Friday, December 16, 2011

Escape from a courtroom is not a "violent felony"

Is an escape from custody a violent offense?  The  courts continue to grapple with this issue, seemingly deciding on a case by case basis whether particular acts constitute aggravating enhancements for sentencing purposes.  In the latest case, United States v. Oaks, 11a0312p.06 , the Court remanded for resentencing (for a second time) based upon an Armed Career Criminal Act enhancement.  Oaks had a prior conviction for escape, based upon his escape from a courtroom.  Oaks had been in custody, and, during a court appearance, ran from the courtroom.  The Court held that this Tennessee state offense was not a violent felony for purposes of the ACCA.

Interestingly, the Court seized on suggestion, espoused by the Supreme Court in Chambers v. United States, 555 U.S. 122 (2009), that in analyzing whether an offense is a violent felony, the Court should make a statistical analysis of the offenses, to see how often the offense actually results in violence.  The Court noted that historical data showed that where an escape is from "nonsecure custody", such as the courtroom in question, injury only occurs in 1.7% of cases.  On this basis, the Court concluded that the prior offense was not a violent felony, and remanded for resentencing.

Thursday, December 08, 2011

The Government's acknowledged breach of a plea agreement did not affect the defendant's substantial rights or free him from his appeal waiver

In United States v. Keller, No. 10-1901 (Dec. 7, 2011), the Sixth Circuit held that under plain error review, the defendant failed to establish that the Government’s acknowledged breach of his Rule 11 plea agreement affected his substantial rights, and further held that the Government’s breach of the plea agreement did not free him from the appeal waiver contained in the plea agreement.

In the plea agreement, the Government promised to recommend a sentence within the guidelines range, which the Government anticipated to be 188-235 months. Because the Government had miscalculated the defendant’s criminal history, however, the correct range was actually 135-168 months—even applying certain offense level enhancements that the defense contested. Although the Government acknowledged at sentencing that the properly calculated guideline range was 135-168 months, it asked the Court to impose a 235-month sentence. The defendant did not object, but asked the court to reject certain offense level enhancements and impose a mandatory minimum sentence of 120 months. The district court applied the contested offense level enhancements and found the guidelines range to be 135-168 months, ultimately imposing a sentence of 168 months.

On appeal, the parties agreed that the Government had breached the plea agreement and that the defendant could establish the first and second prongs of the plain error test. But the Government maintained that because the defendant received a sentence consistent with what the Government had promised to recommend, he could not establish that the error affected his substantial rights. The court agreed, because in Puckett v. United States, 129 S.Ct. 1423 (2009), the Supreme Court made clear that where a defendant “obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request),” he cannot show that a plea agreement breach violated his substantial rights under the plain error test.

The court further refused to consider the merits of the defendant’s sentencing guidelines argument on the ground that he had waived his right to appeal. The court acknowledged that in other circuits, “the Government’s breach of a plea agreement lifts the bar on appeal for a defendant who waived that right as part of his plea agreement,” but “decline[d] to follow those courts,” apparently creating a circuit split on the issue. (The parties did not dispute, and the Court appears to have taken for granted, that the defendant had a right to appeal the breach of his plea agreement as a standalone issue.)

Wednesday, November 30, 2011

3 Year Government Delay = Speedy Trial Violation

In United States v. Ferreira today, the Sixth Circuit held that a 35 month delay caused by gross government negligence in the face of the defendant’s pro se assertion of his speedy trial rights violated the defendant’s speedy trial rights and necessitated dismissing the indictment with prejudice. A previous published opinion said that 5 years was enough, a previous unpublished opinion said that 3 and a half years was enough and a previous published opinion said that 2 years was not enough. So the line is moving in the right direction.

The issue in this case was whether to apply a presumption of prejudice to a 35 month government delay. Speedy trial analysis is easy when the government acts in bad faith or the delay causes identifiable prejudice to the defendant (e.g. a key defense witness dies or exculpatory evidence is lost or destroyed). The problem is that in the real world, cases rarely involve such easy determinations. Instead, cases most often seem to involve government negligence combined with a fear of unidentifiable prejudice. As the Supreme Court put it, “time’s erosion of exculpatory evidence and testimony can rarely be shown.” In other words, how do you prove what a witness would have remembered had the trial happened five years ago? How do you prove what evidence the defense team might have turned up? The answer is that you have to presume prejudice when the delay is long enough, and in this Circuit, 35 months is apparently long enough, at least when the delay is solely the government’s fault.

The dissent takes issue with this test, correctly pointing out that it has turned into a numbers game where various circuits require anywhere from 2 to 5 years for the presumption. The dissent would require that “before applying the presumption, we should at least ask whether there is reason to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as a result of the government’s delay in bringing him to trial.” What the dissent fails to explain is how a defendant could possibly present evidence of an unidentifiable fact.

Monday, November 28, 2011

Judges Disagree Over Substantive Reasonableness Claims, but Affirm Anyway

The Sixth Circuit decided United States v. Jowers today (disclosure: this case came out of our office). In Jowers, the defendant was convicted for being a felon in possession of a firearm and received a 2 level enhancement under U.S.S.G. § 2K2.1(b)(1), which applies when the offense involves 3 to 7 firearms. The defendant’s mother purchased two firearms “in his presence and with his assistance,” after he became a felon. However, before the defendant became a felon, his father owned 2 firearms which his father stored in the defendant’s room. After the defendant became a felon and his father passed away, the defendant negligently failed to remove the firearms from his room.

Jowers argued that his sentence was substantively unreasonable due to the unwarranted sentencing disparity between himself and others who received the 2K2.1(b)(1) enhancement: i.e., in the mine run case, a defendant who receives this enhancement will intentionally possess 3 to 7 firearms but this defendant intentionally possessed 2 firearms and negligently possessed 2 firearms. Defendants should not receive the same punishment for such disparate offenses and Jowers was therefore entitled to a downward variance.

The majority opinion was about 1 page long and did not engage in any analysis of the merit of Jowers’s argument. Instead, the court took issue with the defendant’s failure to cite other cases in which a defendant had won a substantive reasonableness appeal due to application of 2K2.1(b)(1) to a defendant who negligently possessed enough firearms to qualify for that enhancement. The opinion concluded that Jowers, “makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.”

The concurrence agreed that Jowers argument should fail (for many of the same reasons substantive reasonableness arguments of defendants usually fail), but disagreed with the short shrift given to the defendant’s argument by the majority. “I disagree with the assertion in the majority opinion that Defendant ‘makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.’ I believe that Defendant does make such an argument.” The concurrence also took the majority to task for discouraging defendants from making novel arguments:

“I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to ‘explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.’ Although Defendant did not cite to any cases where a defendant received a downward variance because he only ‘negligently’ possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.”

The moral of the story? Defense attorneys should not give up raising new arguments that their clients’ sentences are substantively unreasonable. At least some Judges will consider your arguments.

Whoo Hoo! Big News: SCOTUS Grants Cert on FSA Pipeline-Cases Issues

The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted

The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.

Question presented in Dorsey:

"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"

Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week.  Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010.  The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed."  This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).

Thursday, November 10, 2011

No stay of execution for Reginald Brooks

Yesterday, the Sixth Circuit denied a stay of execution for Reginald Brooks. You can find their opinion here.

Those of you who do capital habeas work will recognize the ruling as a fairly standard walk through 60(b)(6) issues. Those of you who, like me, are unfamiliar with capital habeas work should give it a look just to get a succinct description of the standards for stays of execution and review of habeas petitions in cases where a habeas petition has previously been filed and ruled upon.

What it all boils down to is this: a petition needs to be timely. It cannot relitigate issues already decided ("law of the case"). 60(b) is used to correct procedural errors in the appeal, not litigate the merits of the appeal. Ineffective assistance of habeas counsel cannot be raised in a 60(b) petition.

Props to Alan Rossman of the Federal Defender in Cleveland, Ohio, and Michael Benza for their continued efforts to keep Mr. Brooks alive.

