Monday, April 18, 2016

For "Drugs Minus Two" Relief, Rule 11(c) Agreements Must Explicitly Refer to Guidelines Range

          In case you missed it in the excitement over the Supreme Court declaring Johnson retroactive less than three weeks after hearing argument on the issue, the Sixth Circuit today continued its recent trend of publishing decisions rejecting motions under 18 U.S.C. § 3582 for relief under Guideline Amendment 782, aka “drugs minus two.” Fortunately, there are still plenty of ways for defendants to "shoot the gap" and gain relief.

          First, in February, the court in United States v. Smith, No. 15-5853, held that a defendant is ineligible for relief if Amendment 782 wouldn't have affected the original guideline range because the defendant was a career offender. This ruling doesn't apply, however, even to career offenders, if the defendant’s guideline range based on the drug guideline was higher than the range based on the career-offender guideline.

          Next, in March, the court in United States v. Taylor, No. 15-5930, concluded (over Judge Merritt’s dissent) that § 3582 relief is unavailable for drug offenders who received a downward variance based on a mix of substantial assistance and other “non-assistance factors.” Offenders who received a downward variance based solely on assistance remain eligible for relief. See USSG § 1B1.10(b).

          Then today, in United States v. McNeese, No. 15-5548, the court decided that a defendant who pleads guilty according to a Rule 11(c) plea agreement is not eligible for relief under § 3582 if the agreement itself does not explicitly mention a guideline range. Section 3582(c)(2) requires, for a sentencing reduction, that the sentence be “based on” a sentencing range that was subsequently lowered by the Sentencing Commission. Relying on United States v. Freeman, the court concluded that, even if by the time of sentencing it was clear the sentence was derived from a guidelines range, the range must be clear from the agreement itself in order to qualify for relief. McNeese is fairly easy to distinguish: As long as a Rule 11(c) plea agreement explicitly incorporates a guideline range, McNeese shouldn’t bar relief.

No warrant needed to track the location of your phone

By M.O. Stevens (Own work) [GFDL ( or CC BY 3.0 (], via Wikimedia Commons
When you make a phone call on your cell phone, your phone reaches out to a cell tower.  When that happens, your cellular phone service creates a log of which cell tower you used, and places that information in their business records.  From this log, an expert can place you in a certain location within a half mile to two mile radius. The Sixth Circuit has held that this information which provides your location on a certain date and time is not protected by the Fourth Amendment.

In United States v. Carpenter, the defendants were charged with Hobbs Act robberies and 18 U.S.C. section 924(c) counts.  During trial, the United States presented testimony from an FBI agent.  The agent testified that, using his training and expertise, as well as documentation received from wireless carriers as to cell towers used by the defendants phone, he could place their location at the date and time near each robbery.  

The defense objected to admission of this evidence on appeal, claiming that the information from their phones was protected by the Fourth Amendment.  The Court disagreed, finding the cell records "say nothing about the content of any calls. Instead the records include routing information, which the wireless providers gathered in the ordinary course of business. Carriers necessarily track their customers’ phones across different cell-site sectors to connect and maintain their customers’ calls. And carriers keep records of these data to find weak spots in their network and to determine whether roaming charges apply, among other purposes. Thus, the cell-site data—like mailing addresses, phone numbers, and IP addresses—are information that facilitate personal communications, rather than part of the content of those communications themselves. The government’s collection of business records containing these data therefore is not a search."

Monday, April 11, 2016

A Huge Win for the Defense: US v. Fowler, et al.

In the Eastern District of Michigan, Dr. Carl Fowler ran a pain clinic.  Babubhai Patel opened a pharmacy in the same building as the clinic.  Patel hired Kartik Shah to manage the pharmacy.  Shah paid Fowler to refer patients to the pharmacy, and Patel introduced Fowler to pill dealers, known as ‘marketers,’ including Michael Thoran.  

Fowler  and Thoran were convicted by a jury of conspiracy to commit health care fraud, conspiracy to distribute controlled substances, and conspiracy to pay or receive healthcare kickbacks.   

At Fowler’s sentencing hearing, none of the parties, including the district court, were able to determine an appropriate Guidelines range for imprisonment and the district judge decided to start at 108 months.   Without calculating the Guidelines range or make any factual findings regarding this “appropriate” starting point, the district court discussed the 18 U.S.C. § 3553 factors and sentenced Fowler to 72 months imprisonment with two years’ supervised release.  In addition, restitution was an issue at sentencing and defense argued that the jury did not determine the amount of loss and the evidence supported only twenty percent of the prescriptions being fraudulent.  The United States disagreed and argued that $1,752,957 was actually a conservative estimate.  The district court ordered restitution for $1,752,957. 

