Wednesday, April 25, 2012

Sixth Circuit Increases Appellate Scrutiny of Sentencing Decisions Contrary to Supreme Court Opinions

There being nothing of particular interest issued in the last couple of days [okay, so I'm about a week late with this] we are going to reach back to a case from January, United States v. Bistline, 665 F.3d 758 (2012), to discuss some important observations by the sentencing resource counsel on the holding in that case.

Bistline was a government appeal of a sentence of 1 day in jail followed by 10 years of supervised release in a possession of child pornography case for a 67-year old defendant with no prior criminal record and who had suffered 2 strokes in the preceding 11 years with an advisory guideline range of 63 – 78 months. (The Probation Office had recommended a sentence of 24 months.) In reaching that sentence the district court noted that the guideline in question, §2G2.2, was seriously flawed due, in part, to Congress’ involvement in its creation. (The child pornography guidelines are nationally among the most departed or varied downward from.)

In finding the sentence to be unreasonable, the Court of Appeals first reviewed the district court’s rejection of §2G2.2 based on Congress’ role in its development. In doing so the Court of Appeals first noted that "if a district court chooses to disagree with a guideline, we will ‘scrutinize closely’ its reasons for doing so," id. at 761, and then noted that "a district court cannot reasonably reject §2G2.2 – or any other guidelines provision – merely on the ground that Congress exercised, rather than delegated, its power to set the policies reflected therein." Id. at 762. Attempting to distinguish the guidelines challenge to the crack-to-powder ratio in Kimbrough, the Court notes that the ratio, although derived from the relevant statute, was all the Commission’s doing. The Court then held that "when a guideline comes bristling with Congress’s own empirical and value judgments – or even just value judgments – the district court that seeks to disagree with the guideline on policy grounds faces a considerably more formidable task than the district court did in Kimbrough. A court that disagrees with §2G2.2 must take on this formidable task." Id. at 764. Having set the bar so high, it is small wonder that the Court finds the district court here unable to top it.

Also, addressing the district court’s consideration of the § 3553(a) factors relating to the "history and characteristics of the defendant," the Court of Appeals, citing to U.S. v. Christman, 607 F.3d 1110 (6th Cir. 2010), found that the sentence was unreasonable because the characteristics that the district court cited in support of its downward variance – age, physical condition and family responsibilities – "are all discouraged factors under the guidelines."

These rulings raise serious questions that appear to conflict with the Supreme Court’s post-Booker sentencing cases. First, with regard to the "closer scrutiny" the Court of Appeals would now apply to variances based on policy disagreements, the Supreme Court in Kimbrough refused to apply such closer scrutiny to the decision of the district court there to vary the sentence based on the problems with the crack guidelines because the Commission was not acting in its "characteristic institutional role" in creating the crack guideline, in part because it followed Congress’ lead in using the 100:1 ratio for the mandatory minimums. Kimbrough, 128 S.Ct. at 575. As such, the district court’s rejection of §2G2.2 on policy grounds based on the Commission’s failure to act in its usual institutional role is one of the decisions that is exempt from "closer review" under Kimbrough. The Court of Appeals’ attempt to distinguish Kimbrough as being all about the Commission (and not Congress) would seem to be unavailing where 1) Congress created the 100:1 ratio and used it to set the mandatory minimum sentences in the statute, 2) the Commission brought the problems with the crack-to-powder ratio to Congress’ attention at least twice before the Fair Sentencing Act and Congress refused to change it (that is, Congress continued to mandate the policy to the Commission), and 3) the government argued in Kimbrough that "Congress ‘not only disapproved of the 1:1 ratio,’ ... it also made clear ‘that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio.’ Brief of the United States 35." Id. at 572. (emphasis added.)

Further, in Gall v. U.S., 128 S.Ct. 586 (2007), the Court stated, "We reject, however, an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.[at 595] ... Most importantly, ... the exceptional circumstances requirement ... reflect[s] a practice ... of applying a heightened standard of review to sentences outside the Guidelines range. This is inconsistent with the rule that the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions – whether inside or outside the Guidelines range. [at 596]"

Second, the Court of Appeals’ decision is further undermined by the Supreme Court’s decision in Spears, 129 S.Ct. 840 (2009), in which it stated, "The correct interpretation of [the holding in Kimbrough] is the one offered by the [8th Circuit] dissent in Spears II: ... The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines – its policy view that the 100-to-1 ratio creates an unwarranted disparity.’" 129 S.Ct. at 842. And in case that didn’t make it clear enough, the Court stated, "That was indeed the point in Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." Id. at 843. (emphasis in original).

