Thursday, December 07, 2017

Don't Bring a Gun to a Felony

Consider the following interaction between three people: Darryl Jackson (the defendant); Cecil (the confidential informant), and Peter (the undercover police officer):

[Darryl emerges from a nearby house]

Cecil: Hey, Darryl, I’d like to buy a gram of heroin.
Darryl: Sure thing. That will be $120.

[After Darryl hands Cecil the heroin]

Cecil: Hey, I’m in a bit of a pickle. Do you know where I can pick up a pistol?
Darryl: Not really… Well, I might have one I can sell you.
Cecil: I’ll buy it from you for $300.
Darryl: How about $400?
Cecil: Deal.

[Darryl walks to a different house down the street and returns a few minutes later. Darryl and Cecil exchange the pistol for cash and depart.]

[A few days later]

Darryl: Hey, Cecil, I have another gun for sale for $500.
Cecil: Sure, let’s meet where we met up last time.

[The two meet and make the transaction.]

Cecil: Hey, I know someone else who wants to buy some heroin. Are you interested?
Darryl: Sure.
Cecil: Great, let’s meet at that car over there.

[Darryl walks to get heroin. Cecil leaves the area and gets into the police car with Peter. A few minutes later, Darryl gets in the car.]

Darryl: Here’s your half-gram of heroin. That’ll be $45.
Peter: Here you go. Thanks.

[End Scene.]

What do you think? Did Darryl use or possess those guns in connection with the drug transactions? That was the question the Sixth Circuit had to answer in United States v. Jackson.

U.S.S.G. § 2K2.1(b)(6)(B) requires increasing the offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense.” To answer that question, the Sixth Circuit helpfully outlined the typical circumstances where the enhancement applies:
  • Fortress: When guns are in close proximity to the drugs, and so the judge can infer that the defendant kept the guns nearby to protect the drugs or to intimidate buyers.
  •  Pot Sweetener: When guns and drugs are part of a package deal. For example, if the sale is for 60 pills and a shotgun in exchange for $600, instead of $400 for the pills alone.
  • Currency: Using firearms as currency in exchange for drugs. For example, 1 gram of heroin in exchange for one rifle.

The majority of the panel concluded that the events described above did not fit within any of these three theories. First, the majority asked, How is the gun offering any offensive or defensive protection down the street? Not much. There was also no evidence Darryl brought a gun and  drugs to the second meeting either. As far as anybody knew, the guns and drugs were always separated or even in different houses.

Second, even though the gun and drugs were technically present during the second meeting, Darryl had already sold the gun to Cecil, and so there was no risk he would use the gun to facilitate the drug sale. 

Third, the guns never sweetened any of the deals. Each sale was isolated: two sales where Darryl received cash in consideration for heroin; and two sales where guns were exchanged for cash. The separate sales for separate consideration could hardly be part of the same sweet pot.  Nor did Darryl and Cecil ever use the guns as currency.

Because Darryl did not come armed during the sales, store guns and drugs together, trade guns for drugs, or negotiate the gun and drug sales together, § 2K2.1(b)(6)(B) did not apply to him. That finding of fact has tremendous consequences for Darryl; his guidelines range dropped from 110-137 months to 77-99 months. If he receives a 10-month downward variance as he did before, he could serve 33 fewer months in prison. That's nearly three years. In sentencing, findings of fact matter.

Onward! The Sixth Circuit Denies Rehearing En Banc in Raybon

Practitioners know, but the public may not, that some of the most consequential decisions courts make are not reported in the news or even in publicly available opinions. Indeed, some of these decisions don’t even come with much explanation.

Many federal prisoners who were sentenced as career offenders when the guidelines were still mandatory have been trying to get courts to consider whether their sentences are unconstitutional according to the rule announced in Johnson v. United States. Johnson held that the so-called residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Supreme Court said that rule is retroactive, meaning that those who were serving sentences imposed because of the ACCA’s statutory mandatory minimum could have re-sentencing hearings. Although the Court held that Johnson’s rule did not apply to those who were designated career offenders under the advisory guidelines, the Court did not address the application of Johnson to the mandatory guidelines.