In Thoran’s sentencing, the United States and defense stipulated to a range of imprisonment of 168-210 months.  The Court addressed the § 3553 factors and sentenced him to 108 months of imprisonment with three years of supervised release and restitution of $2,632,854. 

Both appealed their sentences and Thoran also appealed his conviction.  See United States v. Carl Fowler (14-2412); Michael Thoran (15-1073).

In Fowler’s appeal, he argued that his sentence was procedurally and substantively unreasonable because the district court failed to calculate the Guidelines range or make factual findings in imposing his sentence.  The Government argued that Fowler essentially waived his right to have the Guidelines range calculated because he agreed that 108 months was an appropriate starting point. 

The Sixth Circuit took great issue with the district court’s failure to calculate or make a factual finding about the Guidelines range.  Failure of district courts to make these calculations or factual findings “renders it impossible for the Court to conduct any meaningful appellate review of the reasonableness of a defendant’s sentence. “ Based on this analysis, the Sixth Circuit found Fowler’s sentence procedurally unreasonable.   The Sixth Circuit completely disregarded the Government’s waiver argument. The Court also addressed the restitution amount and concluded that the district court’s restitution order was based on clearly erroneous findings. 

The Court applied the same reasoning to Thoran’s sentencing and held that “for a sentence to be procedurally reasonable, the district court must calculate the Guidelines range and make factual findings regarding that range.”  Furthermore, the  Court held that the district court abused its discretion by failing to make specific findings regarding why Thoran should be held accountable for the entire loss of $2.6 million. 

The sentences for both defendants were remanded for resentencing but Thoran’s convictions were affirmed. 

This was certainly a job well done by Kevin M. Schad, Office of the Federal Public Defender and Kellie Kulka, University of Cincinnati College of Law.   The oral argument for these defendants is available online and provides further insight into these issues.  

Doo unto others . . . .

                                                                                                  Courtesy of mslavic on Flickr

Appellant Jeffery Walker was on supervised release.  His neighbor's dog kept coming into his yard and "depositing" on his lawn.  Walker took umbrage.  In fact, he took more than umbrage - he took a machete to his neighbor, assaulting and nearly killing him.  He was charged in state court with attempted murder, and probation moved to revoke his supervised release.  The district court agreed, and imposed a 5 year sentence.

On appeal, Walker argued that, because he acted in self defense, the sentence should have been lower than the statutory maximum term.  The Court held that, despite the significant mitigation presented at sentencing, that the district court did not abuse its discretion in varying upward to the maximum term.

The Court admitted that the fact pattern was one of first impression for them.  As Judge Sutton noted "there is nothing new under the sun.” Ecclesiastes 1:9.  Maybe so. But this is a first for us—a dispute between next-door neighbors about uncollected dog deposits that degenerated into a near-fatal assault with a machete."

Saturday, April 09, 2016

Is the Enumerated-Offenses Clause of the ACCA Unconstitutionally Vague?

Pursuant to the Armed Career Criminal Act (18 U.S.C. § 924(e)) , a person who violates 18 U.S.C. § 922(g) shall be imprisoned for a minimum of 15 years if that person has three previous convictions for a violent felony.   The enumerated-offense clause of the ACCA provides ‘violent felony’ includes a crime that is “punishable by imprisonment for a term exceeding one year” and specifies certain offenses.  [18 U.S.C. §924(e)(2)(B)(ii)].     

Defendant Ronnie Smith pled guilty to two counts of possessing firearms as a felon under 18 U.S.C. § 922(g)(1), and to other federal crimes.  He was sentenced to 200 months in prison based on having three prior convictions that constituted ‘violent-felony’ convictions under the enumerated-offenses clause of the ACCA.  He challenged the vagueness of the enumerated-offenses clause but the Sixth Circuit found his argument misplaced. 

Though the United States Supreme Court recently invalidated the residual clause of the ACCA as unconstitutionally vague in Johnson v. United States,135 S. Ct 2551 (2015), the Sixth Circuit in United States v. Smith (15-3311) declined to make the same finding for the enumerated-offense clause.  Rather, the Court held that the enumerated-offenses clause ‘does not produce the type of unpredictable and arbitrary results that rendered the residual clause unconstitutional.” 

