Tuesday, December 28, 2010

Crack Ratio and Sentencing Courts' Discretion

United States v. Johnson, No. 09--2173 (6th Cir. Dec. 28, 2010). Unpublished. Panel of Judges Martin, Moore, and Gwin (N.D. Ohio). Appeal after Spears remand.

Defendant was resentenced to 110 months (same as his original sentence). Rather than expressing agreement or disagreement with the crack guidelines, the sentencing court asserted that Congress had authorized the 100-to-1 ratio and deemed the courts an improper forum for reconsidering the ratio. Court of Appeals found that Kimbrough directly contradicts such an assertion.

When a district court indicates that policy disagreements are not a proper basis to vary from the guidelines, the resulting sentence is not presumptively reasonable. In such cases, the district court has committed procedural error by failing to appreciate the scope of the discretion it enjoys.

The district court here agreed with the 100-to-1 ratio. This agreement, however, was not with its substance, but because Congress had said it was the appropriate ratio by establishing the mandatory minimums, which, the district court said, had in effect engrafted a 100-to-1 ratio into the criminal statutes, and Congress had not changed the law despite many opportunities to do so.

The Court of Appeals found the district court’s analysis contrary to Kimbrough, which explained that the crack guidelines were not based on empirical data and national experience or guided by a professional staff with appropriate expertise, a trait that "normally characterizes the institutional competence of the Commission."

While district courts have wide discretion in fixing a crack-to-powder ratio, the courts are not free to cede their discretion by concluding that the courtroom is an improper forum for setting a crack-to-powder ratio.

The Court directs that "On remand from this decision, the district court may, as a matter of policy, agree or disagree with the Guidelines ratio that designates crack offenses as more serious than powder offenses. But it must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

Happy New Year!!!!

Enjoy your New Year's celebrations and I hope 2011 is peaceful for you all!

Shooting into Occupied Structure

United States v. Ruvalcaba, No. 09–3782 (6th Cir. Dec. 22, 2010) (recommended for publication). Panel of Judges Martin, Siler, and Bell (W.D. Mich.).

Crime of Violence:

Issue was whether the defendant’s two prior convictions for discharging a firearm at or into a habitation (in violation of Ohio Revised Code § 2923.161(A)(1)) were crimes of violence for career-offender purposes.

The Ohio statute does not require the use of physical force against another and does not cover any of the specifically enumerated offenses in 4B1.2(a)(2). The issue then revolved around whether the offense captured by the statute "presents a serious potential risk of physical injury to another."

Ohio’s section 2923.161 provides that no person, without the privilege to do so, shall knowingly discharge a firearm at or into an "occupied structure" that is a "permanent or temporary habitation of any individual" and defines "occupied structure" broadly. This term covers houses, buildings, outbuildings, water- and aircraft, railroad cars, trucks, trailers, tents, vehicles, shelters, and other structures that are maintained as permanent or temporary dwellings. The definition covers temporarily unoccupied structures and it does not matter whether a person is actually present.

The statute, the Court concluded, covers behavior that "inherently presents a serious potential risk of injury to another." Firing a gun can "have unintended, dangerous consequences." This conclusion holds even if the structure was unoccupied.

The offense is also sufficiently similar to the enumerated offenses. While section 2923.161 does not require the intent to do harm, one must necessarily make a conscious decision to fire a gun when one discharges it at an occupied structure. Firing a gun in this manner presents a risk to others and is aggressive. The Court distinguishes walkaway escapes. Even though a walkaway-escape offender engages in purposeful conduct, such conduct is qualitatively different from the purposeful conduct required by the enumerated offenses. While walkaway escape is not a crime of violence, the Ohio offense at issue is far more similar to the enumerated offenses. Because a walkaway escapist does not overcome any barriers, their intentional conduct is attenuated from the risk of harm. With the Ohio offense, however, the intentional conduct is discharging a firearm. Such intentional conduct directly relates to the potential risk of harm from being struck by a bullet.

Potential Voiding of Prior Convictions:

After the district court sentenced the defendant, the Ohio Supreme Court concluded that sentences for offenders who did not receive appropriate post-release control notice are void. Because of this state decision, the defendant argued that his prior convictions were void and should not have been considered in determining career-offender status, as he did not receive proper post-release control notice. The Sixth Circuit, however, recently rejected the identical argument. So while a defendant may be able to challenge his or her prior convictions as void under state-court conclusions through state channels for seeking post conviction relief, they may not do so during sentencing for unrelated crimes in federal court—such challenges are impermissible collateral attacks.

Wednesday, December 22, 2010

Happy Holidays

Just wanted to wish all the readers of this blog Happy Holidays. May 2011 be full of peace and justice!

Thursday, December 16, 2010

Almany on Remand: A Must Read

So, Mr. Almany got his extra five years back in light of Abbott. United States v. Almany, No. 08--6027 (6th Cir. Dec. 16, 2010) (to be published). Panel of Judges Merritt, Martin, and Cole.

"The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after the Supreme Court vacated our judgment and remanded it to us in light of the Abbott case."


Judges Merritt and Martin provide a must-read concurrence. It's brief.

* "The Supreme Court reversed our decision. We were wrong because in these kinds of statutes, Congress normally intends to make sentences longer, not shorter, more severe, not less."

