Playing with Government Money? With Restitution Owed, Court Okays Anti-Gambling Probation Modifications

Jodi Lynn Budzynski pled guilty to defrauding the government of Social Security benefits and was sentenced to two years of probation and ordered to repay more than $48,000. When the probation office found out she was withdrawing money at a casino she was brought back before the district court, which modified her probation conditions to prohibit her from gambling and to allow a search if supported by reasonable suspicion that she had violated her probation terms. She appealed these added conditions.

In United States v. Budzynski, the Sixth Circuit affirmed both modified probation conditions, relying on the district court’s detailed explanation that drew a line from Ms. Budzynski’s issues with gambling to the statutory requirements for imposing discretionary probation conditions.

The panel began by side-stepping a question on the scope of its review by finding that even under Ms. Budzynski’s preferred approach the district court did not abuse its discretion. (This appears to be the first published decision from the Sixth Circuit finding that modifications of probation, and not only revocations, are reviewed merely for an abuse of discretion.) The government argued that 18 U.S.C. § 3742(a)(3) limits appellate review to probation conditions relating to restrictions on occupations and intermittent confinement, while Ms. Budzynski framed her request as one for review of a sentence imposed “in violation of law” under subsection (a)(1). 

The Court found that the district judge adequately justified the no-gambling condition based on Ms. Budzynski’s background and the permissible reasons for discretionary probation conditions. Such conditions must be tied to the familiar 3553(a)(1) and (2) factors and be no more restrictive than needed to serve the factors in 3553(a)(2).

Although her convictions were not for offenses involving gambling, the connection between her crimes and a history of financial improprieties and investigations related to her gambling sufficiently linked the condition to her characteristics and the offenses’ circumstances. It also served deterrent, rehabilitative, and retributive purposes.

The panel distinguished a Seventh Circuit case disapproving of a gambling restriction where there was no evidence the defendant had a gambling problem or even was a gambler, such that the condition would redirect money that might be lost from gambling towards restitution. Here the evidence showed that Ms. Budzynski frequented casinos even while she had failed to make any restitution payments. Also, the argument in that case that a gambling prohibition would redirect would-be gambling losses to restitution came from the government on appeal, not from the district court, whereas Ms. Budzynski’s judge expressed that very worry.

Nor was the restriction overbroad in outright barring gambling, rather than merely requiring truthful reporting of winnings as Ms. Budzynski would have it, since it was the loss of money that concerned the district court and the condition did not bar all recreational spending.

As for the search condition, the panel found that it aided compliance with probation conditions and was again justified by the 3553(a)(1) and (2) factors. It also distinguished a second Seventh Circuit decision where the district judge gave no explanation for a broad search condition.

Defense practitioners may find Budzynski most useful as a reminder to judges (or probation officers) that discretionary conditions must fit the person, the offense, and narrowly to probation’s purposes, or as a contrast to district court decisions that have failed to draw those connections.

Still an Open Question Whether Attempted Hobbs Act Robbery Is a Crime of Violence

In United States v. Clancy, the Sixth Circuit addressed only one of the two questions Mr. Clancy raised on appeal. The other circuits are split on the second question, and we'll have to wait to find out the Sixth Circuit's view.

First, the question the court did resolve: when Lamar Clancy tried to rob a store at gunpoint, the store manager and an employee grabbed their guns and shot. One bullet hit Mr. Clancy in the arm. His colleagues took him to the hospital, where staff took off his bloody clothes and left them on the trauma room floor.

Police officers went to the store, where employees described the suspects and what they were wearing. A short time later, they learned that the hospital had admitted a shooting victim, and two officers headed there. When they walked in, they saw Mr. Clancy in the trauma room and clothes, matching a description they'd heard at the store, lying on the floor. After staff airlifted Mr. Clancy to another hospital, crime-scene investigators retrieved his bagged clothes from the trauma room.

Mr. Clancy moved to suppress the clothes, and the district court denied the motion. The Sixth Circuit affirmed. The court held that, while officers were lawfully in the hospital, they saw the clothes in plain view, and they matched what one of the robbery suspects was wearing. Seeing and seizing the clothes from the hospital room thus didn't violate the Fourth Amendment.

Second, the question left open: the jury convicted Mr. Clancy of attempted Hobbs Act robbery and of using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). On appeal, he argued that, unlike a completed Hobbs Act robbery, attempted Hobbs Act robbery is not a crime of violence. Other courts of appeals have given different answers to that question. Compare United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018) (attempted Hobbs Act robbery is a crime of violence) with United States v. Taylor, No. 19-7616, 2020 WL 6053317 (4th Cir. Oct. 14, 2020) (attempted Hobbs Act robbery is not a crime of violence).

For Mr. Clancy, though, that split of authority was fatal to his argument on appeal. He did not object at trial, so the court reviewed the issue only for plain error. And because the courts of appeals are split, even if there were error, it was not plain. We'll find out the Sixth Circuit's view on this question one day, but not yet.

Telling Jurors *They* Are the Victims of Bank Fraud Is Plain Error, But Not So Flagrant to Reverse

The ban on "Golden Rule" arguments means prosecutors can't ask jurors to put themselves in the victim's shoes. In Sharon Hall's bank-fraud trial, the prosecutor "went a step further and called them [the jurors] the victims of Hall's crime." But in United States v. Hall, even though the Sixth Circuit concluded that those statements were "no doubt improper," the court affirmed Ms. Hall's convictions.

The problem for Ms. Hall's appeal was in the court's analysis of whether the statements were flagrant, using the so-called Carroll factors: (1) whether the remarks tended to prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether they were deliberate or accidental; and (4) whether the evidence against the defendant was strong. The court concluded that the remarks prejudiced Ms. Hall and a post-closing general curative instruction didn't eliminate the harm, but that the three remarks weren't extensive or deliberate, and the evidence against Ms. Hall was strong. 

Two Phones Does Not Provide Reasonable Suspicion to Search

 

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When courts decide whether a warrantless search is “reasonable,” and therefore constitutional, they essentially ask if the ends justify the means. By this I don’t mean whether the search uncovered evidence of a crime, which is nearly always true when there is a motion to suppress evidence. Instead, the search must advance a government interest other than pure investigation, which must be balanced by the person’s privacy interest in the thing searched.

In Riley v. California, the Supreme Court issued a robust opinion that acknowledged the unique privacy interests we have in our phones. When law enforcement officers search a phone, there must be a significant government need to conduct the search to with the warrant requirement.

In United States v. Fletcher, the Sixth Circuit addressed whether the search of a probationer’s cell phone was sufficiently justified. Fletcher was convicted of “importuning a minor” under Ohio law. He was sentenced to five years’ probation. A condition of probation was that Fletcher agreed to warrantless searches of his person, car, and home. Note that phones and computers are not expressly enumerated.

When the probation conducted a routine check of Fletcher’s home, she saw that Fletcher had two phones. When the officer stated that she was going to search the phones, Fletcher “responded nervously” and began looking through one of the phones. The officer thought Fletcher might be deleting something, so she grabbed the phone, demanded the passcodes, and then required Fletcher to unlock the phones with his fingerprint. During the warrantless search of the phone, the probation officer saw a pornographic image of a child. She contacted a detective, who obtained a warrant. Federal charges were filed, and Fletcher pled guilty and was sentenced to 35 years in prison.

The Ohio statute governing warrantless searches of probationers’ person and property requires that, before a search, the probation officer “must have reasonable grounds to believe” the person is committing a crime or not abiding by the terms of probation. The Sixth Circuit held this statute is reasonable before turning to answer the question about whether Fletcher’s conduct provided reasonable cause to search the phone. The court then turned to the question of whether the officer had reasonable cause to conduct the warrantless search.

Does the possession of two phones create reasonable cause to believe there is something nefarious on the phone? Not really. As the majority explained, “there are countless, innocent reasons for having two cell phones, and possessing more than one cell phone is a practice common in the general public.” So, that fact alone is not enough.

Does the fact that Fletcher was convicted of a sex offense (not involving child pornography) change the equation? Also no. Important to the majority’s analysis was the fact that Fletcher’s conviction was not for a pornography offense, and therefore the terms of his probation did not include restrictions on or monitoring of his digital devices.

How about Fletcher’s nervous behavior when the probation officer asked to see the phone? This also wasn’t enough because officers cannot create an exigency to justify a warrantless search. Even though the officer thought Fletcher was deleting something, she created this risk by threatening to search. The important moment was when the officer said she would search and whether there were reasonable grounds to search at that moment. The majority held that the probation officer did not have reasonable suspicion at the moment she asked to search the phone.