With regard to the Court of Appeals’ ruling on the "discouraged" Chapter 5H considerations, it first appears that the Court may have been applying an earlier version of the guidelines, unaware that a change was made in 2010. (Compare, e.g., §5H1.1 – Age (Policy Statement) [2009] "Age ... is not ordinarily relevant in determining whether a departure is warranted." with §5H1.1 [2011], "Age ... may be relevant in determining whether a departure is warranted..."; and, §5H1.4 [2009], "Physical condition or appearance ... is not ordinarily relevant in determining whether a departure may be warranted." with §5H1.4 [2011], "Physical condition or appearance ... may be relevant in determining whether a departure may be warranted...".)

Second, the Court of Appeals’ holding with regard to the Chapter 5H factors appears to be contrary to the Supreme Court’s rulings in Gall v. U.S., 128 S.Ct. 586 (2007) and Pepper v. U.S., 131 S.Ct. 1229 (2011), where the Supreme Court’s own analysis shows the relevant question in reviewing a request for variance is whether those factors are relevant to the purposes of sentencing in § 3553(a), not whether or not the Commission permits, prohibits or discourages the factor. In Pepper the Court refused to find a sentence unreasonable despite a policy statement, §5K2.19, expressly prohibiting the use of post-sentencing rehabilitation as the basis for a lower sentence, as the district court did in Pepper. In doing so the Court stated, "our post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views." 131 S.Ct. at 1247.

In an amicus brief filed by the Federal Defenders of the Sixth Circuit in support of Bistline’s request for rehearing en banc, the Defenders point out that the decision of panel in Bistline that Congress is free to marginalize the Commission all it wants because it created the Commission – to treat it as a "junior varsity," to borrow Justice Scalia’s phrase – may very well violate the constitutional bicameralism and presentment requirements as well as raise issues of separation of powers that were only avoided in Mistretta by a finding that Congress was not using the Commission as a "junior varsity." The Court of Appeals’ creation of this higher standard of review also essentially takes us back to mandatory guidelines, in violation of Booker and the Sixth Amendment. The Court of Appeals denied rehearing and rehearing en banc on February 29, 2012. Keep an eye out for the cert petition that is sure to follow.

Monday, April 16, 2012

Extortion Defined

In a case of first impression, the Sixth Circuit defines extortion under 18 U.S.C. § 875(d). This well-publicized case involves a Michigan couple seeking money from the actor John Stamos in exchange for not publicly revealing several alleged pictures of an hotel party involving the then-17 year-old defendant.

Following the Second Circuit, the Court finds the statute constitutional because it requires the threat be wrongful and made in conjunction with a specific intent to extort. A wrongful threat is defined as having no nexus to a true "claim of right":

Their only leverage for obtaining this money was the threat of selling the photographs to a tabloid, as evidenced by the fact that if they had actually sold the photographs to a tabloid, they would have no longer had a basis for insisting that Stamos pay them $680,000 in cash. Thus, because Coss and Sippola were not using their threat to collect on a debt owed to them, or to exercise any other claim of right against Stamos, their threat had no nexus to a valid claim of right and was wrongful. Moreover, this wrongful threat was made with the deliberate intention of extracting the desired sum of money from Stamos.

Although Coss and Sippola are correct that they may have had a lawful right to possess the photographs and a lawful right to offer Stamos the opportunity to purchase the photographs, their conduct became unlawful when their offer to Stamos was made in the form of a wrongful threat accompanied by an intent to extort.

Because “true threats” are not protected speech, the statute is constitutional. The full opinion, United States v. Coss et al., Nos. 10-2230/10-2331 (6th Cir. April 16, 2012) can be found here.

Wednesday, April 11, 2012

More Muddying of the ACCA Waters

In Sykes v. United States, 131 S.Ct. 2267, 2284 (2011), Justice Scalia in dissent, discussing what he refers to as "the Delphic residual clause," says, "Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that the ACCA’s residual provision is a drafting failure and declare it void for vagueness." Derrick Johnson would agree, but, unfortunately, the majority didn’t agree with Justice Scalia, and the Sixth Circuit didn't agree with Derrick Johnson.

The issue in United States v. Johnson, No. 10-5691/5778 (6th Cir. 2012), was whether Johnson’s Missouri conviction for third-degree assault could be a predicate for the Armed Career Criminal enhancement. Third-degree assault is a misdemeanor in Missouri, but because Johnson had two prior convictions for the same offense, his third conviction became a Class D felony.

The government conceded that the offense was not a "violent felony" under the categorical approach. This, then, allowed the Court to review the charging documents. Although the statute involved, Mo.Ann.Stat. § 565.070.1(1)-(6), could be violated by both intentional and reckless conduct, the Court of Appeals finds that since Johnson was charged with one of the "intentional" subsections, and not one of those charging reckless conduct, the Court could go on to consider whether or not it was a "violent felony." Enter Sykes.

