Sixth Circuit Blog

Plea Agreements and Mandatory Minimums

2009-07-13T14:50:00.003-04:00

The panel of Chief Judge Boggs and Judges Moore, and Sutton issued an opinion in United States v. Jones, No. 08–1352 (6th Cir. July 7, 2009), considering mandatory minimums and construing plea agreements. The panel made clear a few interesting points, among them:

* A plea agreement will always be construed against the government if there is any ambiguity.

* Mandatory minimum sentences are not likely to be found cruel and unusual—a life sentence for a first-time offender has been upheld.

The defendant received a fifteen-year sentence for crack cocaine and a firearm in furtherance of the dugs. The defendant had waived his right to appeal a sentence at or below the maximum guideline range as determined by the district court. The issue was: what is the guideline range? Was it the mandatory minimum or the range calculated under the Guidelines? The Court looked to U.S.S.G. Section 5G1.1(b), which says that a mandatory minimum dictated by statute becomes the guideline range when it is higher than the range calculated under the Guidelines. The Court concluded there was ambiguity as to what the "range" was and gave the defendant the benefit of the doubt. The Court cited plea agreements from other circuits that made clear what was intended by "range."

It is fairly clear from Chief Judge Boggs’s concurrence/dissent that the defendant was aware that he had to receive the mandatory minimum sentence.

In terms of the substance of the sentence, the Court rejected the defendant’s Eight Amendment challenge to the ten-year mandatory minimum sentence for possessing with the intent to distribute more than 50 grams of crack cocaine. The Court concluded that the Eight Amendment is only offended when there is an extreme disparity between the crime and the punishment—the narrow proportionality principle.

Published Clarification on Sec. 3582(c)(2)

2009-07-09T16:38:00.002-04:00

On June 30, 2009, the panel of Judges Moore, Gilman, and Phillips (E.D. Tenn.) decided United States v. Johnson and Moss, Nos. 08–3925, 08–3926 (6th Cir. June 30, 2009). The published opinion considers the § 3582(c)(2) motions of two defendants who were indicted for crack and powder cocaine offenses, but who were ultimately sentenced based only on the powder. The court makes clear that a sentence must be based on crack cocaine if a defendant is going to be eligible for relief under the retroactive crack amendments. A conviction that involved crack is insufficient. To be eligible for relief, a defendant must be serving a sentence on which the amount of crack cocaine had an impact. Otherwise, a district court is not authorized to reduce the sentence under § 3582(c)(2).

Defense Attorneys, As Well As Judges and Prosecutors, Must Get Their Heads In The Post-Booker Process

2009-06-15T18:24:00.002-04:00

In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), when a proffered plea agreement required her to plead guilty to additional conduct that she denied committing in order for the government to file a §5K1.1 motion for assistance she had provided, Blue decided to accept an offer that did not require her to admit the additional conduct, but which did not include the filing of the §5K1.1 motion. In the post-Booker landscape, so far so good. Blue filed a motion for downward departure under §5K1.1, and argued that the district court should depart downward based on her assistance to the government. When the district court declined the invitation, and sentenced her to 292 months, Blue appealed.

In an opinion written by Judge Martin, the Court notes that, "post-Booker, the government's failure to file a Section 5K1.1 departure does not necessarily preclude a sentencing court from taking into account substantial assistance when considering the appropriate sentence in light of the Section 3553(a) factors." (557 F.3d at 685) What does matter, however, is whether the district court is considering the issue as a §5K1.1 departure motion, or a request for a variance under § 3553(a). And this is where the case goes off the track for Ms. Blue.

"Even after Booker, absent an unconstitutional motive, a district court may not award a Section 5K1.1 departure pursuant to the Guidelines without a government motion." (Id. at 686.)(emphasis in original) And a district court's refusal to depart downward is still, after Booker, not reviewable on appeal.

Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.

Blue's Lesson for the Rest of Us: Always present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing. If we fail to do this, then not only will our clients not get the lower sentences they deserve, but all of our appellate efforts will be in vain.

Three Quick Notes on Cases---Rule 35(b), Fleeing and Eluding, and Explanations of Sentences

2009-06-11T17:50:00.002-04:00

United States v. Grant, No. 07–3831, 2009 U.S. App. LEXIS 12330 (6th Cir. June 9, 2009) (panel of Judges Gibbons, Keith, and Merritt):

* "What factors a district court may consider when ruling on a Rule 35(b) motion is an issue of first impression in this circuit, though we have stated in an unpublished opinion that ‘[i]n evaluating a Rule 35(b) motion for reduction, a district court can consider a broad array of factors.’"

* "It stands to reason that a defendant’s substantial assistance will be the predominant factor in a district court’s decision to reduce a sentence pursuant to Rule 35(b). But that does not mean that a district court is precluded from considering other factors at the same time, whether those factors ultimately militate in favor of a larger, smaller, or identical sentence to the one it would have imposed on the basis of substantial assistance alone."

* So, the door is open for broader consideration of the issues.

United States v. LaCasse, No. 06–2212 (6th Cir. June 4, 2009) (panel of Judges Gibbons, Norris, and Rogers):

* Begay analysis does not change earlier holding that Michigan Fleeing and Eluding is a crime of violence. (Note—check your subsection. Fourth-Degree F and E not categorically a crime of violence.)