Although the government tried to claim that the condition requiring consent to warrantless searches of the probationer’s person, car, and home extended to cell phones, the majority was unpersuaded. The plain terms of the condition did not authorize warrantless searches of cell phones, so the probation officer could not reasonably rely on that condition.

The majority acknowledged that probationers have a diminished expectation of privacy. But a probationer has a greater expectation of privacy than parolee (who is free as an act of grace) or someone on supervised release. The terms of probation can also create or diminish a probationer’s expectation of privacy. And the fact that the search condition did not expressly cover cell phones was critical here—particularly because the privacy interests in cell phones may actually be greater than the privacy interest in a house.

In the majority’s view, the government’s interests in ensuring successful completion of probation, crime prevention, and evidence preservation do not outweigh Fletcher’s interest in the privacy of his phone. This was true particularly when the officer could have prevented the destruction of evidence by merely seizing the phone.

Even if a violates the Fourth Amendment, the Supreme Court has said suppression of evidence is not always warranted. But here, the majority concluded that the probation officer’s disregard for the warrant requirement was deliberate. The officer could not rely in good faith on the warrant issued after the fact based, in part, on the photo the officer saw during the warrantless search.

Judge Batchelder dissented. She believed the possession of two cell phones provided enough reason to conclude Fletcher was violating probation. And she thought that his reaction to the request to see the phone elevated her cause for concern.

Strict Liability Enhancement for Possessing a Stolen Firearm Survives Havis, Rehaif

The sentencing guideline for unlawful possession of a firearm increases the offense level if the firearm was stolen. This enhancement applies on a strict liability basis; it does not require any mens rea. The Sixth Circuit had previously approved holding defendants strictly liable for possessing stolen firearms, noting the commentary to the guidelines states that the enhancement applies regardless of whether the defendant knew or had reason to know the firearm was stolen.

However, in light of recent case law, Anthony Palos argued for a mens rea requirement. First, the defendant relied on the Sixth Circuit’s en banc opinion in United States v. Havis, 927 F.3d 382 (6th Cir. 2019). In Havis, the Court held that the commentary to the guidelines improperly added attempt crimes to the list of controlled substance offenses. Applying Havis, the defendant argued that the commentary improperly expanded § 2K2.1(b)(4) by stating that there is no mens rea requirement.

The Sixth Circuit rejected this argument. Instead, the Court held that the text of the enhancement—through its silence on mens rea—bore the strict liability interpretation contained in the commentary. Because other parts of § 2K2.1 impose mens rea requirements, the fact that the stolen firearm enhancement fails to do so supports a strict liability interpretation.

The defendant also relied on Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court established a mens rea requirement for convictions under 18 U.S.C. § 922(g), despite the statute's lack of an express mens rea element. The Rehaif Court relied on a “presumption of scienter” to apply the requirement. Mr. Palos argued that the same presumption of scienter should apply to create a mens rea requirement for § 2K2.1(b)(4).

However, the Sixth Circuit rejected this argument. The Court held that the guidelines are “fundamentally distinct” from statutes when it comes to mens rea. Namely, statutes define the boundaries of lawful conduct, while the guidelines punish defendants for the consequences of their unlawful acts.

In a different part of the opinion, the Court once again held that an offer to sell does not qualify as a controlled substance offense. Mr. Palos had a previous conviction under Ohio Revised Code § 2925.03(A)(1), which criminalizes “sell[ing] or offer[ing] to sell a controlled substance.” Following United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020) and United States v. Alston, ___ F.3d ___, 2020 WL 5755465 (6th Cir. Sept. 28, 2020), the Court held that an offer to sell a controlled substance qualifies as an attempt crime. Accordingly, after Havis, an offer to sell cannot qualify as a controlled substance offense under the guidelines.

Full opinion available here.

Admission of Defendant’s Racist Rant Violates Rules 403, 404

Does after-hours racism reflect poor business judgement? That question is the crux of the Sixth Circuit’s recent decision in United States v. Hazelwood. The government charged multiple employees at a large gas company with conspiracy to commit wire fraud. The fraud centered around rebates which the employees promised, but then failed to deliver. Many employees pleaded guilty, but Mark Hazelwood—the company’s president—took the case to trial.

Hazelwood’s main defense was that he did not know about the fraud that his subordinates committed. However, defense counsel also elicited some testimony about Hazelwood’s business acumen. One witness testified that Hazelwood was an excellent president who had great relationships with customers. Counsel cross-examined another witness about whether it would have been logical for Hazelwood to participate in the fraud. Counsel established that because the fraud was such a small part of the company’s sales, it was “incredibly stupid and dumb from a business standpoint” to risk bringing down the company by committing fraud. 

The government then sought to introduce a recording of Hazelwood making extremely racist comments and using slurs. A cooperating witness had worn a wire to the company’s retreat. The witness had recorded an earlier session where executives discussed the fraud scheme. However, Hazelwood had not been present at that session. After the business meetings had ended, the employees watched a football game while drinking and “spewing profanities about African Americans and women.” Hazelwood arrived and participated prominently in this racism.

The government argued that this recording was appropriate rebuttal to Hazelwood’s character evidence for good business judgement. Hazelwood objected, arguing that he had not introduced character evidence, that the recording was not related to good business judgement, and that the danger of unfair prejudice outweighed any probative value.

The district court agreed with the government. It ruled that the defense had elicited testimony that Hazelwood was too good a businessman to risk the fraud. And the racist recording supported the argument that Hazelwood was not too good a businessman to engage in conduct that would put the company at serious risk if it were discovered. 

On appeal, a divided panel reversed the decision. The majority held that Hazelwood’s racism was not relevant to the elements of the crime or to Hazelwood’s argument that he was a good businessman. The Court cited Henry Ford, “a rabid anti-Semite” who nevertheless had great business acumen. Hazelwood’s despicable comments—made at a private after hours gathering—did not reflect on his business judgement.

Additionally, the district court violated Rule 405 in two ways. The court had allowed the government to present extrinsic evidence of alleged character evidence, and the evidence was of specific instances of conduct rather than testimony about reputation.

The racist recording was also improper propensity evidence. The government was “using another act (racist and misogynist language), to prove that Hazelwood had a character trait (recklessness), such that on a particular occasion he acted in accordance with that character trait (by committing fraud).”

Finally, the danger of unfair prejudice substantially outweighed any probative value. The recording was so offensive that it posed an extreme risk of unfair prejudice; “Hazelwood and his companions ma[d]e absurdly offensive remarks about African Americans and women and laugh[ed] along to a wrenchingly racist and misogynistic tune.” Accordingly, the Sixth Circuit reversed and remanded.

The dissent would have affirmed the district court. The dissent argued that the recording was relevant. If Hazelwood was willing to use such offensive language with his subordinates, even after hours, it made it less probable that he was a good businessman. And whether Hazelwood was a good businessman was relevant as to whether he would have risked participating in the fraud.

Full opinion available here.

Giving Officers a Tour of Your Marijuana Grow Operation Constitutes Consent to Search

 In United States v. Blomquist, the Sixth Circuit held a search of the defendant's property that included an expansive marijuana grow operation did not violate the Fourth Amendment where the defendant voluntarily led them on a detailed tour of the grounds and discussed his operation with them at length. Officers arrived on Mr. Blomquist's father's property with a search warrant for the premises. They placed Mr. Blomquist in cuffs and Mirandized him. He agreed to talk, at which point he was uncuffed. He explained he was running a legal growing operation and took officers on a tour of his plants in a chicken coop and greenhouse, as well as a storage facility, answering all of their questions along the way.

Unfortunately, his operation was not legal. This was true for a variety of reasons including that the operation was too large to comply with Michigan law, Mr. Blomquist had a prior felony conviction that prohibited him from owning such an operation, and he admitted to police that he sold his product to a drug dealer (not a legitimate dispensary). At the trial level, Mr. Blomquist argued that officers exceeded the scope of the search warrant based on the expansive search conducted. However, the trial court found that Mr. Blomquist voluntarily consented to the search.

On appeal, Mr. Blomquist argued that the chicken coop and greenhouse were outside the scope of the search warrant, rendering the search illegal. The Sixth Circuit applied a two-factor evaluation of whether there was consent to a more expansive search: 1) whether an individual's actions adequately demonstrated consent, and 2) whether other factors contaminated that consent. As to the first factor, the Sixth Circuit held Mr. Blomquist's actions supported consent where he cooperated, volunteered information, and led officers around the property as they followed. As the Sixth Circuit characterized it, "Not only did Blomquist consent to the search, he practically directed it."