The district court’s judgment was affirmed.  

The Sixth Circuit Decides Immigration and Denaturalization Issues In This Very Informative and Interesting Case

As former Yugoslavia was being torn apart in the 1990s, the United States sent immigration officials to Belgrade to help those fleeing Bosnia and the ethnic cleansing that was taking place during the war.  In April 1998, Divna Maslenjak and her family met with an officer with the United States Immigration and Naturalization, and she was the primary applicant on her family’s asylum application.  She provided under oath that her family feared persecution because her husband failed to serve in the militia during the war.   She also affirmed that she and her husband lived separately from 1992 until 1997 as he remained in Jagodina, Serbia to avoid military service.   Based on her statements, her family was granted refugee status in 1999 and immigrated to the United States in September 2000.  She later obtained lawful permanent resident status in 2004. 

In December 2006, special agents with ICE questioned her husband, Ratko Maslenjak, as part of an investigation of whether he failed to disclose military service in Serbia on his own immigration application.  The investigation revealed that Ratko Maslenjak had served in the Bratunac Brigade of the Army of the Republic Srpska (aka VRS). This was a unit that participated in the genocide of thousands of Bosnian Muslims in 1995.  Mr. Maslenjak was charged with two counts of making a false statement on a government document (18 U.S.C § 1546(a)).  The government argued that he was an officer in this unit though there was no evidence he personally participated in the war crimes. 

A few days after her husband’s arrest, Divna Maslenjak filed an N-400 Application for Naturalization on December 20, 2006.  On the application, she answered “no” to the questions of whether she ever “lied to any U.S. government official to gain entry or admission into the United States” and whether she had “knowingly given false or misleading information to any U.S. government official while applying for any immigration benefit or to avoid deportation, exclusion, or removal.”  She was also interviewed under oath and declined to make changes to her application.  On August 3, 2007, she was naturalized as a citizen of the United States. 

Her husband was subsequently found guilty on October 7, 2007 in the United States District Court for the Northern District of Ohio for both counts of violating 18 U.S.C. 1546(a).  He was sentenced to twenty-four months of probation and he was subject to removal. He was taken into ICE custody in January 2009, yet he filed a petition of asylum.  Divna Maslenjak filed on his behalf  Form I-130 Petition for Alien Relative and also testified at his asylum hearing.   At the hearing, she admitted he had served in the military and that they had lived together after 1992.  She also admitted to lying to the immigration officer in 1998 while initially seeking refugee status. 

Based on these admissions, she  was indicted by a federal grand jury with one count of knowingly procuring her naturalization contrary to law in violation of 18 U.S.C.§ 1425(a) based on her “no” answers on the form N-400 Application for Naturalization. She was also indicted for knowingly misusing an unlawfully issued certificate of naturalization in violation of 18 U.S.C. § 1423, when she filed Form I-130 in her attempt to seek a lawful permanent resident status for her husband.  She was found guilty by the jury on both counts and was sentenced to two years’ probation.  The district court also granted the government’s motion to have her naturalization revoked under 8 U.S.C. § 1451(e). 

In United Statesv. Maslenjak (14-3864), she appealed on two issues. 

The first issue was whether 18 U.S.C § 1425(a) contains an implied materiality requirement where a naturalized citizen faces mandatory denaturalization following a conviction under § 1425(a).  If so, she argued the district court instructed the jury improperly. 

The Sixth Circuit explained that the Immigration and Naturalization Act (“INA”)( 8 U.S.C. § 1451) has two alternative procedures for denaturalization, one civil and one criminal.  The civil procedure [8 U.S.C. § 1451(a)] expressly requires proof of materiality, however the criminal procedure [8 U.S.C. § 1451(e)] makes “denaturalization an automatic consequence of a criminal conviction under 18 U.S.C § 1425. 

The Sixth Circuit found based upon the plain language of 18 U.S.C. § 1425, and the overall statutory scheme for denaturalization that proof of  a material false statement is not required to sustain a conviction.   Thus, the Sixth Circuit held that the district court provided a correct statement of law when it instructed the jury “that making a false statement under oath in an immigration proceeding was ‘contrary to law’ and violated 18 U.S.C. § 1425(a) if the act of making a false statement violated the immigration laws, regardless of whether the statement was material.”  This particular instruction tracked the language of 18 U.S.C. § 1015(a).

