Good-Faith Suspicions

Today, a look at the Sixth Circuit's March 11 decision in United States v. Gilbert. (Your blogger has a bit more familiarity with this case than might be typical--he was counsel for the defendant on appeal.)

Gilbert sought to suppress evidence found when police searched his house, arguing that the warrant lacked probable cause and the good-faith exception did not apply--and more specifically, that even if there was some evidence that Gilbert sold drugs, there wasn't a sufficient "nexus" between drug trafficking and his home.

The Sixth Circuit moved directly to the good-faith exception, concluding that the exception applied. It relied on three sets of allegations in the search-warrant affidavit:

(1) "Gilbert had previously been convicted of drug trafficking and possession;"

(2) "Gilbert was party to a large drug transaction on August 27, 2016, and possessed 'a large quantity of cash' in his vehicle about two weeks later;" and

(3) "[L]aw enforcement discovered 'a large black vacuum bag with suspected marijuana crumbs,' 'recent mail addressed to Tyrone Gilbert,' and '[b]lack rubber gloves with residue' at this residence the day prior to seeking the search warrant."

Based on these allegations, the Court concluded: "Indisputably, these are facts. And importantly, these are facts that establish 'some connection' between the suspected drug trafficking and Gilbert's Yellowstone Road home, in light of the marijuana taken from Gilbert's trash at that address and his demonstrated history of drug trafficking." 

Straightforward enough. So what was even the basis for the appeal? Well, our briefs focused on point (3) above--notice that, in the Court's three points, those are the only allegations with any connection to Gilbert's home (the "nexus" requirement). More specifically, we focused on the "suspected" marijuana crumbs (and, to a lesser extent, on the unknown "residue"). Were they indisputably facts?

Police found the suspected marijuana crumbs in Gilbert's trash in June 2017. As the Court notes in the factual background, that was the third trash pull police did at Gilbert's home, starting four months earlier. In the first, they found chrome scale weights, a vacuum sealed bag, and zip-lock bags, but they all tested negative for drugs. In the second trash pull, police didn't find anything suggesting that Gilbert sold drugs. In the third, they found the vacuum bag with "suspected" marijuana crumbs. Police then sought and obtained a search warrant before testing the crumbs to confirm that they were marijuana.

That became the core of our argument. An officer can't rely in good faith on a warrant when the supporting affidavit "merely states suspicions, beliefs, or conclusions," United States v. McPhearson, 469 F.3d 518, 526 (6th Cir. 2006), so was it enough for the officer to allege that Gilbert's trash contained "suspected" marijuana crumbs? And in particular, was it enough after the same officer had earlier suspected that his trash had drug paraphernalia, but testing didn't confirm his suspicions?

The Court didn't address this argument head-on, but concluded that the suspected marijuana crumbs in the search-warrant affidavit were enough to apply the good-faith exception.

Plenary Resentencing Denied in First Step Act Case

          In a published order on March 4, 2020, the Sixth Circuit held in United States v. Alexander that a person seeking a sentence reduction under the First Step Act (FSA) is not entitled to a de novo resentencing hearing.[1]

          When Mr. Alexander was sentenced in 2007 for an offense involving 50 grams or more of cocaine base (crack), his statutory penalty range was 10 years to life. As a career offender, his guidelines range was 360 months to life. He was sentenced to 360 months imprisonment and 5 years of supervised release.

          Mr. Alexander filed a pro se motion for a sentence reduction under § 404 of the FSA which made certain provisions of the Fair Sentencing Act retroactive. Under the latter Act, the statutory maximum for an offense involving 50 grams of crack was lowered to 40 years imprisonment. That statutory change lowered the career offender guidelines range to 262 to 327 months.

          Mr. Alexander maintained that he should again be sentenced “at the bottom end of the career offender guideline” and that a “sentence of 262 months would be reasonable in this matter.” The government agreed that Mr. Alexander was eligible for an FSA sentence reduction and that his new guidelines range would be 262 to 327 months. The district court granted Mr. Alexander’s motion and reduced his sentence to 262 months.

