Sixth Circuit Blog

Sixth Circuit Shows No Love for ACCA Void for Vagueness Arguments

2012-01-30T13:48:00.000-05:00

Ever since Scalia’s dissent in Sykes v. United States—where Scalia opined that the ACCA otherwise clause is unconstitutionally void for vagueness—defense attorneys have challenged this issue with renewed vigor and rejuvenated hopes that one day it might not fall on deaf ears. There has been speculation that one day appellate judges might get so frustrated with developing new tests for the ACCA otherwise clause that they will throw their hands up and just declare the otherwise clause void for vagueness. That day, in the Sixth Circuit at least, is not this day.

Today, in United States v. Fowler, the Sixth Circuit was confronted with the issue and spent the better part of a whole sentence analyzing the otherwise clause: “Finally, the ACCA’s residual clause is not unconstitutionally vague.”

Not an unexpected result, but it would be nice to see some analysis as opposed to decision by fiat. So keep challenging the ACCA otherwise clause, don’t lose hope, but don’t expect to spend much time on this issue at oral argument either.

Automatic Lifetime Supervised Release on a CP case? Not so fast!!!

2012-01-27T12:20:00.000-05:00

Brandon Inman plead guilty to possession of child pornography. At sentencing, both defense counsel and the Government requested a supervised release term of 10 years. The court refused, and imposed a lifetime term of supervised release. The court also imposed a prison term of 57 months.

On January 26, 2012, the Sixth Circuit reversed this sentence. 12a0021p.06 The Court found that, even under a plain error standard of review, a court could not impose a lifetime term of supervised release without addressing 3553(a) criteria and providing reasons on the record for its choice. The Court recognized that the Sentencing Guidelines recommended a lifetime term be imposed; however, the Court indicated that in light of the facts of the case, and the parties recommendation, serious consideration should be given as to this sentence term. The Court further suggested to the district court: should the district court on remand decide to impose the ten-year term of supervised release recommended by the Government, the governing statute allows the court to extend the term of supervised release and to modify the conditions at any time prior to the term’s expiration if circumstances warrant such an extension or modification.

The Court also overturned some of the conditions of supervised release, including: the requirements for mandatory drug testing, to notify the probation office and provide documentation of any prescription medication, and to provide the probation office with access to any personal financial information, as well as the prohibitions against consuming any alcoholic beverages, possession or use of a device capable of creating pictures or video, and renting or using a post office box or a storage facility. The Court questioned the need for these restrictions, in light of the facts of the case and the offender.

The erosion of the Fourth Amendment nearing completion?

2012-01-24T13:12:00.001-05:00

The Court today issued the published opinion in United States v. Fofana. 12a0018p.06 One paragraph from this opinion provides most of the story:

There is a difference between evidence that the Government obtains because of knowledge illegally acquired, and evidence properly in the Government’s possession that it learns the relevance of because of knowledge illegally acquired. It may be that the latter must be suppressed in some cases. But in the context of the present case, bank records and other evidence that the Government obtained independently of the airport search do not have to be suppressed on account of the unconstitutionality of that search, merely because the relevance or usefulness of that evidence became apparent because of the search.

The Court creates in this decision a new exception to the fruit of the poisonous tree doctrine, holding that where there is an independent basis for a police officer to obtain evidence, that illegally obtained evidence which shows the relevance of the illegality of that evidence does not require suppression.

In her dissent, Judge Moore found that the establishment of connection between offender and the evidence is crucial - if that link comes only through the use of otherwise suppressible evidence, then it cannot be used to provide that link.

The majority opinion spent much of its focus on the use of the exclusionary rule versus public policy - the Court found that there must be a balance between the deterrent rationale of the exclusionary rule and "truth seeking function of the courts", and that in this case, the deterrent effect would be minimal.

Double Standard Basically Official for Sentencing Appeals

2012-01-18T11:09:00.013-05:00

In the wake of the Bistline decision last week, the Sixth Circuit today vacated and remanded another below-guidelines sentence in United States v. Traxler, No. 10-1792 (6th Cir. Jan. 18, 2012). Panel of Judges Kennedy, Martin and Stranch (dissenting).
Cory Kent Traxler pled guilty to being a felon in possession of a firearm and had a guideline range of 151 to 188 months with a 180 month mandatory minimum. The government moved for a downward departure for substantial assistance and the district court sentenced Traxler to 60 months. The government appealed.

The government's arguments will sound all-too-familiar to Federal Defenders: the district court appeared to consider impermissible factors and the district court failed to adequately explain its sentence. Perhaps unaccustomed to losing, the government did not raise the objection at sentencing and so faced plain error review.

The descriptions of the sentencing transcript will also sound familiar. There were two motions pending before the court: the substantial assistance departure and a 3553(a) downward variance. The sentencing judge "engaged in a lengthy colloquy." It "would have been preferable for the court to specify how far it departed downward based on substantial assistance and how far it varied downward based on other appropriate considerations." The court did not explicitly consider any impermissible factors -- but it might have.

A lengthy colloquy without clear evidence of error? Plain error review? No chance this is getting reversed, right? Wrong. Over Judge Stranch's dissent, the Court vacated and remanded the sentence as substantively unreasonable because the sentencing transcript "makes it appear that" the district court relied on impermissible factors. The Court also found the sentence procedurally unreasonable for failure to give an adequate explanation.

This case epitomizes what is already a well-documented trend on this Blog: the Sixth Circuit's reading of a sentencing transcript -- especially the deference given to district court judges -- is wildly inconsistent depending upon whether the appellant is the government or the defendant.

Bad News on CP Sentencing

2012-01-14T13:51:00.000-05:00

US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (for publication). Panel of Judges Gilman, Kethledge, and Ludington (E.D. Mich.).

CP case. Recommended sentencing range under the GLs was 63 to 78 months. Dist ct sentenced the defendant to one night in lockup + ten years of supervised release. (Probation had recommended two years of custody.)

Gov appealed, arguing substantive unreasonableness.

COA agreed and vacated the sentence.

Background details:
* Defendant was 67 years old.
* No criminal history.
* Had suffered two strokes and cared for his ailing wife.
* Gov had argued for a GL sentence.
* Dist ct said the GLS were "seriously flawed" b/c of Congress's involvement in them.

Appellate Court's conclusions:
* GLs still initial benchmark.
* Justification for a variance must be "sufficiently compelling" to support the extent of the variance. Cites Gall.
* If a dist ct rejects the GLs, the COA "will 'scrutinize closely.'"
* The Constitution "merely tolerates, rather than compels" Congress's delegation of power to the Sentencing Commission. "Congress can marginalize the Commission all it wants . . . ." Congressional involvement in the GLs (that may be politically motivated, rather than motivated by empirical study) is more a "constitutional virtue, rather than vice."
* Congress's delegation of power to the Commission is a limited one. The remainder is retained by Congress.
* The Court found that "it follows that a district court cannot reasonably reject [section] 2G2.2---or any other guidelines provision---merely on the ground that Congress exercised, rather than delegated, its power to set the policies reflected therein."
* The district court need not agree with the GL with which Congress has played a role, but Congress's involvement "is not itself a valid reason to disagree with the guideline."
* To survive close scrutiny, a sentencing "court must explain its disagreement in terms that are persuasive on policy grounds, not political ones."

Comparing Kimbrough:
* Yes, "the Commission did not act in its usual institutional role with respect to the relevant amendments to [section] 2G2.2. But that is because Congress was the relevant actor with respect to those amendments; and that puts [section] 2G2.2 on stronger ground than the crack-cocaine guidelines were on in Kimbrough."
* Nothing in the Constitution "confines the exercise of Congress's sentencing power to empirical grounds alone."
* CP GLs based on retribution and punishment, as well as other concerns.

3553(a) discussion:
* "Notably omitted" from the dist ct's discussion ("and virtually unpunished") was the offense of possessing CP.
* The Court concluded that collateral effects of a conviction/sentence like having to register as a sex offender do not satisfy the need for a sentence to reflect the seriousness of the offense.
* Gov provided a victim statement to which the COA looked.
* The mitigating factors present could not justify the sentence. Court cited United States v. Christman, 607 F.3d 1110 (6th Cir. 2010).
* Court concluded that the defendant had not expressed remorse and that the sentence "validated" the defendant's perceptions.
* Court distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009). Stall involved only plain-error review. And government in Stall did not pursue the matter strongly.

Escape from a courtroom is not a "violent felony"

2011-12-16T08:18:00.001-05:00

Is an escape from custody a violent offense? The courts continue to grapple with this issue, seemingly deciding on a case by case basis whether particular acts constitute aggravating enhancements for sentencing purposes. In the latest case, United States v. Oaks, 11a0312p.06 , the Court remanded for resentencing (for a second time) based upon an Armed Career Criminal Act enhancement. Oaks had a prior conviction for escape, based upon his escape from a courtroom. Oaks had been in custody, and, during a court appearance, ran from the courtroom. The Court held that this Tennessee state offense was not a violent felony for purposes of the ACCA.

Interestingly, the Court seized on suggestion, espoused by the Supreme Court in Chambers v. United States, 555 U.S. 122 (2009), that in analyzing whether an offense is a violent felony, the Court should make a statistical analysis of the offenses, to see how often the offense actually results in violence. The Court noted that historical data showed that where an escape is from "nonsecure custody", such as the courtroom in question, injury only occurs in 1.7% of cases. On this basis, the Court concluded that the prior offense was not a violent felony, and remanded for resentencing.

The Government's acknowledged breach of a plea agreement did not affect the defendant's substantial rights or free him from his appeal waiver

2011-12-08T11:18:00.009-05:00

In United States v. Keller, No. 10-1901 (Dec. 7, 2011), the Sixth Circuit held that under plain error review, the defendant failed to establish that the Government’s acknowledged breach of his Rule 11 plea agreement affected his substantial rights, and further held that the Government’s breach of the plea agreement did not free him from the appeal waiver contained in the plea agreement.

In the plea agreement, the Government promised to recommend a sentence within the guidelines range, which the Government anticipated to be 188-235 months. Because the Government had miscalculated the defendant’s criminal history, however, the correct range was actually 135-168 months—even applying certain offense level enhancements that the defense contested. Although the Government acknowledged at sentencing that the properly calculated guideline range was 135-168 months, it asked the Court to impose a 235-month sentence. The defendant did not object, but asked the court to reject certain offense level enhancements and impose a mandatory minimum sentence of 120 months. The district court applied the contested offense level enhancements and found the guidelines range to be 135-168 months, ultimately imposing a sentence of 168 months.

On appeal, the parties agreed that the Government had breached the plea agreement and that the defendant could establish the first and second prongs of the plain error test. But the Government maintained that because the defendant received a sentence consistent with what the Government had promised to recommend, he could not establish that the error affected his substantial rights. The court agreed, because in Puckett v. United States, 129 S.Ct. 1423 (2009), the Supreme Court made clear that where a defendant “obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request),” he cannot show that a plea agreement breach violated his substantial rights under the plain error test.

The court further refused to consider the merits of the defendant’s sentencing guidelines argument on the ground that he had waived his right to appeal. The court acknowledged that in other circuits, “the Government’s breach of a plea agreement lifts the bar on appeal for a defendant who waived that right as part of his plea agreement,” but “decline[d] to follow those courts,” apparently creating a circuit split on the issue. (The parties did not dispute, and the Court appears to have taken for granted, that the defendant had a right to appeal the breach of his plea agreement as a standalone issue.)

3 Year Government Delay = Speedy Trial Violation

2011-11-30T12:02:00.002-05:00

In United States v. Ferreira today, the Sixth Circuit held that a 35 month delay caused by gross government negligence in the face of the defendant’s pro se assertion of his speedy trial rights violated the defendant’s speedy trial rights and necessitated dismissing the indictment with prejudice. A previous published opinion said that 5 years was enough, a previous unpublished opinion said that 3 and a half years was enough and a previous published opinion said that 2 years was not enough. So the line is moving in the right direction.

The issue in this case was whether to apply a presumption of prejudice to a 35 month government delay. Speedy trial analysis is easy when the government acts in bad faith or the delay causes identifiable prejudice to the defendant (e.g. a key defense witness dies or exculpatory evidence is lost or destroyed). The problem is that in the real world, cases rarely involve such easy determinations. Instead, cases most often seem to involve government negligence combined with a fear of unidentifiable prejudice. As the Supreme Court put it, “time’s erosion of exculpatory evidence and testimony can rarely be shown.” In other words, how do you prove what a witness would have remembered had the trial happened five years ago? How do you prove what evidence the defense team might have turned up? The answer is that you have to presume prejudice when the delay is long enough, and in this Circuit, 35 months is apparently long enough, at least when the delay is solely the government’s fault.

The dissent takes issue with this test, correctly pointing out that it has turned into a numbers game where various circuits require anywhere from 2 to 5 years for the presumption. The dissent would require that “before applying the presumption, we should at least ask whether there is reason to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as a result of the government’s delay in bringing him to trial.” What the dissent fails to explain is how a defendant could possibly present evidence of an unidentifiable fact.

Judges Disagree Over Substantive Reasonableness Claims, but Affirm Anyway

2011-11-28T16:43:00.001-05:00

The Sixth Circuit decided United States v. Jowers today (disclosure: this case came out of our office). In Jowers, the defendant was convicted for being a felon in possession of a firearm and received a 2 level enhancement under U.S.S.G. § 2K2.1(b)(1), which applies when the offense involves 3 to 7 firearms. The defendant’s mother purchased two firearms “in his presence and with his assistance,” after he became a felon. However, before the defendant became a felon, his father owned 2 firearms which his father stored in the defendant’s room. After the defendant became a felon and his father passed away, the defendant negligently failed to remove the firearms from his room.

Jowers argued that his sentence was substantively unreasonable due to the unwarranted sentencing disparity between himself and others who received the 2K2.1(b)(1) enhancement: i.e., in the mine run case, a defendant who receives this enhancement will intentionally possess 3 to 7 firearms but this defendant intentionally possessed 2 firearms and negligently possessed 2 firearms. Defendants should not receive the same punishment for such disparate offenses and Jowers was therefore entitled to a downward variance.

The majority opinion was about 1 page long and did not engage in any analysis of the merit of Jowers’s argument. Instead, the court took issue with the defendant’s failure to cite other cases in which a defendant had won a substantive reasonableness appeal due to application of 2K2.1(b)(1) to a defendant who negligently possessed enough firearms to qualify for that enhancement. The opinion concluded that Jowers, “makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.”

The concurrence agreed that Jowers argument should fail (for many of the same reasons substantive reasonableness arguments of defendants usually fail), but disagreed with the short shrift given to the defendant’s argument by the majority. “I disagree with the assertion in the majority opinion that Defendant ‘makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.’ I believe that Defendant does make such an argument.” The concurrence also took the majority to task for discouraging defendants from making novel arguments:

“I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to ‘explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.’ Although Defendant did not cite to any cases where a defendant received a downward variance because he only ‘negligently’ possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.”

The moral of the story? Defense attorneys should not give up raising new arguments that their clients’ sentences are substantively unreasonable. At least some Judges will consider your arguments.

Whoo Hoo! Big News: SCOTUS Grants Cert on FSA Pipeline-Cases Issues

2011-11-28T13:50:00.001-05:00

The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted.

The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.

Question presented in Dorsey:

"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"

Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week. Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010. The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed." This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).

No stay of execution for Reginald Brooks

2011-11-10T09:56:00.003-05:00

Yesterday, the Sixth Circuit denied a stay of execution for Reginald Brooks. You can find their opinion here.

Those of you who do capital habeas work will recognize the ruling as a fairly standard walk through 60(b)(6) issues. Those of you who, like me, are unfamiliar with capital habeas work should give it a look just to get a succinct description of the standards for stays of execution and review of habeas petitions in cases where a habeas petition has previously been filed and ruled upon.

What it all boils down to is this: a petition needs to be timely. It cannot relitigate issues already decided ("law of the case"). 60(b) is used to correct procedural errors in the appeal, not litigate the merits of the appeal. Ineffective assistance of habeas counsel cannot be raised in a 60(b) petition.

Props to Alan Rossman of the Federal Defender in Cleveland, Ohio, and Michael Benza for their continued efforts to keep Mr. Brooks alive.

Sixth Circuit reversed . . . again

2011-11-09T14:12:00.000-05:00

On November 7, the Supreme Court reversed the Sixth Circuit's decision in Dixon v. Houck, in which the Court had overturned the conviction and death sentence of the defendant based upon Miranda violations. The Supreme Court dealt unusually harshly with the Sixth Circuit in a per curium opinion, finding, for example, that "according to the Sixth Circuit, the Miranda decision itself clearly established that police could not speak to Dixon on November 9, because on November 4 Dixon had refused to speak to police without his lawyer. That is plainly wrong." (emphasis added) The Supreme Court dismissed each of the grounds for reversal set forth in the Sixth Circuit's opinion in short, order, and seemed to re-affirm the deference given to state court opinions, finding "Because no precedent of this Court required Ohio to do more, the Sixth Circuit was without authority to overturn the reasoned judgment of the State’s highest court."

The Supreme Court's opinion can be found here.

There Is A Zoo in Central Park

2011-10-27T18:44:00.005-04:00

Judge Moore and Judge Kethledge fought both a legal battle and a snark battle in United States v. Beauchamp, published October 25. Judge Moore, joined by District Judge Marbley, found that Beauchamp was unconstitutionally searched and seized when police stopped him for: (1) walking on the street with another person; (2) in a high crime area; (3) at 2:30 in the morning; and (4) hurriedly walking away from a police officer while avoiding eye contact.

Judge Kethledge disagreed and, in addition to finding that reasonable suspicion existed, also accused the majority of applying the incorrect standard of review and of appellate factfinding. Judge Kethledge wrote in dissent, "Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does."

As with many fact-intensive Fourth Amendment stops, reasonable minds could disagree as to the degree of suspicion Beauchamp aroused. But the victor of the snark battle can only be Judge Moore. In a withering footnote, Judge Moore pointed out, correctly, that there is a zoo in Central Park. While a rhino is not part of the Zoo's usual repertoire, they do get visiting exhibits from time to time and, at any rate, a rhino in Central Park could really easily be explained by the zoo.