As to the second factor, the Sixth Circuit looked to the totality of the circumstances to assess whether other factors negatively impacted consent. While Mr. Blomquist argued that the officers' search warrant and his initial detention tainted his "consent," the Sixth Circuit pointed to his Miranda advisement, his cooperation from the moment officers arrived, and the lack of any evidence of duress or coercion as support that the consent was valid.

Unfiltered: Court Upholds Obstruction Enhancement Imposed for Defendant's Facebook Post

Facebook often provides a goldmine of information in litigants in civil and criminal actions. For Harry French, it led to an obstruction of justice enhancement and a lengthier sentence.

Prior to his sentencing for carjacking and possession of a firearm in furtherance of a crime of violence but prior to his sentencing, French, apparently using a contraband cell phone while in custody, posted a message on his Facebook page referring to one of the co-defendants who testified against him during his trial, Dequan Blackmon, as a "rat." His co-defendant also had a Facebook account, so French tagged him in the post, meaning that Blackmon's friends also saw the post.

This post led the probation officer to recommend a two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1.  The district court subsequently agreed and imposed the enhancement over French's objection.

On appeal, French challenged the sufficiency of the evidence supporting his convictions, claimed his convictions violated the Double Jeopardy Clause of the United States Constitution, and that the Court erred in imposing the obstruction of justice enhancement. The Court disagreed. In its opinion, the Court quickly dispensed with French's sufficiency of the evidence and double jeopardy arguments and affirmed French's sentence. It rejected French's argument that he could not have intended to obstruct justice unless he thought Blackmon would testify at his sentencing, holding that since others besides Blackmon could view his Facebook post, his threat could have influenced potential witnesses, including the victims in his case. Thus, the Court concluded the District Court reasonably inferred French was attempting to influence witnesses who might testify during his sentencing and that the enhancement was proper.

For good or ill, social media provides a forum where millions of people can express their opinions and air their grievances. For Harry French, this decision led to an obstruction of justice enhancement.

Havis Strikes Again: Ohio Convictions for Offering to Sell Drugs are not Career Offender Predicates

 

The District Court enhanced Pierre Alston's sentence as a career offender pursuant to USSG § 4B1.1 based on his prior convictions under Ohio Revised Code § 2925.03(A)(1), which criminalizes offers to sell drugs. It did so, however, without addressing whether such convictions qualified as predicate offenses after United States v. Havis and United States v. Cavazos.

Although the parties did not discuss Havis during sentencing, the Government conceded that, under Havis and Cavazos, the Ohio convictions did not qualify as predicate offenses. In a brief published opinion, the Sixth Circuit agreed and remanded Mr. Alston's case for a resentencing.

Perhaps more interesting than the Court's brief analysis was its note that, while the Government conceded Cavazos prevented the enhancement, it argued Havis and Cavazos were wrongly decided and that the  Government had preserved the issue for en banc review. If anything, this statement signifies the Government's continuing efforts to have the Court chip away at Havis.

 

Court defines parameters of filing an out of time 2255 petition

Simmons v. United States 

Defendant Simmons plead guilty to federal charges, and was sentenced on September 8, 2016.  He did not file a notice of appeal, but two years later, filed a petition pursuant to 28 U.S.C. 2255, and a motion to allow an out of time filing.  Simmons alleged that for twelve months after his sentencing, he was housed in state prison, without access to federal materials, and this affected his ability to timely file.

The Sixth Circuit held that  "to to invoke Section 2255(f)(2), it is the prisoner’s responsibility to allege (1) the existence of an impediment to his making a motion, (2) governmental action in violation of the Constitution or laws of the United States that created the impediment, and (3) that the impediment prevented the prisoner from filing his motion."  Under this standard, the Court determined that Simmons had failed to allege, with sufficient particularity, that he was prevented from filing his motion while at the state prison.   "He did not allege any facts connecting the facilities’ alleged lack of resources and his failure to file his motion within the normal one-year limitation period. He only provided the bare conclusory statement that the lack of access 'prevented him' from filing earlier. But did Simmons try to go to the state library and get materials even once?"

One bright spot in this opinion: the Court seemed to recognize that lack of access to federal legal materials, combined with a lack of legal assistance, can in some circumstances provide an excuse for the late filing of a 2255 petition.

 

On August 20. 2020, the Sixth Circuit held Daniel Fleisher’s 447 month sentence for sexual exploitation of a minor and receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct was not procedurally or substantively unreasonable.

Mr. Fleisher was charged with two counts of sexual exploitation involving two separate minors, one count of receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct, and one count of possession of child pornography. The parties entered into a plea agreement in which Mr. Fleisher pled guilty to sexual exploitation involving Minor #1, and receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct. The government agreed to dismiss the exploitation count involving Minor # 2 and the child pornography charge. The plea agreement also included “a section labeled, ‘RELEVANT CONDUCT,’ which contained Fleischer’s admission to the offense conduct involving Minor Victim #2.”

The parties’ plea agreement contemplated a total offense level 39 and did not include “a calculation to account for Fleischer’s conduct with respect to Minor Victim # 2, nor did it include a calculation to reflect his pattern of activity.” The parties did acknowledge in the plea agreement that the sentencing recommendation was not binding on the court. The Presentence Investigation Report calculated Mr. Fleischer’s total offense level at 42, with an enhancements for relevant conduct involving Minor #2 and pattern of abuse. The district court followed the guidelines recommended by the PSR.

On appeal, Mr. Fleischer argued his sentence was procedurally unreasonable because the court used the guidelines calculation that was inconsistent with the parties’ collective sentencing recommendation in the plea agreement. The Sixth Circuit noted the recommendation by the parties was not binding on the district court and the record supported the application of the enhancements.

Mr. Fleischer also argued that his sentence was procedurally unreasonable because the application of both enhancements was impermissible double counting. While the Sixth Circuit noted it was the “first court of appeals to consider a double-counting challenge based upon the district court’s application of § 2G2.1(d)(1) and § 2G2.2(b)(5),” the Court took guidance from other circuits and found “the Guidelines separately punish defendants who sexually exploit multiple victims, and child pornography offenders who have a history of more than one instance of sexually abusing or exploiting a child. These enhancements are therefore not premised on the ‘same type of harm.’” Because the enhancements did not punish the same type of harm, they application of the two were not impermissible double counting.

The Court also rejected Mr. Fleisher’s argument that his sentence was substantively unreasonable because it exceeded the range contemplated by the parties in the plea agreement and placed too much weight on the seriousness of his offenses. The Sixth Circuit found the district court “gave a thorough and methodical rationale for its review and considered the various sentencing factors; and [ ] the court advanced a thoughtful explanation for why the parties’ non-binding sentencing recommendations, as set forth in the plea agreement, were insufficient in this case.”

When the government must do more, but had its chance

United States v. Bourquin clarifies the government's burden when it seeks to apply a seldom-used guidelines provision. The court's instructions for remand are where defense attorneys may want to take a close look.

Bourquin called in a false tip to the FBI about a plot to attack a former federal prosecutor. He pleaded guilty to maliciously conveying false information concerning an attempt to kill, injure or intimidate the prosecutor by means of fire, under 18 U.S.C. § 844(e).

The PSR recommended a four-level increase under Guidelines § 2A6.1(b)(4)(B) because "the offense resulted in offense resulted in . . . a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense." Bourquin objected. The government attempted to justify the enhancement by noting the steps agencies took based on his false report, arguing that they amounted to more than a typical investigation and required a substantial expenditure of funds.

The court held that the government needed to show more. "Considering § 2A6.1(b)(4)(B)’s text and the government’s burden of proof together with cases analyzing the enhancement, we conclude that to demonstrate the applicability of subsection (B), the government must introduce a full accounting of expenditures or some accounting of expenditures coupled with facts allowing the court to reasonably assess the expenditure of funds required to respond to an offense and whether those funds are substantial."

Perhaps more important is what the court ordered for remand. The government requested a limited remand to provide additional evidence, but the court said no. The government was on notice of Bourquin's objection but failed to provide sufficient evidence, the court reasoned, so the district court should resentence Bourquin based on the existing record, without the four-level enhancement.

This is a useful decision to cite when challenging the evidence supporting an enhancement, to try to limit what the government can do on remand lest the victory on appeal become a loss in the district court.

Pulling back on Havis?

