A blog by federal public defenders and criminal defense lawyers practicing in the Sixth Circuit.
Civil Commitment for Sex Offenders
ACCA Footnote that Sheds New Light on Juvenile Adjudications
The defendant challenged the district court's determination that he qualified for the ACCA sentencing enhancement and 15-year mandatory minimum. One of the prior offenses used to invoke the enhancement was a juvenile adjudication for "assault with intent to rob---armed." The Court rejected the defense's two main arguments, but it decided, on its own, to remand the case for a third, and interesting, reason. (The defense argued 1) that the order of juvenile disposition was ambiguous as to the adjudication, and 2) that the judicial determination that the defendant had been adjudicated of the offense violated Apprendi.)
The Court concluded that "[w]hile Laferriere's primary arguments on appeal lack merit, he is nonetheless entitled to resentencing because of a particular requirement of the ACCA. Laferriere's conviction of armed assault with intent to rob cannot be counted as a sentence-enhancement predicate offense under the ACCA because the evidence fails to establish that the conviction was for a crime that actually involved the use or carrying of a firearm, knife, or destructive device, as required for an act of juvenile delinquncy."
Juvenile adjudications must involve a firearm/knife/destructive device to count as violent felonies for ACCA purposes. Shepard governs to prove whether or not the offense did involve such a weapon.
Under Michigan law, one could be convicted of armed assault with intent to rob by using a toy gun, a finger, an object hidden in a bag, other objects to simulate a weapon, a bike chain, etc. In this case, there was "no indication on the order of disposition that Laferriere conceded possessing an actual firearm." The charge involving possession of a firearm had not been sustained. Because of the age of the adjudication, the plea transcript was not available to review. The Court stated that "[w]ithout proof that a firearm . . . was involved, this conviction is meaningless for ACCA purposes."
The Court found it could remand because the error was plain and the Court could raise the issue in the interest of justice, even though the issue had not been raised on appeal.
The interesting note comes in footnote 3. The charging petition for the offense mentioned "a 'sawed-off shotgun,' [but] the language of the charge ('an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, a sawed off shotgun') does not preclude the possibility of an article that merely looks like a shotgun." This note provides real food for thought about what the Shepard documents actually show!
CDAM Conference
Just a friendly reminder that the Criminal Defense Attorneys of Michigan (CDAM) Advanced Criminal Defense Practice Conference is November 11 to 13 in Traverse City. The entire conference should be quite informative. There is a federal practice session from 4:00 p.m. to 6:00 p.m. on Thursday, the 11th. Presenters (from the Federal Defenders' Offices in Detroit and Grand Rapids) will cover plea agreements, Supreme Court updates, Sixth Circuit updates, and guideline developments.
Hope to see you there!
Cert Grants and Issues to Preserve
Just a quick note on some issues to look for and recent grants of cert.
Sykes v. United States, 09--11311 (Sept. 28, 2010): Does fleeing police in a vehicle (under the Indiana fleeing-and-eluding statute) constitute a violent felony for ACCA purposes?
The Seventh Circuit held that fleeing police in a vehicle in violation of the Indiana statute was sufficiently similar to the ACCA's enumerated offenses to counts as a violent felony. United States v. Sykes, 598 F.3d 334 (7th Cir. 2010).
United States v. Tinklenberg, No. 09-1498 (Sept. 28, 2010): Is the time between the filing of a pretrial motion and its disposition automatically excluded from the deadline for starting trial under the Speedy Trial Act (18 U.S.C. § 3161(h)(1)(D)), or is it excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial?
The Sixth Circuit interpreted 18 U.S.C. § 3161(h)(1)(D) to mean time is excluded when pretrial motions are filed and pending if they could possibly cause any delay of trial. United States v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009).
Mr. Tinklenberg is represented by this blog's own Kevin Schad, Appellate Division, Office of the Federal Defender for the Southern District of Ohio.
Michigan court decisions citing Rule 6.508 do not constitute a "reasoned" decision
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Suppression Decision Worth a Read---Evidence Suppressed
Yikes! Extremely Sad Story of "Justice"
Wilson v. Rees, No. 09--6306 (6th Cir. Oct. 14, 2010). Petition for rehearing en banc denied, but Judge Martin offers a chilling dissent. He writes "to highlight this particularly ugly example of why 'the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.'"
This case, explains Judge Martin, involved a scandal that "is an embarrassment to all segments of the judiciary, from the judge who violated the Code of Judicial Conduct by having a sexual relationship with a defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex." Judge Martin goes on, "When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying."
Judge Martin recounts how "the defense in this case began with a handwritten note begging for volunteers, and ended with Wilson clumsily attempting to defend himself because he lacked competent counsel." Judge Marin reflects on
Gideon v. Wainwright and its admonition:From the very beginning, our state and national constitutions and laws have laid great emphasis
on procedural and substantive safeguards designed to assure fair trials before impartial tribunals
in which every defendant stands equal before the law. This noble ideal cannot be realized if the
poor man charged with crime has to face his accusers without a lawyer to assist him.
Judge Martin finds that "[n]early half a century after Gideon
, its promise remains unfulfilled. Capital defendants like Wilson are routinely appointed counsel without the experience, skill, or commitment to adequately represent them. Much of the arbitrary and discriminatory nature of our current death penalty stems from the fact that quality of representation is the single greatest factor in determining when it is applied."Judge Martin closes, "When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death."
When does an informant become an agent?
allow the State to accomplish 'with a wink and a nod' what it cannot do overtly."
New Crack Amendments DO NOT apply to pending cases
In United States v. Carradine, 10a0305p.06 , issued on September 20, 2010, the Court determined that the Fair Sentencing Act of 2010, which was enacted on August 3, 2010 lowering crack cocaine mandatory penalties, only applied to those defendants whose conduct occurred after the date of enactment. The Court, relying chiefly on 1 U.S.C. 109, found "The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question. We affirm the district court’s imposition of the 60-month mandatory minimum sentence."
The silver lining, if any, in this decision is that the Court did admit that the statute was amended, and not repealed. The Federal Public Defenders office for the Southern District of Ohio, which has this appeal in their appellate division, will be filing for en banc review.