Tuesday, March 29, 2011

Underlying predicate crime is not an element of 18 U.S.C. § 2422(b)

In United States v. Hart, No. 09-6554 (Mar. 29, 2011), the Sixth Circuit rejected the defendant's argument that the jury had to agree unanimously on the predicate crime giving rise to a federal charge under 18 U.S.C. § 2422(b) for knowingly using "interstate commerce to persuade, induce, entice, or coerce 'any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.'"

The federal jury in this case "had to unanimously agree that the sexual activity that Hart attempted to persuade [the minor] to engage in would have been chargeable as a crime under Kentucky law," and there were two possible predicate crimes: third-degree sodomy and/or third-degree rape.

The defendant relied on a Seventh Circuit case, United States v. Mannava, 565 F.3d 412 (7th Cir. 2009), to argue that "the jury should have been required to identify in its verdict form 'which of the [Kentucky] statutes it unanimously concluded the Defendant violated.'" The Sixth Circuit rejected the argument and disagreed with the Seventh Circuit case on which it was based, explaining,

Because 18 U.S.C. § 2422(b) criminalizes persuasion and the attempt to persuade, the government is not required to prove that the defendant completed or attempted to complete any specific chargeable offense. The government need only prove, and the jury unanimously agree, that the defendant attempted to persuade a minor to engage in sexual activity that would have been chargeable as a crime if it had been completed.

Because "the underlying Kentucky criminal offenses are not elements of the federal offense," the court reasoned, "[t]here is no requirement . . . that [the jury] had to unanimously agree on the specific type of unlawful sexual activity that [the defendant] would have engaged in."

The court also rejected several arguments relating to the constitutionality of Section 2422(b), 18 U.S.C. § 2251, and the sentences imposed for both convictions.

Shooting Pepper Spray at a Person Without Justification, Mich. Comp. Laws § 750.224d(2) = "Crime of Violence"

(Shooting pepper spray into the air while running = bad idea.)
In United States v. Mosley, 09-2359 (Mar. 29, 2011), the Sixth Circuit found that a misdemeanor conviction for shooting pepper spray at a person without justification in violation of Mich. Comp. Laws § 750.224d(2) necessarily constitutes a "crime of violence" under U.S.S.G. §§ 4B1.2(a) and 2K2.1(a).
The defendant argued that the Michigan pepper spray statute would appear to encompass conduct involving only "a low concentration of chemicals," and thus might not "involve conduct that presents a serious risk of physical injury." Focusing on "the ordinary case," however, the court concluded that "it is hard to imagine" a case in which pepper spray would be only mildly annoying, since "[t]he idea . . . is not to produce a slight irritant to a mugger or a bear; it is to stop them both in their tracks by incapacitating them." Because the statute "involves conduct that presents a serious potential risk of physical injury to another," it falls within the "residual clause" of U.S.S.G. § 4B1.2(a) and meets the definition of a "crime of violence."
The court further declined to apply the "carve out for misdemeanor convictions" found in 18 U.S.C. § 921. While Section 921 expressly excludes crimes defined under state law as misdemeanors, 18 U.S.C. § 921(a)(20)(B), this exemption applies by its terms only "as used in" the statute, and the Guidelines contain no comparable language. Thus, "while there are many parallels between 'violent felon[ies]' under the statute and 'crimes of violence' under the guideline, this is not one of them."
Lastly, the court found that the district court's failure to invite the defendant to speak at his re-sentencing after remand was not prejudicial because the defendant had previously spoken at his initial sentencing hearing and because "[a]llocution is not designed to allow defendants to re-argue their lawyers' legal positions, and, . . . that is all Mosley wished to do here . . . ."

Friday, March 25, 2011

Judges have to find a lot of facts to impose the official victim enhancement pursuant to U.S.S.G. § 3A1.2(c)(1)

In order to apply the official victim enhancement under U.S.S.G. § 3A1.2(c)(1), the court must find that “the defendant or a person for whose conduct the defendant is otherwise accountable . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom.” In United States v. Anderson, a police officer was shot during the course of a drug bust. No. 09-6318, (6th Cir. Mar. 24, 2011) (unpublished). One of the defendants appealed and won because the district court did not make findings of fact sufficient to support a finding that either defendant actually "knew or had reasonable cause to believe" he was shooting at a police officer.

