Tuesday, December 31, 2013

The United States Attorney for the Northern District of Ohio is a Sentencing Court

Happy New Year.

A few months ago, I wrote about how The Sixth Circuit is a Sentencing Court in cases involving the possession of child pornography. In addition to the unfortunate case of Richard Bistline, I catalogued several examples of Sixth Circuit panels requiring that this crime be punished by a prison sentence, even though Congress itself saw fit to impose no mandatory minimum, and in spite of several district courts’ well-reasoned decisions to impose non-prison sentences.

In truth, however, no judge—whether on a district or appellate court—has as much power to sentence a criminal as the federal prosecutor who charged him. In most cases, real federal sentencing takes place before a grand jury has even returned an indictment.

The prosecutors who charged Richard Bistline faced a critical choice at the beginning of their prosecution: they could charge him with "possession" of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), or they could charge him with "receipt" of child pornography in violation of 18 U.S.C. § 2252(a)(2). These two crimes prohibit "virtually identical conduct," since there is "no principled distinction between possessing and receiving child pornography." United States v. Robinson, 669 F.3d 767, 776 n.2 (6th Cir. 2012). The only meaningful difference between them is the punishment. Whereas "possession" carries no mandatory minimum, "receipt" requires a five year prison sentence. Federal prosecutors wield virtually unreviewable discretion to say who must go to prison for five years, regardless of what any judge might later think about the appropriateness of a prison sentence.

In the Bistline case, the prosecutors charged possession—perhaps because of the same mitigating factors that ultimately led Judge Graham to impose a non-prison sentence, including old age, frailty, and low risk of re-offending. Because of that charging decision, Mr. Bistline was allowed to ask for a non-prison sentence (and receive one, twice, until the Sixth Circuit intervened).

Other defendants have not been so lucky. Take the extremely troubling case of United States v. Dylan Marshall, Sixth Cir. No. 12-3805 (Nov. 21, 2013).

At the "chronological age" of twenty, Dylan Marshall was arrested and charged with receipt, rather than possession, of child pornography. It is not clear why. From his Sixth Circuit brief (record citations omitted):

Dylan was born with Human Growth Hormone Deficiency (HGHD), an extremely rare condition that puts his case in a distinct context. During the Sentencing Hearing . . . , a clinical psychologist who evaluated Dylan[] emphasized the "unique situation here" when he testified, "I had never, in the 5,000 forensic evaluations I’ve done, had an individual who had human growth hormone deficiency." Because of this rare disorder, Dylan was literally unable to grow up. In all meaningful ways—physically, psychologically, socially, and sexually—Dylan was a juvenile when he possessed or received child pornography.
Regarding his cognitive development, the district court found Dylan "had the mental capacity of a minor both at the time the crime was committed and at the time of sentencing." [The] clinical psychologist who evaluated Dylan[] found that he had . . . a mental age of fifteen and a half years. . . . A licensed clinical supervisor, Maralyn Logsdon, observed that Dylan had "multiple psychological" disorders, including "a dysthymic disorder and a personality disorder." These psychological conditions went untreated prior to Dylan’s arrest. . . .
Because of this extreme social isolation and his late entry into puberty, Dylan has had little sexual experience. One of his few sexual experiences was abuse by an older male cousin. Dylan was anally raped on five or six occasions when he was twelve years old. Dylan had not received mental health treatment for this abuse prior to this case.

Dylan pled as charged to receipt of child pornography and was sentenced accordingly. To the prosecutor who charged him, this probably looked like justice. But to Jack Zouhary, the district judge who had the unenviable (and purely ministerial) task of imposing the prosecutor’s chosen sentence, it looked like nothing of the sort.

After conducting two separate sentencing hearings, hearing live testimony, and allowing the development of a full record, Judge Zouhary found that the "uncontroverted evidence" demonstrates that "at the time of the crime Defendant was, and should be characterized for sentencing as, a developmentally immature teenager lacking the ability to appreciate the illegality of child pornography and to control his viewing of easily accessible internet content."

Given these extraordinary circumstances, Judge Zouhary found that a sentence of five years would be "excessive, unjust, and greater than necessary." He explained that the "imposition of excessive prison time will only destroy an opportunity for [Dylan] to live a constructive life," particularly given the safety concerns facing somebody like Dylan in an adult prison.

But his hands were tied. The prosecutor had already sentenced Dylan to five years in prison.  Judge Zouhary had no choice but to impose a sentence that he firmly believed to be unlawful. In doing so, however, he literally begged the Sixth Circuit to step in and fix this injustice:

It is my hope that I will get relief from the Court of Appeals. It will not be me that is unable to sleep at night because this defendant must serve five years. It will have to be because three other people or more have reviewed this case and found that to be so. . . . I want to thank everyone for their efforts in what has been probably the most difficult case I’ve had to handle since being on the bench.

Dylan Marshall would get no such relief. The Sixth Circuit predictably rejected his as-applied challenge to the five-year mandatory minimum based on the Eighth Amendment and Miller v. Alabama, 132 S. Ct. 2455 (2012), which prohibits mandatory life sentences for juveniles. As Judge McKeague explained for the majority, the Eighth Amendment analysis draws a bright line at the chronological age of eighteen:

Marshall is at the very most an immature adult. An immature adult is not a juvenile. Regardless of the source of the immaturity, an immature adult is still an adult. Because Marshall is not a juvenile, he does not qualify for the Eighth Amendment protections accorded to juveniles.

Judge Lawson disagreed with the majority’s refusal to allow the consideration of any "developmental features" which might render somebody a juvenile for Eighth Amendment purposes. But he ultimately concurred in the judgment because the five-year sentence was not "grossly disproportionate to the crime."

While that could have been the end of the case, Judge Lawson took the opportunity to say more—about the prosecutor. And thank God somebody finally did.

A district judge himself, Judge Lawson agreed with the Judge Zouhary’s finding that Dylan’s sentence is "excessive," "unjust," and "almost certainly [] greater than necessary to achieve any rational sentencing objectives."

He said that this case is an "injustice" because of "the government’s decision to charge . . . receipt rather than possession," a decision which was "woefully uninformed and even irresponsible."

In spite of these grievances, however, Judge Lawson acknowledged that "defendants like Dylan Marshall are out of luck." In our system of mandatory minimum sentencing, federal prosecutors’ unfettered charging discretion amounts to unfettered sentencing discretion. Justice be damned.

Kudos to Judge Zouhary and Judge Lawson for speaking up about this injustice, particularly given their acknowledged inability to do anything at all to fix it.

And shame on the Government for its inexplicable handling of this case—from its "irresponsible" charging decision to its failure to correct the error after the scope of Dylan's rare condition became clear. 

But the Government (and only the Government) can still make things right.  In the new year, I hope the United States Attorney for the Northern District of Ohio will remember his oath to seek justice.  I hope he will fix this case.

Wednesday, December 18, 2013

Sixth Circuit and Anders briefs

In case I'm not the only one citing to 6th Cir. R. 34(j)(2)(A) or 101(f)(3)...

The procedure for withdrawing as counsel pursuant to an Anders brief is now contained in Sixth Circuit Rule 12(c)(4)(C).

There is not a simple, clear rule for not asking for oral argument. I think Sixth Circuit Rule 34(b)(1) covers a statement that one is not seeking oral argument.

Thursday, December 05, 2013

Blewett Dissents

Judge Merritt's Blewett dissent:

* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous.  Congress intended to remedy irrationality and disproportion.  Court is thwarting this effort. 
* Cites NACDL and NAACP amicus briefs. 
* "Practically all observers" now recognize the ills of the old system. 

Judge Cole's dissent:

* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles. 
* African-Americans treated more harshly than Caucasian offenders under this regime.  And  88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American. 
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings.  Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair." 

Judge Clay's dissent:

* Majority is furthering prior injustice by holding that the FSA is not retro.  Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause." 
* Not sure of procedural mechanism for relief
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law.  Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans."  This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless.  Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums."  More than 82% of this group is African-American (2005 stat).  The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race."  No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio.  In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums."  Won't cut it. 

Judge Rogers's dissent:

* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well.  In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule. 
* 3582(c)(2) = Congress's "background principle of retroactivity." 
* Illogical to provide GL relief and not statutory relief. 
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break. 
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage.  But assumptions are not law.  Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be.  The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits.  (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute.  The revised statutory minimums are, after all, created by statute.  The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive.  Doing so provided the statutory key to making the statutory minimum changes applicable under 3582.  This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply. 
Judge White's dissent:

* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence.  Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers. 
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act.  It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended.  Congress did not intend this irrationality, and that is why Judge Rogers is correct.  Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the  Equal Protection Clause absent rational justification other than finality."

 


Wednesday, December 04, 2013

Well, Blewett Is Out . . . .

Well, the Sixth Circuit en banc released Blewett yesterday.  Get out your hankies.  This one's a tear jerker.

United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013).  The majority opinion is by Judge Sutton.  Judge Moore concurred.  Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented. 

The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect." 

Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot.  The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal. 

*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either. 

Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it.  Not present in FSA, which is "forward looking." 
* Distinguishes Dorsey
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect. 
* 3582(c)(2) does not help: these proceedings are not plenary resentencings. 
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions. 
* Equal-protection and cruel-and-unusual arguments under the Constitution fail.  No racially discriminatory purpose, so disproportionate effect allowed to stand. 
* Gov "has a powerful interest in avoiding the disruption of final sentences." 
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted."  Such a holding might actually discourage lawmakers from lowering sentences. 
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences. 
* Many believe "Congress should think seriously about making the new minimums retroactive."

Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations. 
* Sees issues with jurisdiction (the one defendant is now on supervised release).  No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits).  Nevertheless, she would deny the gov's motion to dismiss.  Term of supervised release could be reduced if appeal determined favorably, so appeal not moot. 
* 1 USC 109 governs: no retroactivity. 
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed.  Crack-powder disparity = racial disparity.  And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now. 

I will explore the dissent tomorrow. 



Wednesday, October 30, 2013

Narrowing the Crimes of Aggravated Identity Theft, 18 U.S.C. § 1028A, and False Statement to a Bank, 18 U.S.C. § 1014

The Aggravated Identity Theft statute, 18 U.S.C. § 1028A, makes it a crime to "knowingly transfer[], possess[], or use[], without lawful authority, a means of identification of another person" in relation to certain other offenses listed in 18 U.S.C. § 1028A(c). At issue in United States v. Miller, Case No. 12-6501 (Oct. 30, 2013), was how to define the term "use."

