Tuesday, October 23, 2018

Does Operating an Airplane Include Preflight Activities?

In a case of first impression, the Sixth Circuit interpreted the term “operate” under 18 U.S.C. § 342, which criminalizes operating a common carrier while intoxicated.  The defendant—a commercial airline pilot—arrived to work drunk.  Scheduled to fly that day, he prepared the plane for flight, including calibrating and programming instruments and requesting clearance from traffic control.  However, before passengers boarded, the co-pilot informed authorities that the defendant was drunk, and he was arrested.

Charged with operating a common carrier while under the influence of alcohol, the only issue at trial was whether the defendant “operated” the plane through his preflight preparations.  The district court ultimately instructed the jury that “[f]or a commercial pilot [“operate”] includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if . . . the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight.”  The jury subsequently convicted the defendant.

On appeal, a divided panel affirmed the conviction.  Noting that the no federal court of appeals had interpreted the term “operate,”  the Court held that the district court properly instructed the jury.  It rejected an interpretation of “operating” that would include only flight itself.  The Court held that such a definition would problematically excluded the preflight operations needed to fly safely. Thus, considering an airplane pilot's role and the statute's “public safety purpose,” the district court properly instructed the jury.

The dissent argued that the defendant’s actions were merely an attempt to operate the plane, a situation that the statute does not criminalize.  Focusing on the common law definition of “common carrier,” the dissent noted that not all airplanes are common carriers; only those transporting public passengers or freight qualify.  Accordingly, the key function of a common carrier is to transport such passengers or freight, and “operating” a carrier means controlling its functions. 

Thus, under the dissent’s view, the defendant never operated a common carrier.  While the defendant conducted preflight activities, no passengers boarded and the plane never moved.  Therefore, he never controlled the transport of passengers.

Instead, the defendant merely attempted to operate the carrier.  However, 18 U.S.C. § 342 fails to criminalize attempts.  Thus, the dissent would have reversed.

Given the divided panel and the issue of first impression, it will be interesting to see whether the Sixth Circuit reviews the decision en banc.  Opinion available here.

Thursday, October 11, 2018

We Repeat, Time-Served Sentences Are Unlawful

In United States v. Mitchell, the Sixth Circuit addressed cross-appeals from a grant of habeas relief under 2255 based on the inapplicability of the Armed Career Criminal Act. Mr. Mitchell was resentenced at the district-court level, because he no longer qualified as an armed career criminal. Because he had already served a seventeen-year term of incarceration, more than the maximum sentence that applied to him without application of the ACCA, the district court imposed a sentence of "time served" and released Mr. Mitchell.

On appeal, the Sixth Circuit reminded the parties that "this precise issue" had already been decided in United States v. Nichols, 897 F.3d 729 (6th Cir. 2018). In Nichols, the Sixth Circuit held that a time-served corrected sentence is unlawful, because it makes the length of actual incarceration served the length of the sentence imposed, even though that amount of time is beyond the applicable Guideline range and often beyond the statutory maximum sentence available. The Court also took pains to point out the four different options available to a district court in habeas: 1) discharge the petitioner, 2) grant the petitioner a new trial, 3) resentence the petitioner, or 4) correct the sentence.

A corrected sentence is subject to reasonableness review. But interestingly, a full resentencing is not needed. Instead, the district court may "impose a corrected sentence based on a brief order, a hearing that resembles a de novo sentencing proceeding, or anything in between." Mitchell (quoting Nichols at 738). In other words, not ever habeas revision of a sentence requires a full resentencing - and what degree of corrected process is required is based on the individual situation at hand. It is also a matter of judicial discretion.

It is worth noting that Mr. Mitchell also attempted to challenge his three-year term of supervised release, presumably because he served additional time beyond the lawful sentence. However, the Sixth Circuit declined to address the question in light of the remand. Instead, it directed the district court to "take the opportunity to provide an appropriate rationale for its supervised release decision."

Sunday, October 07, 2018

Appellate Waivers and the Elephant in the Room

This site does not often comment on unpublished cases, but, from time to time, an unpublished decision will provide guidance, and, in this case, a warning, for appellate counsel.  This is just such a case.