Wednesday, November 09, 2011

Sixth Circuit reversed . . . again

On November 7, the Supreme Court reversed the Sixth Circuit's decision in Dixon v. Houck, in which the Court had overturned the conviction and death sentence of the defendant based upon Miranda violations.  The Supreme Court dealt unusually harshly with the Sixth Circuit in a per curium opinion, finding, for example, that  "according to the Sixth Circuit, the Miranda decision itself clearly established that police could not speak to Dixon on November 9, because on November 4 Dixon had refused to speak to police without his lawyer. That is plainly wrong." (emphasis added)  The Supreme Court dismissed each of the grounds for reversal set forth in the Sixth Circuit's opinion in short, order, and seemed to re-affirm the deference given to state court opinions, finding "Because no precedent of this Court required Ohio to do more, the Sixth Circuit was without authority to overturn the reasoned judgment of the State’s highest court."

The Supreme Court's opinion can be found here.

Thursday, October 27, 2011

There Is A Zoo in Central Park

Judge Moore and Judge Kethledge fought both a legal battle and a snark battle in United States v. Beauchamp, published October 25. Judge Moore, joined by District Judge Marbley, found that Beauchamp was unconstitutionally searched and seized when police stopped him for: (1) walking on the street with another person; (2) in a high crime area; (3) at 2:30 in the morning; and (4) hurriedly walking away from a police officer while avoiding eye contact.

Judge Kethledge disagreed and, in addition to finding that reasonable suspicion existed, also accused the majority of applying the incorrect standard of review and of appellate factfinding. Judge Kethledge wrote in dissent, "Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does."

As with many fact-intensive Fourth Amendment stops, reasonable minds could disagree as to the degree of suspicion Beauchamp aroused. But the victor of the snark battle can only be Judge Moore. In a withering footnote, Judge Moore pointed out, correctly, that there is a zoo in Central Park. While a rhino is not part of the Zoo's usual repertoire, they do get visiting exhibits from time to time and, at any rate, a rhino in Central Park could really easily be explained by the zoo.

While such snark battles are fun to blog about, they are indicative of a very real and serious problem with our Circuit: an ideological breach so vast that Democratic and Republican appointees no longer regularly lunch together at the University Club in Cincinnati. Both the substance and style of this decision demonstrate why Adam Liptak of the New York Times called the Sixth Circuit "surely the most dysfunctional federal appeals court in the nation."

Tuesday, October 25, 2011

In Which Judges Learn That There Is No Good Analogy for the Internet

Timothy Ryan Richards was an internet porn king. He operated at least a dozen websites pulling in a reported $60,000 per year. Unfortunately, these sites contained child pornography. In United States v. Richards, published yesterday, the Sixth Circuit affirmed his sixteen-year sentence.

The opinion deals primarily with the (over?)breadth of the search warrant. The FBI narrowed its investigation to one server in California: cabinet 200.02, server number 4, at the BlackSun facility in Los Angeles, California. The warrant permitted a search of the entire server. In addition to Richards' websites, server number 4 might have contained the information for any other number of sites. On the other hand, Richards could have mislabeled his directories.

Judges Griffin and Siler agreed that narrowing the search to one server was particular enough. Judge Moore disagreed and found the warrant overbroad. Judge Moore would have required the warrant to be limited to specific directories and the server's unallocated space.

What is abundantly clear from this opinion is that our law is ill-equipped for the internet age. In order to find familiar ground and invoke precedent, the Judges grapple for the best analogy. Maybe servers are like file cabinets. Maybe they are like drawers in file cabinets. Maybe they are like apartment buildings and the administrator is like a landlord. Maybe the unallocated space is like a common area -- but what if the bike is locked to the radiator?

Both opinions have real problems because, in the end, the internet is not like anything else. The majority points out a seemingly irreconcilable problem. Computers hold so much personal and private information that they should receive extra Fourth Amendment protection. But criminals can hide, mislabel and manipulate files such that there is no way to find anything without a broad search.

There will no doubt be much development in this area of the law. But for now, in this circuit, a warrant to search one (1) whole server is good enough.

Tuesday, September 27, 2011

Freeman in Action

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that a defendant who enters into a Rule 11(c)(1)(C) plea agreement is eligible to seek a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a reduction in the Sentencing Guidelines range if the original sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o). Today in United States v. Smith, a unanimous panel of the 6th Circuit applied Freeman and arguably expanded it.

In Smith, the (c)(1)(C) agreement included a guidelines calculation worksheet which came to an offense level of 35, 2 levels lower than the apparently correct offense level. This was because the plea agreement applied a 2 level enhancement for Smith’s role in the offense, and the guidelines would have applied a 4 level enhancement. At the time of sentencing, defense counsel argued that this 2 level difference was the product of plea negotiations, and,

"Worshiping the dead mandatory guidelines gives honor to the deceased guidelines and gives them more weight and respect than the rulings of the United States Supreme Court and the Sixth Circuit Court of Appeals. The mandatory guidelines should be left in their crypt and not brought above ground level."

Smith was then sentenced pursuant to the lower guidelines range contained in the plea agreement. Accordingly, if Smith’s guidelines range was calculated today, it would be the same one he was sentenced to (-2 for the new crack guidelines, +2 for the 4 level role enhancement instead of the 2 level one). However, the 6th Circuit held that Smith can have his cake and eat it too. He gets the benefit of the below guidelines range sentence in the (c)(1)(C) agreement and the benefit of the new crack guidelines.

The Court reached this conclusion by deciding that “the applicable Guidelines range for purposes of § 3852(c) is the one provided in the plea agreement.” In other words, on a 3582 motion, the court is stuck with all guidelines calculations provided in the (c)(1)(C) agreement, whether they result from mistakes, concessions, or otherwise. The one exception, of course, is a guidelines amendment like the crack one that lowers the guidelines ranges and entitles a defendant to 3582 relief.

Tuesday, September 20, 2011

Double Jeopardy: Maybe, Maybe Not

Earlier this year, the Sixth Circuit held in United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), that possession of child pornography is a lesser included offense of receipt of child pornography, and, thus, one could not be sentenced for both without violating the Double Jeopardy Clause. Last week, however, the Court cautioned in United States v. Dudeck, -- F.3d --, 2011 WL 3179902 (6th Cir. 2011), that, while the ruling in Ehle is correct, its application may also depend on the facts of each case. Judges Keith, McKeague and Kethledge remanded the case for the district court to determine whether the possession conviction was based on the same images as the receipt conviction. If so, then Double Jeopardy required the possession conviction be set aside. But if the receipt conviction was based on different images than the possession conviction, then both convictions could still stand. Structure your plea agreements accordingly!

Crump v. Lafler, No. 09-1073 (6th Cir. September 20, 2011) (to be published). Panel of Judges Cole, Gibbons, and Cleland (E.D. Mich.). Judge Cole dissented.

Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.

Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.

Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.

Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.

The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.
But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."

Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."

Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."

Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.

Monday, September 12, 2011

Sixth Circuit shifting oral argument practice

Used to be, if you asked for oral argument, your case was scheduled for oral argument. Occasionally, argument would be cancelled at the last minute. Not anymore.

The Sixth Circuit is trying to cut down its backlog of cases and decide all cases in a more expeditious manner. To do that, they are scheduling some cases for telephone argument. Other cases are being issued "on brief day set" notices that do not acknowledge the request for oral argument.

On the plus side, cases are being decided faster. I've received six or seven opinions in the last three weeks. I have a case scheduled for telephone argument later this month where briefs were turned in just last April. Normally, there's a ten- to twelve-month wait for argument.

Also, case managers are attaching instructions to briefing schedule letters. Please take a moment to look at those, as there are some changes to how we normally write and file briefs. Seems there's a shake-up afoot at the Sixth Circuit.

Friday, September 09, 2011

Ruff justice is not so rough



Today in United States v. Michael Ruff , the Sixth Circuit blithely said the Fair Sentencing Act (FSA) is not retroactive and cited Carradine. There is no sentencing date mentioned in the opinion. HOWEVER, note the case number starts with "08," which means the appeal was docketed in 2008. You can't appeal before you've been sentenced, so this is a pre-enactment sentencing case along the same lines as Carradine.

No reason to be alarmed. Move along.