The district court found that the police knocked on the door, the police announced their presence, another individual heard the police identify themselves, and that the defendants had had a discussion about law enforcement. However, the Sixth Circuit nonetheless held that, “these facts standing alone, do not support a finding that either defendant actually ‘knew or had reasonable cause to believe’ that the individuals on the other side of the door at that moment were indeed the police.” (emphasis in original). The Sixth Circuit explained that the finding that another individual heard the officers identify themselves “is insufficient to constitute a finding as to what [the defendants] heard.”

This may be somewhat of a hollow victory, however. While the Sixth Circuit vacated the opinion, it instructed the district court to make the appropriate factual findings on remand. This may be problematic for the defense, as the Sixth Circuit held that, “the PSR contains facts that could support such a finding.” In other words, there is nothing to stop the district court from making the proper findings and reapplying the enhancement on remand. However, this case does remind us that Judges need a strong factual background to apply this enhancement.

Thursday, March 24, 2011

Proffer Info in PSRs

It's not my blogging week, so I'm sorry if I'm barging in on my co-bloggers. But this issue has been popping up a lot lately, so I felt an irresistible impulse to post. Forgive me, please, if this post is rude!

United States v. Jackson, No. 09–1630 (6th Cir. Mar. 24, 2011) (recommended for publication). Panel of Judges Siler, Clay, and Gibbons.

D pleaded to bank robbery. Proffered. Had proffer agreement with gov: statements would not be used against him. Presentence report (PSR), however, included several statements from D’s proffer. These statements were initially used in calculating the guideline range, and dist court relied on them in determining the sentence.

D objected to this increase in his GL range based on the statements. "He argued the conclusion [co-D’s] conduct was a ‘reasonably foreseeable act[] . . . in furtherance of the jointly undertaken criminal activity,’ USSG § 1B1.3(a)(1)(B), was impermissibly based on his proffer-protected statements." Gov agreed and used an FBI agent to establish an independent source for the GL range increase. Dist court overruled D’s objection, finding the information regarding the increase was obtained by law enforcement before the proffer. Appellate court notes that D "did not object to any of the information relied on by the court in determining his sentence."

D argued "his proffer-protected statements were impermissibly used to increase his guideline sentence range." Court looked at GL section 1B1.8, which provides that proffer "information shall not be used in determining the applicable guideline range, except to the extent provided in the [proffer] agreement."

Appellate court concludes that "Had this information provided the basis for the enhancement that determined [D’s] ultimate guideline range, a violation of USSG § 1B1.8 would have occurred." But court found that the range could "be sustained without the use of the impermissible proffer-protected information." FBI agent provided independent source for info.

D also argued the increase was impermissible because, without the improper information in the PSR, he would not have received a higher advisory range—the increase would never have been an issue. And the FBI agent’s testimony was improper, as it never would have been presented, but for the objection to use of the proffer information. Appellate court notes that D "cites no case holding a later, valid guideline enhancement improper because of an earlier, improper enhancement" and rejects the contention.

D argued he had insufficient notice of the agent’s testimony. The agent’s info was not included in the PSR. Argued it was a violation of Rule 32 to allow presentation of the evidence for the first time at the sentencing hearing. But, court notes, D did not object to agent’s testimony. Nor did D seek a continuance. And Rule 32 was not violated. No requirement that all bases for determining offense level be included in PSR. And no prohibition against gov presenting additional evidence at hearing.

D argued "that not only does USSG § 1B1.8 preclude the use of proffer-protected information in determining the guideline sentence range, but that it also categorically precludes the use of proffer information in the PSR." But, court says, no objection in dist court, so plain-error review applies. Court looks at commentary to 1B1.8 and finds that gov cannot withhold info from a sentencing court.

Court finds that "No Sixth Circuit case has reached a contrary result, while out-of-circuit opinion on this issue is split." Looks at "United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir. 1996) (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR)," and "United States v. Rourke, 74 F.3d 802, 809 n.6 (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court)." Also finds Rule 32(d)(3)(B)’s reference to confidential information unavailing.

The issue remains open: "We only review this issue for plain error, since [D] failed to object at the district court. While we reserve ruling on the question of whether proffer-protected information can be used in determining a defendant’s specific sentence, any error by the district court in this case is certainly not plain."

Sentence affirmed.

Wednesday, March 23, 2011

Why can’t defense attorneys ever manage to preserve procedural reasonableness objections?