While such snark battles are fun to blog about, they are indicative of a very real and serious problem with our Circuit: an ideological breach so vast that Democratic and Republican appointees no longer regularly lunch together at the University Club in Cincinnati. Both the substance and style of this decision demonstrate why Adam Liptak of the New York Times called the Sixth Circuit "surely the most dysfunctional federal appeals court in the nation."

In Which Judges Learn That There Is No Good Analogy for the Internet

2011-10-25T15:44:00.014-04:00

Timothy Ryan Richards was an internet porn king. He operated at least a dozen websites pulling in a reported $60,000 per year. Unfortunately, these sites contained child pornography. In United States v. Richards, published yesterday, the Sixth Circuit affirmed his sixteen-year sentence.

The opinion deals primarily with the (over?)breadth of the search warrant. The FBI narrowed its investigation to one server in California: cabinet 200.02, server number 4, at the BlackSun facility in Los Angeles, California. The warrant permitted a search of the entire server. In addition to Richards' websites, server number 4 might have contained the information for any other number of sites. On the other hand, Richards could have mislabeled his directories.

Judges Griffin and Siler agreed that narrowing the search to one server was particular enough. Judge Moore disagreed and found the warrant overbroad. Judge Moore would have required the warrant to be limited to specific directories and the server's unallocated space.

What is abundantly clear from this opinion is that our law is ill-equipped for the internet age. In order to find familiar ground and invoke precedent, the Judges grapple for the best analogy. Maybe servers are like file cabinets. Maybe they are like drawers in file cabinets. Maybe they are like apartment buildings and the administrator is like a landlord. Maybe the unallocated space is like a common area -- but what if the bike is locked to the radiator?

Both opinions have real problems because, in the end, the internet is not like anything else. The majority points out a seemingly irreconcilable problem. Computers hold so much personal and private information that they should receive extra Fourth Amendment protection. But criminals can hide, mislabel and manipulate files such that there is no way to find anything without a broad search.

There will no doubt be much development in this area of the law. But for now, in this circuit, a warrant to search one (1) whole server is good enough.

Freeman in Action

2011-09-27T11:48:00.001-04:00

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that a defendant who enters into a Rule 11(c)(1)(C) plea agreement is eligible to seek a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a reduction in the Sentencing Guidelines range if the original sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o). Today in United States v. Smith, a unanimous panel of the 6th Circuit applied Freeman and arguably expanded it.

In Smith, the (c)(1)(C) agreement included a guidelines calculation worksheet which came to an offense level of 35, 2 levels lower than the apparently correct offense level. This was because the plea agreement applied a 2 level enhancement for Smith’s role in the offense, and the guidelines would have applied a 4 level enhancement. At the time of sentencing, defense counsel argued that this 2 level difference was the product of plea negotiations, and,

"Worshiping the dead mandatory guidelines gives honor to the deceased guidelines and gives them more weight and respect than the rulings of the United States Supreme Court and the Sixth Circuit Court of Appeals. The mandatory guidelines should be left in their crypt and not brought above ground level."

Smith was then sentenced pursuant to the lower guidelines range contained in the plea agreement. Accordingly, if Smith’s guidelines range was calculated today, it would be the same one he was sentenced to (-2 for the new crack guidelines, +2 for the 4 level role enhancement instead of the 2 level one). However, the 6th Circuit held that Smith can have his cake and eat it too. He gets the benefit of the below guidelines range sentence in the (c)(1)(C) agreement and the benefit of the new crack guidelines.

The Court reached this conclusion by deciding that “the applicable Guidelines range for purposes of § 3852(c) is the one provided in the plea agreement.” In other words, on a 3582 motion, the court is stuck with all guidelines calculations provided in the (c)(1)(C) agreement, whether they result from mistakes, concessions, or otherwise. The one exception, of course, is a guidelines amendment like the crack one that lowers the guidelines ranges and entitles a defendant to 3582 relief.

Double Jeopardy: Maybe, Maybe Not

2011-09-20T18:19:00.003-04:00

Earlier this year, the Sixth Circuit held in United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), that possession of child pornography is a lesser included offense of receipt of child pornography, and, thus, one could not be sentenced for both without violating the Double Jeopardy Clause. Last week, however, the Court cautioned in United States v. Dudeck, -- F.3d --, 2011 WL 3179902 (6th Cir. 2011), that, while the ruling in Ehle is correct, its application may also depend on the facts of each case. Judges Keith, McKeague and Kethledge remanded the case for the district court to determine whether the possession conviction was based on the same images as the receipt conviction. If so, then Double Jeopardy required the possession conviction be set aside. But if the receipt conviction was based on different images than the possession conviction, then both convictions could still stand. Structure your plea agreements accordingly!

2011-09-20T14:04:00.001-04:00

Crump v. Lafler, No. 09-1073 (6th Cir. September 20, 2011) (to be published). Panel of Judges Cole, Gibbons, and Cleland (E.D. Mich.). Judge Cole dissented.

Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.

Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.

Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.

Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.

The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.
But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."

Conclusions:
Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."

Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."

Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.

Sixth Circuit shifting oral argument practice

2011-09-12T10:05:00.002-04:00

Used to be, if you asked for oral argument, your case was scheduled for oral argument. Occasionally, argument would be cancelled at the last minute. Not anymore.

The Sixth Circuit is trying to cut down its backlog of cases and decide all cases in a more expeditious manner. To do that, they are scheduling some cases for telephone argument. Other cases are being issued "on brief day set" notices that do not acknowledge the request for oral argument.

On the plus side, cases are being decided faster. I've received six or seven opinions in the last three weeks. I have a case scheduled for telephone argument later this month where briefs were turned in just last April. Normally, there's a ten- to twelve-month wait for argument.

Also, case managers are attaching instructions to briefing schedule letters. Please take a moment to look at those, as there are some changes to how we normally write and file briefs. Seems there's a shake-up afoot at the Sixth Circuit.

Ruff justice is not so rough

2011-09-09T15:20:00.003-04:00

DON'T FREAK OUT!!!!

ahem.

Today in United States v. Michael Ruff , the Sixth Circuit blithely said the Fair Sentencing Act (FSA) is not retroactive and cited Carradine. There is no sentencing date mentioned in the opinion. HOWEVER, note the case number starts with "08," which means the appeal was docketed in 2008. You can't appeal before you've been sentenced, so this is a pre-enactment sentencing case along the same lines as Carradine.

No reason to be alarmed. Move along.

He says - she says: Court says - Suppress!!!

2011-08-30T10:41:00.000-04:00

Any person with possessory interest in a property can refuse consent to search a premises, despite another resident's consent. In United States v. Johnson, Case No. 09-6461, police received an anonymous tip that there was marijuana and a firearm at a residence. They then went to the residence to conduct a "knock and talk" to investigate further. A woman answered the door. Officers asked to search the residence. Two other people emerged from another part of the residence. Out of the three persons present, two of the persons consented to a search, the third, the defendant in this case, testified that he did not consent, and informed police that he lived at the residence. As you may have guessed (if not, why would we be talking about this case?), police searched, and found all sorts of goodies, leading to the defendant's arrest and prosecution.

The court ruled that there is no hierarchy for police, to determine which resident has a superior possessory interest in a property. Rather, so long as the defendant has a privacy interest, his denial of consent has Fourth Amendment effect. Therefore, "Johnson’s express objection to the search was sufficient to render the search of the bedroom unreasonable as to him, notwithstanding the consent given by Karen and Conerly." The Court therefore ordered suppression of the evidence.

Congratulations to AFPD Anne-Marie Moyes of the Nashville office!

The ACCA, Sykes, Oscar, and Yogi

2011-08-25T13:42:00.003-04:00

Well, we all knew that the good times couldn’t keep rolling forever. After a two-week span of favorable opinions regarding the Shepard/Taylor categorical approach — including United States v. McMurray and United States v. Gardner — something had to give. That something was United States v. Coleman, published yesterday.

Thanks to the Armed Career Criminal Act, Coleman managed to receive a 15-year sentence that everyone seemed to agree was “harsh on the facts of this case.” Specifically, Coleman found “an unloaded, dilapidated firearm frame that had no trigger assembly and could not be made readily operable.” Under the logic of the federal criminal code, however, a “firearm frame” is the same as a “firearm,” and he was arrested as a felon in possession. Unfortunately for him, Coleman had three prior Ohio convictions for burglary, making him eligible for the ACCA. Or was he?

Yes, yes he was. You see, Ohio’s burglary statute is delightfully “non-generic” under Taylor, because it includes such non-traditional “structures” as watercraft, aircraft, railroad cars, trucks, tents, etc. Nevertheless, under the pesky residual clause of the ACCA the Ohio offense still “presents a serious potential risk of physical injury to another.” This is because, according to the opinion, the Ohio statute requires that any lean-to, yurt, or shanty that was burglarized had to be “occupied.” Like “firearm,” however, “occupied” has multiple meanings. In the Buckeye State it can also mean (1) “maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied”; or (2) “specially adapted for the overnight accommodation of any person.” So in case you’re wondering, yes, “occupied” can, in fact, mean “unoccupied.” But this requirement that the burglarized structure be “occupied” was enough to up the danger level to others and make it similar to your classic, gold-standard burglary.

So Coleman gets 15 years because of (1) a found gun that did not — and could never — work, and (2) three prior “burglaries” that might have involved breaking into a garbage dumpster that was unoccupied but was “specially adapted for overnight accommodation” by, say, Oscar the Grouch. There is no silver lining here for Coleman, but is there for other defendants? Possibly. For those keeping track of this kind of thing, Coleman cites three times to Begay, the golden child of ACCA analysis, and only once to Sykes, the evil red-headed stepchild. Here’s that entire cite: “But the Supreme Court has recently made clear that the absence of a statutory element requiring proof of [purposeful, violent, and aggressive conduct] is not by itself a ground for concluding that an offense is not categorically violent. See Sykes . . . .” This near-dictum is unfortunate, but at least the Sixth Circuit did not see fit to follow the bizarre suggestion in Sykes that the appellate court somehow tabulate all burglaries in Ohio and see what percentage involved a risk of harm, as Justice Kennedy appeared to advocate. Do any other readers/commenters out there (all two of you) think we are avoiding the full Sykes-ocalypse foreseen by many legal Cassandras, or is this just the death-by-a-thousand-cuts of Begay?

One last little thought-exercise for you: Taylor specifically based its holding on the fact that the Missouri burglary statute in question had non-generic elements because it included breaking and entering into “any booth or tent, or any boat or vessel, or railroad car.” Because Taylor could have committed his crimes by breaking into a tent, he could not categorically be said to have committed “burglary” in the generic, federal sense of the word and therefore did not qualify under the ACCA. Here, the Ohio statute also allows for “burglary by tent,” but according to the Sixth Circuit the burglary can qualify Coleman for the ACCA because of Ohio’s “occupancy” requirement. But the “occupancy” requirement also includes any unoccupied dwelling (including a tent) that was “specially adapted for the overnight accommodation of any person.” Here’s the question: Aren’t all tents “specially adapted for the overnight accommodation of any person”? In Taylor, was Justice Blackmun really only concerned with tents that hadn’t yet been pitched? Did they have to be rolled up? More importantly, if Yogi Bear took a pic-i-nic basket from three separate tents on “occasions different from one another,” is he ACCA-eligible? In Ohio, the answer appears to be yes. Campers of the world rejoice. Coleman, not so much.

Om....

2011-08-23T11:50:00.002-04:00

What if you proved that a Guideline was empirically baseless and nothing happened? This head-scratcher — once used by Buddhist monks to induce a meditative state — is exemplified in yesterday’s unpublished Campana opinion and today’s unpublished Sanchez opinion.

After Campana was discovered uploading child pornography onto the internet from his Yahoo! account, authorities searched his home and found pornography on a total of 74 floppy disks. (Between the “floppy disks” and the Yahoo! account, Campana has taken the I-Love-The-90s! fad to a new level.) All told, Campana possessed 557 images and 18 videos containing child pornography, which practitioners in this area will recognize as an average-to-below average amount for such defendants. But it will come as little surprise to those same practitioners that Campana’s Guidelines range was 360 months to life, based on an offense level of 42 and a criminal history category of I. Presumably this offense level calculation included all the usual enhancements, and possibly a 5-level bump for his attempt to distribute to people claiming they were minors. Don’t worry about Campana though — it’s not nearly that bad for him thanks to the statutory maximums. They knock him down to an easy-breezy 20 years, with 15 years’ supervised release after that.

But here’s what’s weird: Campana’s attorney evidently sought to do what good attorneys do in these cases by pointing out that this Guideline has no empirical basis whatsoever and was entirely the product of Congressional whimsy. Here’s what’s weirder: The sentencing judge agreed, stating that he or she was “persuaded that the guideline provisions relating to child pornography of this nature do not reflect the kind of . . . empirical data, national experience and independent expertise that are characteristic of the commission’s institutional role” and opting to treat them as non-binding. Phew.

So what sentence did Mr. Campana receive? The statutory-maximum 20 years. On what § 3553(a) factors did the district court base this multi-decade sentence? Reader, I do not know. You see, the first part of the sentencing discussion is dedicated to upholding the sentence on substantive reasonableness grounds where the district court apparently failed to discuss several of those factors. Despite apparently finding the Guidelines completely baseless and non-binding, the district court gave Campana the highest possible sentence, the stat max, in light of “[t]he defendant’s lack of criminal history, his history of gainful employment and the likelihood that treatment while incarcerated and a lengthy term of supervised release will protect the public and deter Mr. Campana and others from committing similar crimes.” That’s all we know.

If you are not yet entering a trance-like meditative state, contemplating the nothingness that both is and is not your existence, take a look at today’s unpublished Sanchez case. There, the defendant raped and molested his daughter between the ages of 6 and 12, at which point he started filming the rape. He also raped his daughter’s half-brother and forced her to watch. Guess what his Guidelines range was for producing child pornography while raping his daughter. Go ahead, guess. . . .

It was 235-293 months: less than Campana’s. In fairness, the statutory minimum for Sanchez was 300 months, and he ultimately received 360, but if you need any further proof that the child pornography Guidelines are baseless — or if you need a Zen koan wrapped in a riddle wrapped in an enigma wrapped in a beautiful flower — look no further than to Campana and Sanchez.

AEDPA v. Brady: AEDPA Wins

2011-08-22T17:21:00.003-04:00

In a difficult and factually-intensive en banc death-penalty decision, the Sixth Circuit addressed what standard to apply in reviewing the materiality prong of a Brady claim in a habeas appeal. It will come as little surprise to many court observers that the court answered with the sort of “super deference” that has characterized much of the last decade of AEDPA jurisprudence, and even less of a surprise that the petitioner lost. The case is Montgomery v. Bobby, published today.

As with any murder case on habeas review, the facts here are messy, involving a double-murder with a robbery-motivation, two individuals who were complicit in the crime, one who said the other did it while taking a plea offer, and the other taking the fall. The evidence was bad for both men, but worse for Montgomery. There was some question as to when the murder actually occurred, and the prosecution settled on a theory regarding one date. The police, however, had taken statements from witnesses saying that they had seen the victim alive in a car days after the date on which the murder was said to have happened. That police report was not handed over to the defense, and never materialized until years later after a FOIA request. Although Montgomery lost in state court, the district court granted a writ of habeas corpus in light of the Brady violation.

As to the first two Brady factors, nobody disputes that the evidence was favorable to Montgomery as both potential exculpatory and impeachment evidence, or that it was willfully or inadvertently suppressed by the State. The action in this case was in the third factor: materiality.

The majority determined that the materiality factor was not met. The test for materiality under Brady requires a “reasonable probability that the suppressed evidence would have produced a different verdict,” which the panel distinguished from the mere possibility that the evidence would produce a different verdict. Here, there was certainly strong evidence against Montgomery, including purported eyewitness testimony of the shootings, Montgomery’s admission that his gun was used in the shootings, and the fact that Montgomery possessed the gun after the shootings. The Brady evidence — which undermined the prosecution’s theory only about the date on which the murders occurred — certainly did not exculpate Montgomery entirely.

Where the withheld evidence would perhaps have proved more useful was in impeaching Montgomery’s accomplice, who had a considerable motivation to lie. The majority reiterated, however, that “[e]vidence that is merely cumulative to evidence presented at trial is not material for purposes of Brady analysis.” Brooks v. Tennessee, 626 F.3d 878, 893 (6th Cir. 2010). The Sixth Circuit is unusually quick to find that impeachment material is “cumulative” when a witness was already impeached at trial, and, according to the majority, Montgomery had thoroughly explored his accomplice’s motivation to lie and factual inconsistencies. This case therefore adds to a line of other cases in which relief is denied due to lack of materiality under Brady. See Bell v. Bell, 512 F.3d 223, 237 (6th Cir. 2008) (en banc); Brooks, 626 F.3d at 893-94. While some other circuits have found that impeachment evidence is not cumulative where it presents an entirely different subject on which to impeach a witness rather than merely piling on more evidence of the same type, the majority disagreed and made special note that “[t]his argument is beside the point.”

A thorough dissent from Judge Clay minces few words in criticizing the majority’s application of Brady to the facts of this case. Among other things, Judge Clay disagreed that Sixth Circuit precedent required a finding that the Brady evidence was cumulative, and pointed to numerous cases that held or implied that “new evidence” is not cumulative if it “differs both in strength and subject matter from the evidence actually presented.” Because this Brady evidence was of an entirely different type than had been previously used and would present a different avenue for impeachment, relief should have been granted. Judge Clay also scolded the majority for its “rubber stamping” of the facts as viewed by the state courts.

Judge Merritt’s forceful dissent is especially noteworthy. He points out that the majority has effectively conflated the Brady standard with the Strickland standard in creating a presumption of “trial regularity,” even in the face of “blatant prosecutorial misconduct.” Thus, Brady’s bright-line Due Process rule has been morphed into the sticky Strickland standard, at the expense of Brady’s insistence on deterring prosecutorial misconduct. Judge Merritt argues that the exact opposite standard should apply: “If, as the Supreme Court states, prosecutors are bound to know and follow the Brady rule, and in fact do know its meaning, and even so they then conceal the exculpatory evidence from the defendant, the inference should be that they concealed it because they believed it would hurt their case.”

