Tuesday, September 27, 2011

Freeman in Action

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

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

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

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

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

Tuesday, September 20, 2011

Double Jeopardy: Maybe, Maybe Not

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

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

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

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

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

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

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

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

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

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

Monday, September 12, 2011

Sixth Circuit shifting oral argument practice

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

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

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

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

Friday, September 09, 2011

Ruff justice is not so rough



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

No reason to be alarmed. Move along.