The Reckless Endangerment Enhancement Is Inapplicable Based on Discarding Firearm Alone

    In a divided opinion, the Sixth Circuit held last week that the reckless endangerment enhancement under Guideline 3C1.2 did not apply where the defendant discarded a sawed-off shotgun after bailing from a vehicle. United States v. Brooks. Under 3C1.2, the enhancement applies when a defendant creates a substantial risk of death or serious bodily injury to another person.
    Judge Moore, writing for the majority on this issue but not the remaining issues, explained that the reckless endangerment enhancement can be applied when a defendant discards a gun, because it creates a risk of harm from the gun being found and fired or even fired when it is dropped. But in Mr. Brooks' case, the gun was unloaded.
    The enhancement can also apply where the defendant draws the firearm in front of officers, creating an increased risk of gun play between the defendant and law enforcement. This creates a risk to officers and bystanders. However, the record in Mr. Brooks' case did not clarify whether officers saw Mr. Brooks pull out the firearm. Rather, the Sixth Circuit only had a short description in the PSR, which indicated Mr. Brooks dropped the gun in front of a residence. As a result, the majority held the facts were inadequate to support the enhancement.
    Judge Suhrheinrich wrote a dissenting opinion as to this issue and argued all the surrounding circumstances, including Mr. Brooks' flight from officers, increased the risk of harm and justified the enhancement.

Unreasonable Speculation Claims from Sentencing Are Issues of Procedural and Not Substantive Reasonableness

    Last week, the Sixth Circuit decided United States v. Parrish, which dealt with the defendant's in-prison possession of a cellphone. Mr. Parrish plead guilty to a possession of contraband misdemeanor and asked that he be given a one day sentence to run after his 250-month underlying term. That request was based on Mr. Parrish's argument that he had already been punished for the cell phone by the BOP and that he used the phone to contact family. The government argued for a Guideline sentence of four to ten months of incarceration. The district court imposed a Guideline sentence.
    On appeal, Mr. Parrish argued that the sentence was substantively unreasonable, because it was based on factual speculation. Specifically, a woman had provided an anonymous tip to the prison that Mr. Parrish was texting her. The district court determined that that fact undermined Mr. Parrish' claim that he was using the cell phone to contact his family. Instead, the district court found Mr. Parrish was contacting someone it determined did not want to be contacted. Mr. Parrish contended there was no evidence to support that he was using the cell phone to harass someone.
    The Sixth Circuit held this was a question of procedural and not substantive reasonableness, as it sounded in the claim that the district court "select[ed] a sentence based on clearly erroneous facts." Rejecting the cases cited by Mr. Parrish for support that this was substantive unreasonableness, the Court held that the prior decisions cited were decided at a time when "it was unsettled in the circuit whether a district court's consideration of an impermissible factor should be treated as procedural or substantive error." The Sixth Circuit noted that it had settled the question as one of procedural reasonableness in 2016 in United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016). Further, the district court is free to make "reasonable inferences from the record."

Not so fast! Court holds that the district court went too far in fashioning habeas relief.

On habeas review, what should a district court do when faced with clear evidence that a state court failed to properly address jurors' "extracurricular fact-finding" by conducting internet research?  In   Ewing v. Horton, the Sixth Circuit held that the district court went too far. 

After four days of strenuous deliberations -- during which it unsuccessfully asked the trial court to declare it deadlocked -- a jury convicted Darrell Ewing of first degree murder.  Approximately two months after the jury issued its verdict, however, one of the jurors filed an affidavit stating that two of her fellow jurors had searched for information on the Internet about Mr. Ewing using Google and Facebook.  Faced with this information, Mr. Ewing moved for a new trial and, in the alternative, for an evidentiary hearing regarding the newly presented information.  The trial court subsequently denied the motion, finding that the extraneous information was merely duplicative of the evidence presented against Mr. Ewing at trial.  The Michigan Court of Appeals subsequently affirmed, and the Michigan Supreme Court denied further review.

Having exhausted his state court remedies, Mr. Ewing filed a habeas action wherein he asserted the trial court violated his constitutional rights to a fair trial and impartial jury because of the jury's consideration of extraneous facts.  In addition, Mr. Ewing asked the district court to order a new trial or a hearing to determine the impact of the extraneous information presented to the jury.  The district court subsequently agreed and ordered that the state grant Mr. Ewing a new trial within ninety days or otherwise order his release.