* Holding seems to be in tension with other recent conclusions.

United States v. Grams, No. 08–1697 (6th Cir. May 29, 2009) (panel of Judges Clay, McKeague, and Holschuh [S.D. Ohio]):

* Sentencing courts must clearly identify any deviations from the guideline range. Was this deviation a departure or a variance?

* District courts must provide specific reasons for departures and variances.

* Good discussion of the need to explain sentences.

Michigan R and O NOT a C of V

2009-06-05T13:42:00.003-04:00

Hooray! Published opinion that Michigan Resisting and Obstructing a Police Officer is not a crime of violence! In United States v. Mosley, No. 08–1783 (6th Cir. June 5, 2009), panel of Chief Judge Boggs and Judges Moore and Sutton considered Michigan R and O under M.C.L. § 750.81d(1) and held that it’s not a crime of violence. No force, not an enumerated offense, and doesn’t fit into "otherwise clause." In terms of the Begay analysis, the panel found that, even though the offense may be purposeful, the statute does not require violence or aggression.

In Michigan, one can commit R and O by failing to obey a lawful command. This aspect of the statute was important in the decision.

Two things to keep in mind:

* Offenses under other subsections of 750.81d may involve crimes of violence. See United States v. Alexander, 543 F.3d 819 (6th Cir. 2008) (finding that a violation of Section 750.81d(2) is a crime of violence—that subsection has as an element causing bodily injury).

* The panel still remanded for review of the Shepard docs. The opinion allows for a review of the docs to determine whether the defendant did indeed assault an officer.

Staving Off Attack—Child-Porn Sentencing Victory

2009-05-26T11:52:00.003-04:00

In United States v. Cole, No. 07–4506 (6th Cir. May 22, 2009) (unpublished), the panel of Judges Kennedy, Norris, and Cole affirmed the judgment of the district court after the government appealed the defendant’s sentence. The defendant had pleaded guilty to transporting and possessing child pornography. The district court had declined to enhance the defendant’s sentence based on his previous state conviction "relating to" statutorily enumerated sex crimes with minors. The defendant had a 1999 conviction for possession of matter portraying a sexual performance by a minor, in violation of Kentucky law. The district court sentenced the defendant to 120 months of imprisonment.

The panel looked to the case of United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), in which the court applied the categorical/modified-categorical approach to determine whether a prior conviction was sufficiently similar to the federal offense to trigger the enhancement. The Cole panel considered that at the time of the Cole defendant’s prior conviction the statute under which he was convicted was overly broad because it criminalized every instance in which a child is photographed exhibiting his or her genitals—without requiring proof that the exhibition was volitional and in a lewd manner. The federal statutes, in contrast, require lascivious exhibition.

Because there was no proof under the categorical approach that the defendant’s prior conviction involved the "lewd manner" element, his prior conviction was not categorically equivalent to the federal offenses. The panel declined to adopt the broader reading of "relating to" urged by the government. The panel concluded it was bound by McGrattan.

Ghosts of Sentences Past---Procedural Reasonableness

2009-05-15T09:39:00.005-04:00

Yesterday in United States v. Barahona-Montenegro, No. 08–1345 (6th Cir. May 14, 2009), the panel of Judges Moore, McKeague, and Forester (E.D. Ky.) vacated a sentence as procedurally unreasonable and remanded the case for resentencing. At sentencing, the defense had objected to the criminal-history category in the PSIR. The defense argued that the defendant should have been in category III rather than IV. At IV, the guidelines were 37 to 46 months. At III, they were 30 to 37 months.

The district court never resolved the objection. The court sentenced the defendant to 48 months, an above-guidelines sentence whether or not the objection was sustained. The court noted the seriousness of the offense (illegal alien in possession of a firearm) and that the defendant had five children, all born out of wedlock, whom he was not supporting.

Some two months after the hearing, the court issued its written judgment. In that judgment, the court assigned the defendant criminal-history category III and said the sentence was based on an upward departure under Section 4A1.3, as category III under-represented the defendant’s criminal history.

The appellate court found that the district court failed to properly calculate the guidelines and did not adequately explain the sentence it imposed. The panel found that the district court failed to focus on the Section 4A1.3(a)(2) factors to support an upward departure. The events and convictions the district court cited were already accounted for in the guideline scoring. The panel also found that it could not determine whether the above-guidelines sentence was based on an upward departure or a variance and that the explanation the district court provided focused on irrelevant factors such as the children being born out of wedlock.

The panel ruled that the statement of reasons provided with the judgment did not cure the defects. It was issued some two months after sentencing and did not provide the necessary explanation. The sentence was procedurally unreasonable because of the lack of guideline calculation and explanation of the sentence.

Void for Vagueness ruling withdrawn

2009-05-01T09:56:00.003-04:00

The Sixth Circuit issued an opinion today in U.S. v. Davis, Case No. 07-1964, ruling that officers had reasonable suspicion to believe that Mr. Davis's vision was obstructed by a stuffed Tweety Bird hanging from the mirror. This would not be that exceptional if it wasn't for the fact that this opinion is in direct conflict with a prior opinion by the Court from last December ruling that the statute was void for vagueness. That opinion, written by Judge Martin, was withdrawn after the State of Michigan intervened to argue for the constitutional validity of the statute. Judge Martin apparently decided to punt by not addressing the constitutional validity of the statute after realizing that Mr. Davis had not raised the issue below.

