Monday, January 30, 2012

Sixth Circuit Shows No Love for ACCA Void for Vagueness Arguments

Ever since Scalia’s dissent in Sykes v. United States—where Scalia opined that the ACCA otherwise clause is unconstitutionally void for vagueness—defense attorneys have challenged this issue with renewed vigor and rejuvenated hopes that one day it might not fall on deaf ears. There has been speculation that one day appellate judges might get so frustrated with developing new tests for the ACCA otherwise clause that they will throw their hands up and just declare the otherwise clause void for vagueness. That day, in the Sixth Circuit at least, is not this day.

Today, in United States v. Fowler, the Sixth Circuit was confronted with the issue and spent the better part of a whole sentence analyzing the otherwise clause: “Finally, the ACCA’s residual clause is not unconstitutionally vague.”

Not an unexpected result, but it would be nice to see some analysis as opposed to decision by fiat. So keep challenging the ACCA otherwise clause, don’t lose hope, but don’t expect to spend much time on this issue at oral argument either.

Friday, January 27, 2012

Automatic Lifetime Supervised Release on a CP case? Not so fast!!!

Brandon Inman plead guilty to possession of child pornography.  At sentencing, both defense counsel and the Government requested a supervised release term of 10 years.  The court refused, and imposed a lifetime term of supervised release.  The court also imposed a prison term of 57 months.

On January 26, 2012, the Sixth Circuit reversed this sentence. 12a0021p.06  The Court found that, even under a plain error standard of review, a court could not impose a lifetime term of supervised release without addressing 3553(a) criteria and providing reasons on the record for its choice.  The Court recognized that the Sentencing Guidelines recommended a lifetime term be imposed; however, the Court indicated that in light of the facts of the case, and the parties recommendation, serious consideration should be given as to this sentence term.  The Court further suggested to the district court: should the district court on remand decide to impose the ten-year term of supervised release recommended by the Government, the governing statute allows the court to extend the term of supervised release and to modify the conditions at any time prior to the term’s expiration if circumstances warrant such an extension or modification.

The Court also overturned some of the conditions of supervised release, including:  the requirements for mandatory drug testing, to notify the probation office and provide documentation of any prescription medication, and to provide the probation office with access to any personal financial information, as well as the prohibitions against consuming any alcoholic beverages, possession or use of a device capable of creating pictures or video, and renting or using a post office box or a storage facility.  The Court questioned the need for these restrictions, in light of the facts of the case and the offender.

Tuesday, January 24, 2012

The erosion of the Fourth Amendment nearing completion?

The Court today issued the published opinion in United States v. Fofana. 12a0018p.06  One paragraph from this opinion provides most of the story:



There is a difference between evidence that the Government obtains because of knowledge illegally acquired, and evidence properly in the Government’s possession that it learns the relevance of because of knowledge illegally acquired.  It may be that the latter must be suppressed in some cases.  But in the context of the present case, bank records and other evidence that the Government obtained independently of the airport search do not have to be suppressed on account of the unconstitutionality of that search, merely because the relevance or usefulness of that evidence became apparent because of the search.

The Court creates in this decision a new exception to the fruit of the poisonous tree doctrine, holding that where there is an independent basis for a police officer to obtain evidence, that illegally obtained evidence which shows the relevance of the illegality of that evidence does not require suppression. 

In her dissent, Judge Moore found that the establishment of connection between offender and the evidence is crucial - if that link comes only through the use of otherwise suppressible evidence, then it cannot be used to provide that link.

The majority opinion spent much of its focus on the use of the exclusionary rule versus public policy - the Court found that there must be a balance between the deterrent rationale of the exclusionary rule and "truth seeking function of the courts", and that in this case, the deterrent effect would be minimal.


Wednesday, January 18, 2012

Double Standard Basically Official for Sentencing Appeals

In the wake of the Bistline decision last week, the Sixth Circuit today vacated and remanded another below-guidelines sentence in United States v. Traxler, No. 10-1792 (6th Cir. Jan. 18, 2012). Panel of Judges Kennedy, Martin and Stranch (dissenting).
Cory Kent Traxler pled guilty to being a felon in possession of a firearm and had a guideline range of 151 to 188 months with a 180 month mandatory minimum. The government moved for a downward departure for substantial assistance and the district court sentenced Traxler to 60 months. The government appealed.


