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.