Friday, June 28, 2013

The Sixth Circuit is a Sentencing Court

In a troubling line of cases culminating in today’s decision in United States v. Bistline (Bistline II), the Sixth Circuit has engaged in "substantive reasonableness" review to impose an inflexible rule that in cases involving the possession of child pornography, district courts must impose prison sentences, regardless of whether their analysis of the 18 U.S.C. § 3553(a) factors tells them that prison would be "greater than necessary" to effectuate the statutory goals of sentencing, and regardless of the fact that Congress itself elected not to impose a mandatory minimum sentence.

Today’s case involves Richard Bistline, who in 2009 pled guilty to knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The statute contains no mandatory minimum sentence, but the advisory sentencing guidelines recommend a sentence of 63 to 78 months imprisonment. Based on several considerations, including its opinion that "the guidelines for possession of child pornography are seriously flawed," the district court imposed a sentence of one day in custody, 30 days home confinement, and ten years supervised release.

In 2012, the Sixth Circuit reversed that sentence, finding that it "does not remotely meet the criteria that Congress laid out in § 3553(a)." United States v. Bistline, 665 F.3d 758 (6th Cir. 2012) (Bistline I). In reaching that decision, the court held that a district court’s decision to vary from the child pornography guidelines is subject to "closer review" by appellate courts. Given the tension between that holding and Kimbrough v. United States, 552 U.S. 85, 91, 110 (2007), in which the Supreme Court found that policy-based variances should be subject to no less deference that any other variance, the Bistline decision generated considerable debate, as well as an aggressive push for rehearing en banc and certiorari (with the support of the Chief Federal Defenders from within the Sixth Circuit and the Sentencing Resource Counsel Project).

When that effort ultimately failed, Richard Bistline reappeared for sentencing before the same district court judge. He presented several reasons why a custodial sentence would be unnecessary.  He was 70 years old, and after two prior debilitating strokes, had recently suffered a heart attack (two weeks after the Sixth Circuit’s decision reversing his non-custodial sentence) and underwent heart surgery. He had been successful while on supervision, and had successfully completed sex offender treatment. He had new documentation, including polygraph results, showing that he was a low risk for reoffending. He showed that he was the primary caregiver for his wife, who was fighting an aggressive form of cancer (among other ailments). He presented an Inspector General report and an affidavit from a former BOP official demonstrating that his serious medical problems were unlikely to be treated adequately by the BOP. He pointed out that even if he was seeking a "departure," the Sentencing Commission’s policy statements state that age and health "may be relevant," and had always encouraged home confinement for a defendant who is elderly and infirm. He showed that there was a serious risk that he would die if sent to prison.

The district court considered these factors, as well as Mr. Bistline's remorseful allocution and the court's continuing policy disagreement with the child pornography sentencing guidelines, particularly the enhancements for the use of a computer and the possession of numerous images—factors which, the district court observed, were "present in every case." Based on all of these considerations, the district court increased Mr. Bistline’s period of home confinement from thirty days to three years—a 36-fold increase—but still declined to impose a prison sentence, which would be "a death sentence for him."  The court explained, "If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it."

The Sixth Circuit was more than happy to accommodate the district court’s request. In its second opinion in this case, the same panel ignored and mischaracterized the 120-page sentencing transcript, rejected the district court’s legitimate and thoughtful reasons for varying downward from the guidelines, and reaffirmed its prior "unequivocal" conclusion that a non-prison sentence cannot possibly "meet the criteria that Congress laid out in § 3553(a)." The court again remanded for resentencing—this time before a new judge.

* * *

In opposition to Mr. Bistline’s Petition for a Writ of Certiorari, the Solicitor General argued that the Sixth Circuit did "not require that the district court impose a particular sentence on remand." It appears that the Solicitor General was mistaken.

The Sixth Circuit’s holding in this case is both simple and remarkable: Richard Bistline must go to prison, period. This from an appellate court.

While this is the clearest example of a de facto mandatory prison sentence for possession of child pornography in the Sixth Circuit, it far from the first. In United States v. Camiscione, 207 F. App’x 631 (6th Cir. 2006) (Camiscione I), the court reversed a sentence of one day in the Marshal’s Lockup followed by three years supervised release. In United States v. Camiscione, 591 F.3d 823 (6th Cir. 2008) (Camiscione II), it reversed the exact same sentence a second time, despite a much stronger record to support it. In United States v. Christman, 607 F.3d 1110 (6th Cir. 2010), the court reversed a sentence of five days custody followed by fifteen years supervised release because the district court apparently placed too much weight on the defendant’s advanced age and ill health, the fact that he was his ailing mother’s primary caregiver, the fact that his family believed he was remorseful, and the fact that he had complied with his bond conditions.  And in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012), the court explicitly said there were no procedural defects in the district court's sentence of one day in custody followed by five years supervision, but nevertheless found the sentence substantively unreasonable because if failed to reflect the seriousness of the offense.

In each of these cases, the district courts reviewed the evidence—and the people—before them, and applied Section 3553(a) to the best of their abilities. And in each of them, the Sixth Circuit reversed—not because the district courts had made any procedural errors, but simply because the Sixth Circuit judges were unhappy with the results.

In the Sixth Circuit, Section 3553(a) apparently leaves no room for a non-prison sentence in a child pornography case. Not even three years home confinement will suffice—even for a feeble seventy-year-old who has been successful on supervision, cares for his ailing wife, and has proven that he presents no risk of recidivism. There appears to be no conceivable set of mitigating factors, and no possible alterative punishment, to avoid a sentence of imprisonment, even though Congress itself declined to impose a mandatory minimum sentence for this offense.