* "[A]pparently the rule of lenity based on ambiguous language does not operate when the court resorts to the 'Equity of the Statute' to give it a construction opposite to the meaning the words ordinarily signify because the Court knows that what the legislature intended was not what it wrote. Nothing is mentioned about an ex post facto problem when a statute is interpreted contrary to its words. The Supreme Court is 'final but not infallible' and we must follow their interpretation of statutes. The 'Equity of the Statute' doctrine is alive and well — although unmentioned by the Supreme Court — more than seven centuries after its origin at common law."

Tuesday, December 14, 2010

Cert Grant: Rehab and Longer Sentences

Tapia v. United States, No. 10-5400 (cert granted Dec 10, 2010).


May a dist ct give a defendant a longer sentence to promote rehab (Eighth and Ninth Circuits say yes), or is such a factor prohibited (as Second, Third, Eleventh, and D.C. Circuits have concluded)?

Lower ct: 376 F. App`x 707.

Look at 18 USC 3582(a): "imprisonment is not an appropriate means of promoting correction and rehabilitation."

Ammo'ed and Dangerous

United States v. Coleman, No. 09--5052 (6th Cir. Dec. 10, 2010) (Judge Rose of S.D. Ohio delivered the opinion, in which Judge Griffin joined; Judge Gilman concurred in part and dissented in part.)
* Four-level enhancement for 23 rounds of ammunition that supposedly facilitated distribution of marijuana.
Defendant said that possession of ammo without a gun does not aid possession of drugs. COA finds that ammo was in close proximity to drugs. Emphasizes the GL's use of "any firearm or ammunition." Also applies "fortress theory": ammo potentially reduced difficulty of completing the drug trafficking. It "emboldened" him---he was one step closer to having a fully-loaded gun.
* Government declined to move for third acceptance-of-responsibility level.
Plain-error review. COA finds that government has broad discretion. Just can't be unconstitutional or arbitrary. Here, gov had argued for enhancement for obstruction of justice. Dist ct declined to find obstruction and gave defendant two-level reduction for acceptance. Gov declined to move for third level, saying that defendant had threatened a potential witness and this behavior was inconsistent with acceptance of responsibility.
*Judge Gilman's concurrence and dissent.
Judge Gilman concurs in the conclusions regarding acceptance of responsibility. Disagrees on issue of ammunition. "The record contains no evidence that Coleman had a gun anywhere around, and bullets alone could hardly embolden him or scare potential buyers who might be inclined to steal his marijuana." Having a gun without bullets is one thing (b/c a person faced with the gun doesn't necessarily know if it's loaded or not). But bullets alone aren't harmful. Fortress theory does not apply to ammo alone. Dissent notes there are circumstances in which ammo alone could justify the enhancement (e.g., if two ppl decided to rob a bank and one agreed to bring the gun and the other agreed to bring the ammo).
According to the dissent, this decision is the first and only published decision in the country applying the enhancement where ammo alone was deemed to facilitate the drug dealing.

Thursday, December 09, 2010

Confession overturned as involuntary - Habeas Granted!

Today the Court rendered a decision in Dixon v. Houk. 10a0372p.06 The essential holding of the Court is - where a defendant refuses to answer after Miranda warnings, and later confesses during further interrogation without warnings, subsequent re-warning does not "cleanse" the otherwise bad confession. As Judge Merritt states in his opinion "A confession obtained by this kind of police pressure is inadmissible under Miranda and coerced and involuntary under the Due Process Clause. If the consequences of this kind of deliberate, unlawful conduct specifically designed to violate Miranda and get a confession is allowed to prevail, as our dissenting colleague contends, the time has come to simply overrule Miranda."

In Dixon, the defendant was brought to a police station, and questioned about a murder. He was given Miranda warnings, and invoked the right to remain silent. He was then released. Five days later, he was arrested for the murder. He then was subject to re-interrogation. This time, the police did not provide further Miranda warnings. After five hours of questioning, the defendant confessed. Officers, during that questioning, offered the defendant an illusory "deal", and told him that either he or his co-defendant would get the deal, whoever cooperated first. Only after confession was the tape player turned on, Miranda warnings given, and a taped confession obtained.

The Court found that the giving of Miranda warnings after the violation could not cleanse the constitutional violation. “The police designed a strategy to get a coerced confession without giving Miranda warnings. The confession would then be followed by the warnings given in a tape recording before the confession was recorded. Based on this inverted sequence of events — refusal to answer after Miranda warnings, reinterrogation without warnings, confession, recorded warnings, recorded confession — the prosecution argues that the warnings after the initial confession made the confession 'voluntary.'”

Monday, December 06, 2010

Obstructions Hanging from Rearview Mirrors

Remember the controversy that went around in '08 and '09 over the Tweety Bird air freshener and the traffic stop based on this dangling air freshener hanging from a fellow's rearview mirror? Originally, the 6th Circuit found that Michigan's M.C.L. 257.709(1)(c) was unconstitutionally vague. United States v. Davis, No. 07--1964, slip op. at 7 (6th Cir. Dec. 19, 2008). The Court withdrew this opinion, however, and the State of Michigan was given the opportunity to intervene. The revised opinion did not address the vagueness of the statute; it simply stated that the police had probable cause to stop the defendant. United States v. Davis, 326 F. App`x 351, 353 (6th Cir. 2009).

For a refresher on the issue, check out:


Well, it looks like Michigan has voted to amend the statute. On December 2, 2010, the state legislature approved Senate Bill 276 and recommended presentation to the Governor. Subsection (1)(c) has been amended, the subsection that prohibited dangling ornaments. No more language regarding dangling ornaments. Only prohibits obstructions. . . .

Get all the details here: