Sunday, April 30, 2017

Buyer's Remorse: Sixth Circuit Broadly Construes Appellate Waiver in Plea Agreement



When I first began representing defendants in federal criminal cases, the United States almost always agreed to permit the defendant to retain his or her right to appeal their sentence in the plea agreement.  Over the last several years, the United States has been less willing to remove all language regarding sentencing appeals from its plea agreements.  Instead, in many cases, it seeks to include language permitting the defendant to appeal a sentence only if it is outside of the maximum sentence authorized under the Sentencing Guidelines.  The Court's recent decision in United States v. Griffin is one of those cases.

In this case, Mr. Griffin pleaded guilty to conspiring to defraud the government by submitting false income tax refund claims and obtaining the fraudulent proceeds.  The plea agreement stated that Mr. Griffin waived his right to appeal his sentence, except "(a) any punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court."  After the District Court accepted his plea agreement, the United States Probation office prepared a PSR noting that, with an adjustment for acceptance of responsibility, Mr. Griffin's applicable Guidelines sentencing range was zero to six months.  

At sentencing, the District Court denied an adjustment for acceptance of responsibility and instead increased Mr. Griffin's base offense level by two points for obstruction of justice.  This changed his applicable Guidelines sentencing range to ten to sixteen months.  The District Court subsequently sentenced Mr. Griffin to twelve months imprisonment.  Finding that the District Court did not make sufficient factual findings to support its obstruction of justice enhancement, the Court remanded Mr. Griffin's case for resentencing.

Upon remand, the District Court again denied Mr. Griffin a reduction for acceptance of responsibility and again imposed the obstruction of justice enhancement.  This time, however, the Court imposed a ten-month sentence -- the minimum recommended under the Guidelines.  Mr. Griffin again appealed his sentence.

On Mr. Griffin's second appeal, the United States argued that the waiver language in Mr. Griffin's plea agreement barred his appeal.  Mr. Griffin, however, argued that the waiver did not apply because he received a sentence greater than the one contemplated in his plea agreement (zero to six months). The Court, however, disagreed, finding that the plea agreement did not contain stipulations limiting the Court to the zero to six month range.  For this reason, the Court found that the District Court imposed a sentence "under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations" in the plea agreement.  Accordingly, it dismissed Mr. Griffin's second appeal.

Although one could certainly take issue with the Court's broad construction of the waiver language contained in Mr. Griffin's plea agreement (it does not appear the agreement hinged on the District Court's determination of the Guidelines range), it is a reminder that the devil is in the details regarding appellate waivers.  As the United States continues to clamp down on sentencing appeals, it is likely we will see similar cases in the future. 



Thursday, April 20, 2017

The en banc reviews keep coming!

Yesterday, the Sixth Circuit granted en banc review in United States v. Gibson, 15-6122. This case involves whether a co-conspirator who only directly handled a very small amount of drugs should be held accountable for the total amount of drugs involved in the entire conspiracy.

Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:

"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents."

Judge Rogers also noted the Circuit split on the issue.

The Sixth has yet to schedule oral argument in Stitt, 14-6158, or Turner, 15-6060. Given all the summer vacation schedules in play, it is probably too much to hope for a triple-header sometime in July or August. Maybe after Labor Day? When it is still warm enough to grab an after-court ice cream or pastry at Graeter's before heading off to Arnold's for tasty adult beverages?

Saturday, April 15, 2017

Judges clash over venue for money laundering

Ronald Myers argued that he couldn’t be tried in the W.D. Mich. for money laundering because, although he stole motor homes in the W.D. Mich., he sold (and received laundered proceeds for) them solely in other districts.

In US v. Myers, issued yesterday, Judges Rogers and Merritt affirmed his convictions, over Judge Kethledge’s dissent.

The money-laundering statute allows prosecution in “any district where a prosecution for the underlying specific unlawful activity could be brought, if the defendant participated in the transfer of the proceeds of the specified unlawful activity from that district to the district where the financial or monetary transactions in conducted.” 18 U.S.C.§ 1956(i)(1)(B). 

As the majority saw it, the statute provided venue in W.D. Mich. because Myers’s motor-home thefts occurred there. Further, the majority decided that the statute doesn’t violate constitutional limits on venue because those limits “permit prosecution in a district where the crime was committed in part.” Although Myers's money-laundering “was completed elsewhere,” the majority reasoned, “it was begun and therefore committed in part in the Western District of Michigan.”

Judge Kethledge disagreed on the constitutional point. He explained that, in interpreting constitutional venue, the Supreme Court has looked “to the place of the ‘conduct elements’ rather than to the place of any ‘circumstance element[s]’ of the offense.” And, he argued, the only “conduct element” to a money-laundering offense is the financial transaction itself. Because the financial transactions at issue took place outside the W.D. Mich., Judge Kethledge would have reversed Myers’s money-laundering convictions.


In his conclusion, Judge Kethledge warned that "the Constitution requires us to determine venue crime-by-crime, rather than in gross." Which raises the question: What other statutes could be subject to venue challenge?