As of today, however, the presumption appears to point in the opposite direction, and Brady claims face an uphill battle on habeas review.

Crimes by Soldiers: Military v. Civilian Prosecutions

2011-08-16T15:25:00.006-04:00

In a highly-publicized case, United States v. Green, (available here), a former U.S. Army infantryman was convicted by a jury and given five consecutive life sentences for a number of crimes, including murder and sexual assault. Four co-defendants were convicted by the U.S. Army, court-martialed, given much lower sentences, and will be up for parole in a few years.

The Army had no authority to prosecute Green because he was no longer a soldier, and the general federal criminal statutes do not extend to his conduct overseas. Thus, civilian prosecutors charged him under the Military Extraterritorial Jurisdiction Act (18 U.S.C. § 3261) for his role in the crimes committed against an Iraqi family. “For many years there was a “jurisdictional gap” that allowed ex-servicemembers to escape prosecution for crimes committed on foreign soil while a member of the Armed Forces. In 2000, Congress passed MEJA to close this gap.”

The Sixth Circuit found the district court had jurisdiction to try Green under MEJA because he had been validly discharged from the Army, and that MEJA is constitutional because it does not violate the separation-of- powers principle or the nondelegation doctrine, equal protection, or due process. The Sixth Circuit partly places blame for this crime onto military leadership:

"We will never know the whole story of why Green and his fellow infantrymen went crazy on the afternoon of March 12, 2006. These events are, in part, a leadership failure but nonetheless a blot on the storied honor of the famed Screaming Eagles of World War II, Vietnam, and the first days of the invasion of Iraq and the one million men and women who have served in the 101st [Airborne]."

Concurring Judge Thapar took issue with this commentary, stating, “I concur in majority’s thorough opinion with one exception. Having never served in the military, I do no feel qualified to criticize the Army’s recruitment and leadership practices.”

No Lengthening of Sentence to Complete Treatment Program

2011-08-11T11:03:00.002-04:00

In United States v. Walker, 09-6498, published today, the Sixth Circuit held that the district court improperly increased Darrell Walker's sentence and remanded for resentencing. The district judge handed down an above-guidelines sentence in part because of Walker's need for rehabilitation and psychiatric treatment. Walker had twenty-nine prior convictions -- twenty-seven of which were drug-related -- and a history of mental illness.

The Sixth Circuit noted that the Supreme Court clarified in June that "a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise promote rehabilitation." Tapia v. United States, No. 10-5400, 2011 WL 2369395, at *9 (June 16, 2011). Accordingly, the Court found Walker's sentence substantively unreasonable.

Statement of Reasons Basically Meaningless

2011-08-10T10:14:00.002-04:00

In United States v. Denny, 09-6029 (August 10, 2011), the Sixth Circuit upheld an above-guidelines sentence. The key issue on appeal was whether the twenty-seven month increase was a departure or a variance. In order to affirm the sentence, the Sixth Circuit needed to find that it was a variance.

The oral sentencing was arguably ambiguous: the judge referred to the increase alternatively as "a departure" and "not a departure" and never used the word "variance." In the Statement of Reasons, however, the judge unambiguously checked the box marked "departure" and also cited to specific departure provisions under the Guidelines.

The Sixth Circuit first examined the oral sentencing transcript and determined that the judge had intended to impose a variance. As the Court noted, traditionally the Statement of Reasons can be used to divine the intent of the sentencing judge if the oral transcript has some ambiguity. In this case, however, the Court backpedaled significantly from that tradition.

The Court noted that the purpose of the Statement of Reasons is not to protect the defendant but to provide information to the Sentencing Commission. This, of course, has always been true, and the Court gave no explanation as to why this particular Statement of Reasons was so much more insignificant than those in prior cases. Attorneys should take note that this case significantly weakens the power of the Statement of Reasons.

Two more things to take away from this case : (1) in footnote 4, the Court noted that Congress is attempting to make the Statement of Reasons "a more formal document" and that, in the future, it may carry more weight; (2) going forward, watch for instances when the Statement of Reasons favors the government and see if the Sixth Circuit stays true to this holding.

A bit more clarity about the retroactive application of SORNA

2011-08-06T00:39:00.002-04:00

In United States v. Trent, 08-4482 (Aug. 5, 2011), the court held that for purposes of the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, sex offenders who “ fail[ed] to register before a particular jurisdiction had implemented SORNA” are situated similarly to “sex offenders who failed to register before SORNA was enacted,” and thus “were not required to register under SORNA until the Attorney General promulgated valid rules specifying when or whether the Act would apply to them.”

The court applied its earlier holdings in United States v. Cain, 583 F.3d 408 (6th Cir. 2010), in which it held that “SORNA did not apply retroactively of its own force [but rather] delegated to the Attorney General the sole authority to determine the retroactive application of the statute to ‘pre-enactment’ sex offenders,” and United States v. Utesch, 596 F.3d 302 (6th Cir. 2010), in which it held that SORNA’s registration requirements did not apply to sex offenders who were convicted before SORNA was enacted if the failure to register occurred before the Attorney General issued guidelines on retroactive application of SORNA.

The court explained, “The rulings of this Court in Cain and Utesch, while specifically addressing the retroactive application of SORNA only to pre-enactment sex offenders, also dictate the result in this case as to a pre-implementation sex offender . . . .”

An "Alford plea" factual basis proffer is not a valid Shepard document

2011-08-06T00:31:00.003-04:00

In United States v. McMurray, 09-5806 (Aug. 4, 2011), the court considered whether a factual basis proffer for purposes of a “best interest plea” under North Carolina v. Alford, 400 U.S. 25 (1970), which allows a defendant “to enter a plea but . . . not . . . acknowledge guilt,” can be used to establish the nature of an offense for purposes of the Armed Career Criminal Act (“ACCA”) and Shepard v. United States, 544 U.S. 13 (2005). Here, because the court determined that the defendant’s prior conviction for aggravated assault “is not categorically a ‘violent felony’” under ACCA, it had to “examine whether the underlying documents establish that the defendant pleaded guilty to a narrowed charge that would qualify . . . .”

The government argued that “the state’s proffer of the factual basis for the plea during the plea colloquy” showed that the defendant necessarily “acted intentionally or knowingly when he committed the aggravated assault,” thereby qualifying him as an Armed Career Criminal.

The court disagreed. Although it had recently “declined to differentiate between an Alford plea and a straightforward guilty plea” in the context of determining whether an alien had been “convicted of ‘a particularly serious crime’ under the Immigration and Nationality Act,” it decided not to extend that rule to the context of a “violent felony” determination under ACCA. The court instead found that “the state’s proffer of the factual basis for [a] best-interest plea does not demonstrate that [the] plea necessarily rested on facts identifying [the] conviction as a ‘violent felony.’”

In dissent, Judge McKeague argued that “all of the categories of documents approved by Shepard for evaluating guilty pleas can be relied upon—to the same extent—when the defendant instead enters an Alford plea.”

Sixth Circuit reverses rare Michigan (federal) death sentence

2011-08-06T00:28:00.002-04:00

In United States v. Gabrion, Nos. 02-1386/1461/1570 (Aug. 3, 2011), an appeal of a federal capital prosecution resulting in a death sentence, the court addressed a plethora of issues relating to both the guilt and sentencing phases of the defendant’s trial. The court rejected most of the arguments but reversed the death sentence and remanded for resentencing for two reasons.

First, the court held that the district court erred when it “ruled that Michigan’s longstanding policy against the death penalty could not be mentioned or admitted as a mitigating factor, or discussed with the jury in final argument during the penalty phase of the trial.” This ruling, the court held, was “inconsistent with the language of the [Federal Death Penalty] Act requiring the factfinder to consider ‘any mitigating factor’ and ‘any information relevant to a mitigating factor.’ 18 U.S.C. § 3592(a); id. § 3593(c) .” The court noted that this language “plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance.”

Second, the court found that the district court should have informed the jury that “in order to impose death they need to find ‘beyond a reasonable doubt’ the element of the death sentence that the aggravating factors outweigh the mitigating factors. . . . [A] jury’s finding that the aggravating factors outweigh the mitigating factors is an element of the death penalty and must be found beyond a reasonable doubt, the same standard constitutionally required for all other findings of fact and mixed questions of law and fact.”

6th Circuit: Doing Cocaine and Sleeping During Trial is Not Necessarily Ineffective Assistance

2011-07-29T10:42:00.000-04:00

In Muniz v. Smith, the 6th Circuit today was dealing with a habeas corpus petition challenging a state conviction on ineffective assistance of counsel grounds. What was so ineffective? The defense attorney was charged with possession of cocaine approximately 3 weeks before becoming the defendant’s attorney. Also, a juror noticed that the defense attorney was sleeping during the cross examination of the defendant. The 6th Circuit denied the habeas petition.

How could this possibly be? Well, the court was not condoning the attorney’s cocaine use and sleeping during trial, rather the court held that the defendant could not show prejudice. Specifically, a witnessed testified that the defendant shot the victim in the face; the victim survived and testified that the defendant shot him in the face; a police officer testified that the victim told him the defendant shot him in the face while the victim was lying bleeding at the scene; and last but not least, the defendant’s own mother testified that the defendant called her and confessed to shooting the victim in the face. Because the evidence was overwhelming and “Muniz cannot establish that his trial counsel was asleep for a substantial portion of his trial,” counsel’s performance was not ineffective.

6th Circuit Clarifies Blockburger Test as Applied to CP

2011-07-28T11:29:00.000-04:00

We are all familiar with the famous Blockburger test that two convictions for essentially the same conduct do not violate the Double Jeopardy clause as long as each requires proof of a fact that the other does not require. If conviction A requires proof of 1, 2, 3, 4, and 5, while conviction B requires proof of 2, 3, 4, 5, and 6, then convictions for A and B do not violate Double Jeopardy.

Today in United States v. Dudeck, the Sixth Circuit clarified how this test applies to child porn (“CP”) cases. While recognizing that possession of CP is a lesser included offense of receipt of CP (because one cannot receive CP without also possessing it), the court provided a roadmap to all of the loopholes in the double jeopardy clause in this context. The actual holding of the case was merely that as long as the defendant “was charged with receipt of any images for which he was not also charged with possession—and vice-versa—the two can be punished as separate offenses.” This much was already clear, if the defendant is charged with receipt of images 1-100 and possession of images 2-101, then both convictions can stand.

This would seem like enough to support multiple convictions in every case, since there will almost always be more than 1 image of CP found on the defendant’s computer. But the Sixth Circuit went farther, in what was arguably dicta, to point out all the loopholes that could technically save multiple convictions when the prosecutor did not have the foresight to carefully distribute the images among the charges as described above. Specifically, the court suggested that multiple convictions might not violate the double jeopardy clause if:

1) receipt and possession occurred on different dates;

2) after receiving the CP, the defendant then transferred it to a different medium (e.g. if the defendant downloaded the CP off the internet and then transferred it to a cd or a folder on his computer); or

3) there were images in the possession charge that were not also in the receipt charge (i.e. receipt of images 1-10 and possession of images 1-20).

The court then went out of its way to point out that even if 2 of the defendants 3 charges were dismissed on double jeopardy grounds (the case was remanded for further fact finding on this issue), there was nothing to stop the district court from imposing the same sentence (i.e. 1 sentence of 120 months instead of 3 concurrent sentences of 120 months). Of course, while the district court is free in any case to impose the same term of imprisonment, the defendant would save $200 in special assessment if two of the charges were found to violate the double jeopardy clause.

Spears Again: Rejecting GLs

2011-07-22T16:06:00.003-04:00

(A knight with a spear! Hey, it's hard to pick pictures. :) I'm trying!)

In United States v. Priester, No. 08--2391 (6th Cir. July 22, 2011) (published), the panel of Judges Boggs, Moore, and Kethledge considered the Spears issue again. Judge Boggs dissented.

The majority opinion starts out: "In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case." The defendant was sentenced pre-Spears. After parsing "the sentencing transcript, [the Court] agree[d] with [the appellant] that the district court appeared unaware of the authority that the Supreme Court expressly announced months later," that the court could vary from the guidelines based on policy reasons.

The Court found that the sentencing court's "comments go beyond mere silence as to whether the district court knew that it had the authority to reject the 100:1 ratio outright. Instead, they reflect an assumption that the court did not have that authority." The panel emphasizes that "The essence of Spears’s holding is that a district court can take the 100:1 ratio out of play, up front, before even determining whether the ratio yields an overlong sentence in a particular case. Here, the district court expressly stated that the ratio was in play—and then the court moved on to other issues. To say, on this record, that the court silently recognized its later-announced authority in Spears, but chose not to exercise that authority, would be mere fiction."

The panel distinguishes prior cases: "In both United States v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Curb, 625 F.3d 968 (6th Cir. 2010), the district courts had been silent as to whether they had the authority later expressly granted to them in Spears. We remanded for resentencing in light of Spears. In United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), we affirmed the defendant’s sentence on plain-error review. There, the defendant did not make a Spears-type argument in the district court, and the district court itself said nothing about the issue. Neither of those circumstances is present here."

Judge Boggs's Dissent:

Judge Boggs concluded that "in the context of our earlier cases, [the appellant's] claim should fail. As even the majority must concede, the crack-cocaine disparity was before the judge and he recognized that the guidelines are only a starting point. The record, read fairly, is bereft of any expression as to the judge’s authority to reject categorically a particular judgment or reasoning in the guidelines."

Pre-Gant Law Governs Pre-Gant Searches

2011-07-21T13:23:00.004-04:00

In United States v. Peoples, No. 09--2507 (6th Cir. July 20, 2011) (unpublished), the panel of Judges Gibbons, White, and Oliver (N.D. Ohio), addressed a pre-Gant vehicle search.

Sole question for the Court was "whether an officer’s objectively reasonable reliance upon binding appellate-court precedent constitutes an exception to the exclusionary rule under the Fourth Amendment." Court found that it does.

In Gant, the Supreme Court held that an automobile search incident to arrest is constitutional only if the arrestee can reach the vehicle or if the officers have reason to believe the vehicle contains evidence relevant to the crime of arrest.

In Davis, the Supreme Court resolved the dispute among the circuits as to whether the exclusionary rule, as clarified in Gant, should apply in cases in which the arrest occurred before the Gant decision. Supreme Court held that the exclusionary did not apply in such circumstances: “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”

Finding itself bound by this precedent, the Sixth Circuit concluded that the firearm that was seized incident to the defendant's arrest should not have been suppressed. While the search would no longer be permissible under Gant (the defendant was not within reaching distance of the vehicle when the officers searched the vehicle, and the officers had no reason to believe the vehicle contained evidence related to a suspended license), the search was permitted under the law as it stood when the search occurred.

The Court closed, "The officers committed no misconduct in relying upon th[e] settled precedent, and suppression of the firearm is not warranted."

All Sorts of Good News: Crack Memo from DOJ

2011-07-18T14:12:00.004-04:00

On the heels of last week's good news (see Laura's post below), this week gives us an auspicious turn of the tide from DOJ.

On July 15, 2011, Attorney General Eric Holder issued a memo saying he concludes "that the law requires the application of the [Fair Sentencing] Act's new mandatory minimum sentencing provisions to all sentencings that occur after August 3, 2010, regardless of when the offense conduct took place." He directs prosecutors "to act consistently with these legal principles."

Professor Berman has blogged the issue and provides a link to the memo at:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/07/only-a-year-late-ag-holder-sees-light-and-reverses-course-on-fsa-pipeline-sentencing-issue.html

Nice development on the FSA front. So, the Rojas, No. 10--14662 (11th Cir. July 6, 2011) (to be published), decision in the 11th Circuit should be safe! (A great FSA appellate win: FSA applies to defendant's sentenced after FSA enacted, regardless of offense date.)

I'll post more this week after I review the Court's decisions....

Exciting Tapia developments!

2011-07-15T10:48:00.004-04:00

In United States v. David Brooks, 10-6556, issued today and found here, the Sixth Circuit holds that if rehabilitation is one of the reasons for a defendant's sentence, the sentence must be vacated and remanded for a new sentencing hearing. This is based on the Supreme Court's recent ruling in Tapia v. United States, -- U.S. --, 2011 WL 2369395 (2011). Though an unpublished opinion, I think Brooks gives strong support to any pending appeal where rehabilitation is cited as a reason for a given sentence. Fire up your 28j letters now.

The Court also released United States v. Modena, 10-1377, today (found here). In it, the Court finds Modena's Tapia argument unpersuasive. However, the District Court had said it did not think the criminal justice system had any way of rehabilitating Modena. Viewed in tandem with Brooks, it appears a sentence will be upheld if the court says, "there's nothing we can do for you," and vacated if the court says, "you need rehabilitation while in jail."

For those of us with appeals in the pipeline, these are exciting times. Happy Friday!

Ladies and Gentleman, we have a new acronym!

2011-07-08T09:21:00.002-04:00

CEE: Child Exploitation Enterprise

In United States v. Daniels, 09-1386, the Sixth Circuit addressed 18 U.S.C. 2252A(g)(2) for the first time.

Daniels was convicted of running a prostitution ring in Detroit. He used adult women and juvenile girls, bringing some in from out of state and advertising their services on various internet sites.

The Court held CEE has three elements that must be proven:
1) the defendant committed at least three predicate offenses;
2) more than one underage victim was involved; and
3) at least three other people acted "in concert" with the defendant on the predicate offenses.

Having already upheld four predicate offense convictions, the Court found the first element was met. Several prostitutes testified they were underage at the time they worked for Daniels, so the second element was also met.