Tuesday, August 30, 2011

He says - she says: Court says - Suppress!!!

Any person with possessory interest in a property can refuse consent to search a premises, despite another resident's consent.  In United States v. Johnson, Case No. 09-6461, police received an anonymous tip that there was marijuana and a firearm at a residence.  They then went to the residence to conduct a "knock and talk" to investigate further.  A woman answered the door.  Officers asked to search the residence.  Two other people emerged from another part of the residence.  Out of the three persons present, two of the persons consented to a search, the third, the defendant in this case, testified that he did not consent, and informed police that he lived at the residence.  As you may have guessed (if not, why would we be talking about this case?), police searched, and found all sorts of goodies, leading to the defendant's arrest and prosecution.

The court ruled that there is no hierarchy for police, to determine which resident has a superior possessory interest in a property.  Rather, so long as the defendant has a privacy interest, his denial of consent has Fourth Amendment effect.  Therefore, "Johnson’s express objection to the search was sufficient to render the search of the bedroom unreasonable as to him, notwithstanding the consent given by Karen and Conerly."  The Court therefore ordered suppression of the evidence.

Congratulations to AFPD Anne-Marie Moyes of the Nashville office!

Thursday, August 25, 2011

The ACCA, Sykes, Oscar, and Yogi

Well, we all knew that the good times couldn’t keep rolling forever. After a two-week span of favorable opinions regarding the Shepard/Taylor categorical approach — including United States v. McMurray and United States v. Gardner — something had to give. That something was United States v. Coleman, published yesterday.

Thanks to the Armed Career Criminal Act, Coleman managed to receive a 15-year sentence that everyone seemed to agree was “harsh on the facts of this case.” Specifically, Coleman found “an unloaded, dilapidated firearm frame that had no trigger assembly and could not be made readily operable.” Under the logic of the federal criminal code, however, a “firearm frame” is the same as a “firearm,” and he was arrested as a felon in possession. Unfortunately for him, Coleman had three prior Ohio convictions for burglary, making him eligible for the ACCA. Or was he?

Yes, yes he was. You see, Ohio’s burglary statute is delightfully “non-generic” under Taylor, because it includes such non-traditional “structures” as watercraft, aircraft, railroad cars, trucks, tents, etc. Nevertheless, under the pesky residual clause of the ACCA the Ohio offense still “presents a serious potential risk of physical injury to another.” This is because, according to the opinion, the Ohio statute requires that any lean-to, yurt, or shanty that was burglarized had to be “occupied.” Like “firearm,” however, “occupied” has multiple meanings. In the Buckeye State it can also mean (1) “maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied”; or (2) “specially adapted for the overnight accommodation of any person.” So in case you’re wondering, yes, “occupied” can, in fact, mean “unoccupied.” But this requirement that the burglarized structure be “occupied” was enough to up the danger level to others and make it similar to your classic, gold-standard burglary.

So Coleman gets 15 years because of (1) a found gun that did not — and could never — work, and (2) three prior “burglaries” that might have involved breaking into a garbage dumpster that was unoccupied but was “specially adapted for overnight accommodation” by, say, Oscar the Grouch. There is no silver lining here for Coleman, but is there for other defendants? Possibly. For those keeping track of this kind of thing, Coleman cites three times to Begay, the golden child of ACCA analysis, and only once to Sykes, the evil red-headed stepchild. Here’s that entire cite: “But the Supreme Court has recently made clear that the absence of a statutory element requiring proof of [purposeful, violent, and aggressive conduct] is not by itself a ground for concluding that an offense is not categorically violent. See Sykes . . . .” This near-dictum is unfortunate, but at least the Sixth Circuit did not see fit to follow the bizarre suggestion in Sykes that the appellate court somehow tabulate all burglaries in Ohio and see what percentage involved a risk of harm, as Justice Kennedy appeared to advocate. Do any other readers/commenters out there (all two of you) think we are avoiding the full Sykes-ocalypse foreseen by many legal Cassandras, or is this just the death-by-a-thousand-cuts of Begay?

One last little thought-exercise for you: Taylor specifically based its holding on the fact that the Missouri burglary statute in question had non-generic elements because it included breaking and entering into “any booth or tent, or any boat or vessel, or railroad car.” Because Taylor could have committed his crimes by breaking into a tent, he could not categorically be said to have committed “burglary” in the generic, federal sense of the word and therefore did not qualify under the ACCA. Here, the Ohio statute also allows for “burglary by tent,” but according to the Sixth Circuit the burglary can qualify Coleman for the ACCA because of Ohio’s “occupancy” requirement. But the “occupancy” requirement also includes any unoccupied dwelling (including a tent) that was “specially adapted for the overnight accommodation of any person.” Here’s the question: Aren’t all tents “specially adapted for the overnight accommodation of any person”? In Taylor, was Justice Blackmun really only concerned with tents that hadn’t yet been pitched? Did they have to be rolled up? More importantly, if Yogi Bear took a pic-i-nic basket from three separate tents on “occasions different from one another,” is he ACCA-eligible? In Ohio, the answer appears to be yes. Campers of the world rejoice. Coleman, not so much.

Tuesday, August 23, 2011


What if you proved that a Guideline was empirically baseless and nothing happened? This head-scratcher — once used by Buddhist monks to induce a meditative state — is exemplified in yesterday’s unpublished Campana opinion and today’s unpublished Sanchez opinion.

After Campana was discovered uploading child pornography onto the internet from his Yahoo! account, authorities searched his home and found pornography on a total of 74 floppy disks. (Between the “floppy disks” and the Yahoo! account, Campana has taken the I-Love-The-90s! fad to a new level.) All told, Campana possessed 557 images and 18 videos containing child pornography, which practitioners in this area will recognize as an average-to-below average amount for such defendants. But it will come as little surprise to those same practitioners that Campana’s Guidelines range was 360 months to life, based on an offense level of 42 and a criminal history category of I. Presumably this offense level calculation included all the usual enhancements, and possibly a 5-level bump for his attempt to distribute to people claiming they were minors. Don’t worry about Campana though — it’s not nearly that bad for him thanks to the statutory maximums. They knock him down to an easy-breezy 20 years, with 15 years’ supervised release after that.

But here’s what’s weird: Campana’s attorney evidently sought to do what good attorneys do in these cases by pointing out that this Guideline has no empirical basis whatsoever and was entirely the product of Congressional whimsy. Here’s what’s weirder: The sentencing judge agreed, stating that he or she was “persuaded that the guideline provisions relating to child pornography of this nature do not reflect the kind of . . . empirical data, national experience and independent expertise that are characteristic of the commission’s institutional role” and opting to treat them as non-binding. Phew.

So what sentence did Mr. Campana receive? The statutory-maximum 20 years. On what § 3553(a) factors did the district court base this multi-decade sentence? Reader, I do not know. You see, the first part of the sentencing discussion is dedicated to upholding the sentence on substantive reasonableness grounds where the district court apparently failed to discuss several of those factors. Despite apparently finding the Guidelines completely baseless and non-binding, the district court gave Campana the highest possible sentence, the stat max, in light of “[t]he defendant’s lack of criminal history, his history of gainful employment and the likelihood that treatment while incarcerated and a lengthy term of supervised release will protect the public and deter Mr. Campana and others from committing similar crimes.” That’s all we know.

If you are not yet entering a trance-like meditative state, contemplating the nothingness that both is and is not your existence, take a look at today’s unpublished Sanchez case. There, the defendant raped and molested his daughter between the ages of 6 and 12, at which point he started filming the rape. He also raped his daughter’s half-brother and forced her to watch. Guess what his Guidelines range was for producing child pornography while raping his daughter. Go ahead, guess. . . .

It was 235-293 months: less than Campana’s. In fairness, the statutory minimum for Sanchez was 300 months, and he ultimately received 360, but if you need any further proof that the child pornography Guidelines are baseless — or if you need a Zen koan wrapped in a riddle wrapped in an enigma wrapped in a beautiful flower — look no further than to Campana and Sanchez.