Good News Re. Crack--Powder Disparity!

2009-04-30T13:28:00.003-04:00

Yesterday, DOJ came out in support of eliminating the disparity between crack and powder cocaine sentences. Lanny Breuer, Assistant Attorney General, spoke before the Senate Subcommittee on Crime and Drugs.

Here's his written testimony:
http://judiciary.senate.gov/pdf/09-04-29BreuerTestimony.pdf

Webcast:
http://judiciary.senate.gov/hearings/hearing.cfm?id=3798

Check out www.fd.org and http://www.famm.org/ for more info.

There are, it seems, four proposals in the House now to address cocaine sentencing. Nothing's in the Senate yet.

Lots of material here for sentencing memos. Buzz seems to be that changes will be retroactive, but you can't be too careful! Let's bring it up now!

When Are We Burros? IAC Claims and Petitions for Cert...

2009-04-30T10:50:00.004-04:00

In United States v. Nichols, No. 05–6452 (6th Cir. Apr. 29, 2009), the Circuit en banc considered whether it is ineffective assistance of counsel to fail to preserve a "future change in the law" argument, one hoping that the Supreme Court will strike down existing law while a defendant’s case is still pending on direct appeal. The Court found that the petitioner couldn’t prevail on any IAC claim, so it avoided the broad constitutional question.

The petitioner and a co-defendant were sentenced in October 2002. The Apprendi opinion was out there, but otherwise, it was a pre-Blakely and Booker world. The petitioner got 405 months. Petitioner appealed. The panel affirmed. One day before the expiration of time to file for rehearing en banc, Blakely came down. Counsel didn’t ask for rehearing. Counsel did not petition for certiorari. The co-defendant’s counsel did petition for certiorari. Booker came down and the co-defendant got relief. Nine months were eventually knocked off co-defendant’s sentence—he got 396 months when resentenced.

The petitioner filed a pro se motion under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. Petitioner claimed, among other things, that counsel had been ineffective for failing to raise an Apprendi argument or a Blakely argument later. The district court denied the motion. The petitioner got a certificate of appealability on the issue of whether counsel was ineffective when they failed to raise the issue of the petitioner’s sentence being enhanced based on facts not proved to the jury beyond a reasonable doubt. The panel hearing the appeal ruled for the petitioner. The government moved for rehearing en banc. The Court granted the motion. For the rehearing, the issue was a bit different: the petitioner argued that by failing to raise the Apprendi argument at sentencing, on direct appeal, and in a petition for certiorari, his counsel was ineffective.

Essentially, the Court concluded that the petitioner could not "link the two pieces of the ineffective-assistance standard—deficient performance and prejudice—on the same side of the demarcation: he cannot show prejudice at any point at which he had a right to counsel, and he cannot show a right to counsel (and, hence, deficient performance) at any point at which he could show prejudice." Basically, the Constitution does not entitle a defendant to the assistance of counsel for a discretionary appeal—like a petition for certiorari. So, the failure to file for such review cannot amount to constitutionally ineffective assistance.

The petitioner claimed prejudice because he was denied the benefit of Booker’s change in
the law—a resentencing under an advisory Guidelines scheme—which was a benefit he would have received had he petitioned for certiorari. Had he petitioned, his conviction would not have become final before the Supreme Court decided Booker. The Court found that the petitioner could show prejudice on this claim, so the question became that of whether his counsel’s failure to petition for certiorari amounted to constitutionally deficient performance.
The Court said no. The Constitution does not entitle a defendant to the assistance of counsel for the filing of a petition for certiorari. Counsel’s failure to file a petition does not amount to constitutionally ineffective assistance.

The Court also addressed the petitioner’s assertions based on Sixth Circuit Rules 101(a) and (g), which impose certain obligations on counsel (e.g., trial counsel must continue representation on appeal until they are specifically relieved by the Court and losing appellate counsel must petition for certiorari under certain circumstances). The petitioner’s claims for relief came under 28 U.S.C. § 2255, however, which calls for allegations of an error of constitutional magnitude, a sentence imposed outside the statutory limits, or an error of fact or law that was so fundamental as to render the proceedings invalid. The petitioner claimed a constitutional error. Absent a constitutional right, he had no claim. The procedural rules alone do not create constitutional rights or impose constitutional duties.

In terms of counsel’s failure to petition for rehearing en banc, the Court did not decide the issue because, "even if we were to assume that [petitioner’s] original appellate counsel performed deficiently by failing to move this court for rehearing . . . [petitioner] cannot show any resulting prejudice." At the time, the law was that the Federal Sentencing Guidelines did not violate the Sixth Amendment.

In short, the petitioner did not show that his counsel was constitutionally ineffective for failing to anticipate the changes that did come about in the law—counsel was not ineffective for failing to raise an Apprendi-based challenge at sentencing or on direct appeal, for failing to move the appellate court for reconsideration on a Blakely-based claim in post-appellate proceedings, or for failing to petition the High Court for certiorari under Booker.

