Friday, March 21, 2014

Holder Memo on Appeal

United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence.  The COA rejected the argument.

Crack case.  Defendant was a career offender.  GLs 151 to 188.  D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer).  Dist ct granted downward variance and sentenced D to 130 months of imprisonment. 

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"   

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement.  Confers no rights.  Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender).  Also said that he was not a candidate for the policy b/c of his lengthy criminal history.    

Sentence affirmed. 

Seventh Circuit on GPS

Following up on the post below, I think it is worth noting that the Seventh Circuit remains undecided on the GPS good-faith issue.  United States v. Brown, No. 11-1565, 2014 U.S. App. LEXIS 4076, at *7 (7th Cir. Mar. 4, 2014).

United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), the once helpful Third Circuit case, is up for rehearing en banc on May 28, 2014. 

I think we can expect to hear of cert petitions going up. . . .  We just have to stay tuned.   

Friday, March 14, 2014

No suppression of use of GPS before Jones


Keeping in line with the Supreme Court's decision in Davis v. United States, 131 S.Ct. 2419 (2011), the Court today held that, while use of a GPS device violated the Fourth Amendment, exclusion of the evidence was not an appropriate remedy, as at the time of the use of the device, the uncontradicted case law allowed for such use.  United States v. Fisher, 13-1623

At the time the police placed the tracking device on Fisher’s vehicle, the training and guidance provided to these officers by various police agencies and prosecutors all indicated that such conduct was consistent with the Constitution; no circuit authority had indicated that the use of a GPS tracker was unconstitutional, and three circuits had held that such conduct was lawful; the relevant Supreme Court case law had indicated such a practice was lawful; and our precedent also provided binding authority permitting such conduct. These are not the type of circumstances that warrant the application of the “bitter pill” that is the exclusionary rule. As it is apparent that the police acted in reasonable, good-faith reliance and that their conduct was lawful, the exclusionary rule does not apply.