Monday, August 22, 2011

AEDPA v. Brady: AEDPA Wins

In a difficult and factually-intensive en banc death-penalty decision, the Sixth Circuit addressed what standard to apply in reviewing the materiality prong of a Brady claim in a habeas appeal. It will come as little surprise to many court observers that the court answered with the sort of “super deference” that has characterized much of the last decade of AEDPA jurisprudence, and even less of a surprise that the petitioner lost. The case is Montgomery v. Bobby, published today.

As with any murder case on habeas review, the facts here are messy, involving a double-murder with a robbery-motivation, two individuals who were complicit in the crime, one who said the other did it while taking a plea offer, and the other taking the fall. The evidence was bad for both men, but worse for Montgomery. There was some question as to when the murder actually occurred, and the prosecution settled on a theory regarding one date. The police, however, had taken statements from witnesses saying that they had seen the victim alive in a car days after the date on which the murder was said to have happened. That police report was not handed over to the defense, and never materialized until years later after a FOIA request. Although Montgomery lost in state court, the district court granted a writ of habeas corpus in light of the Brady violation.

As to the first two Brady factors, nobody disputes that the evidence was favorable to Montgomery as both potential exculpatory and impeachment evidence, or that it was willfully or inadvertently suppressed by the State. The action in this case was in the third factor: materiality.

The majority determined that the materiality factor was not met. The test for materiality under Brady requires a “reasonable probability that the suppressed evidence would have produced a different verdict,” which the panel distinguished from the mere possibility that the evidence would produce a different verdict. Here, there was certainly strong evidence against Montgomery, including purported eyewitness testimony of the shootings, Montgomery’s admission that his gun was used in the shootings, and the fact that Montgomery possessed the gun after the shootings. The Brady evidence — which undermined the prosecution’s theory only about the date on which the murders occurred — certainly did not exculpate Montgomery entirely.

Where the withheld evidence would perhaps have proved more useful was in impeaching Montgomery’s accomplice, who had a considerable motivation to lie. The majority reiterated, however, that “[e]vidence that is merely cumulative to evidence presented at trial is not material for purposes of Brady analysis.” Brooks v. Tennessee, 626 F.3d 878, 893 (6th Cir. 2010). The Sixth Circuit is unusually quick to find that impeachment material is “cumulative” when a witness was already impeached at trial, and, according to the majority, Montgomery had thoroughly explored his accomplice’s motivation to lie and factual inconsistencies. This case therefore adds to a line of other cases in which relief is denied due to lack of materiality under Brady. See Bell v. Bell, 512 F.3d 223, 237 (6th Cir. 2008) (en banc); Brooks, 626 F.3d at 893-94. While some other circuits have found that impeachment evidence is not cumulative where it presents an entirely different subject on which to impeach a witness rather than merely piling on more evidence of the same type, the majority disagreed and made special note that “[t]his argument is beside the point.”

A thorough dissent from Judge Clay minces few words in criticizing the majority’s application of Brady to the facts of this case. Among other things, Judge Clay disagreed that Sixth Circuit precedent required a finding that the Brady evidence was cumulative, and pointed to numerous cases that held or implied that “new evidence” is not cumulative if it “differs both in strength and subject matter from the evidence actually presented.” Because this Brady evidence was of an entirely different type than had been previously used and would present a different avenue for impeachment, relief should have been granted. Judge Clay also scolded the majority for its “rubber stamping” of the facts as viewed by the state courts.

Judge Merritt’s forceful dissent is especially noteworthy. He points out that the majority has effectively conflated the Brady standard with the Strickland standard in creating a presumption of “trial regularity,” even in the face of “blatant prosecutorial misconduct.” Thus, Brady’s bright-line Due Process rule has been morphed into the sticky Strickland standard, at the expense of Brady’s insistence on deterring prosecutorial misconduct. Judge Merritt argues that the exact opposite standard should apply: “If, as the Supreme Court states, prosecutors are bound to know and follow the Brady rule, and in fact do know its meaning, and even so they then conceal the exculpatory evidence from the defendant, the inference should be that they concealed it because they believed it would hurt their case.”

As of today, however, the presumption appears to point in the opposite direction, and Brady claims face an uphill battle on habeas review.

Tuesday, August 16, 2011

Crimes by Soldiers: Military v. Civilian Prosecutions

In a highly-publicized case, United States v. Green, (available here), a former U.S. Army infantryman was convicted by a jury and given five consecutive life sentences for a number of crimes, including murder and sexual assault. Four co-defendants were convicted by the U.S. Army, court-martialed, given much lower sentences, and will be up for parole in a few years.

The Army had no authority to prosecute Green because he was no longer a soldier, and the general federal criminal statutes do not extend to his conduct overseas. Thus, civilian prosecutors charged him under the Military Extraterritorial Jurisdiction Act (18 U.S.C. § 3261) for his role in the crimes committed against an Iraqi family. “For many years there was a “jurisdictional gap” that allowed ex-servicemembers to escape prosecution for crimes committed on foreign soil while a member of the Armed Forces. In 2000, Congress passed MEJA to close this gap.”

The Sixth Circuit found the district court had jurisdiction to try Green under MEJA because he had been validly discharged from the Army, and that MEJA is constitutional because it does not violate the separation-of- powers principle or the nondelegation doctrine, equal protection, or due process. The Sixth Circuit partly places blame for this crime onto military leadership:
"We will never know the whole story of why Green and his fellow infantrymen went crazy on the afternoon of March 12, 2006. These events are, in part, a leadership failure but nonetheless a blot on the storied honor of the famed Screaming Eagles of World War II, Vietnam, and the first days of the invasion of Iraq and the one million men and women who have served in the 101st [Airborne]."

Concurring Judge Thapar took issue with this commentary, stating, “I concur in majority’s thorough opinion with one exception. Having never served in the military, I do no feel qualified to criticize the Army’s recruitment and leadership practices.”

Thursday, August 11, 2011

No Lengthening of Sentence to Complete Treatment Program

In United States v. Walker, 09-6498, published today, the Sixth Circuit held that the district court improperly increased Darrell Walker's sentence and remanded for resentencing. The district judge handed down an above-guidelines sentence in part because of Walker's need for rehabilitation and psychiatric treatment. Walker had twenty-nine prior convictions -- twenty-seven of which were drug-related -- and a history of mental illness.

The Sixth Circuit noted that the Supreme Court clarified in June that "a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise promote rehabilitation." Tapia v. United States, No. 10-5400, 2011 WL 2369395, at *9 (June 16, 2011). Accordingly, the Court found Walker's sentence substantively unreasonable.

Wednesday, August 10, 2011

Statement of Reasons Basically Meaningless

In United States v. Denny, 09-6029 (August 10, 2011), the Sixth Circuit upheld an above-guidelines sentence. The key issue on appeal was whether the twenty-seven month increase was a departure or a variance. In order to affirm the sentence, the Sixth Circuit needed to find that it was a variance.

The oral sentencing was arguably ambiguous: the judge referred to the increase alternatively as "a departure" and "not a departure" and never used the word "variance." In the Statement of Reasons, however, the judge unambiguously checked the box marked "departure" and also cited to specific departure provisions under the Guidelines.

The Sixth Circuit first examined the oral sentencing transcript and determined that the judge had intended to impose a variance. As the Court noted, traditionally the Statement of Reasons can be used to divine the intent of the sentencing judge if the oral transcript has some ambiguity. In this case, however, the Court backpedaled significantly from that tradition.

The Court noted that the purpose of the Statement of Reasons is not to protect the defendant but to provide information to the Sentencing Commission. This, of course, has always been true, and the Court gave no explanation as to why this particular Statement of Reasons was so much more insignificant than those in prior cases. Attorneys should take note that this case significantly weakens the power of the Statement of Reasons.

Two more things to take away from this case : (1) in footnote 4, the Court noted that Congress is attempting to make the Statement of Reasons "a more formal document" and that, in the future, it may carry more weight; (2) going forward, watch for instances when the Statement of Reasons favors the government and see if the Sixth Circuit stays true to this holding.