In August, the Sixth Circuit held that these prisoners sentenced during the pre-Booker years under mandatory guidelines could not use Johnson to get new sentences because their petitioners were not “timely.” A § 2255 motion is timely when filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The court reasoned that these prisoners, like Jerome Raybon, who filed their § 2255 petitions within one year of the Johnson opinion had filed too soon because the Supreme Court has not yet said explicitly that Johnson’s holding applies retroactively to the mandatory guidelines. (Full disclosure: my office represents Mr. Raybon.)

Mr. Raybon filed a petition for rehearing en banc. Since that time, many prisoners who happen to reside in the Sixth Circuit have been denied the opportunity to litigate the legal questions raised in their petitions. The First Circuit has criticized the Sixth Circuit’s approach. But, on December 6, 2017, the Sixth Circuit denied Mr. Raybon’s petition because less than a majority of the judges voted to hear the case en banc.

That small decision carries significant consequences for prisoners in the Sixth Circuit. Attorneys representing these people should continue to argue that Raybon was wrongly decided. Maybe the full court will address the question at some other time. Until then, however, Raybon remains the law in Michigan, Ohio, Tennessee, and Kentucky unless the Supreme Court intervenes. The men and women sentenced pre-Booker must wait patiently in prison until that time if it comes at all.

Wednesday, December 06, 2017

Prosecution's use of cell-site location analysis upheld

Last week, the Sixth Circuit, on the government's motion, published the previously unpublished decision in United States v. Pembrook (which -- full disclosure -- I worked on). There are issues preserved for Supreme Court review -- claims related to Carpenter and Dimaya -- so I won't go into too many details. But because of the government's request to publish, I think it's useful to flag the case here.

In a nutshell, Pembrook was a four-defendant consolidated appeal in a Hobbs Act robbery case, with stacking 924(c) counts. Each defendant received 33 years in prison. A big part of the government's case was historic cell-site location information (from a "tower dump") that prosecutors used to argue that the defendants traveled from Philadelphia to the West-side of Michigan (where one robbery occurred) and then to the East-side of Michigan (where a second occurred) before returning to Philadelphia.

We challenged the reliability of the cell-site analysis on appeal, citing among other things the Sixth Circuit's criticism of cell-site analysis in United States v.Reynolds. But the court distinguished the type of analysis criticized in Reynolds by emphasizing that the cell-site analysis in Pembrook's case spanned "a much larger geographical area" -- i.e., state-to-state, East v. West side of Michigan. In the court's view, "[a]t this level of geographic distance, cell-site analysis is established as reliable."

The motion to publish argued that "[l]itigants have inundated federal courts in this circuit with claims challenging the propriety of testimony about cell site location analysis." The motion provides a snapshot of how the government may try to use this case in the future. Particularly, the prosecutor asserted that the court found "cell site analysis—generally—is sufficiently reliable to satisfy Daubert and Rule 702" and "is objectively tested and subject to peer review, and the absence of an error rate is irrelevant." The prosecutor added that "[t]he real question . . . is whether cell site location analysis is reliable in a particular case."

So at the end of the day, litigators still need to test the reliability of cell-site analysis in each particular case. But this opinion underscores, as the Supreme Court did recently at oral argument in Carpenter, that the ubiquity of cell phones and location data provides the government with a potentially powerful tool against criminal defendants.

No Right to Try

The Immigration and Nationality Act is a swampy mess of numbers, letters, and Roman numerals big and small. Trying to make sense of it is a challenge. For that reason, many people who have been served with a notice of removal retain counsel to guide them through the removal, a.k.a. deportation, proceedings.