The government's arguments will sound all-too-familiar to Federal Defenders: the district court appeared to consider impermissible factors and the district court failed to adequately explain its sentence. Perhaps unaccustomed to losing, the government did not raise the objection at sentencing and so faced plain error review.

The descriptions of the sentencing transcript will also sound familiar. There were two motions pending before the court: the substantial assistance departure and a 3553(a) downward variance. The sentencing judge "engaged in a lengthy colloquy." It "would have been preferable for the court to specify how far it departed downward based on substantial assistance and how far it varied downward based on other appropriate considerations." The court did not explicitly consider any impermissible factors -- but it might have.

A lengthy colloquy without clear evidence of error? Plain error review? No chance this is getting reversed, right? Wrong. Over Judge Stranch's dissent, the Court vacated and remanded the sentence as substantively unreasonable because the sentencing transcript "makes it appear that" the district court relied on impermissible factors. The Court also found the sentence procedurally unreasonable for failure to give an adequate explanation.

This case epitomizes what is already a well-documented trend on this Blog: the Sixth Circuit's reading of a sentencing transcript -- especially the deference given to district court judges -- is wildly inconsistent depending upon whether the appellant is the government or the defendant.

Saturday, January 14, 2012

Bad News on CP Sentencing

US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (for publication).  Panel of Judges Gilman, Kethledge, and Ludington (E.D. Mich.).

CP case.  Recommended sentencing range under the GLs was 63 to 78 months.  Dist ct sentenced the defendant to one night in lockup + ten years of supervised release.  (Probation had recommended two years of custody.) 

Gov appealed, arguing substantive unreasonableness. 

COA agreed and vacated the sentence.

Background details:
* Defendant was 67 years old. 
* No criminal history.
* Had suffered two strokes and cared for his ailing wife. 
* Gov had argued for a GL sentence.
* Dist ct said the GLS were "seriously flawed" b/c of Congress's involvement in them.

Appellate Court's conclusions:
* GLs still initial benchmark.
* Justification for a variance must be "sufficiently compelling" to support the extent of the variance.  Cites Gall
* If a dist ct rejects the GLs, the COA "will 'scrutinize closely.'" 
* The Constitution "merely tolerates, rather than compels" Congress's delegation of power to the Sentencing Commission.  "Congress can marginalize the Commission all it wants . . . ."  Congressional involvement in the GLs (that may be politically motivated, rather than motivated by empirical study) is more a "constitutional virtue, rather than vice." 
* Congress's delegation of power to the Commission is a limited one.  The remainder is retained by Congress.
* The Court found that "it follows that a district court cannot reasonably reject [section] 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." 
* The district court need not agree with the GL with which Congress has played a role, but Congress's involvement "is not itself a valid reason to disagree with the guideline."
* To survive close scrutiny, a sentencing "court must explain its disagreement in terms that are persuasive on policy grounds, not political ones." 

Comparing Kimbrough:
* Yes, "the Commission did not act in its usual institutional role with respect to the relevant amendments to [section] 2G2.2.  But that is because Congress was the relevant actor with respect to those amendments; and that puts [section] 2G2.2 on stronger ground than the crack-cocaine guidelines were on in Kimbrough."
* Nothing in the Constitution "confines the exercise of Congress's sentencing power to empirical grounds alone." 
* CP GLs based on retribution and punishment, as well as other concerns.

3553(a) discussion:
* "Notably omitted" from the dist ct's discussion ("and virtually unpunished") was the offense of possessing CP.
* The Court concluded that collateral effects of a conviction/sentence like having to register as a sex offender do not satisfy the need for a sentence to reflect the seriousness of the offense. 
* Gov provided a victim statement to which the COA looked. 
* The mitigating factors present could not justify the sentence.  Court cited United States v. Christman, 607 F.3d 1110 (6th Cir. 2010).
* Court concluded that the defendant had not expressed remorse and that the sentence "validated" the defendant's perceptions. 
* Court distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009).  Stall involved only plain-error review.  And government in Stall did not pursue the matter strongly.