Saturday, August 06, 2011

A bit more clarity about the retroactive application of SORNA

In United States v. Trent, 08-4482 (Aug. 5, 2011), the court held that for purposes of the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, sex offenders who “ fail[ed] to register before a particular jurisdiction had implemented SORNA” are situated similarly to “sex offenders who failed to register before SORNA was enacted,” and thus “were not required to register under SORNA until the Attorney General promulgated valid rules specifying when or whether the Act would apply to them.”

The court applied its earlier holdings in United States v. Cain, 583 F.3d 408 (6th Cir. 2010), in which it held that “SORNA did not apply retroactively of its own force [but rather] delegated to the Attorney General the sole authority to determine the retroactive application of the statute to ‘pre-enactment’ sex offenders,” and United States v. Utesch, 596 F.3d 302 (6th Cir. 2010), in which it held that SORNA’s registration requirements did not apply to sex offenders who were convicted before SORNA was enacted if the failure to register occurred before the Attorney General issued guidelines on retroactive application of SORNA.

The court explained, “The rulings of this Court in Cain and Utesch, while specifically addressing the retroactive application of SORNA only to pre-enactment sex offenders, also dictate the result in this case as to a pre-implementation sex offender . . . .”

An "Alford plea" factual basis proffer is not a valid Shepard document

In United States v. McMurray, 09-5806 (Aug. 4, 2011), the court considered whether a factual basis proffer for purposes of a “best interest plea” under North Carolina v. Alford, 400 U.S. 25 (1970), which allows a defendant “to enter a plea but . . . not . . . acknowledge guilt,” can be used to establish the nature of an offense for purposes of the Armed Career Criminal Act (“ACCA”) and Shepard v. United States, 544 U.S. 13 (2005). Here, because the court determined that the defendant’s prior conviction for aggravated assault “is not categorically a ‘violent felony’” under ACCA, it had to “examine whether the underlying documents establish that the defendant pleaded guilty to a narrowed charge that would qualify . . . .”

The government argued that “the state’s proffer of the factual basis for the plea during the plea colloquy” showed that the defendant necessarily “acted intentionally or knowingly when he committed the aggravated assault,” thereby qualifying him as an Armed Career Criminal.

The court disagreed. Although it had recently “declined to differentiate between an Alford plea and a straightforward guilty plea” in the context of determining whether an alien had been “convicted of ‘a particularly serious crime’ under the Immigration and Nationality Act,” it decided not to extend that rule to the context of a “violent felony” determination under ACCA. The court instead found that “the state’s proffer of the factual basis for [a] best-interest plea does not demonstrate that [the] plea necessarily rested on facts identifying [the] conviction as a ‘violent felony.’”

In dissent, Judge McKeague argued that “all of the categories of documents approved by Shepard for evaluating guilty pleas can be relied upon—to the same extent—when the defendant instead enters an Alford plea.”

Sixth Circuit reverses rare Michigan (federal) death sentence

In United States v. Gabrion, Nos. 02-1386/1461/1570 (Aug. 3, 2011), an appeal of a federal capital prosecution resulting in a death sentence, the court addressed a plethora of issues relating to both the guilt and sentencing phases of the defendant’s trial. The court rejected most of the arguments but reversed the death sentence and remanded for resentencing for two reasons.

First, the court held that the district court erred when it “ruled that Michigan’s longstanding policy against the death penalty could not be mentioned or admitted as a mitigating factor, or discussed with the jury in final argument during the penalty phase of the trial.” This ruling, the court held, was “inconsistent with the language of the [Federal Death Penalty] Act requiring the factfinder to consider ‘any mitigating factor’ and ‘any information relevant to a mitigating factor.’ 18 U.S.C. § 3592(a); id. § 3593(c) .” The court noted that this language “plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance.”

Second, the court found that the district court should have informed the jury that “in order to impose death they need to find ‘beyond a reasonable doubt’ the element of the death sentence that the aggravating factors outweigh the mitigating factors. . . . [A] jury’s finding that the aggravating factors outweigh the mitigating factors is an element of the death penalty and must be found beyond a reasonable doubt, the same standard constitutionally required for all other findings of fact and mixed questions of law and fact.”

Friday, July 29, 2011

6th Circuit: Doing Cocaine and Sleeping During Trial is Not Necessarily Ineffective Assistance

In Muniz v. Smith, the 6th Circuit today was dealing with a habeas corpus petition challenging a state conviction on ineffective assistance of counsel grounds. What was so ineffective? The defense attorney was charged with possession of cocaine approximately 3 weeks before becoming the defendant’s attorney. Also, a juror noticed that the defense attorney was sleeping during the cross examination of the defendant. The 6th Circuit denied the habeas petition.

How could this possibly be? Well, the court was not condoning the attorney’s cocaine use and sleeping during trial, rather the court held that the defendant could not show prejudice. Specifically, a witnessed testified that the defendant shot the victim in the face; the victim survived and testified that the defendant shot him in the face; a police officer testified that the victim told him the defendant shot him in the face while the victim was lying bleeding at the scene; and last but not least, the defendant’s own mother testified that the defendant called her and confessed to shooting the victim in the face. Because the evidence was overwhelming and “Muniz cannot establish that his trial counsel was asleep for a substantial portion of his trial,” counsel’s performance was not ineffective.

Thursday, July 28, 2011

6th Circuit Clarifies Blockburger Test as Applied to CP

We are all familiar with the famous Blockburger test that two convictions for essentially the same conduct do not violate the Double Jeopardy clause as long as each requires proof of a fact that the other does not require. If conviction A requires proof of 1, 2, 3, 4, and 5, while conviction B requires proof of 2, 3, 4, 5, and 6, then convictions for A and B do not violate Double Jeopardy.

Today in United States v. Dudeck, the Sixth Circuit clarified how this test applies to child porn (“CP”) cases. While recognizing that possession of CP is a lesser included offense of receipt of CP (because one cannot receive CP without also possessing it), the court provided a roadmap to all of the loopholes in the double jeopardy clause in this context. The actual holding of the case was merely that as long as the defendant “was charged with receipt of any images for which he was not also charged with possession—and vice-versa—the two can be punished as separate offenses.” This much was already clear, if the defendant is charged with receipt of images 1-100 and possession of images 2-101, then both convictions can stand.

This would seem like enough to support multiple convictions in every case, since there will almost always be more than 1 image of CP found on the defendant’s computer. But the Sixth Circuit went farther, in what was arguably dicta, to point out all the loopholes that could technically save multiple convictions when the prosecutor did not have the foresight to carefully distribute the images among the charges as described above. Specifically, the court suggested that multiple convictions might not violate the double jeopardy clause if:

1) receipt and possession occurred on different dates;

2) after receiving the CP, the defendant then transferred it to a different medium (e.g. if the defendant downloaded the CP off the internet and then transferred it to a cd or a folder on his computer); or

3) there were images in the possession charge that were not also in the receipt charge (i.e. receipt of images 1-10 and possession of images 1-20).

The court then went out of its way to point out that even if 2 of the defendants 3 charges were dismissed on double jeopardy grounds (the case was remanded for further fact finding on this issue), there was nothing to stop the district court from imposing the same sentence (i.e. 1 sentence of 120 months instead of 3 concurrent sentences of 120 months). Of course, while the district court is free in any case to impose the same term of imprisonment, the defendant would save $200 in special assessment if two of the charges were found to violate the double jeopardy clause.

Friday, July 22, 2011

Spears Again: Rejecting GLs

(A knight with a spear! Hey, it's hard to pick pictures. :) I'm trying!)

In United States v. Priester, No. 08--2391 (6th Cir. July 22, 2011) (published), the panel of Judges Boggs, Moore, and Kethledge considered the Spears issue again. Judge Boggs dissented.

The majority opinion starts out: "In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case." The defendant was sentenced pre-Spears. After parsing "the sentencing transcript, [the Court] agree[d] with [the appellant] that the district court appeared unaware of the authority that the Supreme Court expressly announced months later," that the court could vary from the guidelines based on policy reasons.

