Wednesday, April 27, 2011

A substantively unreasonable sentence?

On April 25, 2011, the Court remanded a case for resentencing, and may have held, for only the second time, that the sentence imposed was substantively unreasonable.

In United States v. Worex, 09-5754 11a0264n.06, the defendant argued that her sentence was substantively unreasonable, due to the fact that the district court relied on uncharged allegations that were not proven by a preponderance of the evidence.  In remanding the case for resentencing, the court found that "before enhancing Worex’s sentence based upon her alleged involvement in the shootings, the district court was first required to make findings by a preponderance of evidence regarding this uncharged conduct. The district court did not do so, and its decision was therefore an abuse of discretion."

The Court remanded the case for resentencing on this basis.  It appears clear, from the Court's opinion, that this is a decision based upon substantive reasonableness standards.  There is no discussion in the opinion of a procedural reasonableness review. 

Friday, April 22, 2011

In Rare Occurence, Merritt Upholds Death Sentence

Even Judge Merritt could not find any grounds to issue a writ of habeas corpus to Jesse Cowans. In a published decision issued yesterday, Cowans v. Bagley, the Sixth Circuit affirmed Cowans' conviction and death sentence.

The Senior Circuit Judge, who is one of the Court's strongest defender's of individual rights, has been disinclined to affirm death sentences. But Cowans -- who murdered a defenseless old lady and then forbade his attorney from offering any mitigating evidence -- presented no possible hook on which to hang an argument.

Judge Merritt wrote a concurrence, seemingly explaining that his hands were tied.

Facilitation of Burglary NOT a Violent Felony

Just a quick note on a good opinion.

United States v. Vanhook, No. 09–5778, 2011 U.S. App. LEXIS 7884 (6th Cir. Apr. 18, 2011). The court considered Tennessee’s offense of facilitating a burglary. The court found that "there remains little question that the act of facilitating the burglary of a building creates a serious risk of violence." The offense may have presented such a risk, but the court found it is not a violent felony for Armed Career Criminal Act purposes because "This is one of the rare cases in which a statute criminalizing ‘knowing’ conduct does not describe conduct sufficiently purposeful to qualify as a violent felony." The court went on to find that its decision was "further buttressed by the fact that facilitation of burglary is not necessarily the type of violent or aggressive crime generally characterized as a violent felony."

Tuesday, April 12, 2011

Summary evidence should not be allowed into jury room

In an unpublished fraud case issued today, United States v. Horacio Munar, the Sixth Circuit vacated a six-level multiple-victim enhancement under U.S.S.G. § 2B1.1(b)(2)(c), and remanded for resentencing because the district court failed to address the defendant’s sentencing objection.

Of note in this opinion is whether to allow summary evidence before a jury – a subject that does not have much precedent in this circuit. There were over 6,000 admitted exhibits at trial in this case. One summary chart was not admitted into evidence but was given to the jury, albeit with a limiting instruction and altered title indicating it was not evidence.

The Sixth Circuit held that “pedagogical devices/illustrative aids used at trial should not be allowed into the jury room without consent of all the parties since they are more akin to argument than evidence.” The jury was given this evidence during deliberations over defendant's objection. Even with “a limiting instruction, there is authority to the effect that the better practice is to allow the exhibit to be used only as a demonstrative adjunct to testimony, and not to allow the chart to be formally admitted into evidence and thus go to the jury room.”

Ultimately, the Sixth Circuit concluded the jury should not have been given the chart, but the error was harmless because the case was complex and the limiting instructions dispelled any danger the jury would rely on the exhibit as fact.

Statistics 101

In United States v. Jones, a jury acquitted the defendant of all charges except for three counts of fraud based on improper billing, representing a total loss of $120.76.

The defendant was sentenced to 18-months imprisonment, and ordered to pay $224,133(!!) in restitution for the conduct associated with his acquitted counts. At sentencing, the government used a statistical extrapolation from some of the defendant’s billing records to establish loss.

Ready for a statistics refresher? The Sixth Circuit recognized that “a statistical estimate may provide a sufficient basis for calculating the amount of loss caused by a defendant.” Here, however, the statistical analysis was flawed because it did not form a representative sample of bills – over fifty patient billing records were missing. The district court did not “even realize that the fifty four files were missing and it definitely did not make a finding as to whether they were fraudulent.”

The lesson learned is to have a grasp of basic statistics. Because the government’s statistics were flawed and because the government had not proven the acquitted conduct by a preponderance, the sentence was vacated and remanded to determine the total amount of loss and restitution.

Monday, April 11, 2011

Considering a sentencing memo requires more than just reading it

There have been few published opinions of note lately, but there is one unpublished opinion of interest issued today.

In United States v. Pizzino, No. 09-2146 (6th Cir. April 11, 2011), the Sixth Circuit vacates and remands a within-guidelines sentence of 180 months for distributing CP because the district court did not address non-frivolous arguments for lenience. For a district court to merely state it “received and understood a defendant’s sentencing memorandum” is insufficient and “does not fulfill its duty" under § 3553(a). The failure to consider the supporting evidence and the defendant’s circumstances was procedural error, particularly when the district court responded in detail to the prosecution’s arguments, but failed to address arguments of defense counsel.

In the sentencing memorandum, defense counsel presented several arguments for a lower sentence, including limited criminal history, low risk of recidivism, and the alternate sentences available, a statement from the defendant’s therapist, as well as the therapist’s notes, all of which highlighted progress and low risk of recidivism.

CP Guidelines are Presumptively Reasonable

In footnote seven, the Sixth Circuit notes many district court have expressed reservations about the child-pornography sections of the Guidelines being based solely on congressional mandates rather than empirical studies. However, the Sixth Circuit states the “presumption of reasonableness [of the Guidelines] attaches to all sentences within the Guidelines range; there is no ‘empirical evidence’ prerequisite.”