The third element failed. Three people need not be working together simultaneously, but they do need to be working in furtherance of the predicate offenses during the "series of felony violations." Thus, co-defendant Head, who helped coordinate prostitutes and post ads, counted. "Trouble," a prostitute who accompanied Daniels and Head when they picked up a juvenile prostitute in Maryland and spoke with the juvenile about her work also counted. Daniels's brother, who rented hotel rooms for the prostitutes, and his mother, who occasionally provided rides to Head and other prostitutes, did not count (likely because they were not explicitly acting in furtherance of the charged predicate offenses). Because Daniels only had two people acting in concert with him, he could not be convicted of CEE.

This opinion is worth a read/save for several other points:

It reitterates the six ways a photo of a child could be "lascivious"

2252A(a)(2)(A), which bans distribution of any child porn that has been transported through interstate commerce, is met by the two-stage posting process on Craigs List. The image was first transported in interstate commerce when the post was created. It was then distributed after the person posting replied to the confirmation email and the post then appeared on Craigs List.

2423(a)(transporting a minor to engage in sexual activity) does not require "knowing" the victim is under 18

Lesson learned: when the Court invites you to file a brief, you probably should!!!!!!

2011-07-01T11:33:00.001-04:00

In an unpublished decision filed today in United States v. Wright, 08-6546 (11a0444n.06), the Court remanded a case for resentencing where the district court referred to uncharged, unsubstantiated "other offenses" in determining the sentence. The gist of the claim was that the court, in sentencing the defendant, made reference to "other crimes" that the defendant must have committed (the court found that the defendant could not have been caught every time he committed an offense), and used this information in determining the sentence within the Guidelines. The Court found that "While § 3553(a) requires a sentencing court to consider the nature of the offense before it and the defendant’s history, it does not permit the district court to speculate regarding potential crimes that the court has no factual basis for concluding were ever committed."

A more interesting aspect of the opinion, however, dealt with the United States' failure to file a brief on appeal. The defendant's counsel had filed an Anders brief. The Court entered an order giving the United States an opportunity to respond to the brief. The United States declined to respond, instead stating a letter that "In the event the Court, as a result of its independent review of the record, determines that counsel is mistaken and that a non-frivolous issue exists", then the United States wished to brief the matter.

In its remand order, the Court noted that the United States had failed to brief the issues, and found, in response to the United States' letter, that "this Court is not required to respond to a party’s request that the Court assist the party with its briefing by identifying 'meritorious' issues." The Court therefore held they would not review the claim for harmless error, and remanded for resentencing.

Court vacates conviction, death penalty, and remands for new proceedings

2011-06-27T10:29:00.000-04:00

Prosecutorial misconduct remains a viable basis for overturning a conviction. In today's opinion in Matthews v. Parker, the Court vacated a judgment and the death penalty based upon a defendant's claim that the State had committed misconduct during its closing arguments. 11a0163p.06 The Court found that "The prosecutor’s comments during closing arguments regarding Petitioner’s supposed exaggeration of his EED, and collusion with his attorney and doctor, were both improper and flagrant. “[T]he Commonwealth’s misconduct was sufficiently egregious to render the entire trial fundamentally unfair.” Gall II, 231 F.3d at 315. Accordingly, the prosecution’s statements suggesting that Petitioner and his defense team colluded to manufacture his EED claim, and exaggerated the extent of his EED, rendered Petitioner’s trial unfair, and denied him of his constitutionally protected due process rights."

The Court also found that, at the time of the defendant's conviction, the State had a burden to disprove an extreme emotional disturbance defense. The Court found that "Convicting Petitioner of murder when the prosecution failed to prove the EED element beyond a reasonable doubt, contravened the Supreme Court’s established precedent requiring the state to prove every element of a crime beyond a reasonable doubt", and therefore vacated on this basis as well.

Supreme Court Reverses Sixth Circuit: Amended Crack Guideline Relief Is (Probably) Available in (C) Pleas

2011-06-24T10:26:00.010-04:00

Yesterday, in a 5-4 decision, the Supreme Court reversed the Sixth Circuit in Freeman v. United States, holding that Petitioner William Freeman could move for a sentence reduction because of retroactive amendments to the crack guidelines.

In United States v. Goins, 355 Fed. App'x 1 (6th Cir. Nov. 20, 2009), the Sixth Circuit (Boggs, Rogers, White) had found that Freeman was not eligible for a sentence reduction because he had plead guilty pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), known colloquially as a "(C) plea." In a (C) plea, the defendant and the prosecutor agree on a sentence and that sentence binds the court if the court accepts the plea.

William Freeman and his prosecutor had agreed in 2005 that Freeman would serve 106 months in prison for possession of crack cocaine and a firearm. The agreement recognized that Freeman's Guidelines range for the crack possession was 46-57 months. The court accepted the (C) plea.

Three years later, the Sentencing Commission issued a retroactive Guidelines amendment to attempt to remedy the crack/powder sentencing disparity. This amendment lowered Freeman's range on the crack count to 37-46 months. Freeman moved to have his sentence reduced under the proper the statutory mechanism. The Sixth Circuit reasoned that a sentence predicated upon a (C) plea was the result of a bargain between prosecution and defense, not the Guidelines. In a strong concurrence, however, Judge White argued that, were she not bound by precedent, she would remand the case with instructions to determine whether the original sentence was based on the Guidelines.

The Supreme Court ultimately vindicated Judge White. Four Justices (Kennedy, Ginsburg, Breyer, and Kagan) found that defendants with (C) pleas can move for sentence reductions. Four Justices (Roberts, Alito, Thomas, and Scalia) held that they cannot. The controlling opinion, however, is Justice Sotomayor's currence. She pragmatically held that a petitioner with a (C) plea could move for a sentence reduction if his plea expressly used the now-amended Sentencing Guidelines range as part of the calculus of his sentence.

Four New Supreme Court Decisions

2011-06-17T09:37:00.004-04:00

Yesterday, the Supreme Court issued opinions in four criminal cases:

In J.D.B. v. North Carolina, the Supreme Court has broadened use of the Miranda warning for suspects, extending it to children questioned by police in school. By a 5-to-4 vote, the court said for the first time that age must be considered in determining whether a suspect is aware of his or her rights.

In Tapia v. United States, the Supreme Court ruled unanimously that a federal judge cannot impose a longer prison sentence than what the sentencing guidelines permit simply to promote rehabilitation.

In Davis v. United States, the Supreme Court upheld the conviction of an Alabama man by a vote of 7-2, though the justices agreed the search that produced the incriminating evidence was illegal. The Court refused to disturb the firearm conviction, declaring that at the time the search was conducted, police relied in good faith on existing law.

In Bond v. United States, the Supreme Court ruled unanimously that citizens, not just states, has standing to challenge the validity of the statute (federal laws implementing the chemical weapons treaty) on the ground that it infringes on the powers reserved to the states under the Tenth Amendment.

NPR Online also offers commentary on the opinions.

Later Discovery of an Outstanding Arrest Warrant Does Not Remove Taint from an Illegal Stop

2011-06-15T10:46:00.003-04:00

In United States v. Gross, the Sixth Circuit amends an earlier published opinion, United States v. Gross, 624 F.3d 309 (6th Cir. October 19, 2010). The Gross case is the second to involve the same officer blocking a legally-parked car in a high-crime area to detain the occupants.

Easily finding the officer made an illegal stop, the Sixth Circuit held that the subsequent discovery of an outstanding arrest warrant does not dissipate the taint of an illegal stop. The amended opinion does not change this holding.

The amended opinion, at page 15, adds two paragraphs in response to the dissenting opinion. The dissent argued that the observation of an open container in the car (after the police blocked the car and approached the vehicle) sufficiently attenuated the evidence from the illegal stop. The majority amended its opinion to address this specific argument, pointing out that the open container itself was a fruit of the illegal stop and not a "new, distinct crime."

The dissenting opinion of Gibbons is also amended to remove part B of the original dissenting opinion and replacing it with a short paragraph at the beginning of the dissenting opinion.

United States v. Taylor: An Extra Dash of Pepper

2011-06-08T18:12:00.005-04:00

Yesterday saw the publication of a significant case addressing subsection (g) of 18 U.S.C. § 3742, which addresses a district court’s treatment of the sentencing guidelines upon remand for resentencing. Judge Moore’s comprehensive opinion in United States v. Taylor, No. 09-1961 demonstrated a considerable understanding of both § 3742 and the Supreme Court’s recent decision in Pepper v. United States, and gave some teeth to that opinion’s holding.

Taylor was originally convicted as a felon in possession of a firearm, but prevailed on an appeal regarding a sentencing issue. On remand, Taylor argued that later versions of the sentencing guidelines would have lowered his guidelines range. At resentencing, however, the district court refused to consider subsequent amendments to the guidelines and instead used the guidelines as they existed at the time of the previous sentencing, as mandated by 18 U.S.C. § 3742(g)(1). Taylor appealed his resulting sentence as procedurally unreasonable.

In the recent Pepper opinion, the Supreme Court reviewed § 3742(g)(2), a separate but related provision requiring resentencing courts to impose only within-guidelines range sentences on remand except in limited circumstances. The Court in Pepper found that this mandate ran afoul of both § 3553(a) and § 3661 by impermissibly limiting the district court’s ability to consider any and all evidence in order to "sentence the defendant as he stands before the court on the day of sentencing." Taylor argued that this same rational should invalidate § 3742(g)(1).

The Sixth Circuit refused to find that § 3742(g)(1) should be invalidated along with § 3742(g)(2). Although the appeals court recognized that the provision was poorly worded and existed in considerable tension with both the guidelines and § 3553(a), it was not constitutionally invalid under Booker or the Sixth Amendment. This portion of the holding comes as a disappointment to sentencing reform advocates, who have long argued that § 3742(g)(1) should be invalidated.

The Taylor panel was not finished, however, and it went on to hold that the district court’s refusal to consider subsequent amendments was procedurally unreasonable. First, the panel rejected the district court’s rationale that using subsequent amendments could result in unfairness to one party or the other, noting that the Supreme Court had rejected this exact rationale in Pepper. Indeed, it was an abuse of discretion to rely on this "policy of fairness." The panel also recognized that § 3661 prohibits placing any limitation on the types of information a court can consider in sentencing a defendant. Likewise, the Sentencing Commission’s evolving view of the guidelines is "highly relevant" to the district court’s assessment of the "nature and circumstances of the offense" and the "seriousness of the offense" under § 3553(A). Ultimately, subsequent amendments bear directly on the district court’s primary role at sentencing: "to impose a sentence sufficient, but not greater than necessary" to serve the purposes of sentencing. The opinion goes on to clarify that a district court is not required to agree with or apply the subsequent amendments, but that court cannot refuse to consider them.

Ultimately, Taylor simply upholds what by now ought to be beyond controversy: that a sentencing court’s duty is to impose an appropriate sentence that is (1) based on the unique characteristics of the crime and the individual and (2) not greater than necessary to serve the purposes of punishment. The opinion, however, demonstrates that the Sixth Circuit is still willing to take a close look at both congressional and Supreme Court mandates regarding sentencing.

United States v. Moore: Sixth Circuit rejects Eighth Amendment challenge to ACCA

2011-06-02T09:56:00.003-04:00

In United States v. Moore, No. 09-5935 (June 1, 2011), the Sixth Circuit rejected an Eighth Amendment challenge to a mandatory minimum fifteen-year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The defendant argued that his sentence was cruel and unusual as applied to him specifically, i.e., because of “his reduced culpability resulting from mental retardation,” which “transform[ed] an otherwise constitutional sentence into an unconstitutional one.”

Affirming its earlier holding in United States v. Tucker, 204 F. App’x 518, 521 (6th Cir. 2006), the court found that “[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.” The court acknowledged that in Atkins v. Virginia, 536 U.S. 304, 316 (2002), the Supreme Court held that mentally retarded defendants are “less culpable than average criminals” and therefore may not be executed. But Atkins rests on the premise that the “death penalty is ‘unique in its total irrevocability,’ ‘its rejection of rehabilitation of the convict as a basic purpose of criminal justice,’ and ‘its absolute renunciation of all that is embodied in our concept of humanity,’” (citations omitted), which "cannot be said of a statutorily-mandated sentence of fifteen years.”

The court also rejected the argument that the sentence is unconstitutional under Graham v. Florida, 130 S. Ct. 2011, 2030 (2010), explaining that Graham involved the “narrow” holding that “[t]he Eighth Amendment prohibits the sentence of life without parole for juvenile offenders who do not commit homicide.” As the defendant in Moore was neither a juvenile nor subject to a sentence of life without the possibility of parole, the court found the Graham analogy misplaced.

United States v. Tinklenberg: SC Reverses Sixth Circuit Twice but Still Affirms

2011-05-26T12:26:00.003-04:00

The Supreme Court today released its decision in United States v. Tinklenberg, a case arising out of the Sixth Circuit. In Tinklenberg, the Court had to interpret two provisions of the Speedy Trial Act, which requires dismissal if a trial or plea does not commence within 70 days. The first provision excludes from the 70-day period “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(D).

The Sixth Circuit focused on the phrase “delay resulting from” and held that a pretrial motion falls within this exclusion only if it “actually cause[s] a delay, or the expectation of a delay, of trial.” The Supreme Court focused more on the phrase “from the filing of the motion through the conclusion of the hearing,” and held that this period of time is excluded “irrespective of whether it actually causes, or is expected to cause, delay in starting a trial.” While the Court acknowledged that the Sixth Circuit’s reading is “linguistically reasonable,” it pointed out that all other court’s that have decided this issue have gone the other way, and the Sixth Circuit’s rule would be significantly more difficult to administer.

The second provision excluded “delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant’s arrival at the destination shall be presumed to be unreasonable.” §3161(h)(1)(F) (2006 ed., Supp. III) (emphasis added). The Sixth Circuit in interpreting this provision, exempted holidays and weekends. The relevant time period in Tinklenberg was 20 days, but that period included 3 weekends and 2 holidays, which meant that only 2 days counted for Speedy Trial purposes.

The Supreme Court held that Federal Rule of Criminal Procedure 45(a) at the relevant time did not apply to statutes, and that under the common-law rule, weekend days and holidays are included when counting a statutory time period of 10 days unless the statute specifically excludes them.

Accordingly, the Sixth Circuit’s two errors cancelled each other out: the first period should not have been excluded, but the second period should have been excluded. A win for Tinklenberg even if he has already served his sentence by this point.

Potential New Appellate Waiver Exception

2011-05-26T12:25:00.000-04:00

In United States v. Bafna today, the Sixth Circuit highlighted a live issue without deciding it. Bafna argued that there should be an exception to appellate waivers when the sentence amounts to a miscarriage of justice. The Sixth Circuit recognized that the First Circuit follows this approach, but held that Bafna did not present an opportunity to decide the issue, as the facts of this case did not constitute a miscarriage of justice. See United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001). The moral of the story is that this issue is ripe for review: if you have a case with an appellate waiver, you may want to consider appealing anyway if the sentence constitutes a miscarriage of justice.

SC Clears the Way for Prisoner Release in California

2011-05-24T10:22:00.003-04:00

Yesterday the Supreme Court released its decision in Brown v. Plata. That case arose out of California, where state prisons had been operating at around 200% capacity for at least 11 years. This resulted in myriad deficiencies in providing healthcare and mental healthcare for prisoners amounting to violations of the Eighth Amendment as well as unnecessary deaths. A three judge panel ordered that California remedy these violations by reducing prison populations to no more than 137.5% of design capacity, and the Supreme Court upheld that decision.

Ultimately, 137.5% means that there were 46,000 too many prisoners, but it does not mean that they must all be released. Instead, the state could construct new prisons, expand existing prisons, transfer prisoners to other states or to county facilities, increase good time credits, and increase the use of diversion and community-based programs. Indeed, California has already reduced the prison population by at least 9,000 while the appeal was going on. And the state has 2 years from the date of the Supreme Court opinion to achieve this. On the other hand, getting rid of 37,000 prisoners in 2 years is no small feat.

The dissents were concerned with the fact that this remedy would damage the public safety and result in the release of many prisoners whose Eighth Amendment rights have not been violated:

"It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."

(Scalia, J., dissenting).

Gearing Up For Trial?

2011-05-20T18:10:00.005-04:00

A couple of recent decisions by the Court of Appeals shed light on some very practical aspects of a criminal trial practice.

Double Jeopardy and Child Pornography

In United States v. Ehle, No. 09-5389 (6th Cir. 2011) (Rogers, J., Batchelder, C.J., & Keith, J.) the Court makes clear that possession of child pornography is a lesser-included offense of receiving child pornography and the defendant therefore could not be convicted of both.

Wearing Jail Clothes at Trial

United States v. Williams, No. 09-5256 (6th Cir. 2011) (Martin & Stranch, JJ.; Thapar, D.J. (EDKy.), concurring), explains that, while a defendant cannot be forced to appear at trial in prison clothing, the court is not required to furnish alternate clothing for the defendant. While we are certainly cognizant of the current federal budgetary difficulties, this ruling calls to mind Anatold France's observation that "the Law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." You have a constitutional right to not appear at your trial in jail clothes if you (or your appointed lawyer) can afford to buy something else for you to wear, otherwise you have to hope you look good in orange.

Presence at Sentencing

Also in Williams, the Court held that a defendant's constitutional right to be present at sentencing is not satisfied by the use of video conferencing. The quality of the video connection is irrelevant. Rule 43, F.R.Cr.P., requires that the defendant be present and says nothing about video conferencing. There was no proof in this case that the defendant was persistently unruly enough to justify his exclusion.

Waiver of Presentence Report

Finally, the hapless Mr. Williams helps us to understand that while a district court may, under Rule 32(c), F.R.Cr.P., sentence a defendant without a presentence report, a defendant may not waive preparation of a presentence report. That is, it is up to the district court, not the defendant, to decide whether or not sentencing can proceed without having a PSR done. Here the district court did not make the requisite finding that it could proceed to sentencing without a PSR and was, therefore, error.

Finally, some math we can live with!!!