Judge Moore dissented. She thought that the majority’s focus on the petitioner’s original counsel’s failure to petition for certiorari ignored the fact that there were actually several routes by which the petitioner could have had an appeal pending at the necessary time to obtain relief. Had counsel raised the Sixth Amendment argument at sentencing or on direct appeal, the petitioner likely would have known to raise the argument at a later date.

Judge Moore concludes that Apprendi and Blakely cast the constitutionality of the Federal Sentencing Guidelines into serious doubt, and that the petitioner’s sentence presented circumstances that were called into question by Apprendi and Blakely. Petitioner’s original counsel was therefore constitutionally ineffective for failing to preserve a Sixth Amendment challenge to the petitioner’s sentence.

Sentencing---Remand for Drug-Quantity Error

2009-04-20T11:51:00.005-04:00

In United States v. White, No. 07–2404 (6th Cir. Apr. 16, 2009), the panel of Judges Kennedy, Martin, and Cole affirmed the defendant’s conviction, but remanded for resentencing. A jury found the defendant guilty of several cocaine and firearm offenses and the district court imposed a life sentence. The panel affirmed the district court’s discovery and evidentiary rulings and denied the defendant’s claims regarding prosecutorial misconduct.

The panel did, however, remand for resentencing. The defendant had argued that his base offense level should be 36 rather than 38 based on the amount of cocaine attributable to him. Under plain-error review, the panel found that the amount of drugs calculated was too high. The witness testimony on the issue was equivocal and a "drug quantity estimate must ‘err[] on the side of caution and likely underestimate[] the quantity of drugs actually attributable to the defendant.’" The panel decided to exercise its discretion to remand for plain error because the sentence was a life sentence. Had the base offense level been 36 (and total offense level 42), the range would have been 360 to life, a big difference for a 29-year-old defendant.

Every Man a King (or at least a Commentator)

2009-04-08T12:52:00.002-04:00

I know that many of you have been itching to comment on the posts at this site, but have been frustrated by the lack of access. Well, remain silent no more! We have worked out our issues with the "comment" feature of the site and anyone should now be able to post comments to the articles on the blog. You will have to register with the site, but this shouldn't be too big a hassle and is mainly to keep out the robo-blog advertising. So now you have no excuse! Let us hear from you. In a truly representative democracy, every citizen has a voice in his/her government and its operation. Let us know how you feel! (If you run into problems that can't be resolved, e-mail me at sumter_camp@fd.org.) Blog on!

Trajectory of Change? Power to Vary from All Guidelines Based on Policy Reasons?

2009-04-08T09:20:00.005-04:00

In a very short, published opinion, the panel of Judges Keith, Merritt, and Gibbons remanded a crack case for resentencing. United States v. Vandewege, No. 07–2250 (6th Cir. Apr. 8, 2009). The gist of the case is that the sentencing court did not err in attributing 12.3 grams of crack found in the car to the defendant.

The highlights are in the dicta:

—The panel remanded for resentencing under 18 U.S.C. § 3582(c)(2). The panel noted "that the sentencing court instructed the Bureau of Prisons to attempt rehabilitation by treating and trying to cure the defendant’s drug addiction. This § 3582(c)(2) is part of the same subsection that allows courts to modify sentences for compelling reasons upon motion of the Bureau of Prisons. It may be that the Bureau of Prisons will have further information concerning rehabilitation worthy of consideration under § 3553."

—Are courts beginning to recognize a broader scope for § 3582(c)(2) resentencings?

—Case also should be remanded under United States v. Johnson, No. 07–2447 (6th Cir. Jan. 26, 2009) (remanding in light of Spears, in which Supreme Court reiterated sentencing courts’ ability to reject crack guideline on policy grounds).

—Majority recognizes sentencing courts may vary from guidelines in general on policy grounds. Closer review may apply if the variance is in a mine-run case. Judge Gibbons disagrees with this point in her concurrence. She believes that "[n]either Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests."

Sign of things to come?

Getting Funky—Gov Moves Ct to Dismiss Appeal

2009-04-03T11:34:00.003-04:00

United States v. Funk, No. 05–3708 (6th Cir. Mar. 27, 2009).

On March 27, 2009, the Circuit granted the government’s unopposed motion to dismiss the appeal with prejudice. The panel opinion that was going to be considered en banc remains vacated.

What this move means for us. . . .

It’s worth checking out fd.org to look at the materials in this case. In a nutshell, on July 22, 2008, the panel of Judges Boggs, Batchelder, and Bell (W.D. Mich.) concluded that the variance in the case was unreasonable. Guidelines were 262 to 327 b/c of career-offender status. Dist. ct gave 150-month sentence. Panel said sentence unreasonable b/c not based on individual circumstances of case, but rather, on disagreement with career-offender guideline. Dismissal of the appeal based on the government’s motion seems good.

And it seems natural after Spears v. United States, 129 S. Ct. 840 (2009), and United States v. Johnson, 553 F.3d 990, 992 (6th Cir. 2009) (vacating sentence and remanding for resentencing because "Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this" and "because the district court sentenced [the defendant] without the benefit of Spears"—remand for resentencing necessary "to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines"). Maybe Funk is a sign that courts are recognizing that policy disagreements with the Guidelines will support a variance outside the arena of the crack guideline.