As recent cases have pointed out, procedural reasonableness objections never seem to get preserved unless the district court forgets to ask the Bostic question. See, e.g., United States v. Wilkins, No. 09-1890 (6th Cir. March 23, 2011) (unpublished); United States v. Burnette, 2011 U.S. App. LEXIS 5648 (6th Cir. Mar. 16, 2011) (unpublished). The reason for this has to do with the way the Bostic question works. The Sixth Circuit decided in United States v. Bostic that the district court has an obligation at the end of sentencing to ask for objections to the sentence that have not been previously raised. 371 F.3d 865, 872 (6th Cir. 2004). If the district court asks the Bostic question and defense counsel fails to object, any procedural reasonableness claims will be subject to plain error review.

But wait, procedural reasonableness objections are generally based upon a district court’s lack of explanation for some aspect of the sentence (rejection of a defense argument, making the sentences consecutive, etc.). So if the court asked the Bostic question and defense counsel did object to the lack of explanation, the district court would almost certainly proceed to provide further explanation. This further explanation would likely moot the appellate issue of lack of explanation.

So, it’s not the case that defense attorneys never object on procedural reasonableness grounds in response to the Bostic question. Instead, when they do appropriately object in that situation, they immediately win that issue without the need to appeal in the sense that they get the further explanation they were seeking. The take-away here is twofold:

1) The Bostic question is working in terms of forcing district courts to be procedurally reasonable the first time around.

2) At the end of sentencing, if the district court asks the Bostic question, defense attorneys should make a habit of objecting to the district court’s lack of explanation on important issues. Further analysis could cause the court to change it’s mind, and even if it doesn’t, at least the record will be clear on appeal.

Friday, March 18, 2011

One More Post: Money Laundering

(Tried to find a "laundering" pic.)

United States v. Crosgrove, No. 08–4650 (6th Cir. Mar. 18, 2011) (to be published). Panel of Judges Merritt, Rogers, and White.

After a trial, D convicted of conspiring to commit mail fraud (violation of 18 U.S.C. § 371) and conspiring to launder money (violation of 18 U.S.C. § 1956(h)). Appellate court found that "the Government did not produce sufficient evidence at trial to support the conspiracy to commit money laundering charge, and the judgment of conviction for that count has to be vacated." The "Government failed to show that the money involved in the alleged transactions represented the profits of unlawful activity, as required under United States v. Santos, 553 U.S. 507, 514 (2008), and United States v. Kratt, 579 F.3d 558, 561–62 (6th Cir. 2009)."

Indictment alleged that defendant conspired to participate in "promotion" money laundering, violating 18 U.S.C. § 1956(a)(1)(A)(i). "Promotion" money laundering involves reinvestment of proceeds of unlawful activity into the illegal scheme from which those proceeds were derived. The government must prove that a defendant conspired to conduct a financial transaction involving the proceeds of unlawful activity, with knowledge that the money was the proceeds of the unlawful activity, and with the intent to promote such underlying criminal activity.

The government must identify transactions (or planned transactions for a conspiracy charge) that represent the proceeds of the underlying illegal activity. Prosecutor here stated at oral argument that the only transactions on which the conviction could be upheld were the defendant’s deposits of checks that were issued to him from a certain "member fees" account.

These checks were monthly checks for pre-established, fixed amounts and could be characterized as salary payments. The jury found the defendant guilty on June 3, 2008, one day after the Supreme Court issued its decision in Santos. So while it is understandable that the impact of the Santos decision was not considered at trial, that decision’s interpretation of the "promotion money laundering" statute, as understood in the Sixth Circuit, still controls this case.

And because the defendant’s money laundering and mail fraud charges merge, and the money laundering charge carries a substantially higher statutory max than the mail/wire fraud charge, the government had to show that the proceeds involved in the charged transaction represented scheme profits—not just gross receipts.

Prior to Santos, the Sixth Circuit interpreted "proceeds" to mean gross receipts. But post-Santos, the circuit has "concluded that proceeds means profits for cases that fall within a certain framework, but continues to mean receipts for all other cases. ‘‘Proceeds’. . . means profits only when the § 1956 predicate offense creates a merger problem that leads to a radical increase in the statutory maximum sentence and only when nothing in the legislative history suggests that Congress intended such an increase.’" Court found that this case falls within this framework.

Because the money laundering conspiracy charge significantly increased the defendant’s potential sentence, it was necessary to determine whether the predicate offense and the money laundering charge merged. But it was "not necessary to decide in this case whether the merger analysis requires a case-by-case or categorical approach . . . because the crimes as charged obviously merge."