The defendant had signed a loan document—in his own name—falsely claiming that his business partners knew that their joint investment had been used as collateral for the loan. For this conduct, he was properly convicted of making false statements to a bank in violation of 18 U.S.C. § 1014.

But he was also convicted of aggravated identity theft based on the theory that he had "used" his business partners’ identities simply by listing their names on the loan document. The Government maintained that this conviction was proper merely because the defendant "employed their names to his benefit, converted their names to his service, and intentionally availed himself of their names in order to falsely manufacture authority to encumber [the joint] property for [his own] benefit." The Government argued that "if there is any false statement about authority, which necessarily involves the ‘use’ of someone’s name, made in connection with a predicate offense under § 1028A(c), the government can always charge aggravated identity theft in addition to the underlying offense."

The Sixth Circuit disagreed. Relying largely on Judge Paul Maloney’s decision in United States v. Wilcox, No. 1:09-cr-140, 2010 WL 55964, *7 (W.D. Mich. Jan. 4, 2010) (unpublished), the court applied the rule of lenity to adopt a narrow interpretation of the verb "uses" to exclude "merely lying about what [others] did." Instead, to "use" the identity of others for purposes of aggravated identity theft, a defendant must "steal or possess their identities, impersonate them or pass himself off as one of them, act on their behalf, or obtain anything of value in one of their names."

The court also reversed one of the defendant’s two false statement convictions under 18 U.S.C. § 1014, which was premised on his signing of a "modification and renewal agreement" which "did not reaffirm or newly assert" the false statement on which the original loan application was based, but "simply agreed that [the defendant] must bear the legal consequences of having signed the underlying documents, whether the representations contained therein were true or not." The court made clear that "implied representations" are not enough to sustain a conviction.  "Section 1014 prohibits only 'false statements,'" but "'does not generally cover misleading statements, false pretenses, schemes, trickery, fraud or other types of deception.'"

Friday, October 25, 2013

More on the FSA

If you've been following our Blewett coverage here and here, you know that it would be foolish to choose Judges Gibbons, Sutton, and Kethledge to play on the Blewett team in your Fantasy Sixth Circuit League. But that panel's opinion today in United States v. Hughes leaves little doubt.

The basic facts: Mr. Hughes was tried and sentenced prior to the Fair Sentencing Act, but his case was "erroneously" remanded for resentencing post-FSA ("erroneous" only because it was based on binding circuit precedent that was later overruled by the Supreme Court), and he argued that he should have received at resentencing the benefit of the FSA in light of Dorsey. In case you've forgotten, Dorsey was the case that held that pre-FSA offenders who are sentenced after the FSA can get that statute's benefits. The Court did that out of fear that applying the pre-FSA law to such offenders "would produce a crazy quilt of sentences, at odds with Congress' basic efforts to achieve more uniform, more proportionate sentences," among other reasons. Sound's like Mr. Hughes should be all set, no?

No. The panel ruled that Mr. Hughes is not entitled to FSA relief, relying on Section 3742(g)(1) (which directs district courts to apply the guidelines that were in effect at the time of the original sentencing for any resentencing on remand) to conclude that Congress must have intended just this result. According to the panel, unlike at an original sentencing, where 3553(a)(4) is the relevant "background sentencing principle," the relevant background principle at resentencing is 3742(g)(1). As much as the decision profits from the Dorsey analysis, it appears that Judge Kethledge's opinion would overturn Dorsey if it could, calling the Supreme Court's analysis "discernable, perhaps, more by the tracker's art than by simple sign reading." Still living in the land of metaphor, the panel argues that "statutes are not artistic palettes, from which the court can daub different colors until it obtains a desired effect."

Indeed, the panel here was so invested in understanding this statute that, when the government changed course and began advocating for Mr. Hughes rather than for longer incarceration, the panel appointed amicus to argue in support of the district court's opinion. (One hopes that the Jones Day attorneys who worked on this case were paid rather than receive pro bono credit for arguing that a crack offender should receive a 15-year sentence that Congress has already deemed unfair and racially motivated.)

So Mr. Hughes now has a mandatory-minimum sentence of 15 years, just like Congress intended when it reduced mandatory minimum sentences to correct the horrible racial disparity of sentences like Mr. Hughes's 15-year mandatory minimum sentence. Or something to that effect.

The only silver lining from this opinion is that the panel gives dispositive weight to the statute identified as the relevant "background principle" for purposes of its Dorsey analysis. In Blewett, the relevant "background principle" is 3582(c)(2), which obviously expresses Congress's intent that defendants receive the benefit of retroactive guideline amendments. Presumably, this logic must carry over to the Blewett opinion.

Tuesday, October 22, 2013

Federal death sentence upheld

The saga of United States v. Lawrence, a federal death penalty case out of the Southern District of Ohio, reached another sad milestone today when the Sixth Circuit upheld Lawrence's reinstated death sentence for killing a police officer during a bank robbery attempt. The panel of Boggs, Rogers, and McKeague upheld the death sentence "[d]espite vigorous and able advocacy by Lawrence's counsel." The opinion is available here.