In Begay v. U.S., 553 U.S. 137 (2008), the Supreme Court had narrowed the category of offenses to which the ACCA enhancement would apply by requiring that a predicate offense being examined under the residual clause be "similar in kind" to those enumerated offenses by involving "purposeful, violent, and aggressive conduct.". This would seem to be consistent with the nature of recidivist statutes that seek to punish offenders who are worse than others. In Sykes, however, the Court retreated from this narrowing by Begay to expand the class of individuals to whom the ACCA will apply by focusing, not on the nature of the offense, but on the level of risk of physical injury to others the offense presents. Employing such a test it would not be difficult for some courts to come to the opposite conclusion about DUI’s that Begay did. Applying Sykes, the Court of Appeals in Johnson had no problem finding that the enhanced Missouri misdemeanor conduct qualified for ACCA purposes as a "violent felony."

The Court also noted in Johnson, however, that part of the test for determining whether a prior conviction is an ACCA predicate is "whether the prior offense ‘conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.’" (quoting Begay, 553 U.S. at 145.) While Begay does use that language, it does not appear to be in the context of elements of a test, but rather as an explanation of the "violent" and "aggressive" conduct involved in the enumerated offenses. Although that phrase (in slightly different form) is referenced in Sykes, it is not in the context of the test to be applied to the prior convictions and is not applied in the Court’s discussion of the "risks" test applied to Sykes’ prior conviction for evading arrest. This may be proof of Justice Scalia’s prediction in Sykes that the opinion’s "ad hoc judgment [] will sow further confusion." (131 S.Ct. at 2284.)

Friday, April 06, 2012


The Sixth Circuit decided United States v. Kearney yesterday, a case which was mainly about whether or not a prior offense can be a violent felony if it is a misdemeanor that became a felony due to a recidivism enhancement. This issue had already been decided in favor of the government in the serious drug offense context under the ACCA, so the decision did not come as a big surprise. It was somewhat surprising to see that there was a dissent and that the Sixth Circuit took time to acknowledge the failings of the ACCA as a criminal statute.

The most interesting thing about this case however, was its take on Sykes v. United States. Sykes appeared to say that the purposeful, violent, and aggressive test was only to be used for negligent, reckless, and strict liability crimes. Yet the Sixth Circuit applied that test in Kearney despite the fact that it was dealing with an intentional crime.

So, do not stop making the purposeful violent and aggressive argument, though it was apparently slain by Sykes, Kearney has resurrected it in the Sixth Circuit.

Wednesday, April 04, 2012


This week in United States v. Washam the Sixth Circuit, over a strong dissent, handed down a case that could serve as a primer on how to convict someone without any actual evidence of guilt. This bank robbery case is chock full of errors, but the most interesting one is perhaps the failure to suppress pretrial identifications.

In order to exclude such identifications, a defendant must show that the identification procedure was unduly suggestive and the identifications were not “otherwise reliable.” Here, the police used a photo array in which only one photo (the defendant’s) came even close to matching the description of the suspect. Accordingly, there is no dispute that the procedure was unduly suggestive. After all, if the other photos are all clearly wrong, what choice did the witnesses have but to pick the defendant’s photo?

But were the identifications “otherwise reliable” and does that term have any real meaning after this case? Though the majority would answer those questions in the positive, in a practical sense, the answer is probably “no.” First, even though the array was highly suggestive, only three out of five bank employees managed to pick out the defendant’s photo. Second, even those employees that picked out the defendant’s photo failed to identify him as the robber and merely stated that he resembled the robber more than the other pictures:

“One employee wrote, ‘I [] feel that number 3 looks very similar to the gentleman that robbed our branch. When I saw the lineup he immediately jumped out at me.’ The second employee wrote, ‘[N]umber 3 looks like the robber.’ The third employee wrote, ‘Possible number 3, same shaped face, cheekbone structure, eyebrows look like the [robber].’” (internal citations omitted).

Third, at trial only one of the three employees was able to successfully identify the defendant in person. Fourth, the only employee to identify the defendant at trial was not one of the tellers and was the employee with the worst vantage point to observe the robber. Finally, the circumstances of the crime were not conducive to accurate identification: the robber was a stranger to the tellers, the employees only interacted with the robber for a few brief minutes, several of the employees stated that the gun distracted their focus from the robber himself, there was an issue of whether the cross-racial identifications were inherently suspect, and the robber was disguised by a baseball cap and sunglasses.

Respectfully, if the identifications in this case were “otherwise reliable” despite the unduly suggestive nature of the procedures used, then it seems that the phrase “otherwise reliable” no longer has any real meaning as a limitation on the government’s ability to manipulate evidence.