Friday, October 19, 2012

Bostic is not dead

Recently, the Sixth Circuit released its decision in United States v. Romanini, 11-3670 (found here). It's an unpublished decision, but has an EXCELLENT discussion of substantive and procedural reasonableness, what arguments fall into which categories, and how to preserve sentencing objections for appeal. Romanini is a great refresher course on all things sentencing. It is worth your time, so give it a read.

Thursday, October 11, 2012

Sixth Circuit slightly extends overbreadth zone for pornography supervised release conditions


Previously, the Sixth Circuit has struck down a supervised release condition which prohibits the possession of material which “alludes to sexual activity.”  Such a condition fails what could be called “the Bible test.”  That is to say, the condition is so overbroad, it would prevent the defendant from owning a copy of the Bible, and it therefore violates the First Amendment.  Today, in United States v. Zobel, the Sixth Circuit extended its previous holding and struck down a supervised release condition which banned “sexually suggestive” material for the same reasons:  it was overbroad because it violated the Bible test.

Zobel also contained a dissent which would have held that no amount of general discussion of the 3553 factors is sufficient to justify an upward variance.  Instead, the dissent believes that the district court must specifically and explicitly state the reasons for the variance.  So if your client receives an upward variance and the transcript does not contain the sentence “I am varying upward because of X, Y, and Z,” a procedural reasonableness appeal may be an option.

Wednesday, October 10, 2012

Supreme Court may be ready to overrule 6th Circuit and itself


In Harris v. United States, the Supreme Court held that increases to a mandatory minimum sentence (unlike increases to the statutory maximum) do not require the constitutional protections of Apprendi.  That is, the government can bypass indictment, jury trial, and the beyond a reasonable doubt standard for facts which merely increase a defendant’s mandatory minimum sentence.  But the fifth vote necessary for this result was provided by Justice Breyer, who only voted that way because he did not believe Apprendi was correctly decided.  At oral argument in United States v. O’Brien, Justice Breyer indicated that he now does accept Apprendi and might now vote in favor of overturning Harris.

Earlier this year in United States v. Dotson, the Sixth Circuit upheld Harris against a challenge that it should be overturned.  Dotson petitioned for cert. arguing that Harris and the Sixth Circuit decision in Dotson’s case should be overruled.  Finally last Friday, the Supreme Court granted cert. on an identical issue in Alleyne v. United States, and requested that the government respond to the cert. petition in Dotson’s case.  The results of the Supreme Court’s decision in Alleyne and Dotson could be huge for criminal defendants, especially those charged under 18 U.S.C. § 924(c).  So, stay tuned, be on the look out for a decision in Alleyne and Dotson, and preserve the issue if you have any clients facing an increase in their mandatory minimum sentence (such as a brandishing enhancement under 18 U.S.C. § 924(c)).

Disclosure:  The undersigned attorney was involved in the preparation of the cert. petition in Dotson.