Monday, October 21, 2013

Sixth Circuit affirms that forfeiture awa[SNORE.....]

The eyes of most criminal law enthusiasts glaze over when money judgments get involved ("we work for FREEDOM, man"), so I will keep this short. Today's Hampton opinion affirms what we already know: forfeiture awards are really just glorified money judgments, not the in rem proceedings against certain proceeds they once appeared to be.

In this case, the defendant committed fraud, taking a set amount of money from certain businesses. The defendant pleaded guilty, and the government sought forfeiture of that amount of money. Hard as this may be to believe, some people who commit financial crimes are bad with money, and the defendant had no assets at the time of sentencing. The Sixth Circuit joined numerous other circuits in holding that the government could obtain a money judgment against the defendant for this sum of money even when the assets sought no longer existed. The language of the forfeiture statute is hardly clear on this point, allowing forfeiture of "any property constituting, or derived from, proceeds the person obtained directly or indirectly, as the result of such a violation." What happens if no such property remains at the time of sentencing? Apparently the government just gets a money judgment. But isn't that what restitution is for? Yes, and the government also obtained an identical restitution award.

Those of us who really enjoy these money cases might find one or two bits of good news to take away from this case. For one, the opinion makes it clear that forfeiture awards are, at least in part, punitive, leaving them open to Eighth Amendment challenges. Indeed, the opinion includes a footnote noting that nobody raised such a challenge here. Additionally, although it was not raised, there still remains a question regarding duplicative forfeiture/restitution awa[SNORE....]

Tuesday, October 15, 2013

Oral argument audio now available online

You can now listen to recordings of argument here>. There's a link from the Sixth Circuit's main page for "Courtroom Audio."

As painful as it may be, it is good to listen to your own arguments - it helps you pick up on your verbal tics, the clarity of speech, etc. Another tip: don't start speaking until you get up to the podium and get your notes situated. No use having your time start before you're really ready.

Thursday, October 10, 2013

Blewett en banc argument, October 9, 2013

People started arriving at the courtroom an hour ahead of argument. Thirty minutes before argument, no seats were left, folks were rolling in chairs from the anteroom, and an impressive phalanx of clerks soon filled the back and down one side. I think every clerk in the building was in attendance. The defense bar was well-represented, with four of eight bloggers for this page present and, frankly, anyone who could have an excuse to be in Cincinnati. Kim Thomas, professor at U. of Michigan Law, was also present. That's all the name-dropping you'll get from me, because I don't know anybody (LED).

Judge Batchelder sat in the center of the Great Arc of Judges, with J. Merritt to her right and J. Boggs to her left. I'm sure this was some sort of seniority seating, but I can't help but think she wanted J. Merritt close in case she had to kick him. The judges, from audience left to right: Stranch, Kethledge, McKeague, Sutton, Gibbons, Clay, Moore, Merritt, Batchelder, Boggs, Gilman, Rogers, Cook, Griffin, White, Donald. Frank W. Heft argued on behalf of the Blewetts, Vincent Michael Sutherland argued on behalf of amicus curiae NAACP Legal Defense Fund, and Terry M. Cushing argued for the government.

The Reader's Digest Condensed Version: This is a divided court. Whatever decision comes down, it is not going to be unanimous. Judge White surprised many of us by handing the government's bottom to it several times in ways I thought were only reserved for me.

A key reminder: The Blewetts applied for relief under 18 U.S.C. 3582(c)(2). Take a quick moment to go read it. Also U.S.S.G. 1B1.10. Somewhere in the guideline, it talks about mandatory minimum, but does not say which mandatory minimum (new or old), which is important to Blewett's argument and J. White's analysis.

A summary of my notes. I really, really hope some other folks can flesh them out:

Heft's argument:
H: This is a statutory interpretation argument - Congress implied the new mandatory minimums should apply to all guideline 3582 proceedings, which is the fair implication of the interrelationship of mandatory minimums and 3582(c)(2)

Gilman: The Act [FSA] doesn't say that. What about the savings statute?
H: the savings statute is not an obstacle

Sutton: Didn't Dorsey contemplate that?
H: The Supreme Court recognized there would be disparity but it is important to note that [the opinion states] "unless Congress intends on reopening sentnecing hearings..." means Congress could have intended all defendants get the benefit of the FSA.

Sutton: The Justices and litigants in Dorsey believed Congress did not intend to reopen final sentences.
H: Dorsey was a direct appeal under 18 U.S.C. 3553 and U.S.S.G. 1B1.1. Here, we have a completely different....

Sutton: Dorsey didn't give anything
H: The issue here was not presented in Dorsey. It has not been addressed.