When facing the possibility of deportation after serving one year in prison for being a drug user who possessed a firearm, Emilio Estrada decided to retain a lawyer to help him navigate the proceedings and to help interpret INA alphabet soup. Unfortunately, the lawyers he retained did not advise him that green-card holders who have been convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(E)(ii), can beg an immigration judge to allow them to remain in the United States, see id. § 1182(h) (INA § 212(h)). That provision of the INA permits an immigration judge to allow an immigrant to remain in the United States if his deportation would cause extreme hardship to his spouse, child, or parent who is a U.S. citizen or lawful permanent resident. The immigration judge did not inform Mr. Estrada of this fact. Mr. Estrada’s lawyer didn’t either. Instead, Mr. Estrada’s counsel admitted to all facts in the removal order, and Mr. Estrada was deported to Mexico.

Six years later, federal agents found Mr. Estrada in the United States, and he was charged with two counsel of illegal reentry following deportation. Mr. Estrada decided to put up a fight. He filed a motion to dismiss the indictment, collaterally attacking the fundamental fairness of his earlier removal proceedings.

To succeed, Mr. Estrada had to demonstrate all three of the following: (1) that he exhausted all available administrative remedies; (2) that the deportation proceedings deprived him of the opportunity for judicial review; and (3) that the entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326(d). A fundamentally unfair removal hearing is one that deprives the deportee of due process, i.e., life, liberty, or property, and resulted in prejudice.

The Sixth Circuit held that Mr. Estrada could not prevail because the immigration judge and his attorney did not deprive him of any life, liberty, or property interest because the relief provided by § 212(h) is just discretionary. In essence, § 212(h) grants only an opportunity to try, not an affirmative right to remain. But, unlike the Second and Ninth Circuits, the Sixth Circuit does not believe the right to try is a constitutionally protected interest. Because Mr. Estrada was not deprived of life, liberty, or property, the court reasoned, the immigration judge did not deprive him of due process. The court also held that Mr. Estrada had no constitutional right to accurate and complete attorney advice either.

Unless the Supreme Court takes up this question that has caused a circuit split, Mr. Estrada will likely be convicted, sentenced to prison, and then deported. What hardship may befall his family members if he is deported remains unknown.

Court enforces plea waiver of future retroactive sentencing reductions

Regular readers of this blog will know that the Sixth Circuit has a history of broadly construing appeal waivers in plea agreements. Consider our posts on United States v. GriffinUnited States v. Keller, and United States v. Luebbert.

This week's published decision in United States v. Clardy is in the same vein as those decisions but with a twist --  rather than challenging his appeal waiver, the defendant challenged the waiver of his right to take advantage of a sentencing reduction under 18 U.S.C. § 3582(c)(2).

Unfortunately for Clardy, his plea agreement explicitly referred to § 3582(c), stating that he "knowingly waives the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c)."

Clardy argued that this waiver was ambiguous for three reasons: (1) it was titled "Waiver of Appellate Rights," (2) it confusingly referred to a § 3582(c) motion a "collateral attack," and (3) authority to reduce sentences belongs to the district court so defendants can't waive it. The Sixth Circuit rejected each argument.

This decision serves as an important reminder that defense attorneys need to carefully explain all provisions in a plea agreement to clients. 

I'd note also that the decision is limited to those situations where § 3582(c) is explicitly named in the plea agreement. If the text of a plea agreement never mentions § 3582(c), the defendant should still maintain the ability to take advantage of a subsequent change in the sentencing law that is made retroactive. In such cases, the plea agreement is at best ambiguous with respect to whether the defendant is waiving this important right, and any ambiguity in the agreement is construed against the government. See United States v. Goodloe, 388 F. App'x 500, 503 (6th Cir. 2010) (refusing to construe appeal waiver not explicitly naming § 3582 as sufficient to waive a defendant's right to file a § 3582(c) motion); United States v. Monroe, 580 F. 3d, 552, 556–57 (7th Cir. 2009) (same); United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003) (same).