The Court found that the sentencing court's "comments go beyond mere silence as to whether the district court knew that it had the authority to reject the 100:1 ratio outright. Instead, they reflect an assumption that the court did not have that authority." The panel emphasizes that "The essence of Spears’s holding is that a district court can take the 100:1 ratio out of play, up front, before even determining whether the ratio yields an overlong sentence in a particular case. Here, the district court expressly stated that the ratio was in play—and then the court moved on to other issues. To say, on this record, that the court silently recognized its later-announced authority in Spears, but chose not to exercise that authority, would be mere fiction."

The panel distinguishes prior cases: "In both United States v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Curb, 625 F.3d 968 (6th Cir. 2010), the district courts had been silent as to whether they had the authority later expressly granted to them in Spears. We remanded for resentencing in light of Spears. In United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), we affirmed the defendant’s sentence on plain-error review. There, the defendant did not make a Spears-type argument in the district court, and the district court itself said nothing about the issue. Neither of those circumstances is present here."

Judge Boggs's Dissent:

Judge Boggs concluded that "in the context of our earlier cases, [the appellant's] claim should fail. As even the majority must concede, the crack-cocaine disparity was before the judge and he recognized that the guidelines are only a starting point. The record, read fairly, is bereft of any expression as to the judge’s authority to reject categorically a particular judgment or reasoning in the guidelines."

Thursday, July 21, 2011

Pre-Gant Law Governs Pre-Gant Searches

In United States v. Peoples, No. 09--2507 (6th Cir. July 20, 2011) (unpublished), the panel of Judges Gibbons, White, and Oliver (N.D. Ohio), addressed a pre-Gant vehicle search.

Sole question for the Court was "whether an officer’s objectively reasonable reliance upon binding appellate-court precedent constitutes an exception to the exclusionary rule under the Fourth Amendment." Court found that it does.

In Gant, the Supreme Court held that an automobile search incident to arrest is constitutional only if the arrestee can reach the vehicle or if the officers have reason to believe the vehicle contains evidence relevant to the crime of arrest.

In Davis, the Supreme Court resolved the dispute among the circuits as to whether the exclusionary rule, as clarified in Gant, should apply in cases in which the arrest occurred before the Gant decision. Supreme Court held that the exclusionary did not apply in such circumstances: “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”

Finding itself bound by this precedent, the Sixth Circuit concluded that the firearm that was seized incident to the defendant's arrest should not have been suppressed. While the search would no longer be permissible under Gant (the defendant was not within reaching distance of the vehicle when the officers searched the vehicle, and the officers had no reason to believe the vehicle contained evidence related to a suspended license), the search was permitted under the law as it stood when the search occurred.

The Court closed, "The officers committed no misconduct in relying upon th[e] settled precedent, and suppression of the firearm is not warranted."

Monday, July 18, 2011

All Sorts of Good News: Crack Memo from DOJ

On the heels of last week's good news (see Laura's post below), this week gives us an auspicious turn of the tide from DOJ.

On July 15, 2011, Attorney General Eric Holder issued a memo saying he concludes "that the law requires the application of the [Fair Sentencing] Act's new mandatory minimum sentencing provisions to all sentencings that occur after August 3, 2010, regardless of when the offense conduct took place." He directs prosecutors "to act consistently with these legal principles."

Professor Berman has blogged the issue and provides a link to the memo at:

Nice development on the FSA front. So, the Rojas, No. 10--14662 (11th Cir. July 6, 2011) (to be published), decision in the 11th Circuit should be safe! (A great FSA appellate win: FSA applies to defendant's sentenced after FSA enacted, regardless of offense date.)

I'll post more this week after I review the Court's decisions....

Friday, July 15, 2011

Exciting Tapia developments!

In United States v. David Brooks, 10-6556, issued today and found here, the Sixth Circuit holds that if rehabilitation is one of the reasons for a defendant's sentence, the sentence must be vacated and remanded for a new sentencing hearing. This is based on the Supreme Court's recent ruling in Tapia v. United States, -- U.S. --, 2011 WL 2369395 (2011). Though an unpublished opinion, I think Brooks gives strong support to any pending appeal where rehabilitation is cited as a reason for a given sentence. Fire up your 28j letters now.

The Court also released United States v. Modena, 10-1377, today (found here). In it, the Court finds Modena's Tapia argument unpersuasive. However, the District Court had said it did not think the criminal justice system had any way of rehabilitating Modena. Viewed in tandem with Brooks, it appears a sentence will be upheld if the court says, "there's nothing we can do for you," and vacated if the court says, "you need rehabilitation while in jail."

For those of us with appeals in the pipeline, these are exciting times. Happy Friday!

Friday, July 08, 2011

Ladies and Gentleman, we have a new acronym!

CEE: Child Exploitation Enterprise

In United States v. Daniels, 09-1386, the Sixth Circuit addressed 18 U.S.C. 2252A(g)(2) for the first time.

Daniels was convicted of running a prostitution ring in Detroit. He used adult women and juvenile girls, bringing some in from out of state and advertising their services on various internet sites.

The Court held CEE has three elements that must be proven:
1) the defendant committed at least three predicate offenses;
2) more than one underage victim was involved; and
3) at least three other people acted "in concert" with the defendant on the predicate offenses.

Having already upheld four predicate offense convictions, the Court found the first element was met. Several prostitutes testified they were underage at the time they worked for Daniels, so the second element was also met.

The third element failed. Three people need not be working together simultaneously, but they do need to be working in furtherance of the predicate offenses during the "series of felony violations." Thus, co-defendant Head, who helped coordinate prostitutes and post ads, counted. "Trouble," a prostitute who accompanied Daniels and Head when they picked up a juvenile prostitute in Maryland and spoke with the juvenile about her work also counted. Daniels's brother, who rented hotel rooms for the prostitutes, and his mother, who occasionally provided rides to Head and other prostitutes, did not count (likely because they were not explicitly acting in furtherance of the charged predicate offenses). Because Daniels only had two people acting in concert with him, he could not be convicted of CEE.

This opinion is worth a read/save for several other points:

It reitterates the six ways a photo of a child could be "lascivious"

2252A(a)(2)(A), which bans distribution of any child porn that has been transported through interstate commerce, is met by the two-stage posting process on Craigs List. The image was first transported in interstate commerce when the post was created. It was then distributed after the person posting replied to the confirmation email and the post then appeared on Craigs List.

2423(a)(transporting a minor to engage in sexual activity) does not require "knowing" the victim is under 18

Friday, July 01, 2011

Lesson learned: when the Court invites you to file a brief, you probably should!!!!!!

In an unpublished decision filed today in United States v. Wright, 08-6546 (11a0444n.06), the Court remanded a case for resentencing where the district court referred to uncharged, unsubstantiated "other offenses" in determining the sentence.  The gist of the claim was that the court, in sentencing the defendant, made reference to "other crimes" that the defendant must have committed (the court found that the defendant could not have been caught every time he committed an offense), and used this information in determining the sentence within the Guidelines.  The Court found that "While § 3553(a) requires a sentencing court to consider the nature of the offense before it and the defendant’s history, it does not permit the district court to speculate regarding potential crimes that the court has no factual basis for concluding were ever committed."

A more interesting aspect of the opinion, however, dealt with the United States' failure to file a brief on appeal.  The defendant's counsel had filed an Anders brief.  The Court entered an order giving the United States an opportunity to respond to the brief.  The United States declined to respond, instead stating a letter that "In the event the Court, as a result of its independent review of the record, determines that counsel is mistaken and that a non-frivolous issue exists", then the United States wished to brief the matter.

In its remand order, the Court noted that the United States had failed to brief the issues, and found, in response to the United States' letter, that "this Court is not required to respond to a party’s request that the Court assist the party with its briefing by identifying 'meritorious' issues."  The Court therefore held they would not review the claim for harmless error, and remanded for resentencing.

