vehicle produced a pistol and small amounts of marijuana, crack cocaine, and cocaine. Defendant charged with being a felon in possession of a firearm.

District court granted defendant’s motion to suppress the evidence found in the car. It concluded that police lacked reasonable suspicion that defendant was engaged in criminal activity and that police did not stop the defendant because of any alleged traffic violations.

Court of Appeals reversed in part and remanded because the district court incorrectly focused on the officer's subjective intent. Remanded for consideration of whether, at the time of the stop, the officer had probable cause to believe that the defendant had violated a Nashville municipal ordinance. (An ordinance prohibits parking in such a way as to obstruct traffic.)

The majority, over a strong dissent that it found fairly reasonable, reversed and remanded the case for findings by the district court on several issues. The majority found that the district court, in part, relied on the officer’s subjective intent in making the traffic stop. The dissent concluded that the district court merely mentioned the intent issue in order to show that it recognized the objective fact that no traffic violation had occurred for which the officer might have had probable cause.