Charges merged, and the money laundering charge carried a far heavier statutory max than the mail/wire fraud charge. Nothing in the legislative history indicates that Congress intended this result for the predicate crime of mail/wire fraud unrelated to narcotics trafficking. So the profits definition of "proceeds" had to apply to this case.

While there may be an argument that someone in the defendant’s position could receive such a high fixed payment, even one characterized as a "salary," because it represented profits of the enterprise, no such evidence was presented. And the monthly payments the defendant received ($2,500, $3,000, and $3,500) did not appear exceptional and could not be construed as anything more than payments for services rendered.

Appellate Advocacy Issue:

Defendant raised a claim of insufficient evidence in his initial brief, but he based that claim on a mens rea argument. Mentioned Santos only in his reply brief, and only in the context of the knowledge claim.

Reply brief did not discuss the receipts/profits distinction or the merger issue. At oral argument, the prosecutor contended that the Santos argument should have been deemed forfeited. But court finds that defendant did make an insufficiency-of-the-evidence claim before the trial court and in his initial brief, so the prosecutor was aware of the claim.

And while the defendant’s initial brief emphasized the government’s failure to prove knowledge, it also asserted that the defendant was just an employee of the scheme, and argued that the government had failed to prove the defendant knew the property represented proceeds of unlawful activity, and that he had the intent to promote the carrying on of the activity. So the defendant "may have, albeit inartfully, put all aspects of the money laundering charge into issue in his initial brief."

And even if the defendant did fail to raise a Santos claim, the court noted that it "may nonetheless reverse the conviction in the interest of justice." Such reversal requires satisfying the plain-error standard. Such was the case here. The error need only be plain under current law.

District court’s evidentiary rulings upheld. Sundry sentencing decisions affirmed.

Carradine---Seeking Cert

FYI on Carradine v. United States, No. 10-8937 (Feb. 10, 2011).

Filed for cert. Gov. has waived right to respond. Distributed for conference on March 18.

See Oct. 1 entry for more info on this case. (6th Cir. said FSA not retroactive.)

Pepper Decided!!!!! Good News!

You have probably already heard about the Supreme Court's recent decision in Pepper v. United States, No. 09–6822 (Mar. 2, 2011). But it's a great case and deserves noting here.

The Court decided that when a sentence has been set aside on appeal and a case remanded a district court may consider evidence of a defendant’s post-sentencing rehabilitation and such evidence may support a downward variance.

Court discussed the role of 18 U.S.C. § 3742(g)(2), noting that § 3742(g)(2) restricts the discretion of a district court on remand by barring imposition of a sentence outside the guideline range except upon a ground of departure that was expressly used in the prior sentencing and upheld on appeal. Amicus contended that § 3742(g)(2) forecloses a resentencing court from considering evidence of a defendant’s postsentencing rehabilitation for purposes of imposing a non-guideline sentence, as such evidence did not exist at the time of the prior sentencing. But the Court found that "§ 3742(g)(2) is invalid after Booker."

Court pointed out that it abrogated 18 U.S.C. §§ 3553(b)(1) and 3742(e) in Booker, and that its reasoning there applied to § 3742(g)(2) as well. Court found that "we see no general congressional policy reflected in § 3742(g)(2) to preclude resentencing courts from considering postsentencing information, that provision has no bearing on our analysis of whether § 3553(a) permits consideration of evidence of postsentencing rehabilitation."

Other things to consider:

Section 3742(g)(2) is akin to § 3742(g)(1), which says that the old GLs will apply at a resentencing. Pepper provides ammo to argue that the old GLs are not the GLs that should apply if the new ones are more favorable. (If they are less favorable, we have an ex post facto issue, but that's an issue to discuss at another time; courts have gone different ways on that issue.) The dissent makes this point very clear: "I agree with the Court that the decision below cannot be affirmed on the basis of 18 U.S.C. § 3742(g) . . . . This provision was designed to function as part of the mandatory Guideline scheme . . . ." (Alito, J., dissenting). He just says (g)---no further subsection.

Now, for the Grant issue. (See the Jan. 18 entry on Grant.)

Does the Supreme Court implicitly sanction sentences below the mandatory minimum based on the defendant’s substantial assistance and post-sentencing rehabilitation? In Pepper, "safety valve" (18 U.S.C. § 3553(f) and guideline section 5C1.2) applied, which can be used to distinguish the case from a pure Grant situation. But Pepper still provides a sanction from the Supreme Court to use information beyond substantial assistance to sentence below a mandatory minimum.