In United States v. Havis, the en banc Sixth Circuit put a stop to expanding the sentencing guidelines through application notes. The court held that Guidelines § 4B1.2's definition of "controlled substance offense" [1] did not include attempt crimes, and the Sentencing Commission couldn't add attempts to the definition through its application notes. The court thus concluded that a Tennessee delivery conviction did not qualify as a controlled substance offense because, under Tennessee law, "'delivery' of drugs means 'the actual, constructive, or attempted transfer from one person to another of a controlled substance.'" Id. (quoting Tenn. Code Ann. § 39-17-402(6)) (emphasis in Havis). No judge dissented.

So everyone is on the same page? Not so fast. The court denied the government's motion for reconsideration, but Judge Sutton filed a concurrence. He pointed out that § 4B1.2's definition included distribution offenses, and although the guidelines don't define "distribution," Congress defined "distribute" as "to deliver," and "deliver" as "the actual, constructive, or attempted transfer" of drugs. 21 U.S.C. § 802.

So, by including distribution (and thus attempted transfers) in its definition of "controlled substance offense," does § 4B1.2 include attempts? Was the court's decision in Havis wrong? No, according to Judge Sutton, with a caveat. In his view, "attempted transfer" carries its ordinary meaning, not the legal-term-of-art meaning of intent plus a substantial step. Havis rightly concluded that the sentencing commission couldn't add legal-term-of-art attempts to § 4B1.2's definition. But § 4B1.2 does include completed crimes of attempted transfers, according to his concurrence.

But wait--wasn't that same "attempted transfer" language the basis for Havis's argument that his Tennessee conviction wasn't a controlled substance offense? Yes, says Judge Sutton, but the government never argued that Havis's Tennessee conviction wasn't an attempt offense. "It is too late to make it now. As for future cases, the parties may wish to consider the point."

That brings us to United States v. Garth. Garth argued that, after Havis, his Tennessee possession-with-intent-to-distribute conviction wasn't a controlled substance offense under the guidelines. Why? Because Tennessee's definition of "distribute" included "attempted transfers," and so his prior offense included possession-with-intent-to-attempt-to-transfer. That, Garth argued, was an attempt crime that fell outside of § 4B1.2's definition.

Judge McKeague's majority opinion and Judge Cole's concurrence agree that Garth's Tennessee conviction counts as a controlled substance offense, and agree on two reasons why. First, possession-with-intent-to-distribute is a completed offense, not an attempt--Garth wasn't convicted of attempted possession. Second, Garth hadn't shown a reasonable probability that Tennessee authorities would prosecute him for possessing drugs with intent to attempt to distribute them (but not with the intent to actually distribute them).

Echoing Judge Sutton's Havis concurrence, though, Judge McKeague's opinion went a step further. It said that, in Havis, the court merely accepted "the parties' agreement" that that Tennessee delivery covers attempted delivery because delivery means attempted transfer. The court would not "extend that agreement," and so Garth's Tennessee conviction was simply possession-with-intent-to-distribute, identical to § 4B1.2's definition. Judge Cole's concurrence noted that this part of the court's opinion was "unnecessary to our decision today," so he "would leave for another day the issue of whether Tennessee delivery includes attempted delivery."

What does this mean for Tennessee delivery convictions going forward? Havis concluded that a Tennessee delivery conviction was not a controlled substance offense, but Garth tells us that at least some of the judges don't consider that settled.

[1] "The term 'controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S. Sentencing Guidelines Manual § 4B1.2(b).

Plain Error and Rehaif

After the U.S. Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), when the government prosecutes a person on a felon-in-possession charge under 18 U.S.C. § 922(g)(1), it must prove that the person knew s/he previously had been convicted of a felony. But Rehaif hasn't been much help to most defendants previously convicted under section 922(g)(1). Add Gregory Raymore to that list.

A grand jury indicted Raymore, and a jury convicted him, before the Supreme Court decided Rehaif. The indictment didn't allege that he knew he previously had been convicted of a felony, and the jury instructions didn't ask the jury to decide that.

On appeal, Raymore challenged the indictment's sufficiency and the jury instructions in light of Rehaif. He hadn't objected below, though, so the Sixth Circuit reviewed the issues only for plain error.

In an opinion by Judge Nalbandian, with a concurrence from Judge Moore, the court affirmed Raymore's conviction. Given Rehaif, the court concluded that there was error, and the error was plain. But the error didn't affect Raymore's substantial rights, because he couldn't show a reasonable probability that the outcome would have been different. The court focused on two points. First, Raymore stipulated to to his prior felony convictions, which the court said was "strongly suggestive" that he knew he was a felon. Second, Raymore twice before had been convicted on felon-in-possession charges. Those convictions made it "near-impossible for him to contest knowledge of his status as a felon in this case."

Judge Moore disagreed that Raymore's stipulation suggested that he knew he was a felony at the time of the offense--after all, the stipulation said only that he had a previous felony conviction, not that he knew about it. But she agreed that Raymore's previous felon-in-possession convictions "almost certainly would establish that Raymore knew, at the time of his arrest in this case, that he was a convicted felon."

"Double-Counting" under USSG 2K2.1; United States v. Fugate

A defendant who admitted that he sold firearms, some of which he knew were stolen, to drug traffickers and gang members was subjected to dual four-level enhancements under U.S.S.G. § 2K2.1(b): one under 2K2.1(b)(5) for trafficking in firearms, and the other under § 2K2.1(b)(6)(B) for possessing or trafficking firearms. Addressing an issue of first impression, the Sixth Circuit has ruled in United States v. Fugate that these twin enhancements constituted impermissible “double-counting” and vacated the defendant’s sentence.

The defendant was indicted for violations of both 18 U.S.C. §§ 922(g) (felon in possession of firearms) and 922(j) (knowingly trafficking in stolen firearms). He knew his business, his customers and his trade: he trafficked in guns in exchange for money. He pleaded guilty only to the 922(g) charge.

The defendant’ s guidelines were calculated in the presentence report as follows:

• 14 – base offense level per 2K2.1(a)(6) because he was already a convicted felon and prohibited from possessing a firearm
  
• +6 - per 2K2.1(b)(1)(C) because the defendant trafficked in more than 25 but less than 99 firearms
  
• +2 – per 2K2.1(b)(4)(A) because some of the firearms were stolen and he knew it 
• +4 – per 2K2.1(b)(5) - because the defendant engaged in the trafficking of firearms
  
• +4 – per 2K2.1(b)(6)(B) because he trafficked in firearms in connection with another felony offense. This enhancement could be applied if there is knowledge that the guns would be used in connection with a felony offense by their purchaser but there was no evidence to support that.

The Sixth Circuit found that its holding was driven by Application note 13 (D) to the section, which directs courts to apply the 2K2.1(b)(6)(B) enhancement only if it is based on a felony offense other than a firearms possession or firearms trafficking offense. Otherwise, the defendant would be twice punished for trafficking in firearms “once simply for engaging the trafficking of firearms under 2K2.1(b)(5), and once for knowingly trafficking stolen firearms under 2K2.1(b)(6)(B). In the run of cases, the Court observed, the (b)(6)(B) enhancement is applied when the defendant used the firearms in connection with a completely distinct crime, like drug trafficking. The Court acknowledged where there was evidence that the defendant had traded firearms in exchange for drugs that both the enhancements would apply. But Fugate was a pure businessman, and there was no evidence that he wanted or sought or obtained anything other than money for the guns that he sold.

U.S.S.G. § 2K2.1 has other flaws that produce incongruous results. One is where it leads to a higher offense level for a person that merely facilitates possession of firearms by a prohibited person than it does where a person transfers firearms to an individual believed to intend on using that firearm to commit a crime. Here’s how that would unfold for a defendant that had no prior felony conviction and could lawfully purchase a firearm and transfer it to a prohibited person in a strawman transaction:

 

• The base offense level would be 14 instead of 12 under 2K2.1(a)(6)(C)
  
• A four (4) level enhancement would apply under U.S.S.G.§ 2K2.1(b)(5) for trafficking in firearms if two or more firearms are involved and two or more firearms are involved and the transferor had reason to believe or knew that the transferee was prohibited from possessing a firearm on account of a prior conviction.
  
• As the court noted in Fugate, a four level enhancement could then be applied based on § 2K2.1(b)(6)(B), if the transfer was for the purpose of obtaining drugs. 
• This scenario would lead to an adjusted offense level of 22.