Divna Maslenjak’s second appellate issue was whether the district court erroneously instructed the jury that it could convict her if they jury found she lacked good moral character.   8 U.S.C. §1427(a)(3) establishes that ‘good moral character’ is a requirement for naturalization, and 8 U.S.C. § 1101(f)(6) provides that “no one can be found to be a person of ‘good moral character’ if the person ‘has given false testimony for the purpose of obtaining any benefit’ under the INA.”  The jury instruction provided that she did not satisfy this ‘good moral character’ requirement of 8 U.S.C. § 1427(a) “if the government could show that she had given ‘false testimony for the purpose of obtaining any immigration benefit.”   She raised various arguments regarding this issue but ultimately the Sixth Circuit held that the district court did not abuse its discretion because the instructions, taken as a whole, accurately reflected the law.  

The judgment was affirmed. 

Thursday, April 07, 2016

The Sixth Circuit Finds that District Court Erred in Suppressing Evidence

A confidential informant gave information to an ATF agent that “D” was selling cocaine out of a residence in Flint, Michigan.  The agent conducted surveillance and personally observed “D” (aka Dionte Jones) leave the specified house in a car registered to the owner of the residence, drive to a prearranged drug deal, and sell cocaine to the informant.  Thirty-six hours after the arranged drug transaction, the agent obtained a search warrant for the house based on the informant’s tip and the agent’s personal observations.  During the search, law enforcement officers located cocaine, guns, scales and currency.   

Dionte Jones was subsequently indicted for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1).   Defense counsel sought suppression of the evidence and the district court granted the motion finding that the agent’s affidavit in support of the warrant did not support a finding of probable cause.    On an appeal brought by the government, the Sixth Circuit disagreed and reversed the district court’s suppression order.  See United States v. Dionte Jones (15-1791).

The Sixth Circuit reasoned a good indication Jones had a “substantial connection” to the residence was that he got into the car registered to the owner of the home.  “A mere dinner guest, for example, typically does not drive off in the family car.”    Also, a good indication he was a drug dealer was that he sold drugs to the informant immediately after leaving the house. 

The Sixth Circuit considered three concerns addressed by the district court regarding the affidavit and warrant.  First, the district court found that the agent’s affidavit did not describe in detail his two-year relationship with the confidential informant.  The Sixth Circuit found this concern misplaced because the affidavit provided probable cause with the combination of the agent’s personal observations and the informant’s tip.   

Second, the district court was concerned that the warrant lacked dates of drug transactions.  The Sixth Circuit disagreed because the affidavit provided that the relevant drug transaction occurred thirty-six hours prior to the submission of the warrant application.    

Third, the district court was troubled that the affidavit merely referenced  the defendant as a “black male” and did not further describe him as a “large man.”  The Sixth Circuit reasoned that the man’s size was irrelevant.  He could have simply been described as a “person” and “yet - based on the other information in the affidavit - there would have been probable cause to search the house.” The Sixth Circuit held that his appearance was not at issue. Rather, the issue was truly that he left the particular address and drove straight to a drug deal and was the seller.  

How Many § 924(c) Convictions Apply if a Defendant Engaged in One Firearm Act While Committing Multiple Simultaneous Conspiracies?

During the summer of 2011, Manila Vichitvongsa executed two violent robberies in the course of two weeks.  He was indicted with two counts of conspiring to commit Hobbs Act robbery [18 U.S.C. § 1951]; two counts of brandishing/discharging a firearm during the conspiracy to commit the Hobbs Act robbery [18 U.S.C. § 924(c)(1)]; two counts of conspiracy with intent to distribute controlled substances [21 U.S.C. § 846]; and two counts of brandishing/discharging a firearm while drug trafficking [18 U.S.C. § 924(c)(1)]. 

Vichitvongsa took the matter to trial and was convicted on all eight counts.  Pursuant to 18 U.S.C. § 924(c)(1)(A),(C),and (D), his first § 924(c) was subject to the 84 month statutory minimum and the remaining three 924(c) convictions were subject to a statutory minimum of 300 months, each to run consecutively.   He was sentenced to 1,219 months of imprisonment. 

On appeal, the Sixth Circuit held in United States v. Vichitvongsa, (14-6013/15-5037)  that taking one affirmative firearm act (brandishing a handgun) while simultaneously committing two predicate offenses (conspiring to commit Hobbs Act robbery and to traffic drugs)does not support two § 924(c) convictions.   Thus, the Court vacated two of the four 18 U.S.C. § 924(c) convictions. 