In United States v. Mason, the defendant, Mason, entered into a written plea agreement with the United States wherein the parties stipulated to a Guidelines range of 145-175 months.  In exchange, Mason agreed to waive his right to appeal his sentence so long as it did not exceed 175 months.

Prior to his sentencing, Mason raised numerous objections to this Guidelines calculations, which the district court subsequently denied.  This did not work to Mason's detriment, however, since the district court imposed a below-Guidelines sentence of 125 months.  Dissatisfied with this result, Mason appealed.

Citing the waiver in Mason's plea agreement, the Court promptly dismissed his appeal.  In its unpublished decision, the Court noted its annoyance with one critical fact: Mason failed to raise the appellate waiver as an issue.  "An unsuspecting reader," the Court noted, could waste his or her time reading the briefs only the discover that the appellant had waived all of the issues raised.  Judge Kethledge noted he was the unsuspecting reader, that Mason failed to respond to the issue after the United State raised it in its response brief, and that, were it a civil case, the appellant could face sanctions.  Ouch!

This author detests appellate waivers in plea agreements, especially the all to frequent language being employed by the United States where the parties try to play a guessing game about the defendant's Guidelines range.  Nevertheless, it is best not to ignore the elephant in the room on appeal.

Thursday, October 04, 2018

A Better (Plea) Deal: Court holds Defendant can Show Strickland Prejudice by Losing the Right to Negotiate a Better Plea Deal

Although the Court has been light on published opinions this week (so far), it has managed to issue one habeas win.  In Rodriguez-Penton v. United States, the Court reversed the District Court's denial of Mr. Rodriquez-Penton's 2255 motion and remanded it for additional proceedings, holding that Mr. Rodriquez-Penton, who was told pleading guilty would not adversely impact his immigration status, could meet the Strickland prejudice prong by showing that, had he known about the risk to his immigration status, "he would have bargained for a more favorable plea."

Mr. Rodriquez-Penton moved from Cuba to the United States when he was only fifteen years old.  At the time of his indictment in 2011, he was living in Louisville, Kentucky as a permanent resident with a green card.  The Government subsequently made two separate plea offers to him in the year after his arrest.  Ultimately, Mr. Rodriquez-Penton entered an open guilty plea in October 2012.  In March 2013, the district court sentenced him to 121 months imprisonment.  According to Mr. Rodriquez-Penton, he did not learn his guilty plea would possibly lead to his deportation until he spoke with his prison counselor.

After the Sixth Circuit rejected his argument that his plea was not knowing and voluntary, Mr. Rodriquez-Penton filed a 2255 motion arguing his trial counsel was ineffective for not explaining the adverse immigration impacts of his guilty plea.   A magistrate judge, and subsequently the district court, concluded Mr. Rodriquez-Penton met the first Strickland prong, finding his counsel's performance deficient because, by his own admission, he could not recall informing Mr. Rodriquez-Penton that deportation was a possibility.  However, both the magistrate judge and district court found that Mr. Rodriquez-Penton could not satisfy the second Strickland prong because he could not show prejudice.  Crucial to this decision was Mr. Rodriquez-Penton's testimony that he would have gone to trial, even if he could have negotiated a better plea agreement.  Thus, the district court dismissed his 2255 motion and Mr. Rodriquez-Penton appealed.

On appeal, the Court quickly agreed that Mr. Rodriquez-Penton demonstrated deficient performance.  The critical issue, however, was whether he could show actual prejudice.  Noting a question raised, but not answered by the Supreme Court in United States v. Lee, and smartly raised by Mr. Rodriquez-Penton, the Court held that he could demonstrate Strickland prejudice by demonstrating that, absent his attorney's deficient performance, he would have bargained for a more favorable plea.

Judge Thapar began his lengthy dissent by stating the obvious: "[b]eing a criminal defense attorney is not easy."  Noting that criminal defense attorneys often have the odds and resources stacked against them, Judge Thapar criticized the majority for creating a new "right" that made their jobs only harder.  Noting that defendants do not have a constitutional right to a plea offer, Judge Thapar said the majority's opinion would open the flood gates for numerous 2255 motions claiming that defendants would have negotiated a better plea deal had their counsel not been ineffective.

Time will only tell whether Judge Thapar's fears hold true.  In the meantime, look for future habeas appeals to cite this case in an effort to undue plea agreements.