Thursday, April 13, 2017

Exciting development in Turner right-to-counsel case

Last February, Judges Merritt, Batchelder, and Rogers announced in Turner v. United States, 15-6060 that they did not like Sixth Circuit precedent holding that the right to counsel (and thus the right to effective assistance of counsel) did not start until after a defendant is charged, but were bound to follow the precedent. We discussed the case here.

Apparently Judges Merritt, Batchelder, and Rogers are not the only judges on the court who have concerns. Today, the Sixth Circuit unanimously ruled to rehear the case en banc. This is a very exciting development. Anyone who has been involved with a defendant charged in state court and facing the possibility of federal charges knows just how important it is to have effective representation during the gestation period, so to speak, of a potential federal action. The NACDL filed an amicus brief in support of en banc rehearing.

No schedule has yet been set. Perhaps we could have a double header one day this summer, with Stitt in the morning and Turner in the afternoon?

Wednesday, April 05, 2017

Sixth Circuit addresses crimes of violence under U.S.S.G § 2K2.1(a)(2)


In United States v. Harris, the Sixth Circuit addressed the issue of whether the Michigan offense of Felonious Assault is a “crime of violence” under U.S.S.G § 2K2.1(a)(2).

          Oscar Harris was convicted of being a felon in possession of a firearm. The Guidelines provide that the base offense level for a firearm offense is increased if that offense is preceded by two felony convictions for a “crime of violence” which is defined in U.S.S.G § 4B1.2(a) and Application Note 1 thereto. See U.S.S.G § 2K2.1(a)(2) and § 2K2.1 cmt. n.1. The district court determined that Mr. Harris’s two prior convictions for felonious assault were crimes of violence under the Guidelines.

          On appeal, Mr. Harris contended that felonious assault was not a “crime of violence” because it could be committed by an offensive touching which would not amount to “violent force” under Johnson v. United States, 559 U.S. 133, 140 (2010). Thus, a felonious assault did not fit within the “elements clause” of § 4B1.2(a)(1) because it did not categorically involve the “use, attempted use, or threatened use of physical force against the person of another.”

          In response to Mr. Harris’s argument, the Sixth Circuit examined Michigan law and found that the felonious assault statute required a finding of “at least attempted or threatened offensive touching and use of a dangerous weapon.” The court determined that a battery is “a forceful or violent touching” and when coupled with the use of a dangerous weapon those two elements involve “the use, attempted use, or threatened use of physical force” under § 4B1.2(a)(1). Taken together, the two elements amounted to violent force and thus constituted a crime of violence under § 2K2.1(a)(2).  

Prior Convictions can count as crimes of violence under the Guidelines and as violent felonies under the Armed Career Criminal Act (ACCA)


United States v. Patterson involves the defendant’s direct appeal and the government’s cross-appeal of the district court’s sentencing decision.

          Mr. Patterson was convicted in Ohio state court of receiving stolen property and a traffic offense. The same incident also resulted in a federal prosecution and conviction for being a felon in possession of a firearm. The district court denied Mr. Patterson’s motion to dismiss the firearm charge on double jeopardy grounds. The district court, however, counted Mr. Patterson’s prior Ohio convictions for aggravated robbery as crimes of violence under the Guidelines but not as violent felonies under the Armed Career Criminal Act (ACCA). The Sixth Circuit affirmed the denial of the motion to dismiss but reversed the district court’s sentencing decision because the prior convictions met the requirements of the Guidelines and the ACCA.

          The Sixth Circuit first noted that dual prosecutions do not constitute double jeopardy because Ohio and the United States are separate sovereigns and may prosecute a person under their separate legal systems. Mr. Patterson, however, contended that the government acted in “bad faith” because it should have notified him of its intention to file federal charges when he was considering the State’s plea offer. The Sixth Circuit explained that the record did not show that there was any federal collaboration in the state prosecution. The federal government was not involved in the state plea negotiations and the State did not promise Mr. Patterson that he would not be subject to a federal prosecution. In the court’s view, there was no evidence of bad faith. The court, however, did not reject Mr. Patterson’s bad faith argument out of hand and the implication is that it could work in a different situation.

          The “heart” of the case, however, was whether Mr. Patterson’s prior aggravated robbery convictions were predicate offenses under the ACCA. The Sixth Circuit’s analysis focused on the ACCA’s “elements clause” which describes a “violent felony” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). Using the categorical approach to determine whether the “elements clause” encompassed aggravated robbery, the Sixth Circuit looked at the statutory definition of the offense rather than the underlying facts. In response to one of Mr. Patterson’s arguments, the court said it did not matter that the Ohio statute did not include an element that matched the ACCA’s elements clause word for word as long as the offense at issue required the State to prove everything included in the elements clause.

          Mr. Patterson also argued that Ohio statute did not expressly require the use of force or that the use of a deadly weapon must be against another’s person. The Sixth Circuit, however, determined that the Ohio Supreme Court construed the statute as containing those elements. As to Mr. Patterson’s argument that the statute would permit a conviction of someone who robs a store while just happening to be carrying a weapon openly (as Ohio law allows), the court said that as long as there was no reason to think that the statute could be applied to someone who used “minimal actual force” or did not threaten serious physical force against others, then “there is every reason to treat it as a crime of violence.”