2011-05-19T13:07:00.000-04:00

In the recent case of United States v. Brown, 10-1410, the Court sided with the Fifth and Ninth Circuits, holding that when a defendant is sentenced on a supervised release violation, that a district court is required to subtract any term of incarceration from any new period of supervised release (that is set at the maximum term). In this case, the defendant was faced with 36 months maximum incarceration based upon an admitted violation of supervised release. The court imposed an 8 month term of incarceration, and a 36 month term of supervised release. On appeal, the defendant argued that the 8 month term needed to be subtracted from the 36 month term. The Court agreed, finding "In our judgment, to conclude that the contested language of section 3583(h) does not mandate subtracting the length of any newly-imposed period of incarceration from a term of supervised release requires a disregard of the plain language of the statute. Even without prior Sixth Circuit precedent on this question of statutory interpretation, neither this court nor the district court is permitted to so ignore the clear import of Congress’s directive." The Court remanded for further proceedings.

Congratulations to AFPD Paul Nelson from Grand Rapids!

Busy Week

2011-05-18T16:33:00.002-04:00

Lots of cases to report, but no time this week. If another blogger wants to jump in, please do! I just don't have the time I wish I had to post this week.

SCOTUS and Searches

2011-05-18T16:17:00.005-04:00

Searches, lack of a warrant, exigent circumstances. . . . I've only caught the highlights and have not read the opinion, but here's a link to the opinion in Kentucky v. King.

http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

Police followed a suspected drug dealer to an apartment complex. Officers smelled marijuana outside an apartment door. They knocked loudly, announcing their presence. As soon as the officers began knocking, they heard noises inside the apartment. The officers thought the noises indicated that evidence was being destroyed. The officers announced they would enter the apartment. They then kicked in the door.

The Court found that the exigent-circumstances rule applies when officers do not create the exigency by engaging in conduct that violates the Fourth Amendment. Assuming exigency existed here, there was no evidence that the police violated the Fourth Amendment or threatened to do so.

8-to-1 opinion with Justice Ginsburg dissenting.

Right to Allocution

2011-05-18T15:42:00.006-04:00

United States v. Garcia-Robles, No. 09–1980 (6^th Cir. May 10, 2011) (to be published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.). Opinion by Judge Griffin.

In Garcia-Robles, the Court held "that upon general remand, when a sentence has been vacated on direct appeal, the defendant is entitled to a resentencing hearing where he may exercise the right to be present and allocute." Slip op. at 6. The Court emphasized the right to allocute upon remand. Id. at 7. The Court expressed the importance of the right to allocute: the right to allocute at resentencing, "despite a defendant’s previous opportunity to allocute, is essential." Id. at 8. A failure to afford a defendant this right is not necessarily harmless error. Id. at 11.

The Garcia-Robles court attempted to distinguish the decision in United States v. Mosley, No. 09--2359 (6th Cir. Mar. 29, 2011) (to be published) (discussed earlier in this blog), but the two cases seem to remain somewhat at odds. The Mosley panel included Judges Boggs, Moore, and Sutton. Judge Sutton, who was on the Garcia-Robles panel, wrote the Mosley opinion.

In Mosley, the panel took a narrower view of the right to allocution. While not addressing the government's contention that there is no right to allocution at a resentencing hearing for a limited remand, the court did decide that the defendant could not show prejudice.

Why read unpublished opinions

2011-05-03T13:08:00.009-04:00

With opinions available on court websites and individually numbered on Westlaw, the line between published and unpublished opinions is fading. Judges will remind you unpublished opinions have limited precedential value, but even they cite them from time to time (as Judge White recently did on page 4 of United States v. Robert Jackson, found here). Why else should you read them?

Build and maintain a standard of review database

If you are going to write appeals, you're going to need to know the standard of review for your issues. I keep a folder of files labeled "sentencing," "motion to suppress," "motion to dismiss," etc. Each file contains a Wordperfect document where I have copied and pasted from 6th Circuit opinions what the standard of review is for that particular issue. When it comes time to write a brief on the issue, all I need to do is copy and paste into my brief.

Keep track of the Bostic objection

I'll probably post later in the week about the moving target that is the Bostic objection. What needs to be said, and when, seems to constantly change and depends greatly on what panel your case ends up in front of (or the mood of the panel that week). Sentencing appeal decisions are on the Sixth Circuit website almost every day. Checking in from time to time will help you make a better guess about what the proper incantations are.

Get a sense of what is going on in other districts and the general mood of the Court

In the Eastern District of Tennesee, many of our plea agreements contain appeal waivers that do not preserve any sentencing issues. Straight up, sentencing is left to the judge and there's no crying about it later. A recent unpublished opinion,on an appeal from the Eastern District of Michigan, gave me new ideas about language that might be put in those waivers. You can find it here (the waiver discussion starts on page three).

I also found it useful to read the Sixth Circuit's take on challenges to the Career Offender guideline. Starting at the last paragraph of page seven of this opinion, Judge Rogers gives a good overview of why such challenges will not have much traction with the Sixth Circuit. This is not to say the argument should not be made, but it gives you a better picture of what wall you are attempting to scale.

So, take some time to read unpublished opinions. Or at least come here to see if any are interesting enough for us appellate geeks to blog about.

A substantively unreasonable sentence?

2011-04-27T15:00:00.000-04:00

On April 25, 2011, the Court remanded a case for resentencing, and may have held, for only the second time, that the sentence imposed was substantively unreasonable.

In United States v. Worex, 09-5754 11a0264n.06, the defendant argued that her sentence was substantively unreasonable, due to the fact that the district court relied on uncharged allegations that were not proven by a preponderance of the evidence. In remanding the case for resentencing, the court found that "before enhancing Worex’s sentence based upon her alleged involvement in the shootings, the district court was first required to make findings by a preponderance of evidence regarding this uncharged conduct. The district court did not do so, and its decision was therefore an abuse of discretion."

The Court remanded the case for resentencing on this basis. It appears clear, from the Court's opinion, that this is a decision based upon substantive reasonableness standards. There is no discussion in the opinion of a procedural reasonableness review.

In Rare Occurence, Merritt Upholds Death Sentence

2011-04-22T11:24:00.002-04:00

Even Judge Merritt could not find any grounds to issue a writ of habeas corpus to Jesse Cowans. In a published decision issued yesterday, Cowans v. Bagley, the Sixth Circuit affirmed Cowans' conviction and death sentence.

The Senior Circuit Judge, who is one of the Court's strongest defender's of individual rights, has been disinclined to affirm death sentences. But Cowans -- who murdered a defenseless old lady and then forbade his attorney from offering any mitigating evidence -- presented no possible hook on which to hang an argument.

Judge Merritt wrote a concurrence, seemingly explaining that his hands were tied.

Facilitation of Burglary NOT a Violent Felony

2011-04-22T11:22:00.004-04:00

Just a quick note on a good opinion.

United States v. Vanhook, No. 09–5778, 2011 U.S. App. LEXIS 7884 (6^th Cir. Apr. 18, 2011). The court considered Tennessee’s offense of facilitating a burglary. The court found that "there remains little question that the act of facilitating the burglary of a building creates a serious risk of violence." The offense may have presented such a risk, but the court found it is not a violent felony for Armed Career Criminal Act purposes because "This is one of the rare cases in which a statute criminalizing ‘knowing’ conduct does not describe conduct sufficiently purposeful to qualify as a violent felony." The court went on to find that its decision was "further buttressed by the fact that facilitation of burglary is not necessarily the type of violent or aggressive crime generally characterized as a violent felony."

Summary evidence should not be allowed into jury room

2011-04-12T11:41:00.004-04:00

In an unpublished fraud case issued today, United States v. Horacio Munar, the Sixth Circuit vacated a six-level multiple-victim enhancement under U.S.S.G. § 2B1.1(b)(2)(c), and remanded for resentencing because the district court failed to address the defendant’s sentencing objection.

Of note in this opinion is whether to allow summary evidence before a jury – a subject that does not have much precedent in this circuit. There were over 6,000 admitted exhibits at trial in this case. One summary chart was not admitted into evidence but was given to the jury, albeit with a limiting instruction and altered title indicating it was not evidence.

The Sixth Circuit held that “pedagogical devices/illustrative aids used at trial should not be allowed into the jury room without consent of all the parties since they are more akin to argument than evidence.” The jury was given this evidence during deliberations over defendant's objection. Even with “a limiting instruction, there is authority to the effect that the better practice is to allow the exhibit to be used only as a demonstrative adjunct to testimony, and not to allow the chart to be formally admitted into evidence and thus go to the jury room.”

Ultimately, the Sixth Circuit concluded the jury should not have been given the chart, but the error was harmless because the case was complex and the limiting instructions dispelled any danger the jury would rely on the exhibit as fact.

Statistics 101

2011-04-12T10:47:00.010-04:00

In United States v. Jones, a jury acquitted the defendant of all charges except for three counts of fraud based on improper billing, representing a total loss of $120.76.

The defendant was sentenced to 18-months imprisonment, and ordered to pay $224,133(!!) in restitution for the conduct associated with his acquitted counts. At sentencing, the government used a statistical extrapolation from some of the defendant’s billing records to establish loss.

Ready for a statistics refresher? The Sixth Circuit recognized that “a statistical estimate may provide a sufficient basis for calculating the amount of loss caused by a defendant.” Here, however, the statistical analysis was flawed because it did not form a representative sample of bills – over fifty patient billing records were missing. The district court did not “even realize that the fifty four files were missing and it definitely did not make a finding as to whether they were fraudulent.”

The lesson learned is to have a grasp of basic statistics. Because the government’s statistics were flawed and because the government had not proven the acquitted conduct by a preponderance, the sentence was vacated and remanded to determine the total amount of loss and restitution.

Considering a sentencing memo requires more than just reading it

2011-04-11T11:40:00.013-04:00

There have been few published opinions of note lately, but there is one unpublished opinion of interest issued today.

In United States v. Pizzino, No. 09-2146 (6th Cir. April 11, 2011), the Sixth Circuit vacates and remands a within-guidelines sentence of 180 months for distributing CP because the district court did not address non-frivolous arguments for lenience. For a district court to merely state it “received and understood a defendant’s sentencing memorandum” is insufficient and “does not fulfill its duty" under § 3553(a). The failure to consider the supporting evidence and the defendant’s circumstances was procedural error, particularly when the district court responded in detail to the prosecution’s arguments, but failed to address arguments of defense counsel.

In the sentencing memorandum, defense counsel presented several arguments for a lower sentence, including limited criminal history, low risk of recidivism, and the alternate sentences available, a statement from the defendant’s therapist, as well as the therapist’s notes, all of which highlighted progress and low risk of recidivism.

CP Guidelines are Presumptively Reasonable

In footnote seven, the Sixth Circuit notes many district court have expressed reservations about the child-pornography sections of the Guidelines being based solely on congressional mandates rather than empirical studies. However, the Sixth Circuit states the “presumption of reasonableness [of the Guidelines] attaches to all sentences within the Guidelines range; there is no ‘empirical evidence’ prerequisite.”

Underlying predicate crime is not an element of 18 U.S.C. § 2422(b)

2011-03-29T13:01:00.019-04:00

In United States v. Hart, No. 09-6554 (Mar. 29, 2011), the Sixth Circuit rejected the defendant's argument that the jury had to agree unanimously on the predicate crime giving rise to a federal charge under 18 U.S.C. § 2422(b) for knowingly using "interstate commerce to persuade, induce, entice, or coerce 'any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.'"

The federal jury in this case "had to unanimously agree that the sexual activity that Hart attempted to persuade [the minor] to engage in would have been chargeable as a crime under Kentucky law," and there were two possible predicate crimes: third-degree sodomy and/or third-degree rape.

The defendant relied on a Seventh Circuit case, United States v. Mannava, 565 F.3d 412 (7th Cir. 2009), to argue that "the jury should have been required to identify in its verdict form 'which of the [Kentucky] statutes it unanimously concluded the Defendant violated.'" The Sixth Circuit rejected the argument and disagreed with the Seventh Circuit case on which it was based, explaining,

Because 18 U.S.C. § 2422(b) criminalizes persuasion and the attempt to persuade, the government is not required to prove that the defendant completed or attempted to complete any specific chargeable offense. The government need only prove, and the jury unanimously agree, that the defendant attempted to persuade a minor to engage in sexual activity that would have been chargeable as a crime if it had been completed.

Because "the underlying Kentucky criminal offenses are not elements of the federal offense," the court reasoned, "[t]here is no requirement . . . that [the jury] had to unanimously agree on the specific type of unlawful sexual activity that [the defendant] would have engaged in."

The court also rejected several arguments relating to the constitutionality of Section 2422(b), 18 U.S.C. § 2251, and the sentences imposed for both convictions.

Shooting Pepper Spray at a Person Without Justification, Mich. Comp. Laws § 750.224d(2) = "Crime of Violence"

2011-03-29T12:17:00.014-04:00

(Shooting pepper spray into the air while running = bad idea.)
In United States v. Mosley, 09-2359 (Mar. 29, 2011), the Sixth Circuit found that a misdemeanor conviction for shooting pepper spray at a person without justification in violation of Mich. Comp. Laws § 750.224d(2) necessarily constitutes a "crime of violence" under U.S.S.G. §§ 4B1.2(a) and 2K2.1(a).
The defendant argued that the Michigan pepper spray statute would appear to encompass conduct involving only "a low concentration of chemicals," and thus might not "involve conduct that presents a serious risk of physical injury." Focusing on "the ordinary case," however, the court concluded that "it is hard to imagine" a case in which pepper spray would be only mildly annoying, since "[t]he idea . . . is not to produce a slight irritant to a mugger or a bear; it is to stop them both in their tracks by incapacitating them." Because the statute "involves conduct that presents a serious potential risk of physical injury to another," it falls within the "residual clause" of U.S.S.G. § 4B1.2(a) and meets the definition of a "crime of violence."
The court further declined to apply the "carve out for misdemeanor convictions" found in 18 U.S.C. § 921. While Section 921 expressly excludes crimes defined under state law as misdemeanors, 18 U.S.C. § 921(a)(20)(B), this exemption applies by its terms only "as used in" the statute, and the Guidelines contain no comparable language. Thus, "while there are many parallels between 'violent felon[ies]' under the statute and 'crimes of violence' under the guideline, this is not one of them."
Lastly, the court found that the district court's failure to invite the defendant to speak at his re-sentencing after remand was not prejudicial because the defendant had previously spoken at his initial sentencing hearing and because "[a]llocution is not designed to allow defendants to re-argue their lawyers' legal positions, and, . . . that is all Mosley wished to do here . . . ."

Judges have to find a lot of facts to impose the official victim enhancement pursuant to U.S.S.G. § 3A1.2(c)(1)

2011-03-25T14:23:00.002-04:00

In order to apply the official victim enhancement under U.S.S.G. § 3A1.2(c)(1), the court must find that “the defendant or a person for whose conduct the defendant is otherwise accountable . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom.” In United States v. Anderson, a police officer was shot during the course of a drug bust. No. 09-6318, (6th Cir. Mar. 24, 2011) (unpublished). One of the defendants appealed and won because the district court did not make findings of fact sufficient to support a finding that either defendant actually "knew or had reasonable cause to believe" he was shooting at a police officer.

The district court found that the police knocked on the door, the police announced their presence, another individual heard the police identify themselves, and that the defendants had had a discussion about law enforcement. However, the Sixth Circuit nonetheless held that, “these facts standing alone, do not support a finding that either defendant actually ‘knew or had reasonable cause to believe’ that the individuals on the other side of the door at that moment were indeed the police.” (emphasis in original). The Sixth Circuit explained that the finding that another individual heard the officers identify themselves “is insufficient to constitute a finding as to what [the defendants] heard.”

This may be somewhat of a hollow victory, however. While the Sixth Circuit vacated the opinion, it instructed the district court to make the appropriate factual findings on remand. This may be problematic for the defense, as the Sixth Circuit held that, “the PSR contains facts that could support such a finding.” In other words, there is nothing to stop the district court from making the proper findings and reapplying the enhancement on remand. However, this case does remind us that Judges need a strong factual background to apply this enhancement.

Proffer Info in PSRs

2011-03-24T11:23:00.005-04:00

It's not my blogging week, so I'm sorry if I'm barging in on my co-bloggers. But this issue has been popping up a lot lately, so I felt an irresistible impulse to post. Forgive me, please, if this post is rude!

United States v. Jackson, No. 09–1630 (6^th Cir. Mar. 24, 2011) (recommended for publication). Panel of Judges Siler, Clay, and Gibbons.

D pleaded to bank robbery. Proffered. Had proffer agreement with gov: statements would not be used against him. Presentence report (PSR), however, included several statements from D’s proffer. These statements were initially used in calculating the guideline range, and dist court relied on them in determining the sentence.

D objected to this increase in his GL range based on the statements. "He argued the conclusion [co-D’s] conduct was a ‘reasonably foreseeable act[] . . . in furtherance of the jointly undertaken criminal activity,’ USSG § 1B1.3(a)(1)(B), was impermissibly based on his proffer-protected statements." Gov agreed and used an FBI agent to establish an independent source for the GL range increase. Dist court overruled D’s objection, finding the information regarding the increase was obtained by law enforcement before the proffer. Appellate court notes that D "did not object to any of the information relied on by the court in determining his sentence."

D argued "his proffer-protected statements were impermissibly used to increase his guideline sentence range." Court looked at GL section 1B1.8, which provides that proffer "information shall not be used in determining the applicable guideline range, except to the extent provided in the [proffer] agreement."

Appellate court concludes that "Had this information provided the basis for the enhancement that determined [D’s] ultimate guideline range, a violation of USSG § 1B1.8 would have occurred." But court found that the range could "be sustained without the use of the impermissible proffer-protected information." FBI agent provided independent source for info.

D also argued the increase was impermissible because, without the improper information in the PSR, he would not have received a higher advisory range—the increase would never have been an issue. And the FBI agent’s testimony was improper, as it never would have been presented, but for the objection to use of the proffer information. Appellate court notes that D "cites no case holding a later, valid guideline enhancement improper because of an earlier, improper enhancement" and rejects the contention.

D argued he had insufficient notice of the agent’s testimony. The agent’s info was not included in the PSR. Argued it was a violation of Rule 32 to allow presentation of the evidence for the first time at the sentencing hearing. But, court notes, D did not object to agent’s testimony. Nor did D seek a continuance. And Rule 32 was not violated. No requirement that all bases for determining offense level be included in PSR. And no prohibition against gov presenting additional evidence at hearing.

