Monday, June 27, 2011

Court vacates conviction, death penalty, and remands for new proceedings

Prosecutorial misconduct remains a viable basis for overturning a conviction.  In today's opinion in Matthews v. Parker, the Court vacated a judgment and the death penalty based upon a defendant's claim that the State had committed misconduct during its closing arguments. 11a0163p.06   The Court found that "The prosecutor’s comments during closing arguments regarding Petitioner’s supposed exaggeration of his EED, and collusion with his attorney and doctor, were both improper and flagrant. “[T]he Commonwealth’s misconduct was sufficiently egregious to render the entire trial fundamentally unfair.” Gall II, 231 F.3d at 315. Accordingly, the prosecution’s statements suggesting that Petitioner and his defense team colluded to manufacture his EED claim, and exaggerated the extent of his EED, rendered Petitioner’s trial unfair, and denied him of his constitutionally protected due process rights."

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

Yesterday, in a 5-4 decision, the Supreme Court reversed the Sixth Circuit in Freeman v. United States, holding that Petitioner William Freeman could move for a sentence reduction because of retroactive amendments to the crack guidelines.

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

Four New Supreme Court Decisions

Yesterday, the Supreme Court issued opinions in four criminal cases:

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

Later Discovery of an Outstanding Arrest Warrant Does Not Remove Taint from an Illegal Stop

In United States v. Gross, the Sixth Circuit amends an earlier published opinion, United States v. Gross, 624 F.3d 309 (6th Cir. October 19, 2010). The Gross case is the second to involve the same officer blocking a legally-parked car in a high-crime area to detain the occupants.

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

United States v. Taylor: An Extra Dash of Pepper

Yesterday saw the publication of a significant case addressing subsection (g) of 18 U.S.C. § 3742, which addresses a district court’s treatment of the sentencing guidelines upon remand for resentencing. Judge Moore’s comprehensive opinion in United States v. Taylor, No. 09-1961 demonstrated a considerable understanding of both § 3742 and the Supreme Court’s recent decision in Pepper v. United States, and gave some teeth to that opinion’s holding.

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

United States v. Moore: Sixth Circuit rejects Eighth Amendment challenge to ACCA

In United States v. Moore, No. 09-5935 (June 1, 2011), the Sixth Circuit rejected an Eighth Amendment challenge to a mandatory minimum fifteen-year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

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.