Thursday, April 29, 2010

6th Circuit Conference


Hope to see you all next week at the conference!!!

Summaries for Yesterday---Hot Sound of Good Crime-of-Violence and Gun-and-Drug News


Good news on the crime-of-violence front kicks off yesterday's summary. Then we get good news on foreseeability of a gun in a drug conspiracy. Thanks to our AFPDs for their time putting this summary together!

EDWARD EVANS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0261n-06.pdf

The Circuit Court found that the District Court failed to follow the Shepard procedures in analyzing whether Tennessee’s Statutory Rape law constituted a crime of violence. Reversed and remanded.

The Court spends a great deal of time reviewing the pre-Begay/pre-Bartee case law and finds that the earlier cases are no longer binding. The upshot of that is that prior case law relying solely on a victim’s age no longer is controlling, or so it would appear.

Good case for reviewing exactly what the post-Begay/post-Bartee meaning of a crime of violence is.

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FRANKLIN WOODS

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0116p-06.pdf

Defendant appealed his sentence of 108 months for manufacturing methamphetamine. Court affirmed district court’s application of an enhancement under the sentencing guidelines for reckless endangerment during flight. But because the district court’s finding that the possession of a firearm by a co-conspirator was reasonably foreseeable was without evidentiary support and therefore was clearly erroneous, Court vacated and remanded for re-sentencing.

District court found that defendant was eligible for a two-point enhancement under USSG § 2D1.1(b)(1) because a dangerous firearm was possessed in connection with the conspiracy. While the district court found that there was no evidence that defendant had ever possessed a firearm, it concluded that it was "reasonably foreseeable" that a conspirator would possess a firearm given the "substantial" and "large quantity" of meth being made. District court noted that the conspirators had been producing meth over three days in the same residence where the firearms were located and that the defendant’s role in the conspiracy was substantial.

But nothing else in the record supported the enhancement. The fact that the manufacturing operation extended over three days was not relevant to the foreseeability of weapon possession. There was no evidence that three days of production implies that there was a larger quantity of drugs on the premises at any one time. To the contrary, the government only attributed a small amount of drugs to the conspiracy, and the fact that the conspirators toiled for days to produce it implies only inefficient production. There was no objective evidence that defendant otherwise expected a firearm to be present.

The deference extended to district courts to find sentencing facts is not boundless, the Court says. Here, the government did not introduce any objective evidence (e.g., evidence of the value of drugs recently manufactured), and the inference the Court has used to affirm previous enhancements could not be extended to salvage the defendant’s sentence.

The government is not relieved of its burden of proof under § 2D1.1(b) simply because a defendant is involved in the drug trade. The district court committed clear error by finding that the defendant should have reasonably foreseen that a co-conspirator would possess firearms, absent any evidence supporting such a finding.

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JOHN WESLEY MCKINNEY

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0251n-06.pdf

Not completely clear what this appeal was about. The Defendant got a below-guideline sentence of 24 months for being a felon in possession. No objections were filed as to the PSIR calculations. After sentencing, the defendant stopped communicating with his counsel, who withdrew from the appeal.

The defendant then filed a pro se brief of sorts. It was not clear what he was appealing. There appeared to be some version of the UCC I 207 argument that the Circuit Court attempted to divine, but rejected.

Sentence affirmed.

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TYRONE A. BRISSETT

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0252n-06.pdf

Defendant, a Jamaican citizen, was sentenced to 13 months for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He challenged only the substantive reasonableness of his within-Guidelines sentence. Court affirmed.

The Circuit Court found the sentence (within the Guidelines) procedurally and substantively reasonable despite the sad life the defendant had had.

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LONNIE RAY KERESTES

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0256n-06.pdf

Defendant appealed his 87-month sentence as unconstitutional under Apprendi, asserting that the district court violated his Sixth Amendment right to a jury trial because it found, by a preponderance of the evidence, that he had engaged in a pattern of prohibited sexual conduct under § 4B1.5(b), which supported a five-level sentencing enhancement. Defendant argued that the district court’s factual finding increased his penalty under the Guidelines and therefore required a jury’s determination beyond a reasonable doubt. Court disagreed and affirmed.

The defendant’s sentence of 87 months was mid-guideline range. The sentence was not found to be unconstitutional under Booker.