D argued "that not only does USSG § 1B1.8 preclude the use of proffer-protected information in determining the guideline sentence range, but that it also categorically precludes the use of proffer information in the PSR." But, court says, no objection in dist court, so plain-error review applies. Court looks at commentary to 1B1.8 and finds that gov cannot withhold info from a sentencing court.

Court finds that "No Sixth Circuit case has reached a contrary result, while out-of-circuit opinion on this issue is split." Looks at "United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir. 1996) (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR)," and "United States v. Rourke, 74 F.3d 802, 809 n.6 (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court)." Also finds Rule 32(d)(3)(B)’s reference to confidential information unavailing.

The issue remains open: "We only review this issue for plain error, since [D] failed to object at the district court. While we reserve ruling on the question of whether proffer-protected information can be used in determining a defendant’s specific sentence, any error by the district court in this case is certainly not plain."

Sentence affirmed.

Why can’t defense attorneys ever manage to preserve procedural reasonableness objections?

2011-03-23T13:57:00.003-04:00

As recent cases have pointed out, procedural reasonableness objections never seem to get preserved unless the district court forgets to ask the Bostic question. See, e.g., United States v. Wilkins, No. 09-1890 (6th Cir. March 23, 2011) (unpublished); United States v. Burnette, 2011 U.S. App. LEXIS 5648 (6th Cir. Mar. 16, 2011) (unpublished). The reason for this has to do with the way the Bostic question works. The Sixth Circuit decided in United States v. Bostic that the district court has an obligation at the end of sentencing to ask for objections to the sentence that have not been previously raised. 371 F.3d 865, 872 (6th Cir. 2004). If the district court asks the Bostic question and defense counsel fails to object, any procedural reasonableness claims will be subject to plain error review.

But wait, procedural reasonableness objections are generally based upon a district court’s lack of explanation for some aspect of the sentence (rejection of a defense argument, making the sentences consecutive, etc.). So if the court asked the Bostic question and defense counsel did object to the lack of explanation, the district court would almost certainly proceed to provide further explanation. This further explanation would likely moot the appellate issue of lack of explanation.

So, it’s not the case that defense attorneys never object on procedural reasonableness grounds in response to the Bostic question. Instead, when they do appropriately object in that situation, they immediately win that issue without the need to appeal in the sense that they get the further explanation they were seeking. The take-away here is twofold:

1) The Bostic question is working in terms of forcing district courts to be procedurally reasonable the first time around.

2) At the end of sentencing, if the district court asks the Bostic question, defense attorneys should make a habit of objecting to the district court’s lack of explanation on important issues. Further analysis could cause the court to change it’s mind, and even if it doesn’t, at least the record will be clear on appeal.

One More Post: Money Laundering

2011-03-18T17:44:00.005-04:00

(Tried to find a "laundering" pic.)

United States v. Crosgrove, No. 08–4650 (6^th Cir. Mar. 18, 2011) (to be published). Panel of Judges Merritt, Rogers, and White.

After a trial, D convicted of conspiring to commit mail fraud (violation of 18 U.S.C. § 371) and conspiring to launder money (violation of 18 U.S.C. § 1956(h)). Appellate court found that "the Government did not produce sufficient evidence at trial to support the conspiracy to commit money laundering charge, and the judgment of conviction for that count has to be vacated." The "Government failed to show that the money involved in the alleged transactions represented the profits of unlawful activity, as required under United States v. Santos, 553 U.S. 507, 514 (2008), and United States v. Kratt, 579 F.3d 558, 561–62 (6th Cir. 2009)."

Indictment alleged that defendant conspired to participate in "promotion" money laundering, violating 18 U.S.C. § 1956(a)(1)(A)(i). "Promotion" money laundering involves reinvestment of proceeds of unlawful activity into the illegal scheme from which those proceeds were derived. The government must prove that a defendant conspired to conduct a financial transaction involving the proceeds of unlawful activity, with knowledge that the money was the proceeds of the unlawful activity, and with the intent to promote such underlying criminal activity.

The government must identify transactions (or planned transactions for a conspiracy charge) that represent the proceeds of the underlying illegal activity. Prosecutor here stated at oral argument that the only transactions on which the conviction could be upheld were the defendant’s deposits of checks that were issued to him from a certain "member fees" account.

These checks were monthly checks for pre-established, fixed amounts and could be characterized as salary payments. The jury found the defendant guilty on June 3, 2008, one day after the Supreme Court issued its decision in Santos. So while it is understandable that the impact of the Santos decision was not considered at trial, that decision’s interpretation of the "promotion money laundering" statute, as understood in the Sixth Circuit, still controls this case.

And because the defendant’s money laundering and mail fraud charges merge, and the money laundering charge carries a substantially higher statutory max than the mail/wire fraud charge, the government had to show that the proceeds involved in the charged transaction represented scheme profits—not just gross receipts.

Prior to Santos, the Sixth Circuit interpreted "proceeds" to mean gross receipts. But post-Santos, the circuit has "concluded that proceeds means profits for cases that fall within a certain framework, but continues to mean receipts for all other cases. ‘‘Proceeds’. . . means profits only when the § 1956 predicate offense creates a merger problem that leads to a radical increase in the statutory maximum sentence and only when nothing in the legislative history suggests that Congress intended such an increase.’" Court found that this case falls within this framework.

Because the money laundering conspiracy charge significantly increased the defendant’s potential sentence, it was necessary to determine whether the predicate offense and the money laundering charge merged. But it was "not necessary to decide in this case whether the merger analysis requires a case-by-case or categorical approach . . . because the crimes as charged obviously merge."

Charges merged, and the money laundering charge carried a far heavier statutory max than the mail/wire fraud charge. Nothing in the legislative history indicates that Congress intended this result for the predicate crime of mail/wire fraud unrelated to narcotics trafficking. So the profits definition of "proceeds" had to apply to this case.

While there may be an argument that someone in the defendant’s position could receive such a high fixed payment, even one characterized as a "salary," because it represented profits of the enterprise, no such evidence was presented. And the monthly payments the defendant received ($2,500, $3,000, and $3,500) did not appear exceptional and could not be construed as anything more than payments for services rendered.

Appellate Advocacy Issue:

Defendant raised a claim of insufficient evidence in his initial brief, but he based that claim on a mens rea argument. Mentioned Santos only in his reply brief, and only in the context of the knowledge claim.

Reply brief did not discuss the receipts/profits distinction or the merger issue. At oral argument, the prosecutor contended that the Santos argument should have been deemed forfeited. But court finds that defendant did make an insufficiency-of-the-evidence claim before the trial court and in his initial brief, so the prosecutor was aware of the claim.

And while the defendant’s initial brief emphasized the government’s failure to prove knowledge, it also asserted that the defendant was just an employee of the scheme, and argued that the government had failed to prove the defendant knew the property represented proceeds of unlawful activity, and that he had the intent to promote the carrying on of the activity. So the defendant "may have, albeit inartfully, put all aspects of the money laundering charge into issue in his initial brief."

And even if the defendant did fail to raise a Santos claim, the court noted that it "may nonetheless reverse the conviction in the interest of justice." Such reversal requires satisfying the plain-error standard. Such was the case here. The error need only be plain under current law.

District court’s evidentiary rulings upheld. Sundry sentencing decisions affirmed.

Carradine---Seeking Cert

2011-03-18T11:17:00.003-04:00

FYI on Carradine v. United States, No. 10-8937 (Feb. 10, 2011).

Filed for cert. Gov. has waived right to respond. Distributed for conference on March 18.

See Oct. 1 entry for more info on this case. (6th Cir. said FSA not retroactive.)

Pepper Decided!!!!! Good News!

2011-03-18T10:27:00.005-04:00

You have probably already heard about the Supreme Court's recent decision in Pepper v. United States, No. 09–6822 (Mar. 2, 2011). But it's a great case and deserves noting here.

The Court decided that when a sentence has been set aside on appeal and a case remanded a district court may consider evidence of a defendant’s post-sentencing rehabilitation and such evidence may support a downward variance.

Court discussed the role of 18 U.S.C. § 3742(g)(2), noting that § 3742(g)(2) restricts the discretion of a district court on remand by barring imposition of a sentence outside the guideline range except upon a ground of departure that was expressly used in the prior sentencing and upheld on appeal. Amicus contended that § 3742(g)(2) forecloses a resentencing court from considering evidence of a defendant’s postsentencing rehabilitation for purposes of imposing a non-guideline sentence, as such evidence did not exist at the time of the prior sentencing. But the Court found that "§ 3742(g)(2) is invalid after Booker."

Court pointed out that it abrogated 18 U.S.C. §§ 3553(b)(1) and 3742(e) in Booker, and that its reasoning there applied to § 3742(g)(2) as well. Court found that "we see no general congressional policy reflected in § 3742(g)(2) to preclude resentencing courts from considering postsentencing information, that provision has no bearing on our analysis of whether § 3553(a) permits consideration of evidence of postsentencing rehabilitation."

Other things to consider:

Section 3742(g)(2) is akin to § 3742(g)(1), which says that the old GLs will apply at a resentencing. Pepper provides ammo to argue that the old GLs are not the GLs that should apply if the new ones are more favorable. (If they are less favorable, we have an ex post facto issue, but that's an issue to discuss at another time; courts have gone different ways on that issue.) The dissent makes this point very clear: "I agree with the Court that the decision below cannot be affirmed on the basis of 18 U.S.C. § 3742(g) . . . . This provision was designed to function as part of the mandatory Guideline scheme . . . ." (Alito, J., dissenting). He just says (g)---no further subsection.

Now, for the Grant issue. (See the Jan. 18 entry on Grant.)

Does the Supreme Court implicitly sanction sentences below the mandatory minimum based on the defendant’s substantial assistance and post-sentencing rehabilitation? In Pepper, "safety valve" (18 U.S.C. § 3553(f) and guideline section 5C1.2) applied, which can be used to distinguish the case from a pure Grant situation. But Pepper still provides a sanction from the Supreme Court to use information beyond substantial assistance to sentence below a mandatory minimum.

Assisting the gov. is an aspect of obtaining "safety valve" relief from a mandatory minimum sentence. And the Court clarifies in Pepper that "‘It has been uniform and constant in the federal judicial tradition for the resentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.’"

Punishment should fit the defendant "and not merely the crime." Congress and the Sentencing Commission have "expressly preserved the traditional discretion of sentencing courts to ‘conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.’" While there are some constraints on sentencing courts’ discretion, once a mandatory minimum is released, a sentencing court should be able to consider a wide array of factors. . . .

Plain-Error Review: Object in Bold Colors

2011-03-18T10:07:00.006-04:00

Yes, we know the lesson, but once again we are reminded of the importance of preserving our issues for appeal.

United States v. Dumas, No. 10-3013 (6^th Cir. Mar. 16, 2011) (unpublished). Panel of Judges Gilman, Gibbons, and Cook.

Supervised release revocation.

Background:

D got ten months for violating conditions of SR by failing to attend substance-abuse treatment and testing positive for cocaine.

After district court delivered its sentence, it asked whether there were any legal objections. Defense counsel objected to the length of the sentence, requesting more supervised release instead. District court asked counsel to clarify whether the objection was on procedural or substantive grounds. Counsel replied that the objection was that the sentence was "substantively unreasonable." Addressing the objection, the district court explained further the appropriateness of the sentence chosen and the necessity of imprisoning the defendant.

Appeal:

D appealed procedural and substantive reasonableness of sentence.

He argued that the district court neglected his mitigation arguments, that the court violated his due process rights under Rule 32.1(a)(3) by questioning him without informing him of his right to a hearing, and that his waiver of a revocation hearing under Rule 32.1 was not valid. Because the defendant did not raise these alleged procedural errors in the district court after an invitation to do so, review was for plain error.

Appellate court found that "This standard of review poses a problem for [the defendant]." Defendant failed to argue that the alleged errors were plain, affected substantial rights, and seriously affected the fairness/integrity/reputation of the judicial proceedings. Court clarifies that even if the defendant had properly formulated the plain-error arguments his claims would fail. Court found that the district court considered the mitigating arguments. The second alleged error did not affect the defendant’s substantial rights: even if the court violated Rule 32.1 when it questioned the defendant before he waived his right to a hearing, such a violation did not necessarily affect the ultimate sentence. And even if his waiver of a hearing was invalid under Rule 32.1, any error would be harmless. The defendant did not contest his drug use and the evidence was against him.

In terms of substance, the ten-month sentence was reasonable. The defendant evaluated the circumstances and applied the § 3553(a) factors. The defendant had continued using drugs despite the district court’s prior leniency. The sentence was within the guideline range.

Moral of the story: object with specificity! Don’t lose procedural objections in the district court. And if you do face plain-error review, argue with specificity that the error was plain. Yes, it's something we all know, and it may be hard "on the fly," but it's always good to be reminded.

Child porn: printed pics or virtual, copies count

2011-03-07T15:20:00.014-05:00

What if my client was just really good about backing up his hard drive and made copies of his digital child pornography that way? The Sixth Circuit, in United States v. McNerney (found here), recently ruled those copies count for the enhancement for number of images under U.S.S.G. 2G2.2(b)(7).

This opinion is a must-read for several reasons in addition to its holding.

In Footnote 2, the Court creates a useful vocabulary for discussing digital and non-digital images. Anything saved on a digital medium (hard drive, memory cards, internet) is a "digital image." The more traditional porn - on paper, on video cassette - is a "hard copy image." "Duplicate" images of either type are identical copies. "Unique" images of either type are those for which there is no copy. Simple, and yet no one has committed to it before. So now there's a chance we might all use the same language to describe images, which could clean up records significantly.

Mr. McNerney had all of his files backed up on a second hard drive. This doubled the number of digital images he possessed: for every image on his main computer, an exact copy existed on the second hard drive. McNerney argued only the unique images should count, not the duplicate images. The Court said even duplicates count, because their presence increases the likelihood of further distribution and because if the main drive fails, you still have a back-up.

Thumbnail images do not count towards the total.

The Court spends a good bit of time discussing the history of 2G2.2, in a way that does not bode well for arguments that the child pornography guidelines should be discounted because they are not based on empiracle research. Basically, "if Congress told the Guidelines Commission to do something, that makes it a legitimate enough guideline for us."

THE SIXTH CIRCUIT'S SCOTUS TRACK RECORD

2011-02-24T11:19:00.001-05:00

The Cincinnati Enquirer recently ran an article (link attached) in which the Sixth Circuit's track record in the United States Supreme Court (0-15 since 2008) was discussed. Of interesting note was the fact that Judge Merritt agreed to be interviewed for the article. Merritt indicated that just because the Supreme Court reverses the Sixth, it doesn't mean that the Supreme Court is always right. Merritt stated "The Supreme Court is only final because it is final. It's not final because it has an excessive degree of wisdom over everyone else in society. Just because the 6th Circuit gets reversed, it doesn't mean the 6th Circuit has lost its mind."

Here's hoping we reverse that trend. The Supreme Court just heard this week the Sixth Circuit case of United States v. Tinklenberg. At stake is a statutory Speedy Trial Act claim - do all motions, however mundane, automatically stop the ST Clock? The Court also heard argument, and seemed interested in, an alternative argument of whether the Act (at least as to one section) counted by calendar days or business days. Let's hope 2011 is the year we put one (or more) in the win column!

Where is the AEDPA line? -- Wherever they want it to be

2011-02-15T10:44:00.010-05:00

Tibbets v. Bradshaw, a published decision issued today (available here), is perfectly emblematic of the state of habeas death penalty jurisprudence in the Sixth Circuit. There are two sides, they disagree on the outcome, and they do not even seem to be applying the same law.

Tibbets applied for a writ of habeas corpus from Ohio death row arguing that his trial counsel botched the sentencing hearing by failing to put on powerful evidence of Tibbets' miserable, abuse-filled childhood and substance abuse. Judge Moore found this argument compelling and dissented.

The majority focused on the one-two punch of the Strickland and AEDPA standards: "Even if we were to conclude that counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for that failure, the result of the proceeding would have been different, we must still ask whether the state court's conclusion to the contrary was 'objectively unreasonable.'" With that standard as the starting point, Tibbets was fortunate to get seven more pages of attention, even if one of them was devoted to detailing the brutality of his crime.

In sum, the majority cited AEDPA and washed its hands of the case. The dissent effectively sidestepped AEDPA and dirtied its hands with Ohio's mess. AEDPA continues to be a most fungible statute, the application of which is always subordinate to a judge's other inclinations.

Convicted on her statements alone -- How much corroboration is enough?

2011-02-14T10:16:00.008-05:00

How much evidence must the prosecution introduce to corroborate a defendant's out of court confession? Not much, according to the Sixth Circuit in US v. Ramirez, a published decision issued today (available here).

The defendant, who worked as the quality assurance manager at a cheese cutting and wrapping company, was convicted on a number of counts for participating in a scheme to hire illegal aliens. During the police investigation, the defendant had made self-incriminating statements as to her involvement. The main issue on appeal was whether the government had introduced enough evidence to corroborate those statements such that the convictions did not run afoul of the rule that a defendant cannot be convicted based solely on her uncorroborated statements or confessions. Smith v. United States, 348 U.S. 147, 153-54 (1954).

What is most interesting about this case is not the outcome -- they affirmed the convictions unanimously -- but rather that the Court actually took the time to engage with Smith in a meaningful way. In the lengthy, published opinion, the panel of Martin, McKeague, and Ludington (E.D. Mich.), addressed the total evidence for each count. That fake documents existed, that the defendant admitted in court that she knew some of documents were "poor fakes," and that she lived with one of the hired illegal aliens all provided sufficient corroboration for purposes of appellate review.

While Smith may not have a lot of life left in the Sixth Circuit, the panel's willingness to get its hands dirty demonstrates that Smith is not dead yet.

