Friday, December 16, 2011
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 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
Monday, November 28, 2011
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
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
The Supreme Court's opinion can be found here.
Thursday, October 27, 2011
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
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
Tuesday, September 20, 2011
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
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
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
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
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
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
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
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
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
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
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 . . . .”
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.”
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
Thursday, July 28, 2011
Friday, July 22, 2011
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
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
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
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
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
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
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
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
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
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
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
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
Tuesday, May 24, 2011
Friday, May 20, 2011
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.