A lower offense level is applicable if that same defendant would know that the guns he was trafficking in were intended to be used to commit a crime. Here’s how that would unfold: (1) the base offense instead of 14 would be 12 under 2K2.1(a)(7); and, (2) if the same four level enhancements under 2K2.1(b)(5) and 2K2.1(b)(6)(B) were applied, the adjusted offense level reaches only to 20.

This is incongruous because federal law generally punishes firearm possessory offenses less than it does for firearm use crimes, a comparison that the maximum sentence for 922(g) offense of ten years and the minimum five year sentence attaching to a 924(c) offense illustrates well. One reason for this incongruous result is that the first scenario both increases the base offense level from 12 to 14 based on the defendant’s knowledge that he was making the purchase for a prohibited person and to support the four-level enhancement under (b)(5), which is premised also on that knowledge. It also appears to run afoul of the analysis in United States v. Farrow, 198 F.3d 179 (6^th Cir. 1999), establishing the rule that where a fact that is not an element of the crime is used to both increase a defendant’s base offense level and to support application of an enhancement impermissible “double-counting” occurs.  

Robert L. Abell

District Court may consider Apprendi’s impact when deciding a First Step Act case

          In 1997, Robert Ware was convicted by a jury of conspiring to distribute and possess with intent to distribute cocaine (21 U.S.C. §846); conspiring to distribute and possess with intent to distribute cocaine base (crack) (21 U.S.C. §846); and distributing and possessing with intent to distribute cocaine (21 U.S.C. §841(a)(1). There were no specific findings regarding the drug quantities involved in those offenses. United States v. Ware,

          According to the PSR, Mr. Ware’s guidelines range was 360 months to life. His statutory sentencing range on the powder cocaine convictions was 10 years to life (21 U.S.C. §841(b)(1)(A)(ii)) and on the crack conviction it was 0 to 20 years (21 U.S.C. §841(b)(1)(C)). He was sentenced to 360 months imprisonment and 5 years of supervised release. The district court did not specify the sentence for each count, instead it imposed a general sentence for all three offenses. The court also did not indicate the specific statutory provisions of §841(b)(1) under which Mr. Ware was sentenced.

          In 2019, Mr. Ware sought a First Step Act sentence reduction. The district court found that he was eligible for a sentence reduction but it was concerned about sentencing disparities. The court noted that the minimum guideline sentence would have been 360 months even without the crack offense and that First Step Act relief was not available to other offenders who had a similar amount of powder cocaine but did not have an additional crack charge. The court denied Mr. Ware any relief.

          Mr. Ware appealed the ruling and argued that since a jury did not find that his offenses involved specific drug amounts, he could be lawfully sentenced under present law only under 21 U.S.C. §841(b)(1)(C), which imposed a statutory cap of 20 years on each count which was 10 years less than his current sentence. Mr. Ware contended that the higher sentencing ranges in §§841(b)(1)(A) and (B) could not be applied to him under Apprendi v. New Jersey, 530 U.S. 466 (2000) and recent statutory interpretation of those provisions.

          The Sixth Circuit found that Mr. Ware’s statutory construction argument was foreclosed by Circuit precedent but it considered his argument “as an alleged Apprendi error.” Slip. Op. at 7. Although Apprendi does not apply retroactively to cases on collateral review, “the ‘retroactivity’ of a new constitutional rule concerns whether the rule provides an independent basis on which to grant relief to a defendant.” Slip. Op. at 8 (citation omitted). The Sixth Circuit explained that since “the source of a ‘new rule’ is the Constitution itself, the underlying right necessarily pre-exists the Supreme Court’s articulation of the new rule.” Id. (citation and internal quotation marks omitted). This means that Mr. Ware’s “Sixth Amendment rights were violated when judge-found facts were used to raise his statutory maximum sentence, even though this occurred before Apprendi was decided.” Slip. Op. at 8.

          The Sixth Circuit held that a district court, when deciding whether to grant First Step Act relief to an offender who was sentenced before Apprendi, may consider the impact that case would have had on his statutory sentencing range. Id. The district court’s consideration of Apprendi here was not an abuse of discretion. The court considered the fact that under Apprendi Mr. Ware’s “statutory maximum would have been lower because specified drug amounts were not found by the jury or charged in the indictment.” Slip. Op. at 9. That factor, however, “did not weigh heavily in favor of granting relief, due in large part to concern regarding disparities with other similarly situated defendants.” Id. Thus, denial of First Step Act relief was not an abuse of discretion.

           

 

The First Few Steps of First Step Act Litigation

The First Step Act of 2018 is just under two years old, and so the contours of the rights and remedies it created are just starting to come into view. The Sixth Circuit provided some more clarity this week in a handful of published and unpublished cases.

Eligibility. So far, the Sixth Circuit has said that the Act provides a chance for resentencing even for those who were sentenced under the career-offender guidelines, not the drug guidelines. See United States v. Beamus, 943 F.3d 789, 791 (6th Cir. 2019). This week, in United States v. Flowers, the Court clarified that people are eligible for relief under the First Step Act even if their Guidelines remain unchanged.

Procedure. People are not entitled to have a fresh hearing where all mitigating and aggravating circumstances are reweighed. United States v. Alexander, 951 F.3d 706 (6th Cir. 2019) (per curiam order); see also United States v. Foreman, 958 F.3d 506, 510–12 (6th Cir. 2020). But sentencing judges have discretion to do so and are wrong to think they cannot consider a person’s efforts to improve himself or herself while in prison. United States v. Allen, 956 F.3d 355, 357–58 (6th Cir. 2020). And district courts must recalculate and consider the current Guidelines. United States v. Boulding, No. 19-1590, --- F.3d ---, 2020 WL 2832110, at *7–8 (6th Cir. June 1, 2020). Decisions to maintain the original sentence that is above the post-First Step Act Guidelines require compelling justification. United States v. Smith, 959 F.3d 701, 704 (6th Cir. 2020).

This week, in United States v. Domenech, the Sixth Circuit provided an illustration of how these principles should be applied in the process.  In 2007, two brothers, William and Alejandro, were convicted and sentenced for various drug and firearms offenses. They filed a motion for a sentence reduction. William originally received a 174-month sentence. The new Guidelines range applicable to him is 120-150 months. The district judge sentenced Alejandro to serve 360 months in prison. The amended range now is 262-327 months. The judge denied both motions.

On appeal, the Sixth Circuit held that a district court abused its discretion by rejecting a motion for a sentence reduction relying on the reasons provided at the original sentencing. The court failed to treat the reduced ranges as the starting point and identified factors already incorporated into the Guidelines calculation.

Limitations. United States v. Wylie, offers an odd wrinkle to the mix. The district court sentenced Mr. Wylie to serve a 51-month sentence for being a felon in possession of a firearm and ammunition. Fifteen days later, the judge notified the parties that he’d changed his mind and wanted to impose a lower sentence to make it more consistent with the First Step Act. The government appealed the 41-month sentence arguing that the district court did not have jurisdiction to do this.

The Sixth Circuit agreed because Federal Rule of Criminal Procedure 35(c) allows only for clerical changes after the imposition of a sentence, which is the date of the oral pronouncement, not the date the judgment is entered on the docket.18 U.S.C. § 3582(c)(2) is an additional obstacle because it prescribes only two methods to reduce a sentence: a motion by the Bureau of Prisons or a motion by the defendant. So, Mr. Wylie will have to file a motion for a sentence reduction. At least his chances of having it granted look good.

Appeals. Lurking beneath this week’s First Step Act opinions is an unaddressed issue: jurisdiction. For years, the Sixth Circuit dismissed for lack of jurisdiction appeals of the denial of a motion for a sentence reduction. It was the only court to interpret 18 U.S.C. § 3742 this way. In United States v. Marshall, 954 F.3d 823 (6th Cir. 2020), the Court changed course, holding that § 3742 is a mandatory claims processing rule, not a jurisdictional limitation.

Still, some panels dismissed appeals of the denial of a sentence reduction under the First Step Act for lack of subject-matter jurisdiction. See United State v. Butler, 805 F. App’x 365 (6th Cir. 2020). Recently, that debate was put to rest when another panel held that 28 U.S.C. § 1291 is the source of appellate jurisdiction to review an appeal of the denial of a motion for a sentence reduction under the First Step Act. United States v. Richardson, 960 F.3d 761 (6th Cir. 2020). The Richardson panel saved for another day whether § 3742 imposes any limitation on the scope of appellate review and assumed without deciding that it could decide if the denial was substantively reasonable. Judge Kethledge wrote a concurrence to highlight that he does not believe § 3742 has any role to play when a district judge denies a motion for a sentence reduction.