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JAY WALLACE ROSS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0257n-06.pdf

Defendant appealed his sentence for convictions of possession of more than 500 grams of cocaine, possession of a firearm by a previously convicted felon, possession of a firearm in furtherance of drug trafficking, and possession of a weapon by a fugitive. After pleading guilty to all four counts, defendant was sentenced by the district court to 262 months, to be served consecutive to an undischarged 168-month sentence for a prior federal conviction, resulting in a total of 35 years + ten months of incarceration. Court vacated the sentence and remanded for resentencing.

The district court abused its discretion in failing to consider the relevant 3553(a) factors or else by failing to disclose how they factored into the sentencing decision. In rejecting the defendant's request for a concurrent sentence, the court provided no explanation as to how any of the § 3553(a) factors applied to its decision to impose totally consecutive sentences. District court did not mention any of the factors with respect to its decision on the issue.

Instead, district court briefly recounted that the defendant had absconded instead of self-reporting and then partook in more criminal activity instead of caring for his children. The court then noted that this behavior totally disregarded the laws of society and that the court would not reward the defendant's bad behavior by giving him credit for time as he requested.

These conclusory statements did not provide the Court with a sufficiently reasoned rationale under which the district court imposed consecutive sentence. Court could only speculate as to how the district court’s explicit comments or implicit analysis was guided by the § 3553(a) factors. To the extent the statements reflected any actual analysis, they only showed the district court’s concern that concurrent sentences would not provide an incremental penalty, which on its own was insufficient to justify the district court’s ruling.

To satisfy its statutory obligation under section 3553(a), a district court needs to explain how the 3553(a) factors were specifically applied or rejected in its consideration of a request for a concurrent sentence. A sentencing court should perform the very same analysis when choosing a concurrent or consecutive sentence that it performs when it decides the appropriate length of a sentence. The district court here made no such attempt to do so. Accordingly, Court had to assume that the district court failed to consider the 3553(a) factors when it decided to make the instant sentence run consecutively to the undischarged sentence.

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Thursday, April 15, 2010

Today and Yesterday's Summaries


I apologize for the break in posting summaries. Things got really hectic. But here we go again. Thanks to the AFPDs for their summaries!

MARK TAYLOR

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0103p-06.pdf

Motion to Suppress---Suppression Affirmed!

Defendant apprehended on a state warrant; law enforcement officers then got permission from the female tenant of the apartment where defendant was found to search the premises. They discovered a closed shoebox, which was labeled for a pair of men’s basketball shoes. The shoebox was surrounded and partially covered by men’s clothing, and the box lay in the corner of a closet in a spare bedroom that contained additional men’s clothing. Without a search warrant and without making further inquiry, the officers opened the shoebox. The shoebox contained a handgun and ammunition that belonged to defendant.

Upon being charged with being a felon in possession of a firearm and ammunition, the defendant moved to suppress the contents of the shoebox. The district court, after conducting an evidentiary hearing, granted the defendant's motion and suppressed evidence of the gun and the ammunition. The panel affirmed the judgment of the district court.

The court rejected the government’s argument that there was apparent authority for the roommate/co-tenant to give authority for the search of the shoebox.

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CARLOS LEON LOGAN

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0219n-06.pdf

The circuit court reversed and remanded the case for re-sentencing, finding insufficient evidence as to a conspiracy count.

Sufficiency of the Evidence

Defendant argued that the evidence was insufficient to convict him of the conspiracy count. To sustain a conviction for drug conspiracy under § 846, the government must prove: 1) an agreement to violate drug laws; 2) knowledge of and intent to join the conspiracy; and 3) participation in the conspiracy.

Defendant’s main contention on appeal was that there was not sufficient evidence that he and any other person had agreed to distribute drugs. He emphasized that the other individual at issue was acting as a government informant during the controlled buy and thus could not be party to a conspiracy, another individual engaged in only one isolated drug transaction with the defendant, and there was not enough evidence from which the jury could infer that the defendant and a third individual conspired.

Court had to determine whether a rational trier of fact could find that the defendant had knowledge of the conspiracy itself, and purposefully joined it. The one individual's status as a government informant prevented a conclusion that the defendant and that individual conspired, at least with respect to one of the buys. Earlier buy between the defendant and another person could not, without more, support an inference that the defendant and the informant agreed to sell drugs.

The informant described a chain-distribution scheme by testifying that he observed an individual buy drugs from the defendant, which the first individual in turn instructed the informant and another to distribute, and then remit payment to the first individual. But there was no evidence that the defendant had knowledge of the conspiracy itself, and purposefully joined the conspiracy. Although one of the individuals lived with the defendant, and was found with drug paraphernalia in his pockets, and police confiscated drugs from common areas of the house the two shared, the court could not infer an agreement between the two men from those facts.