Merritt: Prof. Berman's amicus brief says "the government is unlikely to be able to provide defendants with justification for lengthy, excessive sentences, especially considering that more serious offenders got the benefit [of the FSA] but less serious defendants did not. Why is that true? That seems crazy.
Sutton: You don't quite agree with him, do you?
Merritt: New guideline, not new mandatory minimum
H: If guideline above...
{Merritt and Sutton bicker}
Batchelder: I would prefer argument come from [points at counsel]

{A quite few notes: Merritt was clearly still on board with his original opinion. Sutton seemed to be firmly against granting relief. The "more bad" vs. "less bad" defendant argument goes something like this: Someone "more bad," whose guidelines were significantly above their mandatory minimum can get a sentencing reduction if their guidelines were reduced but are still above the mandatory minimum. Someone "less bad," whose guidelines are at or below the mandatory minimum get no relief, without Blewett}

H: This issue is whether to use the old mandatory minimum or the new. It must be the new mandatory minimum. 1B1.10 (1.1?) does not preclude the new mandatory minimum from applying. Something about 3582. Something about equal protection {which was argument expressly reserved for Mr. Sutherland as amicus}

Sutton: What if you're wrong about FSA being retroactive?
H. We do not know....
Gilman: Do you have any authority to say FSA is retroactive?
H: U.S. v Doe... {reported here a few articles below this one}
Gilman: Wasn't that a three-judge decision?

Merritt: The reason why we go below the old mandatory minimum is 1B1.10 says that you get the new guideline if you got the guideline sentence before.

Rogers: I'm hanging up. Something about dissent [maybe in Doe?] 3582 sentence based on a set range that has subsequently been lowered in the guidelines. Isn't that an obstacle?
H: No.
Rogers: Why not? The guideline range is lowered by by the Sentencing Commission. The mandatory minimum is lowered by Congress.

Sutton: What does the guideline have to do with the FSA's retroactivity? I'm struggling with the guidelines having any say over federal statute.
H: Congress can decide whether to impose new/old mandatory minimum
Sutton: How did the Commission have the authority if Congress did not say so?
H: They couldn't say that. {this was a rather unfortunate note to end on}


Vincent Michael Sutherland on behalf of amicus curiae NAACP Legal Defense Fund - I think he had at least 30 minutes of material he needed to squeeze into 10 minutes of talking time. The equal protection argument was expressly reserved for him to make.
S: There is no rational, legitimate basis to allow some to benefit [from change in law] and to perpetuate the irrational regime on others. Irrational, arbitrary classification is at the heart of the Equal Protection issues

Merritt: So if Congress lowers the ratio to 12:1, does that make 18:1 irrational?
S: The issue here is application of 100:1 versus 18:1. This court does not have to address 18:1.

Boggs: But those are all in the language considered by the law?
S: Not in the text but in the purpose {I may have this jumbled}. It effectuated racial disparity.

Gilman: Did you think 100:1 was unconstitutional at the time it was passed? {this wording was a bit unfortunate, since Mr. Sutherland (and I) were likely both in grade school when the first crack mandatories were passed}
S: Congress thought at the time the law was justified. But, in hindsight, saw problems.
Gilman: So now we see it is unconstitutional. That would go against [long line of 6th Circuit cases]
S: Those cases were pre-FSA. The Equal Protection issue in those cases arose from the context of purposeful animus. That is not the argument here. Here the issue is irrational arbitrary...

Gilman: Do you have any cases that say when Congress decides to make a sentence less harsh it generates an Equal Protection argument? {really, aside from the FSA, when has Congress shortened a sentencing scheme?!?}

{I have an odd note that says "Clay frustrated with Merritt." I think J. Merritt said something which generated some form of eye roll from J. Clay}

Boggs: Do you have any case saying Congress' failure to make a law retroactive means it is unconstitutional?
S: Change in law/circumstances can give rise to an Equal Protection violation

White: I understand your argument is not disparate impact but straightforward rational relationship. Your argument is not based on purposeful discrimination but rational relationship.
S: We are arguing for a more strict version of rational relationship. Everyone recognizes that a disparate impact leads to stricter rational relationship test to see if [something] is reasonable {of if there's a good reason for something}
White: Congress' failure to make FSA retroactive - do you have any cases saying what was once rational and Constitutional is now irrational and unconstitutional?

Griffin: What date did this law become unconstitutional?
S: We do not need to pick a date. Anyone sentneced under the old mandatory minimum should get relief

Gilman: Whose responsibility is it to make the law retroactive? Courts or Congress?
S: When a statute is unconstitutional, it is incumbant upon the court to act

{again a discussion distinguishing Dorsey's question presented from the one in Blewett}

White: You invoke the changed guideline, then interpret mandatory minimum to be the mandatory minimum now in effect.
S: The mandatory minimum is tied and woven into the guideline - the guideline is based on the mandatory minimum.

Batchelder: your red light has been on for a while...


Terry M. Cushing argued for the government. He first argued one of the Blewett cousins' case was moot because he was no longer in custody. However, he was still in his first year of supervised release, and he could not apply to have his supervision terminated early because he over-served his jail sentence until he had been on supervision for a full year.

Sutton: how does supervised release impact mootness?
Batchelder - is mootness effected by ripeness?
Govt - He has not yet moved for early termination

Donald - you're not arguing supervised release is not part of the substantive part of the sentence, are you?
Govt - there is no relief for it under 3582(c)(2)

Sutton - if the sentence was unconstitutional, if he should have served no more than five years, why should he be on supervised release?
Govt - He did not apply for early termination [or it does not apply]
Sutton - can't count it towards the five years in prison?
Govt - no. not under Johnson

Merritt - [goes back to Prof. Berman's amicus arguments] How is that POSSIBLY rational?!?!!? More guilty, higher level actor gets greater reduction than lower quantity, less guilty
Govt - it's the way the statute works. 3582(c)(2) is for when the guideline range has been changed.
Merritt - [more question/argument]

Govt - we disagree that 1B1.10 is abiguous. The Commission can reduce the guideline and make the change retroactive. The Commission did not have th epower to make Congressional action retroactive.