"A Walkaway Escape Is Not Unambiguously a Crime of Violence"

2009-03-31T17:06:00.003-04:00

In United States v. Ford, No. 08–5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky’s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1.2(a)(2). Court used some good language. For example, "[t]hat an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence." Court goes on to note that "all walkaway offenders have engaged in purposeful conduct." But there is no requirement of purposeful violence or purposeful aggressiveness. Court points out that "[t]he ‘otherwise’ requirement demands not just that the offense involve a similar risk of injury but also that it involve a similar type of crime." Finally, the Court finds that if any doubt remains the benefit of that doubt must go to the defendant under the Rule of Lenity. Court still notes the Shepard issue, which is an issue (see Mr. Strong’s post of March 16, 2009). The issue is a little different, as this offense is not a "reckless" one, but the analysis still seems unsettled in the Shepard area.

St. Patty’s Day Treat—924(c)s Not Always Consecutive in 2nd Cir.

2009-03-17T12:45:00.004-04:00

(Pic in celebration of the Emerald Isle.)

Well, following up on my post of March 12, the Second Circuit (Judges Pooler, Hall, and Trager, of the Eastern District of New York) has held that a mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A) is inapplicable when a defendant is subject to a longer mandatory minimum sentence for a drug-trafficking offense that is part of the same criminal transaction as the firearm offense. United States v. Williams, No. 07–2436 (2d Cir. Mar. 5, 2009). The court had previously held in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), that the "except clause" of § 924(c) means that the minimum sentences do not apply when a greater sentence is otherwise provided by another provision of law. That case addressed the Armed Career Criminal Act (ACCA). The Williams court simply extended this holding to cover non-firearms minimum sentences and sentences provided by the predicate offense (i.e. a mandatory minimum for a drug-trafficking offense).

The Williams court cites United States v. Rodriquez, 128 S. Ct. 1738, 1788–89 (2008), to support the need to faithfully read statutory text and refrain from inserting language into statutes. The court also cites United States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001). The court notes that the 6th Circuit has cited with approval cases that have read the "except clause" as having a firearms limitation. It has cited cases that at least leave open the option that other firearms provisions could lead to a non-consecutive sentence under 924(c) (e.g., ACCA).

The Williams court points out that it is not unbridling the "except clause" to let it run wild. The court’s holding requires that the firearm was possessed in relation to the predicate offense—that the offenses arise from the same criminal transaction. The court also notes that the general rule is that 924(c) penalties are cumulative and that the "except clause" is just that: an exception.

The court made an interesting observation in a footnote. Case law does not point to any statutory provisions currently in force that could increase a sentence for a violation of § 924(c) that is not codified in that section. So really, the "except clause," as read by some courts, would allow for a greater minimum sentence in the event Congress enacts one in the future in some other section of the Code. They read it, essentially, as a hypothetical given the current state of the law.

What all this means for us. . . .

Well, first, seems to mean there’s a good cert. issue out there. But I think it also means we may actually have a little ground to challenge consecutive 924(c) sentences. As the Williams court points out, the Jolivette court cited United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000), with approval. In Alaniz, the Eight Circuit concluded that the "except clause" refers only to firearm-related conduct and would not apply to a drug-trafficking sentencing provision. The Jolivette court described this reasoning as "entirely correct." So, we might be able to argue that ACCA and 924(c) sentences should not be consecutive (as in Whitley). There’s bad language in Jolivette, but that case’s support of Alaniz is helpful. The bad language is dicta. ACCA was not the issue in Jolivette. (Nor, for that matter, was a mandatory minimum drug-trafficking sentence. . . . ) Maybe, with such an argument and the help of Whitley and Williams, cases like Guthrie, discussed below, could come out even better. See United States v. Guthrie, Nos. 07–6215/07–6286 (6th Cir. Mar. 2, 2009). Just a thought . . . I could not find a case out of the Sixth Circuit directly refuting this argument, but that does not mean it is not out there.

Reckless Endangerment Not a Crime of Violence, maybe

2009-03-16T11:33:00.004-04:00

Today, a panel of the Sixth ruled in U.S. v. Baker, that reckless endangerment under Tennessee law does not qualify as a crime of violence for career offender and ACCA purposes. The Sixth found that since reckless endangerment by its definition penalizes reckless, rather than intentional, conduct it does not qualify as a crime of violence after Begay.

However, there is one troubling aspect about this opinion. The panel remands the case and allows that the district court, "may consider any of the additional factual evidence on remand, provided, of course, that it is limited to the 'charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.'" This seems to confuse the analysis of Shepard. Under Shepard, the prosecution does not get to present this additional evidence unless there is a possibility that the statutory definition of the crime penalizes both crimes of violence and non-crimes of violence. Think generic v. non-generic burglary. So if Begay requires that the predicate offense criminalize intentional conduct for it to qualify as a c.o.v., and reckless endangerment only criminalizes reckless conduct, why is there a need for additional fact finding? It would seem that the statutory definition would make any further factual finding pointless, in that the statutory definition does not criminalize any crime that could ever qualify as intentional conduct.