Monday, June 27, 2011

Court vacates conviction, death penalty, and remands for new proceedings

Prosecutorial misconduct remains a viable basis for overturning a conviction.  In today's opinion in Matthews v. Parker, the Court vacated a judgment and the death penalty based upon a defendant's claim that the State had committed misconduct during its closing arguments. 11a0163p.06   The Court found that "The prosecutor’s comments during closing arguments regarding Petitioner’s supposed exaggeration of his EED, and collusion with his attorney and doctor, were both improper and flagrant. “[T]he Commonwealth’s misconduct was sufficiently egregious to render the entire trial fundamentally unfair.” Gall II, 231 F.3d at 315. Accordingly, the prosecution’s statements suggesting that Petitioner and his defense team colluded to manufacture his EED claim, and exaggerated the extent of his EED, rendered Petitioner’s trial unfair, and denied him of his constitutionally protected due process rights."

The Court also found that, at the time of the defendant's conviction, the State had a burden to disprove an extreme emotional disturbance defense.  The Court found that "Convicting Petitioner of murder when the prosecution failed to prove the EED element beyond a reasonable doubt, contravened the Supreme Court’s established precedent requiring the state to prove every element of a crime beyond a reasonable doubt", and therefore vacated on this basis as well.

Friday, June 24, 2011

Supreme Court Reverses Sixth Circuit: Amended Crack Guideline Relief Is (Probably) Available in (C) Pleas

Yesterday, in a 5-4 decision, the Supreme Court reversed the Sixth Circuit in Freeman v. United States, holding that Petitioner William Freeman could move for a sentence reduction because of retroactive amendments to the crack guidelines.

In United States v. Goins, 355 Fed. App'x 1 (6th Cir. Nov. 20, 2009), the Sixth Circuit (Boggs, Rogers, White) had found that Freeman was not eligible for a sentence reduction because he had plead guilty pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), known colloquially as a "(C) plea." In a (C) plea, the defendant and the prosecutor agree on a sentence and that sentence binds the court if the court accepts the plea.

William Freeman and his prosecutor had agreed in 2005 that Freeman would serve 106 months in prison for possession of crack cocaine and a firearm. The agreement recognized that Freeman's Guidelines range for the crack possession was 46-57 months. The court accepted the (C) plea.

Three years later, the Sentencing Commission issued a retroactive Guidelines amendment to attempt to remedy the crack/powder sentencing disparity. This amendment lowered Freeman's range on the crack count to 37-46 months. Freeman moved to have his sentence reduced under the proper the statutory mechanism. The Sixth Circuit reasoned that a sentence predicated upon a (C) plea was the result of a bargain between prosecution and defense, not the Guidelines. In a strong concurrence, however, Judge White argued that, were she not bound by precedent, she would remand the case with instructions to determine whether the original sentence was based on the Guidelines.

The Supreme Court ultimately vindicated Judge White. Four Justices (Kennedy, Ginsburg, Breyer, and Kagan) found that defendants with (C) pleas can move for sentence reductions. Four Justices (Roberts, Alito, Thomas, and Scalia) held that they cannot. The controlling opinion, however, is Justice Sotomayor's currence. She pragmatically held that a petitioner with a (C) plea could move for a sentence reduction if his plea expressly used the now-amended Sentencing Guidelines range as part of the calculus of his sentence.

Friday, June 17, 2011

Four New Supreme Court Decisions

Yesterday, the Supreme Court issued opinions in four criminal cases:

In J.D.B. v. North Carolina, the Supreme Court has broadened use of the Miranda warning for suspects, extending it to children questioned by police in school. By a 5-to-4 vote, the court said for the first time that age must be considered in determining whether a suspect is aware of his or her rights.

In Tapia v. United States, the Supreme Court ruled unanimously that a federal judge cannot impose a longer prison sentence than what the sentencing guidelines permit simply to promote rehabilitation.

In Davis v. United States, the Supreme Court upheld the conviction of an Alabama man by a vote of 7-2, though the justices agreed the search that produced the incriminating evidence was illegal. The Court refused to disturb the firearm conviction, declaring that at the time the search was conducted, police relied in good faith on existing law.

In Bond v. United States, the Supreme Court ruled unanimously that citizens, not just states, has standing to challenge the validity of the statute (federal laws implementing the chemical weapons treaty) on the ground that it infringes on the powers reserved to the states under the Tenth Amendment.

NPR Online also offers commentary on the opinions.

Wednesday, June 15, 2011

Later Discovery of an Outstanding Arrest Warrant Does Not Remove Taint from an Illegal Stop

In United States v. Gross, the Sixth Circuit amends an earlier published opinion, United States v. Gross, 624 F.3d 309 (6th Cir. October 19, 2010). The Gross case is the second to involve the same officer blocking a legally-parked car in a high-crime area to detain the occupants.

Easily finding the officer made an illegal stop, the Sixth Circuit held that the subsequent discovery of an outstanding arrest warrant does not dissipate the taint of an illegal stop. The amended opinion does not change this holding.

The amended opinion, at page 15, adds two paragraphs in response to the dissenting opinion. The dissent argued that the observation of an open container in the car (after the police blocked the car and approached the vehicle) sufficiently attenuated the evidence from the illegal stop. The majority amended its opinion to address this specific argument, pointing out that the open container itself was a fruit of the illegal stop and not a "new, distinct crime."

The dissenting opinion of Gibbons is also amended to remove part B of the original dissenting opinion and replacing it with a short paragraph at the beginning of the dissenting opinion.

Wednesday, June 08, 2011

United States v. Taylor: An Extra Dash of Pepper

Yesterday saw the publication of a significant case addressing subsection (g) of 18 U.S.C. § 3742, which addresses a district court’s treatment of the sentencing guidelines upon remand for resentencing. Judge Moore’s comprehensive opinion in United States v. Taylor, No. 09-1961 demonstrated a considerable understanding of both § 3742 and the Supreme Court’s recent decision in Pepper v. United States, and gave some teeth to that opinion’s holding.

Taylor was originally convicted as a felon in possession of a firearm, but prevailed on an appeal regarding a sentencing issue. On remand, Taylor argued that later versions of the sentencing guidelines would have lowered his guidelines range. At resentencing, however, the district court refused to consider subsequent amendments to the guidelines and instead used the guidelines as they existed at the time of the previous sentencing, as mandated by 18 U.S.C. § 3742(g)(1). Taylor appealed his resulting sentence as procedurally unreasonable.

In the recent Pepper opinion, the Supreme Court reviewed § 3742(g)(2), a separate but related provision requiring resentencing courts to impose only within-guidelines range sentences on remand except in limited circumstances. The Court in Pepper found that this mandate ran afoul of both § 3553(a) and § 3661 by impermissibly limiting the district court’s ability to consider any and all evidence in order to "sentence the defendant as he stands before the court on the day of sentencing." Taylor argued that this same rational should invalidate § 3742(g)(1).

The Sixth Circuit refused to find that § 3742(g)(1) should be invalidated along with § 3742(g)(2). Although the appeals court recognized that the provision was poorly worded and existed in considerable tension with both the guidelines and § 3553(a), it was not constitutionally invalid under Booker or the Sixth Amendment. This portion of the holding comes as a disappointment to sentencing reform advocates, who have long argued that § 3742(g)(1) should be invalidated.

The Taylor panel was not finished, however, and it went on to hold that the district court’s refusal to consider subsequent amendments was procedurally unreasonable. First, the panel rejected the district court’s rationale that using subsequent amendments could result in unfairness to one party or the other, noting that the Supreme Court had rejected this exact rationale in Pepper. Indeed, it was an abuse of discretion to rely on this "policy of fairness." The panel also recognized that § 3661 prohibits placing any limitation on the types of information a court can consider in sentencing a defendant. Likewise, the Sentencing Commission’s evolving view of the guidelines is "highly relevant" to the district court’s assessment of the "nature and circumstances of the offense" and the "seriousness of the offense" under § 3553(A). Ultimately, subsequent amendments bear directly on the district court’s primary role at sentencing: "to impose a sentence sufficient, but not greater than necessary" to serve the purposes of sentencing. The opinion goes on to clarify that a district court is not required to agree with or apply the subsequent amendments, but that court cannot refuse to consider them.

Ultimately, Taylor simply upholds what by now ought to be beyond controversy: that a sentencing court’s duty is to impose an appropriate sentence that is (1) based on the unique characteristics of the crime and the individual and (2) not greater than necessary to serve the purposes of punishment. The opinion, however, demonstrates that the Sixth Circuit is still willing to take a close look at both congressional and Supreme Court mandates regarding sentencing.

