Compared to most weeks, the 6th Circuit was very active this past week. There were five published cases, which appear to be noteworthy. I will provide a brief synopsis of all five.
1) Teresa Prewett v. Stanley Weems, Case No. 12-6489.
The defendant pled guilty to child pornography production offenses, and later the victim filed a civil against him for damages pursuant to 18 USC 2255(a). The allegation was that Weems produced 7 videos, and alleged each video entitled the victim to $150,000 of compensation. The question before the court was whether the victim could seek $150,000 for each individual video (totaling over $1 million), or for the entire criminal offense (a total of $150,000). Because the victim did not bring separate suits for each individual video and the suit arose out of a single “unbroken chain of events,” the victim was only entitled to one single cause of action for all 7 videos, and the total amount recoverable was $150,000.
2) United States v. Barbour, Case No. 13-5653.
This case concerned the Armed Career Criminal Act and how to define predicate offenses of crimes of violence. At issue was the defendant’s prior state conviction of two aggravated robberies. At the state level, both aggravated robberies were indicted in a single count. Ten years later, he was indicted for a federal firearms offense. The federal court found the two aggravated robberies each counted as a single predicate crime of violence for the purposes of the ACCA, resulting a 15 year mandatory minimum sentence under 18 USC 924(e). On appeal, the defendant challenged this, arguing that the robberies could not be separated. The 6th Circuit agreed with the defendant and vacated the sentence.
The opinion provides a good overview of the 6th Circuit’s stance on how to define separate offenses in the context of 924(e). Offenses can be separately counted if: 1) it is possible to discern the point at which the first offense is completed, and the subsequent point at
which the second offense begins, 2) it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense, or 3) the offenses are committed in different residences or business locations. Page 5 of opinion. The court also made clear that the burden to prove whether the offenses were separate was on the government. Concluding the evidence before the district court was not clear as to when one robbery ended and the other began, the court vacated the sentence.
3) Gunner v. Welch, No. 13-3996
This was an appeal of the denial of a 2254 habeas corpus petition. The petitioner was convicted of drug trafficking and given a ten year sentence. The evidence showed that prior to trial, the prosecution offered a plea bargain to his counsel, but the petitioner claims he encouraged him to go to trial. He was convicted, given ten years, and appealed.
On appeal, his appellate counsel failed to inform him of his post-conviction rights, and specifically the fact that he had only a 180-day limit to file a post-conviction petition. As a result, the petitioner missed his post-conviction filing deadline. Petitioner filed a 2254 petition raising ineffective assistance of appellate counsel. The district court denied.
The 6th Circuit reversed finding that appellate counsel's failure to advise the defendant about his post-conviction rights, and the 180-day time limit, amounted to ineffective assistance of appellate counsel. The court's opinion is unique, and gets its Agency law issues, but ultimately reverses and remands. There is a discussion of Martinez v. Ryan claims (on ineffective assistance of post-conviction counsel) as well. This case is interesting in evaluating the duties of appellate counsel, which include the right to inform a defendant of their post-conviction rights and deadlines as well.
4) United States v. Bryon Taylor, Case No. 12-3730
This is my case, so I will try to tether my editorializing, but probably won’t. Mr. Taylor was convicted in 2004 of crack cocaine offenses. His offense subjected him to a 120-month mandatory minimum, but the government filed an enhancement, setting him mandatory minimum at 240 months. He was able to pierce the mandatory minimum due to 5K, and got a sentence of 151 months.
After the retroactive crack cocaine amendments, a 3582 sentence reduction motion was filed, alleging his guideline range had been lowered 2 levels and that he was eligible for a reduction to 130 months.
The district court denied, and the 6th Circuit affirmed. Judge Boggs wrote the opinion, but Judge Donald wrote a dissent. Judge Boggs concluded that under USSG 1B1.10, which discusses eligibility requirements for reduction, prevented relief. The key term is whether a defendant’s “applicable guideline range” has been lowered. The majority concluded that under USSG 1B1.10, 1B1.1, and 5G1.1, all make clear that if the defendant was subject to a statutory mandatory minimum, then that mandatory minimum IS the applicable guideline range. Essentially, the 5K departure has no bearing on the reduction analysis, and as the Court says “the helpful defendant has bottomed out” at the mandatory minimum. This holding is consistent with another one of my appeals, United States v. Joiner.
Judge Donald’s dissent essentially argues that the statutory mandatory minimum becomes “inoperative” when the defendant cooperates and pierces the mandatory minimum. Because it is inoperative, it cannot act continue to act as a floor for 3582 eligibility. This is consistent with the holdings of the 7th Circuit (US v. Wren), 3rd Circuit (US v. Savani) and DC Circuit (In re Sealed Case).
A petition for rehearing will be filed, but one thing should be made clear. This appeal, and many like it, concern on the definition of “applicable guideline range” found in USSG 1B1.10. The majority, and the corresponding similar appeals, all conclude that the mandatory minimum = the applicable guideline range, regardless of any subsequent departures or 5K grants. BUT, the Sentencing Commission, days before the issuance of this appeal, issued new sentencing guideline amendments. Specifically, the Commission changed 1B1.10, to add the following language:
If the case involves a statutorily required minimum sentence and the court had the authority to impose a sentence below the statutorily required minimum sentence pursuant to a government motion to reflect the defendant's substantial assistance to authorities, then for purposes of this policy statement the amended guideline range shall be determined without regard to the operation of §5G1.1 and §5G1.2.
So, this new amendment, which takes effect on November 1, 2014, essentially adopts Judge Donald’s position (and my position). In total, a cooperating defendant will not be hampered by their pierced mandatory minimum in seeking a sentence reduction. More to come.......
5) United States v. Kilgore, No. 13-5623
Defendant was sentenced to 70 months for being a felon in possession of a firearm. While performing community service at a police station, he stole two firearms from the evidence room. At sentencing, he was given a 2-level enhancement for “stealing” the firearms (2K2.1(b)(4)). He was also given a 4-level enhancement under 2K2.1(b)(6)(B), for possessing the firearm in connection “with another felony offense.” He challenged the 4-level enhancement, stating the stealing of the firearms was not an other felony offense. The Sixth Circuit agreed, finding the act of stealing the firearms could not amount to another felony offense is connection with the illegal possession of the same firearms. His sentence was reversed and the case was remanded.