While this is just one troubling aspect of an otherwise good opinion, it makes me wonder if the Sixth can envision any way that reckless endangerment could qualify as a c.o.v. Any thoughts?

So Hot-Off-the-Press that Further Details Will Have to Follow—924(c)s Not Always Consecutive?!

2009-03-12T16:35:00.002-04:00

There’s some inauspicious Sixth Circuit case law out there like United States v. Jolivette, 257 F.3d 581, 586–87 (6th Cir. 2001), but good things may be happening. Second Circuit just found that the mandatory minimum under 924(c)(1)(A) is inapplicable when the defendant is subject to a higher mandatory minimum sentence for a drug-trafficking offense when that latter offense is part of the same criminal transaction. United States v. Williams, No. 07–2436 (2d Cir. Mar. 5, 2009). I will look at the case and get back to you (yes, I’m pretty much just gossiping right now).

Good News from the Categorical-Approach Front

2009-03-12T15:39:00.004-04:00

Nice result in United States v. Medina-Almaguer, No. 07–4254 (6th Cir. Mar. 12, 2009) (panel of Judges Keith, Sutton, and Griffin). Defendant sentenced to 27 months for illegal reentry after deportation. Got the 16-level bump for prior drug-trafficking offense. Guideline range was 37 to 46 months. Downward variance to 27 months because predicate offense for bump was nearly 18 years old and defendant had stayed out of trouble for the most part after that prior offense.

Issue: was defendant’s 1989 California conviction a drug-trafficking conviction to justify the bump.

California Health and Safety Code Section 11352(a) (1989) makes it a crime to transport, import, sell, furnish, administer, or give away a controlled substance or to offer to do those things. This broad reach means the statute covers more than just the conduct that makes an offense a drug-trafficking offense. The district court relied on a transcript of the preliminary examination in that earlier case to determine that the offense qualified as a drug-trafficking offense. Transcript showed that the defendant had been arrested after selling heroin to an undercover agent.

Appellate-court conclusions: court documents reviewed to determine nature of prior offense must establish that the defendant "necessarily admitted" the elements of a predicate offense when he/she pleaded guilty. Court assumed for the sake of argument that a district court may consult a preliminary-examination transcript. But panel found that the transcript at issue did not demonstrate that the defendant necessarily admitted the elements of a drug-trafficking offense.

Key points:
—Preliminary examination involves gateway step in criminal process—determining whether probable cause exists to detain suspect.
—It takes place before the individual is charged.
—Purpose is to determine if there is probable cause to believe the individual committed a felony.

—The transcript may show that the magistrate properly concluded there was sufficient cause to think the defendant violated Section 11352(a). But the defendant did not admit the conduct.
—Transcript does not show that he necessarily admitted the conduct when he later pleaded guilty.
—Defendant did not testify at hearing. His attorney did not concede anything on his behalf.
—Panel did not determine whether the transcript is even an appropriate source because this transcript is not helpful even if it could be reviewed.
—It is clear that "Shepard requires more than probable inferences and likely implications." Need judicial record.

Cases:
Court distinguishes United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006). Jones allows limited use of an affidavit of complaint. May be used only for purpose of determining whether prior offense constitutes a single criminal episode or multiple episodes. Court looked to United States v. Wells, 473 F.3d 640, 647 n.5 (6th Cir. 2007), for clarification. Relates to ACCA. Jones did not address whether a sentencing court may use an affidavit of complaint to determine the conduct the defendant necessarily admitted when he or she pleaded guilty.

Remanded for resentencing.

A Brave New World—Sentencing Review

2009-03-12T14:18:00.004-04:00

The panel of Judges Martin, Kethledge, and Carr (Chief District Judge, N.D. Ohio) clarified the nature of sentencing review in United States v. Blue, No. 07–5296 (6th Cir. Mar. 9, 2009). The case is somewhat unremarkable in terms of the facts and issue. Defendant pleaded guilty to three counts of crack-related offenses. The plea agreement did not commit the government to moving for a downward departure based on the defendant’s substantial assistance. An earlier plea agreement would have so committed the government, but it also would have required the defendant to plead to a charge to which she did not want to plead. Offense level was 35; criminal history category was VI. Guideline range was 292 to 365 months. Defendant got 292 months.

Prior to sentencing, the defendant filed a 5K1.1 motion for a downward departure. The district court denied this motion. This denial was the focus of the appeal. The panel upheld the district court’s denial, finding that the sentence was reasonable. This outcome is not remarkable, but the panel focused on the nature of appellate review of sentences post-Booker. In Footnote 1, the panel makes clear the need for reasonableness review and the limited utility of pre-Booker case law.

The panel cites the Seventh Circuit case of United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006), that found that post-Booker departures are no longer necessary—a district court may simply impose a below-guideline sentence if such a sentence is appropriate. The panel does stop short of finding, as the Seventh Circuit did, that "departures have become obsolete." The panel finds this language a bit strong. It describes departures as exemplifying "a special discretion because it is anticipated by the Guidelines Commission."