Thursday, June 02, 2011

United States v. Moore: Sixth Circuit rejects Eighth Amendment challenge to ACCA

In United States v. Moore, No. 09-5935 (June 1, 2011), the Sixth Circuit rejected an Eighth Amendment challenge to a mandatory minimum fifteen-year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The defendant argued that his sentence was cruel and unusual as applied to him specifically, i.e., because of “his reduced culpability resulting from mental retardation,” which “transform[ed] an otherwise constitutional sentence into an unconstitutional one.”

Affirming its earlier holding in United States v. Tucker, 204 F. App’x 518, 521 (6th Cir. 2006), the court found that “[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.” The court acknowledged that in Atkins v. Virginia, 536 U.S. 304, 316 (2002), the Supreme Court held that mentally retarded defendants are “less culpable than average criminals” and therefore may not be executed. But Atkins rests on the premise that the “death penalty is ‘unique in its total irrevocability,’ ‘its rejection of rehabilitation of the convict as a basic purpose of criminal justice,’ and ‘its absolute renunciation of all that is embodied in our concept of humanity,’” (citations omitted), which "cannot be said of a statutorily-mandated sentence of fifteen years.”

The court also rejected the argument that the sentence is unconstitutional under Graham v. Florida, 130 S. Ct. 2011, 2030 (2010), explaining that Graham involved the “narrow” holding that “[t]he Eighth Amendment prohibits the sentence of life without parole for juvenile offenders who do not commit homicide.” As the defendant in Moore was neither a juvenile nor subject to a sentence of life without the possibility of parole, the court found the Graham analogy misplaced.

Thursday, May 26, 2011

United States v. Tinklenberg: SC Reverses Sixth Circuit Twice but Still Affirms

The Supreme Court today released its decision in United States v. Tinklenberg, a case arising out of the Sixth Circuit. In Tinklenberg, the Court had to interpret two provisions of the Speedy Trial Act, which requires dismissal if a trial or plea does not commence within 70 days. The first provision excludes from the 70-day period “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(D).

The Sixth Circuit focused on the phrase “delay resulting from” and held that a pretrial motion falls within this exclusion only if it “actually cause[s] a delay, or the expectation of a delay, of trial.” The Supreme Court focused more on the phrase “from the filing of the motion through the conclusion of the hearing,” and held that this period of time is excluded “irrespective of whether it actually causes, or is expected to cause, delay in starting a trial.” While the Court acknowledged that the Sixth Circuit’s reading is “linguistically reasonable,” it pointed out that all other court’s that have decided this issue have gone the other way, and the Sixth Circuit’s rule would be significantly more difficult to administer.

The second provision excluded “delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant’s arrival at the destination shall be presumed to be unreasonable.” §3161(h)(1)(F) (2006 ed., Supp. III) (emphasis added). The Sixth Circuit in interpreting this provision, exempted holidays and weekends. The relevant time period in Tinklenberg was 20 days, but that period included 3 weekends and 2 holidays, which meant that only 2 days counted for Speedy Trial purposes.

The Supreme Court held that Federal Rule of Criminal Procedure 45(a) at the relevant time did not apply to statutes, and that under the common-law rule, weekend days and holidays are included when counting a statutory time period of 10 days unless the statute specifically excludes them.

Accordingly, the Sixth Circuit’s two errors cancelled each other out: the first period should not have been excluded, but the second period should have been excluded. A win for Tinklenberg even if he has already served his sentence by this point.

Potential New Appellate Waiver Exception

In United States v. Bafna today, the Sixth Circuit highlighted a live issue without deciding it. Bafna argued that there should be an exception to appellate waivers when the sentence amounts to a miscarriage of justice. The Sixth Circuit recognized that the First Circuit follows this approach, but held that Bafna did not present an opportunity to decide the issue, as the facts of this case did not constitute a miscarriage of justice. See United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001). The moral of the story is that this issue is ripe for review: if you have a case with an appellate waiver, you may want to consider appealing anyway if the sentence constitutes a miscarriage of justice.

Tuesday, May 24, 2011

SC Clears the Way for Prisoner Release in California

Yesterday the Supreme Court released its decision in Brown v. Plata. That case arose out of California, where state prisons had been operating at around 200% capacity for at least 11 years. This resulted in myriad deficiencies in providing healthcare and mental healthcare for prisoners amounting to violations of the Eighth Amendment as well as unnecessary deaths. A three judge panel ordered that California remedy these violations by reducing prison populations to no more than 137.5% of design capacity, and the Supreme Court upheld that decision.

Ultimately, 137.5% means that there were 46,000 too many prisoners, but it does not mean that they must all be released. Instead, the state could construct new prisons, expand existing prisons, transfer prisoners to other states or to county facilities, increase good time credits, and increase the use of diversion and community-based programs. Indeed, California has already reduced the prison population by at least 9,000 while the appeal was going on. And the state has 2 years from the date of the Supreme Court opinion to achieve this. On the other hand, getting rid of 37,000 prisoners in 2 years is no small feat.

The dissents were concerned with the fact that this remedy would damage the public safety and result in the release of many prisoners whose Eighth Amendment rights have not been violated:

"It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."

(Scalia, J., dissenting).

Friday, May 20, 2011

Gearing Up For Trial?

A couple of recent decisions by the Court of Appeals shed light on some very practical aspects of a criminal trial practice.

Double Jeopardy and Child Pornography

In United States v. Ehle, No. 09-5389 (6th Cir. 2011) (Rogers, J., Batchelder, C.J., & Keith, J.) the Court makes clear that possession of child pornography is a lesser-included offense of receiving child pornography and the defendant therefore could not be convicted of both.

Wearing Jail Clothes at Trial

United States v. Williams, No. 09-5256 (6th Cir. 2011) (Martin & Stranch, JJ.; Thapar, D.J. (EDKy.), concurring), explains that, while a defendant cannot be forced to appear at trial in prison clothing, the court is not required to furnish alternate clothing for the defendant. While we are certainly cognizant of the current federal budgetary difficulties, this ruling calls to mind Anatold France's observation that "the Law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." You have a constitutional right to not appear at your trial in jail clothes if you (or your appointed lawyer) can afford to buy something else for you to wear, otherwise you have to hope you look good in orange.

Presence at Sentencing

Also in Williams, the Court held that a defendant's constitutional right to be present at sentencing is not satisfied by the use of video conferencing. The quality of the video connection is irrelevant. Rule 43, F.R.Cr.P., requires that the defendant be present and says nothing about video conferencing. There was no proof in this case that the defendant was persistently unruly enough to justify his exclusion.

Waiver of Presentence Report

Finally, the hapless Mr. Williams helps us to understand that while a district court may, under Rule 32(c), F.R.Cr.P., sentence a defendant without a presentence report, a defendant may not waive preparation of a presentence report. That is, it is up to the district court, not the defendant, to decide whether or not sentencing can proceed without having a PSR done. Here the district court did not make the requisite finding that it could proceed to sentencing without a PSR and was, therefore, error.

Thursday, May 19, 2011

Finally, some math we can live with!!!

In the recent case of United States v. Brown, 10-1410, the Court sided with the Fifth and Ninth Circuits, holding that when a defendant is sentenced on a supervised release violation, that a district court is required to subtract any term of incarceration from any new period of supervised release (that is set at the maximum term).  In this case, the defendant was faced with 36 months maximum incarceration based upon an admitted violation of supervised release.  The court imposed an 8 month term of incarceration, and a 36 month term of supervised release.  On appeal, the defendant argued that the 8 month term needed to be subtracted from the 36 month term.  The Court agreed, finding "In our judgment, to conclude that the contested language of section 3583(h) does not mandate subtracting the length of any newly-imposed period of incarceration from a term of supervised release requires a disregard of the plain language of the statute. Even without prior Sixth Circuit precedent on this question of statutory interpretation, neither this court nor the district court is permitted to so ignore the clear import of Congress’s directive."  The Court remanded for further proceedings.

Congratulations to AFPD Paul Nelson from Grand Rapids!