The other issues addressed by the defendant included a challenge to  “the sufficiency of the evidence supporting an interstate nexus to sustain his Hobbs Act convictions; whether his multiple conspiracy convictions violate double jeopardy; and the reasonableness of his 1,219 month sentence.”  The Sixth Circuit affirmed the rulings of the district court on these three issues.

Friday, April 01, 2016

Sixth Circuit declines to take judicial notice of unclear state court transcript to resolve Johnson issue

         In United States v. Turner, No. 15-3353 (April 1, 2016) (unpublished) (consolidated with United States v. Torres, No. 15-3346), the defendant, Mr. Turner pleaded guilty to being a felon-in-possession of a firearm and being an unlicensed firearms dealer. At sentencing, the government maintained that Mr. Turner had four prior convictions that qualified as predicate offenses under the Armed Career Criminal Act (ACCA). Mr. Turner argued that two of his prior Ohio convictions (one for third degree burglary, and one for robbery) did not qualify as predicate offenses under the ACCA’s “residual clause.” Before Johnson v. United States, 135 S.Ct. 2551 (2015) was decided, the district court sentenced Mr. Turner to the mandatory minimum sentence of 15 years under the ACCA.

          On direct appeal, Mr. Turner again challenged the use of the two Ohio convictions as ACCA predicates. He argued that they were considered “violent felonies” only for purposes of the residual clause which was held to be void for vagueness in Johnson. The government conceded that the burglary conviction was a violent felony under the residual clause and could no longer be used as an ACCA predicate offense. The parties, however, disputed the use of the robbery conviction as an ACCA predicate and they looked to different sections of the Ohio robbery statute to support their positions.

          The government moved the Sixth Circuit under Fed.R.Evid. 201(b) to take judicial notice of the plea and sentencing transcript for the robbery conviction. The Sixth Circuit determined, however, that “the state court documents do not clearly resolve the issue of under what section of the robbery statute Turner was indicted, pled guilty to or was sentenced.” Since the “paper record is not beyond controversy,” the court concluded that Fed.R.Evid. 201(b) “should not be the deciding factor in determining” whether the robbery conviction qualifies as an ACCA predicate.

          The Sixth Circuit vacated Mr. Turner’s 15-year mandatory minimum sentence and remanded the case for reconsideration in light of Johnson. The district court was also required to determine what Ohio offense, if any, qualifies as an offense supporting a 15-year mandatory-minimum sentence.

Residual clauses of ACCA and Career Offender Guideline are interpreted identically

           In United States v. Binford, No. 14-1635 (March 31, 2016), the defendant, Mr. Binford, was convicted of being a felon in possession of a firearm and possessing marijuana with intent to distribute. He was subject to the Armed Career Criminal Act (ACCA) which applies to an offender who has at least three prior convictions for “violent felonies.” Under the ACCA, the statutory mandatory minimum is 15 years. Mr. Binford also qualified as a career offender under U.S.S.G § 4B1.1 which applies to an offender who has at least two prior felony convictions for a “crime of violence.” As a career offender, Mr. Binford’s guideline range was 262 to 327 months.

          Mr. Binford challenged the use of two, prior Ohio convictions as predicate offenses for ACCA and career offender purposes. One felony conviction was for second degree burglary and the other was for fourth degree burglary. The district court held that the burglary convictions qualified as crimes of violence under the residual clauses of the ACCA and the guidelines. The district court followed the government’s recommendation and sentenced Mr. Binford on the gun charge to the mandatory minimum of 15 years under the ACCA.

          On direct appeal, the government conceded that the ACCA enhancement was improper because it acknowledged that Mr. Binford only had two prior qualifying convictions (for assault and second degree burglary). The only issue before the Sixth Circuit was whether the second degree burglary conviction was a “crime of violence” under the residual clause of the career offender guideline (U.S.S.G § 4B1.2(a)(2)). While Mr. Binford’s appeal was pending, the Supreme Court held in Johnson v. United States, 135 S.Ct. 2551 (2015) that the identically worded residual clause of the ACCA was void for vagueness. See U.S.S.G § 4B1.2(a)(2) and 18 U.S.C. § 924(e)(2)(B)(ii).

          The Sixth Circuit noted that it has interpreted the residual clauses of the ACCA and the career offender guideline identically and the Supreme Court has vacated the sentences of offenders who were sentenced under the guidelines’ residual clause. Consequently, the Sixth Circuit vacated the judgment and remanded the case for reconsideration in light of Johnson.