The panel points out that absent an unconstitutional motive a sentencing court may not award a 5K1.1 departure under the Guidelines without a government motion. It notes that a properly granted 5K1.1 motion would reflect "a proper application of the Sentencing Guidelines" and thus be entitled to a presumption of reasonableness on appellate review. The panel concludes that a variance imposed under 3553(a), one that could be granted without a government motion, would not be entitled to the same presumption.

The panel concludes that the defendant waived her argument that her sentence was procedurally unreasonable because the sentencing court did not consider her substantial-assistance argument under 3553(a).

Child Exploitation—Refining Definitions

2009-03-05T11:17:00.004-05:00

In United States v. Shafer, No. 07–2574 (6th Cir. Mar. 3, 2009), Judges Moore, White, and Tarnow (E.D. Mich.) remanded a child-exploitation case for resentencing.

Conviction: Guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depiction of such conduct, and depiction was produced using material transported in interstate commerce—violation of 18 U.S.C. § 2251(a).

Original Sentence: 360 months.

Guidelines: Section 2G2.1. BOL 32. Final OL 41. CHC I. Range of 324 to 405. Stat max of 30 years.

Facts: Bad. Charge involved defendant photographing eleven-year-old boy masturbating.

Issue: Defendant objected to enhancement under Section 2G2.1(b)(2)(A)—if offense involved commission of a sexual act or sexual contact, +2 levels. Defendant argued sexual act/contact do not encompass self-masturbation. Need another person involved.

District Court: Applied enhancement. Found that sexual act requires one individual to make contact with another. But sexual contact is broader and covers self-masturbation. Also found that the entire pattern of conduct involving the victim was all part and parcel of the offense. There was "grooming" conduct to make the victim engage in the sexual behavior.

Appellate Court: 1) Sexual contact includes self-masturbation. But 2) requirements for sexual contact include an intent element. The person who is doing the touching must have a specific intent—e.g., to abuse, humiliate, or arouse the sexual desire of someone. District judge did not make findings regarding the eleven-year-old boy’s intent. Because of the boy’s age, appellate court unwilling to infer necessary intent. Could have been that boy sought only to please the defendant in a non-sexual way. Remanded for findings on intent. 3) There was no evidence that the defendant committed a sexual act or sexual contact during the commission of the offense, in preparation for the offense, or in the course of attempting to avoid detection/responsibility for the offense. Earlier sexual abuse may have made offense of conviction easier to commit, but that fact does not support a finding that the defendant committed the previous abuse with the intent to later have the victim self-masturbate for the offense.

Short Holding: Section 2G2.1(b)(2)(A) does not apply given this record.

Dissent: Judge White would affirm because she thinks the district court found the requisite intent.

Trial Issues and Sentencing Win

2009-03-03T13:34:00.005-05:00

In United States v. Guthrie, Nos. 07–6215/6286 (6th Cir. Mar. 2, 2009), the panel of Judges Martin, Moore, and Gwin (N.D. Ohio) considered a number of trial issues presented by the defendant and a sentencing challenge by the government. A jury convicted the defendant of car-jacking, discharging a firearm during a crime of violence, possessing a sawed-off shotgun, and being a felon in possession of a firearm. The court sentenced the defendant to 300 months of incarceration total. This sentence accounted for the mandatory minimum sentences at play.

The defendant challenged several aspects of the trial proceedings: 1) The AUSA being able to speak with the victim-witness during her cross-examination; 2) introduction of audio recordings of 911 calls; 3) introduction of video of a police pursuit; 4) the trial court’s refusal to issue a writ to produce a witness at trial; 5) the court’s instruction on "intent to cause death or serious bodily injury;" and 6) the denial of his motions for a judgment of acquittal based on the insufficiency of the evidence.

The government challenged the sentence, which included a variance from the guideline range. The government argued that the sentencing court varied because of the impact of the statutory mandatory minimums on the overall sentence and that the court did not adequately explain the grounds for the sentence.

The panel affirmed the conviction and sentence.

I will focus on two issues here: the witness-sequestration issue and the sentencing issue. The sequestration issue is interesting for a number of reasons. In our office in the Western District of Michigan, we recently brought a similar challenge because of conduct during a trial. This Guthrie decision does recognize the viability of such challenges. The Guthrie defendant characterized the error he raised as a failure to sequester the witness and as a violation of his Sixth Amendment right to confront his accuser. In rejecting the challenge, the panel pointed out that the district court merely had called a routine recess at the end of the day and that the defense did not object to the handling of the situation as the decision was made—the defense only objected as the witness was being dismissed and asked that the prosecutor not talk to the witness.

The panel concluded that sequestration orders do not prohibit witnesses from speaking with counsel. The panel noted that the defense did not question the witness regarding potentially improper communications when the witness took the stand the following day. Finally, the defense did not, on appeal, allege that anything improper occurred. I think these facts are what decided the issue. Perhaps on different, less benign, facts the situation could have come out differently.

As to sentencing, the government had argued for a 40-year sentence. The guideline recommendation was for 360 months and an additional 10 years because of the 10-year, consecutive minimum for the use of the firearm during a violent crime. The appellate court upheld the 25-year sentence imposed. It found that the district court was not trying to "negate" the mandatory minimum sentence for the use of the firearm during a crime of violence, as is prohibited by United States v. Franklin, 499 F.3d 578 (6th Cir. 2007). The panel found that the sentencing court had concluded that a 40-year sentence was just too long. The panel refused to impute an improper analysis to the district court and concluded the sentence was reasonable.