No connection between gun and drugs found in car

2011-02-11T10:24:00.006-05:00

It is rare for the Sixth Circuit to find no sufficient connection between a firearm and drugs when both are in the same vehicle. The split-decision in US v. McKenzie (unpublished), available here, provides some light for the often-raised challenge to enhancements under U.S.S.G. § 2K2.1(b)(6) – particularly where the small amount of drugs is clearly for personal use.

A loaded firearm and 1.1 grams of marijuana (worth approximately $2-$15) were found in defendant’s car. The firearm was hidden between the driver’s seat and the center console, the marijuana was on the arm rest of the driver-side door. The defendant had been shot at earlier in the day and claimed the gun was for self-protection. The Sixth Circuit agreed the gun was for self-protection and unrelated to the small amount of marijuana possessed for personal use only. The mere proximity of the gun to the drugs was not enough to establish a sufficient connection under the guidelines.

Circuit Judge McKeague dissented, noting the ample prior cases applying the guideline for simultaneous possession of a firearm and small amounts of drugs.

Are Affidavits Enough? - Actual Innocence & Equitable Tolling

2011-02-09T10:03:00.007-05:00

Evidence of actual innocence as a gateway to equitable tolling of a habeas petition is discussed in the unpublished opinion, Turner v. Romanowski, No. 07-2352 (available here). Petitioner sought equitable tolling of a time-barred petition through an actual innocence claim, pursuant to Schlup v. Delo, 513 U.S. 298 (1995), submitting a number of affidavits from friends, witnesses, and co-defendants. Relying on the district court’s merit review of the actual innocence claim, the Sixth Circuit found the affidavits contained “insubstantial factual allegations.” The opinion sets forth an in-depth analysis of the affidavits presented in support of actual innocence.

The Sixth Circuit affirmed the denial of the § 2254 habeas petition, but on alternative grounds than the district court. Below, the district court had dismissed the habeas petition on its merits, declining to rule on the State’s motion to dismiss the petition as time-barred. The district court did not hold an evidentiary hearing – either on procedural default or the substantive claims. The Sixth Circuit found the petition time-barred and that Turner’s actual innocence claim is not sufficient to warrant equitable tolling. The opinion affirms the district court’s decision not to hold an evidentiary hearing regarding procedural default, and the petition is dismissed.

Reversal in CP Receipt case -- Inadequate Guilty Plea Failed to Distinguish Receipt v. Possession

2011-02-07T10:54:00.000-05:00

In US v. Szymanski,a published decision issued today (available here), the Sixth Circuit reverses a CP receipt conviction and five-year (mandatory minimum) sentence, clarifying the difference between CP receipt and possession. Implicit in the ruling is that the Government cannot obtain a conviction for CP receipt merely by showing the presence of CP on a computer.

A week before oral argument, the Sixth Circuit sua sponte asked the parties to address the quantum of proof and whether the plea and conviction were proper.

The basis for the reversal is "Szymanski may have unknowingly pled to an offense—subjecting him to a mandatory minimum the district court sought not to impose—whose elements he did not understand and which he may not have committed." Because the "demanding scienter requirement" was not explained to the defendant during the brief guilty plea colloquy, the Sixth Circuit found the defendant "did not have an adequate understanding of the nature of the charge at issue." The case begins:

First, the Supreme Court [in United Statse v. X-Citement Video, Inc., 513 U.S. 64 (1994)] over sixteen years ago, construed the crime at issue to contain an element not necessarily required by its statutory text: a defendant charged with receipt of child pornography must have knowledge, not only as to the act of receipt itself, but also as to the fact that the material he is receiving features minors engaged in explicit sexual conduct. Second, this interpretation of the statute as containing a demanding scienter requirement was never explained to the defendant during the rather brief colloquy preceding the district court’s acceptance of his guilty plea. Indeed, our examination of the record leaves us with the strong impression that the defendant, his counsel, as well as government counsel at the arraignment did not have an adequate understanding of the nature of the charge at issue. Moreover, there is evidence that the defendant specifically denies having any knowledge at all with respect to the content of the material he was receiving at the time of receipt, the very element the Supreme Court held necessary for conviction under the receipt charge. Accordingly, we VACATE the defendant’s conviction and sentence, and REMAND the case for further proceedings.

The Court declined to find harmless error becuase the defendant denied knowing the material he received was CP at the time he received it, and the district court improperly believed CP possession and receipt to require the same elements.

Reversal of Consecutive Federal Sentence

2011-02-07T10:53:00.000-05:00

In U.S. v. Bowman, a published opinion available here, the Sixth Circuit reversed a federal sentence imposed consecutively to an undischarged state sentence. The defendant pled guilty in federal court to two counts of possession and distribution of ecstasy and BZP, and pled guilty in state court to violating probation for the same two offenses. He was sentenced to 120 months imprisonment for the federal charges (based on an 120-150 month range) imposed consecutively to the state sentences.

The district court plainly erred by assuming the application of U.S.S.G. § 5G1.3(c) to be mandatory, stating "I've got to sentence you consecutively" (the Sixth Circuit declined to decide the applicable standard of review).

This court in [United States v.Gibbs, 506 F.3d 479, 488 (6th Cir. 2007)] held that the district court’s ruling constituted plain error because the explicit language of U.S.S.G. § 5G1.3(c) grants the court discretion to impose either a concurrent or a consecutive sentence. Id. at 487–88. In addition, this court stated that “where the district court believes that an aspect of the Guidelines is mandatory, there is a presumption of prejudice to the substantial rights of the defendant, and a remand for resentencing is required.” Id at 488. The Gibbs court explained “that prejudice is presumed because the district court’s failure to recognize its discretion in sentencing renders it impossible for the defendant ‘to show that the subjective decision of the court would have been different if the error had not occurred.’” Id.

The sentencing transcript did not provide "clear and specific evidence" the district would have imposed a consecutive sentence even if it knew it had the discretion to do so. In addition, the fact Bowman was sentenced at the low end of the advisory guideline range "suggests that there is an even greater chance that the district court would have sentenced him to a lower sentence if it had recognized that consecutive sentences are not mandatory under U.S.S.G. § 5G1.3(c)."

The Sixth Circuit also found the appellate waiver in the plea agreement did not bar the claim because the government failed to include a specific reference to § 5G1.3(c).

Sixth Circuit rejects constitutional challenges to ten-year mandatory minimum for enticing a minor

2011-01-24T16:07:00.004-05:00

In United States v. Hughes, Case No. 09-5787 (6th Cir. Jan. 24, 2011), the Sixth Circuit rejected a defendant's challenges to his ten-year mandatory minimum sentence pursuant to 18 U.S.C. § 2422(b) for attempting to entice a minor to engage in a sexual act. The defendant based his challenges on three constitutional provisions: the Eight Amendment's guarantee against cruel and unusual punishment, the Fifth Amendment's guarantee of equal protection of the laws, and the Fifth Amendment's guarantee of due process of law.

As to the Eighth Amendment, the defendant argued that his sentence was "grossly disproportionate to his offense, thereby violating the Eighth Amendment's protection against cruel and unusual punishment." The court noted that the defendant had "a tremendously difficult burden to meet," as "[i]n the last century, the Supreme Court has struck down only a handful of non-capital sentences under the Eighth Amendment, and those cases have been egregious in the extreme." Here, the mandatory minimum sentence gave rise to "no inference of gross disproportionality," and the court therefore "join[ed] the other circuits to decide the question" by holding that the ten-year sentence did not offend the Eighth Amendment.

As to the Equal Protection Clause, the defendant argued that the Government lacks any rational basis to distinguish between his own conduct and the similar conduct prohibited by 18 U.S.C. § 2423(b), which addresses interstate travel and contains no mandatory minimum. The court first noted that "[a]s a technical matter," Sections 2422(b) and 2423(b) are "separate crimes encompassing different elements." Although both crimes address sexual contact with minors, Section 2423(b) "has no requirement that there be an element of enticement or coercion," whereas Section 2422(b) "requires that a defendant 'persuades, induces, entices, or coerces' a minor to perform illicit sexual activity, or attempts to do so." Thus, the court found that "Congress could reasonably have decided that attempting to induce, or otherwise compel a minor to engage in sexual activity was a more serious crime than merely crossing state lines with the intent to engage in illicit sexual conduct with a minor. . . . This distinction is a rational basis on which Congress could have decided to punish the crimes differently."

Lastly, as to the Due Process Clause, the defendant argued that he could have been prosecuted under a separate statute without a mandatory minimum and that his ten-year sentence "shocks the conscience." The court found that "[a]bsent some more pertinent allegation such as selective enforcement," it would not question the Government's exercise of its "broad discretion" in deciding which charges to pursue. The court further noted that whether the sentence "shocks the conscience" "is more properly presented as an Eighth Amendment claim, which we have already rejected." And to the extent that the defendant could argue that the Government has no rational basis for depriving his fundamental rights, the argument would similarly fail because he "has no fundamental right at stake."

CP and Witness Liability

2011-01-20T11:40:00.005-05:00

Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.).

Issue: "do the federal child-pornography laws exempt those who violate the law in the course of providing expert testimony?"

Defendant had been preparing expert testimony and exhibits for trial. He downloaded stock (innocent) images of minors and morphed them into CP. Used images to help his client fight CP charges. Defendant was a lawyer who specialized in tech-related legal issues. He was charged federally and got a deferred prosecution agreement. On top of this action, the parents of the children in the pictures sued the attorney under the civil remedy provisions of the federal CP statute. Dist ct rejected the civil claims, finding Congress did not intend the law to apply to expert witnesses. Court of Appeals reversed, finding no exceptions.

The attorney, the Court found, had no basis for denying that he knowingly possessed a computer disk that contained child pornography, which had been produced using materials that affected interstate commerce. Lawyer had stipulated that he had downloaded at least four images from the Internet (depicting real, identifiable minors in innocent poses) and then digitally manipulated the images to make it appear that these minors were engaged in sexually explicit conduct. The attorney had issued an apology, admitting “I do recognize that such images violate federal law.” (As part of the deferred prosecution agreement, the attorney had to make a public apology in a bar journal.)

The criminal and civil provisions covered the lawyer's conduct.

Citing 18 U.S.C. 3509(m), the Court pointed out that "If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography."

While the attorney had been authorized by the original district court to present expert testimony on digital-imaging technology, it did not authorize the creation or possession of new CP. Here, the interests of real kids were implicated.

Immunity did not apply.

Minimum $150,000 in damages was one of the things at stake.

Grant decided en banc: Rule 35s

2011-01-18T17:45:00.003-05:00

This discussion is long, but this issue is a big one and this decision is one for which many of us have been waiting....

United States v. Grant, No. 07–3831 (6^th Cir. Jan. 11, 2011) (published). En banc. Majority of Chief Judge Batchelder and Judges Gibbons (authored majority opinion), Martin, Boggs, Gilman, Rogers, Sutton, Cook, McKeague, Griffin, and Kethledge. Dissents and concurrences are detailed below.

We’ve blogged about this case in the past. Are the 3553(a) factors fair game once a Rule 35 releases the mandatory minimum?

Background:

* April 15, 2005, defendant pleaded guilty to the knowing possession of a firearm in furtherance of a drug trafficking crime (mandatory minimum five years), conspiracy to commit money laundering (maximum sentence of twenty years), operation of a continuing criminal enterprise (mandatory minimum twenty years). Mandatory minimum sentence was thus twenty-five years.

* Guideline range of 324 to 405 months for the continuing criminal enterprise and money laundering counts, with sentence for the firearm count to be served consecutively. PSR recommended the minimum guideline sentence of 384 months (32 years): 324 months on the continuing-criminal-enterprise and money-laundering counts plus the 60-month mandatory minimum for the gun.

* Before sentencing, the government requested a downward departure under 5K1.1. Government explicitly did not request a departure under 18 U.S.C. § 3553(e), so district court lacked authority to impose a sentence below the mandatory minimum. Government recommended the statutory minimum sentence of 25 years (7 years below the bottom end of the GL range).

* Government indicated that if the defendant continued to testify truthfully the government would file a Rule 35(b) motion recommending a further reduction to 16 years.

* The district sentenced the defendant to 300 months (25 years). On appeal, the panel affirmed: United States v. Grant, 214 F. App’x 518 (6th Cir. 2007).

* April 16, 2007, the government filed a request for a sentence reduction under Rule 35(b). District court for the first time had the authority to impose a sentence below the statutory minimum. Government noted that the defendant had testified for the prosecution in a state homicide trial. It requested a 9-year sentence reduction (to 16 years), which was equal to half of the sentence originally recommended in the PSR.

* District court granted the government’s Rule 35(b) motion and reduced the sentence to 192 months (16 years). Defendant appealed.

Jurisdiction:

* While the appeal ultimately sought a greater reduction in sentence, the argument was that the methodology the district court used to impose sentence was in violation of the law. The defendant claimed that the district court committed an error of law by misapprehending the factors it was allowed to consider in deciding the Rule 35 motion. The Court thus had jurisdiction under 18 U.S.C. § 3742(a)(1).

Issue:

* Whether district courts may consider factors beyond substantial assistance in ruling on a Rule 35(b) motion to reduce sentence, and if such factors may be considered, how do they impact the extent of any reduction.

Analysis:

* Text of rule does not tell whether it authorizes district courts to look to § 3553(a) factors in deciding the extent of a reduction. Based purely on a reading of the text, the Court could not conclude that consideration of the § 3553(a) factors is prohibited, permitted, or required.

* Looking outside text, however, sheds light. The title of Rule 35(b) is: "Reducing a Sentence for Substantial Assistance." This title undermines the defendant’s position. While a plain reading of the text of the rule may be ambiguous, examination of the context of the rule suggests that the district court acted within its discretion in examining only the value of the defendant’s assistance.

* Court has rejected the notion that factors not related to cooperation may be considered in connection with a motion under § 3553(e) motion. Court cites United States v. Bullard.

* Court finds that "At most, the 2002 amendment injected a bit of ambiguity into the text of Rule 35(b). The amendment does not speak to consideration of the § 3553(a) factors. The amendment does not change the purpose of Rule 35(b) or require a departure from the longstanding practice of interpreting the rule in lockstep with § 3553(e) and § 5K1.1. Upon reading the text of the rule in conjunction with its history and broader statutory context, we resolve the ambiguity against [the defendant’s] favored interpretation of the amended rule and conclude that Rule 35(b) permits reductions based on substantial assistance rather than other factors."

* In terms of Booker, the Court notes that the Sixth Amendment right to a jury trial, the topic of concern in Booker, has no application in the Rule 35 context.

* Court also notes, "Most importantly, in United States v. Dillon, 130 S. Ct. 2683, 2693 (2010), the Supreme Court held that Booker does not apply to sentence reductions under 18 U.S.C. § 3582(c)(2), a context closely analogous to Rule 35(b) reductions. Significantly, the Court analogized § 3582(c)(2) proceedings to Rule 35(b) proceedings and described both as ‘congressional act[s] of lenity’ that do not entail ‘plenary’ resentencings."

* Whether the original sentencing hearing included full consideration of the § 3553(a) factors was immaterial to the original sentence. The district court gave the lowest possible legal sentence. Application of § 3553(a) is not constitutionally required. That provision has no status beyond that which it is given by statute or rule in a given context and courts routinely sentence defendants according to mandatory minimums and without reference to the § 3553(a) factors.

* Explicit language of the rule permits relief only when there has been substantial assistance. If a court determines that a defendant did provide substantial assistance within the meaning of the rule, the rule gives the district court sufficient discretion. The granting of the motion is discretionary, as is the extent of any reduction. The government may recommend a particular reduction, but the district court may exercise its discretion as it sees fit. The district court is free to give a lesser or greater reduction than the recommendation. But the value of the substantial assistance is the governing principle in this exercise of discretion, and the reduction may not exceed the value of the defendant’s assistance.

Judge Merritt’s Concurrence:

Judge Merritt concurred "in the court’s disposition of this case because it gives the district court wide discretion to go above or below the government’s recommendation in substantial assistance cases." The judge "believe[s] this wide discretion gives the district court room in its reconsideration of the sentence to do justice in the case and avoid a sentencing process in which the prosecutor rather than a neutral magistrate controls the sentence."

Judge White, Concurring in Part and Dissenting in Part:

The judge is "not convinced that Congress intended one rule to apply to motions under § 3553(e) and a different rule to apply to motions under Rule 35(b), and given the history of the various amendments to Rule 35(b) [the judge] cannot agree with the dissent’s conclusion that the amendments changed the permissible considerations in ruling on a Rule 35(b) motion." The judge agrees with the majority that the consistent interpretation of § 3553(e) (to permit consideration of the value of the assistance and nothing else) dictates the decision in the case.

The judge concurs with the majority’s conclusion that in a Rule 35 resentencing the court’s task is to grant a reduction that reflects a defendant’s substantial assistance.

Judge Clay’s Dissent (with Judges Keith, Moore, and Cole):

Finds that, without deciding whether the district court was required to consider § 3553(a), "as the panel majority found," district courts are not prohibited from doing so. In finding that it was prohibited from doing so, the district court here committed legal error.

Finds that "Judge Gibbons’ en banc majority opinion would authorize district courts to consider myriad factors in this regard—so long as the courts do not acknowledge that the factors emanate from § 3553(a)."

The district courts are instructed by the majority opinion that Rule 35(b) does not require or authorize consideration of § 3553(a) factors, but that they may take into consideration the practicalities of the context in valuing a defendant’s substantial assistance. Many of these factors(as discussed by the majority and including the nature of the offense and the defendant’s capacity to abide by the law) are similar to the factors enumerated in § 3553(a). The "District courts will have to struggle to sort out the internal inconsistencies and ambiguities of the majority opinion, and this Court may be required to revisit the issue again in the near future," the dissent finds.

While many courts have relied on the phrase "to reflect" in holding that factors other than substantial assistance may not be considered on a Rule 35(b) motion, the 2002 amendments to the rules removed this phrasing and left Rule 35 to provide for a sentencing reduction "if the defendant’s substantial assistance" was of a certain kind.

The change in the plain language of the rule is significant to the dissent. "Whereas the word ‘reflect’ suggests the latter taking into account the former," the dissent points out, "the word ‘if’ denotes merely a condition precedent."

