Friday, November 19, 2010

Chock Full of Interesting Conclusions

Looking for an opinion chock full of juvenile adjudication, separate sentence, career offender, crack ratio, and precedential value conclusions? Look no further! Yesterday, the panel of Judges Martin, Cole, and Clay decided United States v. Curb, No. 07--5286 (6th Cir. Nov. 18, 2010) (to be published). And in case you're wondering, the picture is a chock-full balloon. :)
* D pleaded in '05: two crack charges.
* Objected to career-offender status.
* Prior convictions for aggravated assault and possession of cocaine for resale. Occurred when D seventeen, but prosecuted as adult. Two different arrests for these offenses, but sentenced on same day.
* D sentenced for instant offenses in '07.
* Dist ct sentenced D as CO.

Issue I:
* Was D a CO?
* D argued that he didn't have two prior felony convictions. Argued: 1) 4A1.2(a)(1) had been amended (dealing with sentences imposed on same day counting as single sentence) and should apply to him; 2) there was no "intervening arrest" b/c juveniles are not "arrested" under Tenn. law when taken into custody.

Conclusion I:
* D was CO.
* Ct does not decide whether changes to 4A1.2(a)(1) were clarifying (and retroactive) or substantive (and not retroactive). Ct does note that other circuits have said the changes were substantive and thus not retroactive.
* Ct says that regardless of retroactivity, the intervening arrest means the sentences were separate. State law does not inform Guideline interpretation (unless Congress instructs otherwise). Custody of a juvenile is an arrest.

Issue II:
* 100:1 ratio in CO GL.
* Ct cites United States v. Michael, 576 F.3d 323 (6th Cir. 2009) (discussed somewhere in this blog), and agrees that the crack ratio is incorporated in the CO GL (b/c maximum sentences set CO base offense levels).
* Remand necessary, so dist ct can consider varying from CO GL based on flawed crack ratio.
* Interesting discussion of United State v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Simmons, 587 F.3d 348 (6th Cir. 2009). Johnson called for remand when record not clear on whether the dist ct would have varied from the crack GL if it had known it could do so. Simmons said no remand unless there's an express statement by the dist ct requiring it.
* This Curb court says Johnson, the older precedent, trumps. B/c COA couldn't tell from record whether the dist ct would have varied based on policy disagreement with the GLs if it thought it could, remand necessary.
* COA notes that Simmons also distinguishable b/c in that case the D explicitly raised the ratio issue. The D in this case, Curb, did not raise the ratio issue.

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