Sentence Vacated in Child-Porn Case—Helpful Ruling Re. Section 3B1.2 for Mitigating Role

2009-02-26T13:31:00.004-05:00

Opinion in U.S. v. Groenendal, No. 07–2430 (6th Cir. Feb. 26, 2009) (panel of Judges Gibbons, McKeague, and Shadur, who is a district judge in Northern Illinois), helpful on issue of application of Section 3B1.2—Mitigating Role—in child-porn cases.

Basically, the defendant uploaded three pictures in the space of five minutes to join a porn/child-porn chat group on the Internet. He deleted his account within weeks of joining and was not questioned by law enforcement until almost two years later. He confessed his behavior to those close to him and sought professional help for his pornography addiction, spending thousands of dollars on group and individual counseling. Four and a half years after deleting his account, the defendant was charged with possessing child pornography. Because of some advantageous application of the law as it was at the time of his offense, and a downward departure, he received a sentence of 42 months.

The panel rejected the defendant’s argument that the old cross-reference to the trafficking guideline should not apply to him, finding that the uploading of pictures constituted trafficking. He "shipped" the pictures over the Internet. The panel also rejected the defendant’s objection to the enhancement for sadistic/masochistic depictions. (I won’t go into details, but the standard is low. As a note, the picture was not part of the record, but the defendant did not dispute the description of the conduct—the parties stipulated that the picture was as described—so the court ruled on the issue based on the description.)

The key issue is that of the district court’s decision not to apply the decrease in offense level for mitigating role under Section 3B1.2. The panel held that the reduction can apply: "In other words, [the defendant] cannot be guilty of trafficking for purposes of sentencing enhancements and guilty of only possession for purposes of sentencing reductions." The fact that the defendant was the only charged participant did not bar application of the reduction. The panel reasoned that "[t]he government cannot have it both ways and view [the defendant’s] conviction as trafficking for the applicability of sentencing enhancements but as possession for the applicability of reductions." The district court’s language was ambiguous concerning whether the district court felt it could apply the enhancement in the defendant’s circumstances, and it had erred because once it found the defendant had participated in trafficking for sentencing purposes it had to consider the reduction.

The panel remanded the case for the district court to consider applying the reduction. The panel seems to lean toward application, citing the compelling facts of the case.

Judge Breen of W.D. Tenn Rules Reckless Endangerment not Crime of Violence

2009-02-23T17:57:00.002-05:00

Today Judge Breen of the Western District of Tennessee ruled that felony reckless endangerment under Tennessee law is not a crime of violence in United States v. Jessie Rogers, Case No. 08-10036. Just a heads up. I'll try to link to the written order but am not sure if pacer will let everybody get there.

The Emperor's New Clothes

2009-02-13T11:44:00.004-05:00

In the development of the Supreme Court’s post-Booker caselaw, culminating in Kimbrough, the Court has challenged the defense bar to put the Guidelines to the test. The Sentencing Resource Counsel of the Federal and Community Public Defenders have taken up the challenge in a series of papers. The first, Amy Baron-Evans’ The Continuing Struggle For Just, Effective and Constitutional Sentencing After United States v. Booker, released in August 2006, took on DOJ's and the Sentencing Commission’s post hoc justification for the Guidelines as already including all the § 3553(a) factors and, therefore, needing be the only thing consulted in determining a sentence. (This theory has been accepted by some members of the Sixth Circuit. See, e.g., United States v. Buchanan, 449 F.3d 731, 735 (6th Cir. 2006) (Sutton, J., concurring) ). The Continuing Struggle, using the Commission’s own studies and data, show this for the fallacy that it is.

Since then, the Sentencing Resource Counsel have developed a series called Deconstructing the Guidelines which looks at the legal/theoretical underpinnings of specific Guidelines sections to examine whether or not the Commission, in crafting that guideline, was acting in "the exercise of its characteristic institutional role." Kimbrough, 128 S.Ct. 575. (These can be found on the Sentencing Resource Page of fd.org.) The sections addressed so far include career offender, the child pornography guidelines, firearms, and relevant conduct, particularly the use of uncharged and acquitted conduct.

But what will happen when the defense bar has exposed the Guidelines as a sham? To apply Jasna’s metaphor in a slightly different fashion, what happens when we show that the emperor has no clothes? Will the courts, including the Court of Appeals, reevaluate their approach to the value of Guidelines sentences, including their own use of the presumption of correctness on appeal for within-Guidelines sentences? Or will the courts instead say, "All hail the naked emperor!"? That remains to be seen. In the meantime, the challenge for the defense bar is to be the child saying the emperor has no clothes – and proving it to the adults unwilling to accept reality.

The problem, of course, is what do we have to offer the courts to take the place of the Guidelines? If we have nothing to offer, the courts will default back to the Guidelines – worthless or not – because they are better than nothing. Very few sitting district judges have experience sentencing defendants before the implementation of the Guidelines. As a result, the remainder may feel cut loose from their moorings without the Guidelines. Therein lies the challenge.