          The Sixth Circuit concluded from the language of the Ohio statute and state court decisions interpreting it that aggravated robbery fell within the scope of the elements clause and was therefore a violent felony. Thus, Mr. Patterson should have been sentenced as an armed career criminal.

          Mr. Patterson raised another issue regarding his sentence. He contended that the district court committed error by treating his conviction for aggravated robbery with a deadly weapon as a crime of violence when it calculated the base offense level under the Guidelines. The Sixth Circuit noted that it used authority interpreting the ACCA’s elements clause to interpret “the same phrase in the Guidelines.” That led the court to conclude that the offense qualified as a crime of violence under the Guidelines. The court also cited Beckles v. United States, 137 S.Ct. 886 (2017) as a separate reason to reject Mr. Patterson’s argument because aggravated robbery with a deadly weapon “would have qualified as a crime of violence under the residual clause, which was still part of the Guidelines” when he was sentenced.   

         

 

 

Sunday, April 02, 2017

Out of Luck

Child pornography cases are hard.  The people charged with such offenses often suffer serious mental health conditions or survived traumatic events.  Penalties for child pornography offenses are severe.  And the images of abuse are terrible—so terrible, in fact, that few defense attorneys would ever want to try a child pornography case to a jury.  The theory goes that, once the jurors see the awful images, their desire for recrimination will make consideration of nuanced defenses about the defendant’s intent nearly impossible.  United States v. Luck illustrates just how few arrows are in defense counsel’s quiver when defending child pornography cases.

Lindell Luck was charged with possession and distribution of child pornography.  Both charges require proof that the images possessed and distributed depict child pornography.  In an effort to focus on other elements (and perhaps to minimize jurors’ retributive impulses), Luck offered to stipulate that the images on his computers depicted child pornography.  But the government would not agree to this stipulation and insisted that jurors must view the images.  When the district court refused to force a stipulation, Luck turned to Old Chief v.United States, 519 U.S. 172 (1997), which held that district courts abuse their discretion under FRE 403 when a defendant charged with being a felon in possession of a firearm offers to stipulate to the prior felony conviction. 

Relying on one of Old Chief’s footnotes, which said the holding was limited to proof of a defendant’s felon status, the Sixth Circuit and the district court rejected Luck’s request.  Felon status, the court reasoned, is a unique element of 18 U.S.C. § 922(g) because the fact of conviction is all that matters, not the nature and circumstances leading to the conviction.  The prior conviction is essentially a side show that pre-dates the defendant’s new criminal conduct.  In contrast to a defendant’s felon status, the nature of the images is critical to the story of the offense.  The Sixth Circuit believed jurors might be confused if a court simply told them the files on Luck’s computer include images of child pornography.  The court further believed the jury could consider the content of the images to evaluate whether Luck knew the images he distributed were child-pornographic.  Worse yet, the court explained, a stipulation may unmoor the jury’s task “to sit in judgment” and understand the “human significance” of the defendant’s judgment.  The court did not mention the fact that, unlike a capital case, the jury plays no role in sentencing.  Apparently, the jury must be convinced that people, in fact, download and distribute child pornography.  And so, there is little defense counsel can do to ensure jurors can set aside their emotions after viewing these terrible images.

Luck includes other important discussions about whether a person is “in custody” when FBI agents come knocking at the door.  In short, the Sixth Circuit endorses the view that, unless officers are yelling or brandishing weapons, if a person is in his own home and officers say that the interrogee is free to leave, then no reasonable person could believe he is under arrest.  In reaching this conclusion, the court sanctioned the exclusion of testimony by the other people present during the questioning who would say that the FBI agents’ demeanor, tone, and general affect gave the distinct impression nobody was free to leave.  Also irrelevant to the in-custody inquiry was the fact that Luck was under the influence of various medications that cause him to feel like a character on The Walking Dead for a few hours after waking because nothing in the record suggested that the officers were aware Luck was under the influence.

The Sixth Circuit also approved of the exclusion of any testimony about why exactly Luck took those medications.  Luck was diagnosed with leukemia when he was eight years old.  He survived three years of chemotherapy and at least one botched chemotherapeutic session.  Since that time, he has struggled with joint pain, memory retention, and basic skills like reading and writing.  The jury was not permitted to hear any of that back story because the district court feared it would distract the jury from the task at hand:  deciding whether to believe Luck’s confession was true and freely given.  The Sixth Circuit agreed.

Finally, in an attempt to plant some reasonable doubt, defense counsel tried to call Luck’s father to the stand.  The plan was to ask dad a few introductory questions, but when the direct examination ventured into topics like who downloaded and distributed the child pornography, he would invoke his Fifth Amendment privilege against self-incrimination. This, the Sixth Circuit said, defense counsel cannot do when the witness and defendant have a familial relationship.  The fear is that the father may try to take the fall for his son.

In sum, Luck’s convictions and 78-month sentence were affirmed.  And defendants tried with child pornography offenses are likely out of luck if they want a jury trial.