In United States v. Sherer, et. al (found here), a bank robbery case, the Sixth Circuit recently reminded folks how to properly preserve several issues, and also more extensively addressed variances based on mathematical accidents within the guidelines.
First, issue preservation:
- A motion to dismiss under the Speedy Trial Act cannot be filed until the Act has been filed. That is, the government has 70 days, post-indictment, to bring a defendant to trial. The motion cannot be filed until at least day 71. This is partly because filing the motion stops the speedy trial clock and it does not start again until after the court has ruled on the motion.
- A sufficiency of the evidence claim will be reviewed for plain error unless counsel moves for a judgment of acquittal at the end of trial. This feels odd, especially if you have not put on a defense. But you must move for it twice: at the end of the government's evidence, and then again at the close of the case. To win on plain error review, the "record must be devoid of evidence pointing to guilt."
- Admissibility of evidence arguments will be reviewed for plain error unless counsel objects to its admission at trial. To win on plain error review, a defendant must "show that the trial would have turned out differently but for the" objectionable evidence.
Variances based on mathematical accidents within the guidelines:
Mr. Sherer had robbed banks before the instant offense. A little over a decade before, he had robbed five banks and pled guilty to robbing two of them. Because he was sentenced on those pleas on the same day, the two sentences merged. Because they merged, they were counted as one offense rather than two, which would have qualified Mr. Sherer for Career Offender status. The district court used the Career Offender guideline anyway, noting Mr. Sherer had escaped the impact of the Career Offender range "simply by... accident or happenstance." The district court also noted Mr. Sherer had done this new robbery eight months after serving 10 years in jail for the last bank robberies and was at extremely high risk to recidivate. The Sixth Circuit discussed other guideline cliffs - for instance, being one dollar above a loss cutoff - and noted courts were free to recognize those cliffs and adjust sentences accordingly, provided they adequately explained their decision.