The evidence was considerably less than what the court has held to be sufficient in other cases.

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HARRY RAY DAVIS, JR.

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0227n-06.pdf

The defendant--appellant, Harry Ray Davis, Jr., appealed his sentence for being a felon in possession of firearms. He argued that the district court erred in applying Guideline § 2K2.1(b)(6) (used or possessed any firearm or ammunition in connection with another felony). Court affirmed the sentence.

The language of the guideline was broad enough to cover the transactions involved here and warranted the application of the 4-level enhancement.

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RICHARD STEVEN BROWN

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0230n-06.pdf

Defendant pleaded guilty to six counts of shipping, receiving, and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1), (2), and (5). The district court sentenced him to 235 months of imprisonment, based in part on a sentencing enhancement which increased his sentence based on the number of images. Defendant appealed, arguing that his sentence was procedurally and substantively unreasonable, and that the enhancement itself is unconstitutional. Court affirmed.

The court found the sentence to be constitutionally, procedurally, and substantively reasonable.

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RONALD D. ADKINS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0231n-06.pdf

Defendant--appellant alleged the district court erred in: 1) issuing a jury instruction on a Pinkerton theory of liability, resulting in confusion on the part of the jurors; 2) denying his Rule 29 motion for acquittal based on insufficient evidence to support his conviction on counts 3 and 6; and 3) denying his request for a two-offense-level reduction based on the fact that he played a minor role in the offense. Because the district court’s jury instructions adequately informed the jury of the law, there was sufficient evidence to support conviction on each count, and the district court did not abuse its discretion in denying a reduction, the court affirmed.

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VICTOR RAY THOMAS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0233n-06.pdf

Defendant appealed his 360-month sentence for conspiracy to possess with intent to distribute methamphetamine, in violation of 18 U.S.C. § 846, and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Court affirmed.

Found the sentence to be procedurally and substantively reasonable despite the defendant’s rather horrendous upbringing.

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SALVADOR HERNANDEZ CORDOVA

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0234n-06.pdf

Defendant pleaded guilty to unlawful reentry after deportation after an aggravated felony in violation of 8 U.S.C. § 1326. Guideline range was 77 to 96 months, and the district court sentenced him to 96 months of imprisonment.

Defendant argued that he was entitled to a variance because the Eastern District of Michigan does not offer a "fast-track" program and asserted that his sentence violated the Eighth Amendment. The court found that precedent rejects the first contention, and the Eighth Amendment argument failed because the defendant did not argue, and he could not show, that his sentence was grossly disproportionate to his offense.

The defendant had an extensive history of crimes and re-entries, which the court found outweighed any arguments he made regarding a downward variance for lack of "fast track" disposition and severity of the sentence under the Eighth Amendment.

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BILLY JOE ENGLISH

State Habeas

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0105p-06.pdf

Respondent-appellant Warden Kenneth Romanowski appealed the district court’s decision to grant the petitioner-appellee's conditional habeas relief. The district court found that the petitioner was entitled to habeas relief because his trial counsel rendered him ineffective assistance in violation of the Sixth Amendment when counsel failed to call a witness after promising her to the jury, or alternatively, when he failed to properly investigate the case.

Court reversed in part and affirmed in part the district court’s grant of habeas relief.

The opinion deals at length with very specific factual issues. The court found trial counsel ineffective for failing to thoroughly investigate the case, rendering him unable to reasonably assess a witness’s credibility. Habeas granted.

Wednesday, April 07, 2010

New Website for GL Research


Sorry for the lack of posts. It's been REALLY busy. I will wrap up a large project soon and, I hope, be back to posting. Soon, I hope. ;)

Meanwhile, here's a link to a new resource for guideline research.


The site includes a collection of documents that can be used to trace the history of a GL. It will be most useful when you have an amendment in mind and want to inquire into its “legislative history,” and you know the amendment cycle(s) in which the issue was under consideration. This information can be obtained by looking at the Historical Note in the GL Manual at the end of the guideline or policy statement at issue, then at the “Reason for Amendment” in Appendix C.

Also, the Commission publishes every proposed and final action in the Federal Register. To find the administrative record of a proposed amendment that was not adopted, or to find out whether the language of a proposed amendment evolved after the public comment period, search the Federal Register database for any notice of proposed amendments to the GL or policy statement at issue. Then go to this new site to look up the relevant materials.