In each of the First Step Act cases the Sixth Circuit decided this week, the panels did not even mention § 3742. Instead, they reviewed the denial of the motion for an abuse of discretion.

The Sixth Circuit Picks a Side in the “Different Location” Debate

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The U.S. Sentencing Guidelines were supposed to make sentencing simpler. Practitioners know that there is nothing simple about them. The Guidelines manual is a hefty book and cases interpreting these provisions fill the Federal Reporters and Federal Appendices interpreting the Guidelines. Advisory though they may be sometimes parsing the text of a guideline can make a difference in years and months.

In United States v. Hill, the Sixth Circuit had to decide whether a victim is taken to a “different location” if the robber forced the victim from the sales floor to a back room. Section 2B3.1(b)(4)(A) increases the base level for a robbery offense if a victim “was abducted to facilitate commission of the offense.” What does “abduction” mean? The commentary says abduction occurs when “a victim was forced to accompany an offender to a different location.” U.S.S.C. §1B1.1 cmt. n.1(A). Courts disagree about what exactly is a “different location.”

At Mr. Hill’s sentencing, the government argued that the abduction enhancement applied under these facts, which would raise the base offense level by four. Mr. Hill’s attorney argued that only a two-level enhancement should apply for “physically restrain[ing a victim] to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(B). The difference was significant. If the abduction enhancement applies, then the Guidelines range is 130–167 months in prison (10 years and 10 months to 13 years and 11 months). Without that enhancement, the Guidelines range is 110–137 months’ imprisonment (9 years and 2 months to 11 years and 5 months).

Considering dictionary definitions didn’t help the court decide whether a back room is a “different location” from the front of the store. So, the court turned to other interpretive tools beginning with ordinary use. In the ordinary course, when discussing where a robbery took place, people usually say, “a bank,” “a store,” or “a gas station.” They don’t say, “the sales floor of a cell phone store.”

Then the court looked at the word “accompany,” which denotes some movement—even minimal movement. That suggests that there would be no need to include the phrase “different location” when a sentence without it already covers forced movement.

Next, the example provided in the commentary offered some insight into what the Guidelines’ drafters were thinking. That example involves taking a teller from the bank into the getaway car, which the court concluded lent support for the conclusion that the back room and the sales floor are not “different locations.”

Circling back to the original text of the statute, the court looked at the word “abduct,” which is synonymous with “kidnap.” It reasoned that when most people hear those words, they don’t think of moving a person into a different room. Instead, people would be more likely to say that the victims were held hostage.

Finally, the court considered the neighboring enhancement for physically restraining victims. The commentary to that provision describes locking up victims, which would presumably also require some movement. There would be no need to have two different enhancements for the same conduct.

For all these reasons, the court joined the Seventh and Eleventh Circuits to hold that moving victims from one room of a store to another does not qualify as “abduction.” It added one note of caution, however, that many of these determinations will be fact-specific. Judge Siler wrote a short dissent, explaining that he found the reasoning of the Third, Fourth, Fifth, and Tenth Circuits more persuasive.

There’s good evidence this was a fight worth having. The judge sentenced Mr. Hill to 130 months’ imprisonment—at the bottom of the higher Guidelines range. Mr. Hill will return to the district court for resentencing where he surely hopes the judge will impose a sentence at the bottom of the new range.

Sixth Circuit Holds that Ohio Felony Drug Trafficking is a "Controlled Substance Offense."

Like every other circuit, the Sixth Circuit has produced a lengthy scroll of published cases dealing with predicate offenses under the First Step Act and the Guidelines' career offender provision. The Court's opinion in United States v. Smith continues that trend. 

Smith pleaded guilty before the district court to distributing a controlled substance in violation  of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Due to his prior felony drug trafficking conviction under Ohio law, Smith faced an increased statutory maximum under § 841(b)(1)(C). Finding that Smith was subject to both the increased statutory maximum and an enhanced sentence under the Guidelines as a career offender, the Court sentenced him 150 months imprisonment.

On appeal, Smith argued that his prior felony drug trafficking conviction was not a "serious drug felony" under § 841, as amended by the First Step Act. Additionally, he argued the same conviction was not a predicate offense under the Guidelines' career offender provision. 

Before Smith could go any further, however, he had to clear that common bugaboo for all criminal appellate attorneys: an appellate waiver contained in his plea agreement. Unfortunately for Smith, the Court held his waiver was valid and that his claims on appeal fell within it.

Although the Court could have stopped with Smith's appellate waiver, it went further to address his First Step Act and career offender arguments. First, it held that the issue was not whether Smith's Ohio drug trafficking conviction was a "serious drug felony" but rather whether it was a "controlled substance" offense, since the First Step Act did not modify 841(b)(1)(C) -- the section at issue in that case.

Turning its attention to whether Smith's Ohio drug trafficking conviction under ORC § 2925.03(A)(2) met the definition of a "controlled substance offense" under the Guidelines, the Court first determined it was not divisible since it listed alternative means of committing the same offense. Using the categorical approach, the Court then concluded ORC § 2925.03(A)(2) was categorically a "controlled substance offense" under the Guidelines. Each of the statute's three elements, the Court concluded, fell within the categorical definition. The Court thus affirmed Smith's sentence.

Court Again Leaves a Guilty Plea in Place

Once bound to a plea agreement with the Government, it is often difficult for a defendant to find his way out of that agreement. The same holds true for Phillip Watkins. Ninety-eight days after the district court accepted his guilty plea to conspiring to possess and distribute heroin (resulting in injury) and to witness tampering, Mr. Watkins filed a motion to withdraw the same. Finding that the Bashara factors weighed against him, the district court denied his motion.

In a published opinion, the Sixth Circuit affirmed the denial of Mr. Watkins's motion. While the Court found that all of the Bashara factors weighed against allowing Mr. Watkins to withdraw his guilty plea, one holding, in particular, caught this author's eye: his claim that the stresses of solitary confinement while awaiting trial forced him to plead guilty. Although the district court never conducted an evidentiary hearing about these claims, the Court rejected Watkins's argument by relying on his answers to the Rule 11 questions asked by the district court during his rearraignment.

Once accepted, a guilty plea is difficult to withdraw. This case is no exception, even though an evidentiary hearing might have helped to provide more details about Mr. Watkins claims regarding his solitary confinement.

News (Not News): Court Again Upholds Broad Wiretap Authorization

In the spring of 2017, DEA agents began investigating a large-scale drug trafficking operation operated by brothers Yusef Phillips and Ray Anthony Lee. Using evidence they obtained over the many months of their investigation, DEA agents obtained permission to tap Phillips and Lee's cell phones. Casting the net permitted by their Title III wiretaps, agents uncovered text messages and recorded conversations between Alex Castro and Phillips and between Dante Howard and Phillips wherein they discussed purported drug transactions. Based on their investigation, agents arrested seventeen members of the alleged drug trafficking operation, including Castro, Howard, and Solon Tatum.  A jury subsequently convicted all three defendants of conspiring to distribute controlled substances, among other charges.

On appeal, Castro challenged the district court's order denying his motion to suppress the evidence obtained through the wiretaps. Chiefly, he argued the wiretaps were not necessary because the Government had already obtained substantial evidence against the members of the drug trafficking organization using traditional investigation methods by the time they submitting their wiretapping applications. In a published opinion, the Court agreed with the district court's order denying Castro's motion. Like the district court, the Court accepted the Government's representation that traditional investigation techniques were unlikely to lead agents to Phillips and Lee's sources of supply. The fact the DEA accomplished some of its goals using traditional investigation techniques, the Court concluded, did not mean it had to call off the remainder of its investigation.

Howard challenged the sufficiency of the evidence supporting his conspiracy conviction. The Government, he claimed, only presented evidence he purchased drugs from Phillips, not that he was involved in the drug trafficking operation. The Court rejected this argument, pointing to Phillips's testimony that he sold large quantities of drugs to Howard from late 2016 through September of 2017, evidence that Phillips and Howard used coded language attributed to drug dealing, and their concerns about avoiding detection by law enforcement. Citing to the same evidence, the Court also rejected Howard's hearsay challenge to certain statements introduced against him pursuant to the co-conspirator exception to the hearsay rule.

Tatum likewise challenged the sufficiency of the evidence supporting his conspiracy conviction. Not so, the Court held. Pointing to Lee's testimony about fronting a kilogram of cocaine to Tatum on two occasions, the Court concluded the jury correctly found he was a participant in the drug trafficking organization.