          Proceeding pro se on appeal, Mr. Alexander contended that the FSA required the district court to conduct a de novo resentencing hearing so he could present arguments in support of a sentence outside the lowered guidelines range. The Sixth Circuit said that the FSA’s “limited, discretionary authorization to impose a reduced sentence is inconsistent with a plenary resentencing.” Slip. Op. at 4 (citations omitted). The court also noted that Fed.R.Crim.Proc. 43(b)(4) supported the conclusion that the FSA and 18 U.S.C. § 3582(c)(1)(B) do not require a de novo resentencing hearing because under the Rule the defendant “need not be present” if the “proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).” Consequently, Mr. Alexander “was not entitled to a plenary resentencing.” Slip. Op. at 4.

          The door is not, however, completely closed on the possibility of a plenary resentencing for a person eligible for FSA relief. Although one may not be entitled to plenary resentencing that does not mean a district court cannot conduct one if warranted by the circumstances in a given case. Mr. Alexander’s case suggests as much.

          On appeal, Mr. Alexander offered several reasons to support his argument for a de novo resentencing hearing at which he would maintain that he should get more of a sentence reduction. Mr. Alexander contended that “the district court was unaware of or failed to understand its discretion to depart from the career offender range;” he should have received a 1-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b); and “his post-offense rehabilitation and serious medical condition should have been considered.” Slip. Op. at 5. However, those reasons were not raised in the motion for a sentence reduction. The Sixth Circuit simply noted that the district court did what Mr. Alexander requested in his motion and reduced his sentence to 262 months. Thus, it appears that if a district court is given sufficient reasons, it could grant a de novo resentencing hearing on a motion seeking FSA relief.

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[1] The order was unpublished when it was originally issued on October 18, 2019. The Sixth Circuit has now designated it for publication. 

United States v. Davis is retroactive

          John Franklin made a motion for authorization to file a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In re: John W. Franklin. Mr. Franklin argued that his conviction under 18 U.S.C. § 924(c) should be vacated because his arson conviction (18 U.S.C. § 844(i)) no longer qualified as a crime of violence in light of United States v. Davis, 139 S.Ct. 2319 (2019). The government agreed that Mr. Franklin’s motion should be granted because Davis announced a new rule of constitutional law that retroactively applied to cases on collateral review.

          In a per curiam opinion, the Sixth Circuit observed that Davis established a “new rule” of constitutional law because its result was not dictated by precedent that existed when Mr. Franklin’s conviction became final. Lower courts usually do not apply a new rule announced by the Supreme Court retroactively to cases on collateral review until the Court has announced the rule’s retroactive effect. But there is a narrow exception which provides that lower courts “may determine on their own the retroactivity of new rules when multiple cases ... necessarily dictate the retroactivity of the new rule.” Slip Op. 2 (citation omitted).

          Mr. Franklin’s case fell within that exception. The Sixth Circuit explained that Welch v. United States, 136 S.Ct. 1257 (2016), established Davis’s retroactivity because Davis announced a new substantive rule that narrowed the range of conduct punishable by law. More specifically, Davis narrowed the scope of 18 U.S.C. § 924(c)(3) by concluding that its residual clause (§ 924(c)(3)(B)) is unconstitutionally vague.

          The Sixth Circuit further explained that arson under § 844(i) does not appear to qualify as a crime of violence under the elements - force clause of § 924(c)(3)(A) because it can be committed against “any building … used in interstate or foreign commerce,” including one owned by the arsonist. That meant Mr. Franklin’s conviction must have been based on § 924(c)(3)(B)’s residual clause which Davis invalidated and his proposed § 2255 petition relies on Davis’s rule. Consequently, Mr. Franklin’s motion for authorization to file a second or successive § 2255 motion was granted.