Merritt - 5K says mandatory minimum is part of the guidelines, yes?
Govt - 5G says no sentence can be below the mandatory minimum, so mandatory minimum sets the floor or is the guideline.
Merritt - the whole guidelien is based on the mandatory minmum so the mandatory minimum is part of the guideline.
Govt - {I'm sure they said something, but my brain was getting tired}

Boggs - something about mandatory minimum that led to a discussion of the powers of the Sentencing Commission

White - When looking for Congressional intent, there is a relationship with the Sentencing Commission and real delegation of authority to the Sentencing Commission and when Congress instructs the Commission to change the guideline forthwith isn't it arguable Congress anticipated the Sentencing Commission would apply lower, new mandatory minimum when they did? {our collective jaws dropped}
Govt - 3582(c)(2) - that's the statute at question here, not the FSA. 3582 is a limited grant to courts to reduce sentences. The criteria do not allow the court to reduce the mandatory minimum a defendant is originally sentenced under. [then there's some argument abou the language of 3582(c)(2)
White: here, the guideline was lowered. Where in the policy statement does it say the new mandatory minimum does not apply?
Govt - when considering 3582, it replaces only the changed guideline

{my notes say "White hands him his ass." There was a back and forth about the government not answering her question. I think all defense bar in the courtroom were thinking, "Duuuuude, I thought she only did that to me."}

Govt - the Commission, in application note 1, said the sentence cannot be reduced below the mandatory minimum
White - but they did not say which mandatory minimum

Sutton: what if Congress clearly said the FSA was retroactive. What mechanism would be used to make that happen?
Govt - Congress would have to provide a mechanism, or a defendant would have to file a 2255 motion

Merritt - more question/argument

Boggs - doesn't that bring us back to who can make it retroactive? Congress or Supreme Court?
Govt - yes. Dorsey did that and did not make the statute wholly retroactive and took into account the disparity the decision would cause
Boggs - [talking about Prof. Berman's brief] Somebody bad gets a greater benefit than someone less bad, but it could be the opposite?
Govt - The highest level criminal does not get a reduction
Merritt - [calls him on the inaccuracy of his statement]
{general discussion about how just about any combination of people getting benefit/not getting benefit could exist}

White - Why say if Congress made statute expressly retroactive, a defendant could not get 3582 relief? The defendant's guideline changed.
Govt - [tells J. White to read the statute] {the audience winces}
White - You're not listening to the question
{more arguing back and forth}

Sutton - Did 3582 exist before the guidelines?
Govt - No
Sutton - So 3582 is about the guidelines. But 2255 only works when you've served the sentence you think you ought to have served {that is, served the sentence you should have under the new guideline, rather than the one you are serving under the old guideline}

Gibbons - but 3582 has changed over the years
Govt - {I did not write down what he said}

Stranch - I'm perplexed by the government's argument regarding the Dorsey language. {she quotes directly from Dorsey, something along the lines of "the argument - if Congress intended retroactivity - and we do not argue that here - then were are not considering that here"}
Govt - No. The Supreme Court did deal with this issue in Dorsey
Stranch - Aren't we back to looking at Congressional intent?
Govt - Dorsey did deal with intent
Stranch - Dorsey dealt with sentencings after the FSA became law. Here, we are dealing with behavior before the act and coming back for resentencing.
Govt - Dorsey addressed defendants at their first/full sentencing. 3582 is limited to only resentencing based on the new guidelines, NOT a full resentencing hearing

Merritt again

Gibbons - would it be fair to look at how the Sentencing Commission made the guidelines consistent with the mandatory minimum, which they never have? What the Commission would think would be an appropriate sentence for setting the guideline, but mandatory minimum would have to control over whatever the Commission thought the sentence would be

Sutton - Remember what happened to Hill {Dorsey is actually Hill/Dorsey}? I bet Hill does not have a 10-year sentence anymore
Govt - he was remanded for resentencing. He was not under a final sentence

Stranch - Congressional intent on the viability of using 3582 is not a consideration? {government said something I did not write down} What if we disagree with you? What is your best argument without Dorsey?
Govt - 3582 - the language of the statute - are defendants elligible for relief under the plain language of the statute. Was the sentence based on a guideline that was subsequently lowered.



Mr. Heft on rebuttal {and I admit by this time I was seriously tired and uncomfortable, so did not take as many notes}

Boggs - "applicable" guideline range - if have mandatory minimum, part of the range can be unavailable, right {ie 110-137, but 10 year mandatory min would make 120-137)
Donald - going back to the Equal Protection argumet - aren't the guidelines quantity-driven

Sutton - Has the Sentencing Commission taken a position on Blewett's position?
{there's some back and forth, but ultimately the answer is the Commission has not taken a position with regard to the Blewett decision/rationale}

And there you have it.

Friday, October 04, 2013

Habeas Fun for the Whole Family

Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).

Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).

Drugs, aiding and abetting kidnapping, couple 924(c)s. . . .  646-month sentence.  2255 granted in part and denied in part by dist ct.  Dist ct entered amended judgment and new sentence without a resentencing hrg.  Petitioner did not seek a certificate of appealability (COA).  Petitioner appealed, arguing he was entitled to a resentencing hrg. 

Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.

Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed. 
* Petitioner was essentially appealing a new sentence and did not need a COA.  Defendants entitled to direct review of sentences for non-constitutional errors.   
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief.  So sentence vacated and case remanded.  (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months.  The dist ct essentially excised the unlawful sentence, but reinstated the others.)  Issue was: did the dist ct fully appreciate its discretion? 
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence.  Dist cts have the authority to resentence after reversal of a 924(c).

This opinion is pretty interesting in terms of 2255 and resentencings.  The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs.  On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand

Thursday, October 03, 2013

Quick note on the government shutdown

The Sixth Circuit WILL be hearing oral argument next week, despite other government closures. Attorneys whose ability to travel to argument has been impacted should contact their particular case manager.

Friday, September 27, 2013

An interesting coda to an interesting case

About a month ago, the Sixth Circuit issued its opinion in United States v. Booker, 11-6311 (found here). Bottom line: you cannot intubate and medically paralyze someone in order to dig drugs out of his rectum. In August, 2010, Oak Ridge, TN, police officers took Mr. Booker to a medical center to see Dr. Michael LaPaglia. They suspected Mr. Booker had hidden drugs in his rectum, but could not get at them. Dr. LaPaglia had twice before done them the favor of medically paralyzing suspects and retrieving the illicit contents of their colon. Dr. LaPaglia intubated Mr. Booker, rendered him unconscious, and then medically paralyzed him. The doctor then retrieved a five-plus gram rock of cocaine from Mr. Booker's rectum.

Mr. Booker litigated a motion to suppress, and lost. He appealed. The Sixth Circuit noted that putting someone through an unconsented-to procedure while he was in police custody violated their rights and "shocks the conscience at least as much as the stomach pumping the Supreme Court long ago held violated due process." The Sixth held the evidence must be excluded and Mr. Booker's conviction reversed.

And now, the interesting coda:
The decision was published August 26, 2013. On September 3, 2013, Knoxville*, TN, police were called to Dr. LaPaglia's home for a domestic disturbance. According to local news sources, police seized 125 marijuana pipes and bongs, more than two pounds of high-grade marijuana, and "pills and vials containing liquids commonly used in hospitals" including Valium, amphetamine, oxycodone, propofol, and morphine. Police also recovered a handgun and two rifles. You can read more here.






*Knoxville and Oak Ridge are close neighbors of each other

Wednesday, August 21, 2013

Finally, clarity on the FSA, or wait, no

In the Sixth Circuit, does the Fair Sentencing Act apply retroactively to reduce sentences of individuals who received mandatory minimum sentences before the FSA was passed? You could be forgiven for not knowing the answer to that question. Indeed, as time has worn on, the answer has changed from "Maybe" to "Duh" to "Maybe" to "Probably No" to "No" to "Maybe" to "Yes?" to "Yes!" and all the way back to "Probably No." Thanks to yesterday's published Doe case, the answer is now "Hawuhh?" followed by a qualified "Maybe."

Doe recognizes a fact that is delightfully obvious: Congress could not possibly have wanted to create a system so blatantly inequitable as to continue incarcerating people under mandatory minimums that it deemed "unfair" and, er "racist," while retroactively lowering a whole bunch of other sentences for exactly the same reason. "But wait a minute," you wonder aloud, fictitiously, "Didn't Blewett already address this, and wasn't Blewett taken up en banc?" It's funny you should ask that to your computer screen just now, because Doe bends over backwards to avoid addressing that! Well, Judge Keith's majority opinion does. And it does this by suggesting that its logic only applies to cases where the defendant receives a substantial assistance departure. Its too-complicated-to-summarize-here logic, however, relies on the fact that all sentences --- including statutory mandatory minimums --- are "based on the guidelines" because the guidelines incorporate statutory minimums into their calculations. For this reason, Judge Cole's concurrence recognizes that this logic would apply to all mandatory minimum sentences, not just those involving substantial assistance. Judge Cole also recognizes that the deeper, more "profoundly difficult and divisive" question regarding all mandatory minimum sentences will be addressed en banc.

Only Judge Rogers in his dissent is so brave as to utter the shibboleth: Blewett. Judge Rogers recognizes that this case has the same effect as Blewett but for different reasons. He also "regrets" that he must dissent, suggesting that perhaps the Doe logic could resolve the Blewett problem, or maybe Doe and Blewett could join their powers to form a sort of FSA Voltron and vanquish all foes.

And what of the Joiner opinion, published on the very same day? Doesn't it say exactly the opposite thing that Doe is saying? Well, yes, it certainly seems to. Life's just funny that way, I suppose, as are the Constitution, the sentencing guidelines, and Congressional lawmaking.

So what is a defender --- or a person sentenced to a 20-year mandatory-minimum who is languishing in prison largely because her race dictated the punishment she received for a crime similar to many other, lesser-punished crimes --- to do? Wait, advocate, and hope. The wheels of justice are grinding slowly, as they always do, but they seem to be pointed in more or less the right direction.