On appeal, the parties conceded that the trial court had violated Mr. Ewing's constitutional rights.  However, they disagreed on the remedy.  Was Mr. Ewing entitled to a new trial or to the the Remmer hearing the trial court failed to hold?  The Sixth Circuit agreed with the latter.  Through no fault of his own, the Court concluded, Mr. Ewing had not developed sufficient evidence to prove the jury's consideration of extraneous information denied him his constitutional right to a fair trial and impartial jury.  Since the trial court denied Mr. Ewing such an opportunity, the Court held that the proper remedy was to remand the matter to the trial court to conduct an evidentiary hearing.

As noted in the majority opinion and in Judge Moore's dissent, the case also touched upon the appropriate discretion provided to district courts in fashioning relief in habeas cases and upon principles of federalism.  The Court concluded that the district court abused its discretion by imposing a new trial upon the state court without allowing it an opportunity to conduct a Remmer hearing.

This case presents examples of the pitfalls that juries face in an era of easily accessible information and about how the Sixth Circuit views principles of federalism in habeas proceedings.  In this instance, at least, the Court believed the district court went too far in fashioning relief.  

          Sixth Circuit examines the adequacy of a district court’s explanation for imposing consecutive sentences

           In United States v. King, the defendant, Dalen King, was on supervised release when he pleaded guilty to several drug charges. The drug convictions were among the violations on which revocation of supervised release was sought. The Guidelines range for the drug convictions was 30 to 37 months imprisonment and by statute the maximum sentence for the supervised release violations was 24 months.

          The government argued for a Guidelines range sentence for the drug convictions and a consecutive sentence of 24 months for the supervised release violations. Mr. King argued for “a total combined sentence” that fell below the Guidelines range. The district court sentenced Mr. King to 30 months imprisonment on the drug convictions and a consecutive sentence of 6 months on the supervised release violations.

          On appeal, Mr. King argued that his sentence was procedurally unreasonable because the district court failed to explicitly refer to the applicable policy statement (U.S.S.G. §7B1.3(f)) and did not adequately explain its reasons for imposing consecutive sentences. The issue was subject to plain error review because no objection was made at sentencing. The Sixth Circuit held that the district court provided an adequate explanation for imposing consecutive sentences and thus affirmed Mr. King’s sentence.  

          In the exercise of its discretion to run sentences concurrently or consecutively, the district court must consider the factors in 18 U.S.C. §3553(a) and any applicable Guideline or policy statements. Although the district court here did not specifically refer to §7B1.3(f), which addresses the imposition of consecutive sentences upon revocation of supervised release, the Sixth Circuit found from the record that the court considered that policy statement. The Sixth Circuit noted that the district court heard the parties’ sentencing arguments; questioned the government about its sentencing recommendation; made a statement about consecutive sentencing; and addressed Mr. King’s background and history. All of those factors led the Sixth Circuit to conclude that the district court considered the relevant Guidelines and policy statements and understood that it had the discretion to impose concurrent or consecutive sentences.  The district court was found to have complied with §3553(a) and adequately explained its sentencing decision.

          Mr. King also made an argument that the district court was required to consider U.S.S.G. §5G1.3(d) which is a policy statement that addresses the concurrent - consecutive sentencing options where the defendant is subject to an undischarged term of imprisonment. The Sixth Circuit noted that §5G1.3(d) is inapplicable “to sentences imposed for violations of supervised release.” Rather, “it applies to sentences for convictions that occur while a defendant is on supervised release, not a supervised release violation itself.” King, Op. at 5, n.3. (citations omitted) .

          Mr. King made an additional argument that the district court failed to specifically respond “to a one-sentence argument” in his sentencing memorandum which noted that he was assessed 2 criminal history points for violating the law while on supervised release. Since those points increased his Guidelines range, Mr. King contended that a concurrent sentence for the supervised release violation would satisfy the §3553(a) factors. The Sixth Circuit rejected that argument stating that the district court “is not required to explicitly address every mitigating argument that a defendant makes, particularly when those arguments are raised only in passing.” Op. at 7 (citation omitted).

          The King decision reinforces not only the need to make objections at sentencing to any procedural errors but also to flesh out sentencing issues either in a written memorandum or at the sentencing.