Monday, August 31, 2015

Evading arrest not a predicate for ACCA

Very quick, unpublished opinion today in United States v. Odell Holder, 14-5666. Case was remanded by the Supreme Court for evaluation under Johnson. Sixth held that evading arrest is not a predicate offense.

Friday, August 21, 2015

Summons Is Not "Intervening Arrest" for Career-Offender Purposes

In United States v. Powell, No. 14-3932 (Aug. 19, 2015), the Sixth Circuit clarified application of the career-offender provision under the Sentencing Guidelines.

Powell argued that the district court erred in classifying him as a career offender because the court mistakenly counted two of his prior convictions separately.

The Guidelines explain that “prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). “If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.” Id.

The district court relied on pair of assault convictions t
o sentence Powell as a career offender. But Powell merely received a summons for the first of these charges before being arrested two months later on the second charge, and he was sentenced for both crimes on the same day. The Sixth Circuit sided with an en banc Ninth Circuit decision, and dicta from other circuits, to decide that an intervening summons or citation does not constitute “an intervening arrest” under § 4A1.2(a)(2). The Sixth Circuit declined to follow a contrary decision from the Seventh Circuit.

On another important note, Powell had waived most of his appellate rights as part of his plea agreement, but preserved his ability to challenge the determination of his criminal-history category. This exception, the Sixth Circuit decided, allowed an appellate challenge to the career-offender determination, even though it affected both Powell's criminal history and offense level. Even more interesting, the court's holding ultimately did not change Powell's criminal history category: his score dropped from 20 to 15, leaving him in
 category VI. But the Sixth Circuit nonetheless remanded because of the change in offense level.

Tuesday, August 11, 2015

"Legal Mail" to Correctional Facility Includes Mail From Prospective Attorney

Today's sole published opinion, ACLU Fund of Michigan v. County of Livingston is not a criminal case.  But it seemed appropriate to blog about it here because of the interest it may hold for criminal practitioners in the Sixth Circuit.

Here are the facts:  the Livingston County (MI) jail has a very restrictive mail policy.  Anything that's not legal mail has to be on a postcard.  The jail administrator in charge of determining what constitutes legal mail thinks that only mail from a court and mail from an attorney to a current client constitutes legal mail.  So the ACLU sent several letters to Livingston County inmates offering to help them challenge the county's policy.  The letters were in enveloped marked "legal mail" and were signed by an attorney.  But since Livingston County didn't consider them to be "legal mail," they were never delivered.  The ACLU filed suit, seeking injunctive relief.  The district court granted a preliminary injunction, and the defendants sought interlocutory review.

In its opinion, the court (Judges Moore, Siler, and Stranch comprised the panel, with Judge Moore writing) held that the jail's overly restrictive policy likely constituted violations of both the First and Fourteenth Amendments.  The court's discussion at the bottom of page 10 of the opinion is particularly instructive:  the court notes that legal services organizations like the ACLU must be able to send confidential communication prior to initiating legal action, and that both the inmate and the attorney have a strong interest in keeping communications confidential during the investigate stages of a legal matter.  That should be particularly helpful for attorneys considering taking on postconviction or habeas matters on behalf of an inmate.
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Sunday, August 09, 2015

Crimes of Violence Determined Under Shepard

The Sixth Circuit determined that Tennessee’s aggravated burglary statute is divisible and, further, may constitute a “crime of violence.” In United States v. Ozier, the Court used the modified categorical approach to determine whether the defendant committed a breed of aggravated burglary that constitutes a crime of violence under Section 4B1.2(a)(2) of the United States Sentencing Guidelines. The decision demonstrates the continued viability of Descamps and Shepard when determining career offender status (and potentially the ACCA) following Johnsonv. United States.

In Ozier, the District Court concluded that Ozier had committed one of the enumerated offenses (burglary of a dwelling) in Section 4B1.2(a)(2).  In conducting its analysis, the Sixth Circuit first determined (under Descamps) that Tennessee’s aggravated burglary statute is divisible. Having established that the statute is divisible, the Court then analyzed the plea colloquy underlying the state conviction (under Shepard), which confirmed the District Court’s conclusion. Because the underlying crime fell within the enumerated offenses, the Court declined to consider whether Johnson invalidated an analysis under the residual clause.

The case is United States v. Ozier, 14-6439 (6th Cir. August 5, 2015).

Thursday, August 06, 2015

Insufficient Evidence: Failing to Connect the Defendant with the Crime

The Sixth Circuit reversed a child pornography conviction because the Government failed to present sufficient evidence. In United States v. Lowe, police officers found child pornography on a computer at the defendant’s (James Lowe’s) home. But three people lived at the residence before the police search and the Court found that the Government failed to adduce evidence sufficient for any rational juror to conclude that it was the defendant, and not one of the other residents, who knowingly possessed the illegal computer files.

After developing probable cause that child pornography existed on a computer at the defendant’s residence, the police searched the residence and found three computers: a laptop with the username “Stacy;” a desktop computer; and a laptop with the username “Jamie.” It was on this third computer that the child pornography was located. The police found a form with James’s name, social security number, and date of birth in the office with the third computer.

But the Court noted that none of the computers required passwords. And the peer-to-peer file sharing program apparently involved with the child pornography had to be opened in order to potentially realize that the computer had child pornography (although there were some files that potentially could have contained illegal material in the recycling bin).

According to the Court, the Government failed because its evidence only demonstrated that the defendant owned and occasionally used the laptop, not that he was aware of the illegal material. To meet its burden, the Court suggested that the Government needed to show (if such evidence existed) that use of the illegal material occurred at or near the time the computer was used for some other purpose that identified the individual using the computer as the defendant. On the record before the Court, it concluded that “the evidence did not suggest that someone using the laptop for innocent purposes would know about the ongoing child-pornography downloads.”

The Court rarely finds cases in which the Government has failed to submit sufficient evidence--even when the Government relies only on circumstantial evidence (as it did in Lowe). Hence, this case is instructive with respect to when the Court may find that the Government's intended inferences amount to nothing more than speculation.

Rule 12 Claims Now Reviewable for Plain Error

Failure to raise Rule 12 motions before appeal will result in a forfeiture (not a waiver) of the claim on appeal. In United States v. Soto (a multi-defendant appeal), one defendant failed to raise a severance claim until appeal. Under Circuit precedent, such a claim would have been waived. See, e.g., United States v. Walden, 625 F.3d 961, 967 (6th Cir. 2010). But that precedent relied on a previous version of the Federal Rules of Criminal Procedure. After analyzing the text of the 2014 Rule and the history of the Advisory Committee’s consideration of the new text, the Sixth Circuit held that the defendant had merely forfeited his severance motion, not waived it. The panel then decided to apply plain error review to the claim. Unfortunately, the defendant could not overcome the plain error standard. But the Soto case opens forfeited Rule 12 claims to appellate review.

The case above is United States v. Soto, 13-2300 (6th July 24, 2015).