Wednesday, August 14, 2013

Career Offender guideline unconstitutionally vague

Well, no. Sorry for the teaser headline. But the Sixth Circuit's rationale in United States v. Woodruff, 12-5240 sounds an awful lot like Justice Scalia's dissent in Sykes.

Mr. Woodruff had been deemed a Career Offender based in part on a Tennessee conviction for facilitation of the sale of cocaine. His trial attorney did not object to the pre-sentence report, nor did the attorney object at Mr. Woodruff's sentencing hearing. Mr. Woodruff appealed. Because of the lack of objections, Mr. Woodruff's claim regarding facilitation was reviewed for plain error.

The Sixth Circuit ruled Mr. Woodruff was right - facilitation of the sale of cocaine is NOT a "controlled substance offense" for purposes of the Career Offender guideline. However, it affirmed his sentence.

You see, the definition of "facilitation" is highly technical, and varies between circuits that have ruled on it (2nd and 8th), the Guidelines, Black's Law Dictionary, and other sources, so the district court's error could not have been "plain." "The state of the law was both uncertain and not obvious at the time of the decision."

Whether the guidelines are subject to the same Constitutional standards as statutes might be debatable. But Woodruff brings to mind these principles:

When an edict requires “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings,” that edict is unconstitutionally vague. United States v. Williams, 553 U.S. 285, 306 (2008). Vagueness may invalidate a criminal law for violating the Fifth Amendment due process protections if it fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” and/or if it authorizes or encourages “arbitrary and discriminatory enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999)(citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). “A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.” Id. (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966)).

Wednesday, July 17, 2013

Reason #976 Why You Should Walk, Not Run, Away from Your Friendly Neighborhood Cop




During routine patrol in Toledo, Ohio, several police officers encountered a group of citizens gathered in a shopping center parking lot.  The group had no apparent purpose other than to be in each other’s company, and the officers suspected them of loitering in what police described as a “high crime area.”  While monitoring the situation throughout the day, the officers also noticed a black man riding a bike back and forth across the parking lot. 

In order to round up the perceived loiterers and generally prevent them from leaving, the police decided to “bum rush” the shopping center and flood it with officers.  The police used this technique every couple of weeks to rid the area of crime. 

When Toledo Police Department Officers Toth and Niles drove toward the shopping center, they saw a bike rider who appeared to be the same person they noticed earlier.  It turns out they were wrong; the man on the bike was actually Dominic Jeter, who had simply entered the grocery store, bought a snack and a bottled water, came outside for 3-4 minutes to eat the snack and was in the process of leaving when he ran into the cops. 

The officers drove up to Jeter, and Officer Niles rolled down the window and asked to speak to him.  Jeter was already pedaling away from the area at that point, and he did not respond, instead “wandering away on his bike.”  Undeterred, Officers Toth and Niles drove their police car onto the grass to keep Jeter from leaving.  With his pathway blocked, Jeter stopped.  Officer Niles got out of the car to talk with him, but after looking at the officers, Jeter dropped his bike and started running away.  The officers chased him down the alley, and saw him clutching the right front pocket of his shorts.  They captured and searched him, finding a .22 caliber handgun in his right front pocket.  Jeter lost a district court motion to suppress.

        Confronted with these facts, the Sixth Circuit in United States v. Jeter, No. 12-3909 (6th Cir. Jul. 10, 2013) agreed that officers lacked both probable cause and reasonable suspicion to suspect Jeter of crime during their initial encounter.  The Court was unpersuaded that either Jeter or the individuals in the parking lot were loitering.  The Court rightly noted that Jeter’s status as “a black man on a bicycle in a high crime area is not enough to support reasonable suspicion, let alone probable cause, where the facts indicate no laws were being broken . . . .” 

      The agreement ended there, however, as the Court ultimately concluded there was no Fourth Amendment seizure since Jeter never actually submitted to the officers’ show of authority.  Rather, because Jeter only “paused briefly,” never engaged in conversation, and ignored the officers’ requests, the Court believed California v. Hodari D., 499 U.S. 621, 626 (1991) compelled a finding that no seizure had occurred.

         Additionally, the Court noted that although Jeter was unquestionably seized after the officers tackled him, their actions by that point were justified since Jeter fled and was grabbing at his pocket in a crime-ridden area.  In so concluding, the Court looked to Illinois v. Wardlow, 528 U.S. 119 (2000), which held that unprovoked flight from police can support a Terry stop, so long as it happens in a “high-crime” neighborhood (read: the ghetto). The Court rejected Jeter’s argument that officers had provoked his flight. This was, in part, because (1) Jeter was the only person who ran, and (2) he later admitted fleeing because he had a gun.

         The Court stopped short of defining what constitutes a provoked flight.  But, the examples it cited suggested that fraud, threat of bodily harm, or similar police wrongdoing might be necessary to invalidate a search.   

        Setting aside the wisdom and implications of the Wardlow / Jeter rationale (see David A. Harris, Factors for Reasonable Suspicion:  When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659 (1994)), for now, these cases dictate that citizens in “high crime areas” better think twice before running away from police.  The full Jeter opinion is available here.