Tatum also challenged his conviction for possessing cocaine with the intent to distribute on July 18, 2017, noting the Government introduced no evidence he sold cocaine after that date. The Court rejected this argument as well, holding the Government merely had to prove his intent to distribute the drugs, not that he actually distributed them.

There Are No Shortcuts In Seeking Compassionate Release...Even During a Pandemic.

If you practice criminal defense on any level, you are aware of the profound threat COVID-19 poses to local jails, and both state and federal prisons. In many instances, it is difficult, if not impossible, to practice social distancing in facilities that were already overcrowded before the pandemic struck. The risk is particularly profound for many elderly inmates or inmates with medical conditions that increase the likelihood they will die from the virus.

For federal practitioners, the pandemic has lead to a dramatic increase in the filing of compassionate release motions pursuant to 18 U.S.C. § 3582(c)(1)(A). While the First Step Act expanded the compassionate release statute, an inmate seeking such release still faces a significant bureaucratic hurdle:  he or she must first go to the warden of their facility before seeking relief from the court. The inmate must then exhaust his or her administrative rights to an appeal or wait 30 days after the warden received his or her request, whichever occurs first.

The onset of COVID-19 makes this hurdle more significant. Since the virus spreads quickly through jails and prisons, inmates do not wish to wait thirty days before they can file motions. This has lead defense counsel to seek avenues around the exhaustion requirement. In United States v. Alam, the Sixth Circuit affirmed that there are no such avenues.

Mr. Alam is a 64-year-old man suffering from several medical conditions that, when combined with his age, places him at high risk for morbidity from COVID-19. Having served almost 50% of his 101-month sentence, Mr. Alam sent a letter to the warden of his facility asking him to file a motion for compassionate release. However, he also filed his own motion with the district court ten days later. After the Government objected, the district court denied his motion for failing to satisfy the exhaustion requirement.

On appeal, the Court considered whether Mr. Alam's failure to satisfy the exhaustion requirement deprived the lower court of subject matter jurisdiction to consider his motion. It concluded it did not. Instead, it held the exhaustion requirement was a claim-processing rule courts must enforce when "properly invoked." Since the Government raised a timely objection to Mr. Alam's motion, the district court correctly dismissed the same.

In affirming the lower court's decision, the Court also rejected a litany of arguments raised by Mr. Alam as to why courts could carve exceptions to the exhaustion requirement. Notably, it rejected his argument that it should find an equitable exemption to the exhaustion requirement by noting that since "time is of the essence" to prisoners seeking compassionate release, creating an equitable exemption would allow other inmates to "jump the line," thus making the process "less fair...."

Having held Mr. Alam's motion was untimely, the Court turned to addressing the proper remedy. Although some district courts hold untimely motions in abeyance until the 30-day window expires, the Court affirmed the district court's decision to dismiss Mr. Alam's motion without prejudice, noting that it was better to have him refile "with the benefit of whatever additional insight he may have gleaned."

In this decision, the Court makes clear that there are no shortcuts around the exhaustion requirement for compassionate release in the Sixth Circuit. While this decision provides no comfort to the many at-risk inmates who currently live in fear of contracting the virus, defense counsel looking to file such motions should first check with their clients to see if they have initiated the administrative process before looking to seek relief from district courts. 

When is a Defendant Eligible for Resentencing under the First Step Act? Sixth Circuit Joins Sister Circuits in Issuing a Favorable Ruling.

Is a defendant's eligibility for resentencing under the First Step Act tied to his or her statute of conviction or the record of conviction as a whole? In United States v. Boulding, the Sixth Circuit joined its sister circuits in affirming the former.

A jury convicted Walter Boulding of one count of conspiracy to distribute, and to possess with intent to distribute, 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii), and one count of possession with intent to distribute 5 grams or more of crack cocaine, in violation of §§ 841(a)(1) and 841(b)(1)(B)(iii). However, Mr. Boulding's Final Presentence Report attributed substantially more crack cocaine (650.4 grams) to him, which subjected him to a mandatory life sentence because he had two prior felony drug convictions. The district court subsequently sentenced Mr. Boulding to life imprisonment on the first count and 360 months on the second count.

  

In 2018, Boulding moved the district court reduce his sentence pursuant to the First Step Act. Over the Government's objection, the district court imposed a reduced sentence of 324 months imprisonment on both counts, to be served concurrently. However, it denied Mr. Boulding's request for a de novo resentencing hearing and for an opportunity to object to his amended sentence. The Government and Mr. Boulding filed subsequent cross-appeals.

On appeal, the Government argued the district court erred finding Mr. Boulding eligible for resentencing under the FSA. Arguing that the phrase "the statutory penalties for which" modified not the nearest noun ("a Federal criminal statute") but the entire preceding phrase ("a violation of a Federal criminal statute"), the Government claimed the Act required the district court to look at the entire record of Mr. Boulding's conviction, which, considering the large quantity of crack cocaine attributed to him, made him ineligible for resentencing. The district court disagreed. Joining its sister circuits, the Court held that resentencing under the Act hinged upon the applicable "Federal criminal statute" and found that the district court correctly held Mr. Boulding was entitled to resentencing.

Turning to Mr. Boulding's second argument, the Court held that although Mr. Boulding was not entitled to a plenary resentencing hearing under the FSA, the Act provides defendants with an opportunity to present objections to any amended sentence imposed, although the sentencing court has the discretion to fashion the means by which they may lodge their objections. Since the district court did not permit Mr. Boulding an opportunity to present his objections to his amended sentence, the district court abused its discretion. Thus, the Court vacated the amended judgment and remanded Mr. Boulding's case for resentencing.

Big Win on a First Step Act case - pro-se defendant!!!

Back in 2006, Defendant Marty Smith was sentenced to 240 months, despite the fact that his Guidelines range was 168-210 months.  This was due to the fact that the Government had filed a notice pursuant to 21 U.S.C. 851, raising his mandatory minimum to 20 years (240 months). 

When the First Step Act was passed in 2018, Smith sent a letter to the district court (Eastern District of Kentucky) asking that counsel be appointed for the filing of an FSA motion.  (It should be noted that the Eastern District of Kentucky remains one of the only districts in the country devoid of a Federal Defenders office.)  Instead of appointing counsel, the district court (1) construed the letter request as an FSA motion, (2) found that the FSA did indeed apply, and (3) decided that Smith should not receive a reduced sentence.  In denying the motion, the court noted that Smith's current Guidelines range would be 77-96 months.

Smith appealed (still acting pro-se), arguing that the failure to reduce the sentence was improper.  The Sixth Circuit first noted that the decision to not reduce the sentence, under these circumstances, amounted to an upward variance from the Guidelines range.  Leaning on the Court's rationale in United States v. Bistline, 665 F.3d 758 (6th Cir. 2012), the Court found that the sentence of 240 constituted a "major" variance from the Guidelines range, and thus should have been supported by "significant justification" on the record.  The district court,in the Sixth Circuit's opinion, provided no such justification.  Opinion 

However, the Court even went further.  Opining on the passage of the First Step Act itself, the Court held that "the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline."  The court found that everything the district court did discuss in denying a reduction was adequately considered in the  current Guidelines range.  Thus, resentencing was required.

Court holds that no "proximate cause" required to be proven in death overdose case

Pursuant to 21 U.S.C. § 841(b)(1)(c), a defendant's statutory sentencing range is increased from 0-20 years to 20 years to life if "death or injury results from the use of such substance."  The question raised in United States v. Jeffries 18-4081 was: does the Government have to prove proximate cause between the defendant's actions and the death?  In a In a 2-1 decision, the Sixth Circuit held that no such proximate cause is necessary.

Relying on the term "results from," as well as an interpretation of the Supreme Court decision in  Burrage v. United States, 571 U.S. 204 (2014), the Court found that

Section 841(b)(1)(C) is merely the penalty tied to the conduct proscribed in § 841(a)(1). It does not speak to the defendant’s conduct or the general causal connection between § 841(a)(1) and the death. The penalty provision speaks only to the specific connection between the use of the drugs distributed by the defendant and the death that resulted from that use. 

The Court further determined that the mens rea for this statute is specifically limited to the distribution element of the offense.

Judge Donald provided a strong dissent from the panel opinion, finding that the language of the statute in this regard was ambiguous, and therefore, the Rule of Lenity applied.  Judge Donald further found that requiring proof of proximate cause, under these circumstances, would be consistent with traditional criminal law concepts.

Will there be future litigation on this topic and in this case?  Please stay tuned!!!