What these cases demonstrate is that the Sixth Circuit does not trust district court judges to sentence, at least not in this class of cases.

But hats off to Judge James L. Graham for trying.

If the full Sixth Circuit or the Supreme Court step in, this case may not reach a third sentencing hearing. It certainly shouldn’t. But if it does, and if the new sentencing judge believes as Judge Graham did that a sentence of imprisonment would be "greater than necessary" under Section 3553(a), I hope he or she will place the oath of office and the mandates of Congress and the Supreme Court above the sentencing preferences of this particular appellate panel, the judges of which (with the exception of Judge Ludington) are not accustomed to looking real people in their eyes as they send them away to prison to die.

Whatever justification there might have once been for "substantive reasonableness" review of sentences, it is time to reevaluate the need for this doctrine. It was intended as a highly-deferential check against extreme malfunctions in the sentencing process but it now appears to operate solely as a means for appellate court judges to reverse sentences that they personally would not have imposed. This is unhealthy. The line distinguishing substantive reasonableness from procedural reasonableness "is blurry if not porous," United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007), and there is little question that any (truly) substantively unreasonable sentence will also suffer from some serious procedural problem. If an appellate court can point to no defect in the sentencing apart from the sentence ultimately imposed, then perhaps it has no business reversing the sentence at all.


Tuesday, June 25, 2013

No Probable Cause, and No Good Faith

In United States v. Buffer, No. 12-5052 (unpublished), the Sixth Circuit was presented with the "unusual case" in which a search warrant affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."

The affidavit alleged that police had received an anonymous tip that drugs were being sold from 2147 Turner Avenue in Memphis, Tennessee.  Based on the tip, officers surveilled the residence and observed "several visits," each of which lasted "one to three minutes."  When police officers performed a traffic stop on one of the visitors who had "ma[de] a transaction" at the residence, they recovered 2.2 grams of marijuana. 

The court gave several reasons why these facts do not establish probable cause of illegal conduct at the residence.  First, the anonymous tip needed corroboration in order to support a finding of probable cause.  Second, the "observation of as few as three visits, lasting as little as one minute each, over a possible twenty-four-hour span, simply does not support a conclusion that there was a fair probability that evidence of drug trafficking would be found at the Residence."  Third, there was "no clear nexus" between the marijuana recovered during the traffic stop and the residence, given that the "small quantity" recovered "hardly suggests a recent drug sale," and that there was no admission or description of the "allegedly criminal nature of the 'transactions' that occurred."

That finding alone was not enough to justify suppression, however.  Under the "good faith" exception of United States v. Leon, 468 U.S. 897, 918 (1984), “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.”  Given the paucity of information to corroborate the anonymous tip of drug activity, the court found that this case satisfies that difficult standard.

Thursday, June 20, 2013

Breathing life into Brady

If a cooperating codefendant tells the government that your client did not know that he was transporting drugs, does the government have a duty to turn that evidence over to you?  Law students know the answer to this question: yes -- the evidence is plainly exculpatory and material, and it is in the sole possession of the government, so the government must turn it over under the unambiguous holding of Brady v. Maryland.  Law students are a foolish lot, however, and they tend to listen to what the Supreme Court says rather than reading the ways that circuit courts put a "gloss" on Supreme Court opinions.  For example, the Sixth Circuit created an exception where such information is "available from another source," such as a public document.  That exception quickly expanded to include evidence that was "available" to a defendant, even if the defendant did not know of the evidence but had reason to know of it.  As is often the case, this exception threatens to swallow the rule.

Not here though.  Judge Merritt draws a line in the sand in today's must-read Tavera opinion.  The opinion notes that "[t]his particular case is not close," and recommends "that the U.S. Attorney's office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue." 

Perhaps most legally interesting is the way in which the opinion distinguishes the "available from another source" exception.  The government alleged that it was Tavera's duty to interview his cooperating codefendant (or his codefendant's lawyer) and ask if he ever exculpated him.  The problem with this theory is that the codefendant had later changed his story to the government and would now have to admit to lying to government officials in order to tell him what he said.  Likewise, any defense attorney knows how hard it is to get access to a codefendant who is cooperating with the government. 

The only remaining question is whether Judge Clay's dissent portends an en banc request from the government.  What say you, commentariat? 

SCOTUS and the categorical approach, yet again

The ever mercurial Supreme Court has issued yet another opinion on the application of the modified categorical approach to the ACCA, this time tightening the reigns on district courts in a defense-friendly way.

Descamps asserts itself as the new go-to opinion for those wishing to understand the Shepard/Taylor approach, but also for those who wish to challenge its application to a defendant's criminal history.  In a nutshell, the opinion limits the so-called "modified" categorical approach to those cases where a statute is "divisible" -- where, for example, the statute has an "(a)" section that meets the generic definition of, say, a burglary, but has a "(b)" section that does not.  In those cases, a court may look to Shepard documents to determine what part of the statute the defendant was originally convicted of.  Where, as here, the statute is simply broader in its definition of a crime than the "generic" definition but is not "divisible," the district court must simply apply the categorical approach and not look to outside Shepard documents. 

Justice Kagan's opinion shows an impressive understanding of the issues behind this question, especially with respect to their oft-forgotten Sixth Amendment origins.  She also evidently understands what goes on in courtrooms, noting that "during plea hearings, the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations."

Justice Thomas jumps in with a concurrence suggesting once again that the real problem with all of this is not the ACCA, but is instead Almendarez-Torres, which he seems eager to reconsider.

All in all, an excellent defense win, and required reading for those working in the federal system.