Assisting the gov. is an aspect of obtaining "safety valve" relief from a mandatory minimum sentence. And the Court clarifies in Pepper that "‘It has been uniform and constant in the federal judicial tradition for the resentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.’"

Punishment should fit the defendant "and not merely the crime." Congress and the Sentencing Commission have "expressly preserved the traditional discretion of sentencing courts to ‘conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.’" While there are some constraints on sentencing courts’ discretion, once a mandatory minimum is released, a sentencing court should be able to consider a wide array of factors. . . .

Plain-Error Review: Object in Bold Colors

Yes, we know the lesson, but once again we are reminded of the importance of preserving our issues for appeal.

United States v. Dumas, No. 10-3013 (6th Cir. Mar. 16, 2011) (unpublished). Panel of Judges Gilman, Gibbons, and Cook.

Supervised release revocation.


D got ten months for violating conditions of SR by failing to attend substance-abuse treatment and testing positive for cocaine.

After district court delivered its sentence, it asked whether there were any legal objections. Defense counsel objected to the length of the sentence, requesting more supervised release instead. District court asked counsel to clarify whether the objection was on procedural or substantive grounds. Counsel replied that the objection was that the sentence was "substantively unreasonable." Addressing the objection, the district court explained further the appropriateness of the sentence chosen and the necessity of imprisoning the defendant.


D appealed procedural and substantive reasonableness of sentence.

He argued that the district court neglected his mitigation arguments, that the court violated his due process rights under Rule 32.1(a)(3) by questioning him without informing him of his right to a hearing, and that his waiver of a revocation hearing under Rule 32.1 was not valid. Because the defendant did not raise these alleged procedural errors in the district court after an invitation to do so, review was for plain error.

Appellate court found that "This standard of review poses a problem for [the defendant]." Defendant failed to argue that the alleged errors were plain, affected substantial rights, and seriously affected the fairness/integrity/reputation of the judicial proceedings. Court clarifies that even if the defendant had properly formulated the plain-error arguments his claims would fail. Court found that the district court considered the mitigating arguments. The second alleged error did not affect the defendant’s substantial rights: even if the court violated Rule 32.1 when it questioned the defendant before he waived his right to a hearing, such a violation did not necessarily affect the ultimate sentence. And even if his waiver of a hearing was invalid under Rule 32.1, any error would be harmless. The defendant did not contest his drug use and the evidence was against him.

In terms of substance, the ten-month sentence was reasonable. The defendant evaluated the circumstances and applied the § 3553(a) factors. The defendant had continued using drugs despite the district court’s prior leniency. The sentence was within the guideline range.

Moral of the story: object with specificity! Don’t lose procedural objections in the district court. And if you do face plain-error review, argue with specificity that the error was plain. Yes, it's something we all know, and it may be hard "on the fly," but it's always good to be reminded.

Monday, March 07, 2011

Child porn: printed pics or virtual, copies count

What if my client was just really good about backing up his hard drive and made copies of his digital child pornography that way? The Sixth Circuit, in United States v. McNerney (found here), recently ruled those copies count for the enhancement for number of images under U.S.S.G. 2G2.2(b)(7).

This opinion is a must-read for several reasons in addition to its holding.

In Footnote 2, the Court creates a useful vocabulary for discussing digital and non-digital images. Anything saved on a digital medium (hard drive, memory cards, internet) is a "digital image." The more traditional porn - on paper, on video cassette - is a "hard copy image." "Duplicate" images of either type are identical copies. "Unique" images of either type are those for which there is no copy. Simple, and yet no one has committed to it before. So now there's a chance we might all use the same language to describe images, which could clean up records significantly.

Mr. McNerney had all of his files backed up on a second hard drive. This doubled the number of digital images he possessed: for every image on his main computer, an exact copy existed on the second hard drive. McNerney argued only the unique images should count, not the duplicate images. The Court said even duplicates count, because their presence increases the likelihood of further distribution and because if the main drive fails, you still have a back-up.

Thumbnail images do not count towards the total.

The Court spends a good bit of time discussing the history of 2G2.2, in a way that does not bode well for arguments that the child pornography guidelines should be discounted because they are not based on empiracle research. Basically, "if Congress told the Guidelines Commission to do something, that makes it a legitimate enough guideline for us."