US v Brown & the Categorical Approach: Enter at Your Own Risk

Legend has it that somewhere in the underworld, Sisyphus keeps pushing a boulder up a hill. Every time he summits, he's forced to watch the boulder roll all the way down. Somewhere in Tennessee, David Brown is giving Sisyphus a run for his money. For fourteen years, Brown has litigated a felon-in-possession charge. Every time Brown nudges the boulder close to the apex, one way or another it rolls back down.

Twelve years ago, a jury convicted Brown. Months later, the district court granted Brown's motion for acquittal. No cause for much joy, as the Sixth Circuit eventually reversed and reinstated the conviction.

In 2010, the district court sentenced Brown. Importantly, Brown was tagged as an armed career criminal. Key to the ACCA enhancement: Brown's three convictions for Tennessee's aggravated burglary. At the time, the Sixth Circuit said Tennessee's aggravated burglary qualified as a violent felony. Brown got 15 years plus 5 years supervised release.

Brown served roughly five years. Around then, the en banc Sixth Circuit reversed course on Tennessee's aggravated burglary. See US v. Stitt. After Stitt, Tennessee's aggravated burglary no longer counted as a violent felony, so Brown no longer fit the meaning of an armed career criminal. That meant Brown needed a new sentence. But by then Brown had already served more than he should have without the enhancement (but not the full 15). The district court released him. But not before the government preserved its right to reinstate the 15 years should SCOTUS nix Stitt.

Stitt did not stand for long. Eight months after Brown went home, The Nine unanimously binned Stitt. Upshot: Tennessee's aggravated burglary once again qualified as a violent felony.

And in perhaps the most unjust part of the twisted saga, the government urged the district court to reinstate Brown’s original sentence. The district court went along. Brown went back to prison to finish the 15 years.

This week, in United States v. Brown, the Sixth Circuit affirmed Brown’s (re)resentence.

Judge Murphy wrote for the panel (which included Judges Bush and Suhrheinrich). Whatever your take on the outcome, at the end of the day, most ACCA cases boil down to a judgment call. And Judge Murphy’s judgment call draws on a precise read of SCOTUS precedent tied to a compelling piece of statutory interpretation. So the opinion certainly ticks a lot of boxes, even if, as is often the case with these cases, there is room to disagree.

Because this is an ACCA burglary case, Judge Murphy begins with the categorical approach. The categorical approach grows out of ACCA’s enumerated-offenses clause. ACCA lists a few state offenses that trigger an enhancement to a federal sentence. The list includes burglary. 

But what qualifies as a burglary sufficient to trigger ACCA’s enhancement? Fifty state burglary statutes make for quite the variety. How do we know which ones are violent felonies and which ones aren't? Faced with that question, SCOTUS says when Congress put burglary in ACCA, they meant burglary as it existed at common law: an unlawful breaking and entering of a dwelling at night.

To see if a particular burglary statute qualifies under ACCA’s, lower courts need to compare the elements of the burglary statute against the elements of its common law ancestor. If the burglary statute’s elements sweep more broadly than the elements at common law, then, categorically speaking, none of the convictions under the state’s burglary statute qualify as ACCA predicates.

At first blush, comparing a statute’s elements to common law elements seems straightforward. But is it? Hard to say. As we will see, common law burglary amounts to a nebulous baseline. Agreeing on its common-law elements takes some work. Even more, those 50 state statutes sure run the gamut. Lastly, state legislatures don’t just go around clearly demarcating the elements of state offenses in order to ease the burden on federal judges.  

So why not just focus on the facts of the offense? If in fact the commission of the crime involved the use, attempted use, or threatened use of violent force, then you have a violent felony.

Not so fast. The Sixth Amendment stands in the way. Sure, federal judges can find the fact of a prior conviction. But federal judges cannot find the facts used to enhance a sentence. An example helps. Imagine someone somewhere pleaded guilty to burglary. Twenty years pass and now that someone faces an ACCA enhancement if that old burglary qualifies as a violent felony. If we toss out the categorical approach, we need to know why somewhere charged someone with burglary. Assuming somewhere kept the file, what’s in it? Enough to gets the facts straight? Maybe. Maybe the file has a plea colloquy in it. Or maybe a chunk of the police report. Is that enough? Worse, what if the file is just gone? Point is, the federal judge cannot, under current law, find the facts of the prior state offense. So will the federal judge have to hold a mini-trial to find the facts that gave rise to the 20-year-old guilty plea for burglary? Or, worse, does the Sixth Amendment need a bigger exception to allow judges to find those facts when making ACCA enhancements?

End of the day, not a lot of good answers here. And Judge Murphy's opinion acknowledges as much.

The real gem here is Brown’s argument and Judge Murphy’s treatment of it. Brown says Tennessee’s aggravated burglary is categorically not a violent felony. Brown points to language in Tennessee’s statute that includes burglaries where the only entry is made by the tool used to break in. Brown says at common law, that entry-by-tool would not be a burglary. Recall that common law penalized an unlawful breaking and entering. Brown found a few common-law chestnuts reasoning that an entry by tool only qualifies as a burglary if the tool was then used to steal something inside.

Again, an example helps. Say you use a crowbar to pry open a door and then use the crowbar to hook some jewels near the door. Bingo, you have a common law burglary. By contrast, what if you use the crowbar to break in but get caught before you enter? According to Brown’s common-law sources, that’s an attempted burglary in 19th Century London. But 21st Century Tennessee makes that a burglary. So Brown says Tennessee’s aggravated burglary sweeps in more conduct than common law burglary, meaning it is not a violent felony under ACCA.

Judge Murphy rejects Brown’s argument. He notes that the state caselaw is no help, probably because of the precision of Brown’s argument. So he leans on a close read of SCOTUS precedent and statutory interpretation.

Take the precedent first. Murphy acknowledges that SCOTUS says ACCA burglary means common law burglary. But Murphy adds that SCOTUS did so to underscore inclusion of violent felonies, not to invite federal judges down common law rabbit holes. Hence Judge Murphy distills the operating principle: burglary is in the statute because it can lead to violence, violence occurs when an unwanted intruder enters the home, and of all the elements, entry, even at common law, was easiest to satisfy. If even a finger crossed the threshold, then burglary. So when put in the context of precedent, Brown's entry-by-tool distinction does not mean all that much.

Judge Murphy’s read of precedent dovetails with his statutory interpretation. Judge Murphy rightly notes ACCA’s purpose is to enhance the sentences for violent offenders. And Congress thought violence went hand in glove with burglary. Here, Judge Murphy says Brown’s argument cuts against the grain. Brown's argument shields the crowbar-wielding-would-be burglar but not the actual burglar who merely inches a finger past the threshold. Judge Murphy rhetorically asks which burglar is more violent?  Moreover, Judge Murphy notes Congress intended ACCA to apply nationwide. But Brown's argument stands to defeat ACCA’s application to at least some states. 

All told, Judge Murphy worries that Brown’s argument puts a wrench in ACCA's chain. Said more formally, Judge Murphy refuses to interpret a statute in a way that defeats its intended purpose and application. That makes sense.

To be sure, there is room to see this differently. For one, Judge Murphy’s opinion does not seem to apply the categorical approach as outlined in Descamps. Where in the opinion does the panel line up the common-law elements against the statutory elements? If anything, when Judge Murphy engages in the hypothetical about which burglar you find more violent, he seems to indulge a peak at a fact-based approach. In any event, if you apply the categorical approach outlined in Descamps, there is an argument for Brown winning. But Brown loses. And he seems to lose because Judge Murphy worries that a win for Brown is a loss for a minority of states' burglary statutes. Yet Stitt suggests that's ok. Really confusing.

But on the whole Judge Murphy has a point. Brown’s argument showcases a dilemma. Is there a definitive common-law text on the elements of a burglary, and, if so, what are the elements? Plus, why are diving down 19th century rabbit holes to make 21st century criminal law? Like it or leave it, Judge Murphy offers a way out. Ask what Congress intended and see how SCOTUS treat the language. In other words, find the rule of law and try to stick to it. Is that fundamentally a judgment call, sure, but this judgment call flows from statutory purpose and a close read of precedent. Hard to argue with that.

In the end, Brown loses. And it’s crazy. But not because of the opinion. I looked at the docket and in the eight months he was out there is no evidence that Brown violated his supervised release. So why send him back, government? If someone spends eight months free and doesn’t violate, then why more prison? Brown reached the ultimate apex: rehabilitation and reintegration. And yet, the government pushed him back down the hill.