Once Rule 35(b) pierces the mandatory minimum, there is no reason why a defendant should be deprived of a district court’s consideration of the § 3553(a) factors to arrive at an appropriate sentence.

Dissent notes that "Although we have held that district courts may consider only the extent of a defendant’s cooperation on a pre-sentence motion for a downward departure under 18 U.S.C. § 3553(e), . . . [cites Bullard] this limitation is grounded in factors enumerated in the Sentencing Guidelines, U.S.S.G. § 5K1.1, upon which Bullard relies in part. No such factors are present with respect to Rule 35(b)." And "Bullard and the cases it cites as authority were decided at a time when the Sentencing Guidelines were mandatory, and, notably, § 3553(e) requires the reduced sentence ‘to reflect’ the defendant’s substantial assistance, phrasing that was excised from Rule 35(b)."

The dissent concludes, "Contrary to the position taken by the majority, the district court had the discretion to consider the § 3553(a) factors in the context of a Rule 35(b) motion. Whether the district court was required to do so is a question for another day."

Attention Appellate Attorneys: Read Plea Agreements Carefully!

2011-01-18T15:28:00.002-05:00

United States v. Jones, No. 09-3970 (6th Cir. Jan. 18, 2011) (unpublished). In Jones, the Sixth Circuit overturned a conviction under 18 U.S.C. 924(c) on a technicality. 924(c) contains two separate offenses:

(1) using or carrying a firearm during and in relation to a drug trafficking crime, and

(2) possessing a firearm in furtherance of a drug trafficking crime.

In Jones, the defendant pled guilty to a combination of the two offenses, “possession of a firearm during and in relation to a drug trafficking crime.” But the Sixth Circuit held in United States v. Combs, 369 F.3d 925 (6th Cir. 2004), that the government may not mix and match elements from the two separate 924(c) offenses. Accordingly, the defendant’s 924(c) conviction was overturned in Jones.

So it may pay off to go over the jury instructions and plea with a fine-toothed comb to look for any mismatching of the elements in a 924(c) appeal.

More IAC---Trial in an Hour, Anyone?

2011-01-12T11:55:00.004-05:00

Fuller v. Sherry, No. 09--2147 (6th Cir. Dec. 30, 2010) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).

Petitioner was appointed new defense counsel one hour and twenty-eight minutes before jury selection began in his state case. He argued in this habeas case that he was entitled to a presumption that his counsel was constitutionally ineffective: "it is unlikely that any attorney could provide competent representation with so little preparation time." The Count found, however, that the presumption of ineffectiveness is limited to particularly egregious circumstances, and because the petitioner's "case was fairly straightforward, and witnesses and evidence had been identified by his previous counsel, we decline to apply the presumption and affirm the denial of [the petitioner's] petition."

State charges were resisting and obstructing an officer, CSC 4, and possession of marijuana. Petitioner requested new counsel on the day of trial and the court appointed another attorney present in the courtroom on another matter.

During a lunch break, the new attorney requested an adjournment and relayed to the court a number of requests petitioner had made, including requests for discovery of the criminal history of the witnesses, funds for a private investigator, a motion filed regarding the prior conduct of a complaining officer, and videotapes of the store, jail, and police vehicle. Petitioner also sought two additional witnesses: a police detective and the owner of the store at which the offenses allegedly occurred. The attorney admitted that she did not know the purpose of some of the requests; she made a motion in limine to exclude evidence that the petitioner was on parole, which was granted; and she informed the court that the petitioner was notified of a plea offer. The court recessed for an hour.

After this recess, the attorney asked the court for an adjournment, stating that b/c of the circumstances she had had no time to prepare. The petitioner also wanted an adjournment for other reasons. The court responded that none of the petitioner’s discovery motions had been filed properly and denied them. In response to the request for an adjournment, the court stated: that it was satisfied that counsel was competent and could provide "adequate representation"; counsel "was aware of jury trial, was preparing on another case for jury selection today. So I'm satisfied that counsel certainly was prepared for jury selection in this case"; and that there had "been a number of discovery requests that I really quite frankly don’t even understand how it would be logical, or relevant, or material, or admissible in this case." The court then asked, "Defense counsel ready?" and continued, "I’m ready to try the case. Bring in the jury, we’ll have opening statements."

As the Court of Appeals said, the issue was "whether, under Cronic, [the petitioner] is entitled to a presumption of ineffective assistance of counsel in violation of the Sixth Amendment."

The Supreme Court has identified three situations in which a defendant is entitled to a presumption of IAC (w/o resort to the Strickland test): 1) the "complete denial of counsel," including situations in which counsel was absent at a key stage of the proceedings; 2) situations in which counsel entirely fails to subject the government’s case to meaningful adversarial testing; and 3) situations in which the likelihood that any lawyer, even a completely competent one, could provide effective assistance is so small that a presumption of prejudice is warranted.

Under this third Cronic category, the presumption of prejudice applies in "limited, egregious circumstances." The presumption is warranted "only when surrounding circumstances justify" its application, not just because counsel was appointed belatedly and the court refused to grant additional preparation time. There are five factors relevant to evaluation of counsel’s effectiveness in a given case (Cronic did not say that all of the criteria are required or that the criteria are exclusive):

1) time afforded for investigation and preparation;

2) experience of counsel;

3) gravity of the charges;

4) complexity of any possible defenses; and

5) accessibility of witnesses.

If the presumption is to apply, analysis of the criteria must show that counsel failed to function in any meaningful sense as the prosecution’s adversary. Otherwise, a defendant must be able to point to specific errors by his or her attorney to make out an ineffective assistance claim under Strickland.

Analysis of Factors:

Although the short period of time allowed for counsel to prepare was "indeed striking," tardy appointment of counsel alone does not warrant application of the per se rule. And the petitioner was never completely without the aid of counsel. The Court noted that the new attorney may not have had an opportunity to actually consult with the old attorney whom she replaced, so it would be improper to conclude that she benefited from all of the prior attorney’s trial preparation. She had to rely on her brief conversation with the petitioner, police reports, and the transcript of the preliminary exam. But, the Court found, given that the witnesses and evidence had already been identified and the preliminary examination transcript suggested the witnesses’ likely testimony, the nature of the case was largely established when the new attorney took over. She did not have to go to trial completely unprepared.

And she was an experienced criminal attorney. While the petitioner received a lengthy sentence, this sentence was based more on his status as a habitual offender than on the gravity of the charges he faced. As the prior attorney had been responsible for investigating the case, the relevant witnesses had been identified and prepared for trial before the new attorney was appointed. 　

The Court recognized that in some circumstances appointing new defense counsel on the day of trial may "so damage the integrity of a criminal trial that a presumption of ineffectiveness would be justified," but the Court found that that was not so here. Because the case was "fairly straightforward," and witnesses and evidence had been identified beforehand, it was possible for this experienced criminal attorney to provide an effective defense, even if she had little time to speak with her client or review discovery materials.

The Court affirmed denial of habeas relief.

Appellate Waivers and IAC

2011-01-12T09:59:00.008-05:00

Zvonko Sarlog v. United States, No. 09--3033 (6th Cir. Jan. 7, 2011) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).

2255 case.

District court denied the 2255. Claim was IAC: failure to file notice of appeal. Petitioner claimed he'd requested an appeal. Petitioner also claimed IAC for counsel's failure to argue properly against certain guideline enhancements.

Court of Appeals remanded for evidentiary hearing.

Petitioner's plea agreement had broad appellate waiver. But when the court explained the provisions during the plea hearing, the court misspoke. The court told the petitioner he would be able to challenge certain potential GL enhancements on appeal if the sentencing court applied them. Neither party objected to the explanation of these appellate rights.

The sentencing court applied the enhancements, but granted a downward variance. No direct appeal filed. Petitioner filed pro se 2255. District ct denied the motion without an evidentiary hearing.

Rule re Hearings: Petitioners are entitled to prompt hearings unless unless record is clear that the petitioner is not entitled to relief. Burden for establishing entitlement is relatively light.

Rule on IAC and Appeals: Duty to file if client requests. Counsel may have duty to consult, even if client has not requested an appeal.

Issue 1: Petitioner argued that it's IAC to fail to file a notice of appeal and/or consult re an appeal even if there's an appellate waiver. Circuit split on issue. Court decides not to weigh in b/c the Court rules in the petitioner's favor on Issue 2.

Issue 2: Petitioner did not knowingly and voluntarily waive his right to appeal. While statements by a court cannot supercede the terms of a plea agreement, the plea-taking court here misstated the terms of the waiver before the plea was accepted. When a defendant misunderstands the terms of a plea agreement based on statements by the court, the waiver is not knowing and voluntary. The court said that the petitioner retained the right to appeal, so his waiver of this right was not knowing and voluntary.

Because petitioner retained his right to appeal, he had a right to have his attorney file the notice of appeal.

District court should have conducted an evidentiary hearing on the issue of whether the petitioner instructed his attorney to appeal. If the petitioner instructed his attorney to file a notice of appeal and the attorney failed to do so, the attorney was per se ineffective and petitioner would be entitled to a delayed appeal.

Crack Ratio and Sentencing Courts' Discretion

2010-12-28T11:34:00.003-05:00

United States v. Johnson, No. 09--2173 (6th Cir. Dec. 28, 2010). Unpublished. Panel of Judges Martin, Moore, and Gwin (N.D. Ohio). Appeal after Spears remand.

Defendant was resentenced to 110 months (same as his original sentence). Rather than expressing agreement or disagreement with the crack guidelines, the sentencing court asserted that Congress had authorized the 100-to-1 ratio and deemed the courts an improper forum for reconsidering the ratio. Court of Appeals found that Kimbrough directly contradicts such an assertion.

When a district court indicates that policy disagreements are not a proper basis to vary from the guidelines, the resulting sentence is not presumptively reasonable. In such cases, the district court has committed procedural error by failing to appreciate the scope of the discretion it enjoys.

The district court here agreed with the 100-to-1 ratio. This agreement, however, was not with its substance, but because Congress had said it was the appropriate ratio by establishing the mandatory minimums, which, the district court said, had in effect engrafted a 100-to-1 ratio into the criminal statutes, and Congress had not changed the law despite many opportunities to do so.

The Court of Appeals found the district court’s analysis contrary to Kimbrough, which explained that the crack guidelines were not based on empirical data and national experience or guided by a professional staff with appropriate expertise, a trait that "normally characterizes the institutional competence of the Commission."

While district courts have wide discretion in fixing a crack-to-powder ratio, the courts are not free to cede their discretion by concluding that the courtroom is an improper forum for setting a crack-to-powder ratio.

The Court directs that "On remand from this decision, the district court may, as a matter of policy, agree or disagree with the Guidelines ratio that designates crack offenses as more serious than powder offenses. But it must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

Happy New Year!!!!

2010-12-28T10:54:00.003-05:00

Enjoy your New Year's celebrations and I hope 2011 is peaceful for you all!

Shooting into Occupied Structure

2010-12-28T09:51:00.004-05:00

United States v. Ruvalcaba, No. 09–3782 (6^th Cir. Dec. 22, 2010) (recommended for publication). Panel of Judges Martin, Siler, and Bell (W.D. Mich.).

Crime of Violence:

Issue was whether the defendant’s two prior convictions for discharging a firearm at or into a habitation (in violation of Ohio Revised Code § 2923.161(A)(1)) were crimes of violence for career-offender purposes.

The Ohio statute does not require the use of physical force against another and does not cover any of the specifically enumerated offenses in 4B1.2(a)(2). The issue then revolved around whether the offense captured by the statute "presents a serious potential risk of physical injury to another."

Ohio’s section 2923.161 provides that no person, without the privilege to do so, shall knowingly discharge a firearm at or into an "occupied structure" that is a "permanent or temporary habitation of any individual" and defines "occupied structure" broadly. This term covers houses, buildings, outbuildings, water- and aircraft, railroad cars, trucks, trailers, tents, vehicles, shelters, and other structures that are maintained as permanent or temporary dwellings. The definition covers temporarily unoccupied structures and it does not matter whether a person is actually present.

The statute, the Court concluded, covers behavior that "inherently presents a serious potential risk of injury to another." Firing a gun can "have unintended, dangerous consequences." This conclusion holds even if the structure was unoccupied.

The offense is also sufficiently similar to the enumerated offenses. While section 2923.161 does not require the intent to do harm, one must necessarily make a conscious decision to fire a gun when one discharges it at an occupied structure. Firing a gun in this manner presents a risk to others and is aggressive. The Court distinguishes walkaway escapes. Even though a walkaway-escape offender engages in purposeful conduct, such conduct is qualitatively different from the purposeful conduct required by the enumerated offenses. While walkaway escape is not a crime of violence, the Ohio offense at issue is far more similar to the enumerated offenses. Because a walkaway escapist does not overcome any barriers, their intentional conduct is attenuated from the risk of harm. With the Ohio offense, however, the intentional conduct is discharging a firearm. Such intentional conduct directly relates to the potential risk of harm from being struck by a bullet.

Potential Voiding of Prior Convictions:

After the district court sentenced the defendant, the Ohio Supreme Court concluded that sentences for offenders who did not receive appropriate post-release control notice are void. Because of this state decision, the defendant argued that his prior convictions were void and should not have been considered in determining career-offender status, as he did not receive proper post-release control notice. The Sixth Circuit, however, recently rejected the identical argument. So while a defendant may be able to challenge his or her prior convictions as void under state-court conclusions through state channels for seeking post conviction relief, they may not do so during sentencing for unrelated crimes in federal court—such challenges are impermissible collateral attacks.

Happy Holidays

2010-12-22T13:02:00.002-05:00

Just wanted to wish all the readers of this blog Happy Holidays. May 2011 be full of peace and justice!

Almany on Remand: A Must Read

2010-12-16T16:58:00.004-05:00

So, Mr. Almany got his extra five years back in light of Abbott. United States v. Almany, No. 08--6027 (6th Cir. Dec. 16, 2010) (to be published). Panel of Judges Merritt, Martin, and Cole.

"The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after the Supreme Court vacated our judgment and remanded it to us in light of the Abbott case."

http://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdf http://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdf

Judges Merritt and Martin provide a must-read concurrence. It's brief.

* "The Supreme Court reversed our decision. We were wrong because in these kinds of statutes, Congress normally intends to make sentences longer, not shorter, more severe, not less."

* "[A]pparently the rule of lenity based on ambiguous language does not operate when the court resorts to the 'Equity of the Statute' to give it a construction opposite to the meaning the words ordinarily signify because the Court knows that what the legislature intended was not what it wrote. Nothing is mentioned about an ex post facto problem when a statute is interpreted contrary to its words. The Supreme Court is 'final but not infallible' and we must follow their interpretation of statutes. The 'Equity of the Statute' doctrine is alive and well — although unmentioned by the Supreme Court — more than seven centuries after its origin at common law."

Cert Grant: Rehab and Longer Sentences

2010-12-14T11:31:00.002-05:00

Tapia v. United States, No. 10-5400 (cert granted Dec 10, 2010).

Issue:

May a dist ct give a defendant a longer sentence to promote rehab (Eighth and Ninth Circuits say yes), or is such a factor prohibited (as Second, Third, Eleventh, and D.C. Circuits have concluded)?

Lower ct: 376 F. App`x 707.

Look at 18 USC 3582(a): "imprisonment is not an appropriate means of promoting correction and rehabilitation."

Ammo'ed and Dangerous

2010-12-14T10:01:00.004-05:00

United States v. Coleman, No. 09--5052 (6th Cir. Dec. 10, 2010) (Judge Rose of S.D. Ohio delivered the opinion, in which Judge Griffin joined; Judge Gilman concurred in part and dissented in part.)

* Four-level enhancement for 23 rounds of ammunition that supposedly facilitated distribution of marijuana.

Defendant said that possession of ammo without a gun does not aid possession of drugs. COA finds that ammo was in close proximity to drugs. Emphasizes the GL's use of "any firearm or ammunition." Also applies "fortress theory": ammo potentially reduced difficulty of completing the drug trafficking. It "emboldened" him---he was one step closer to having a fully-loaded gun.

* Government declined to move for third acceptance-of-responsibility level.

Plain-error review. COA finds that government has broad discretion. Just can't be unconstitutional or arbitrary. Here, gov had argued for enhancement for obstruction of justice. Dist ct declined to find obstruction and gave defendant two-level reduction for acceptance. Gov declined to move for third level, saying that defendant had threatened a potential witness and this behavior was inconsistent with acceptance of responsibility.

*Judge Gilman's concurrence and dissent.

Judge Gilman concurs in the conclusions regarding acceptance of responsibility. Disagrees on issue of ammunition. "The record contains no evidence that Coleman had a gun anywhere around, and bullets alone could hardly embolden him or scare potential buyers who might be inclined to steal his marijuana." Having a gun without bullets is one thing (b/c a person faced with the gun doesn't necessarily know if it's loaded or not). But bullets alone aren't harmful. Fortress theory does not apply to ammo alone. Dissent notes there are circumstances in which ammo alone could justify the enhancement (e.g., if two ppl decided to rob a bank and one agreed to bring the gun and the other agreed to bring the ammo).

According to the dissent, this decision is the first and only published decision in the country applying the enhancement where ammo alone was deemed to facilitate the drug dealing.

Confession overturned as involuntary - Habeas Granted!

2010-12-09T10:33:00.002-05:00

Today the Court rendered a decision in Dixon v. Houk. 10a0372p.06 The essential holding of the Court is - where a defendant refuses to answer after Miranda warnings, and later confesses during further interrogation without warnings, subsequent re-warning does not "cleanse" the otherwise bad confession. As Judge Merritt states in his opinion "A confession obtained by this kind of police pressure is inadmissible under Miranda and coerced and involuntary under the Due Process Clause. If the consequences of this kind of deliberate, unlawful conduct specifically designed to violate Miranda and get a confession is allowed to prevail, as our dissenting colleague contends, the time has come to simply overrule Miranda."

In Dixon, the defendant was brought to a police station, and questioned about a murder. He was given Miranda warnings, and invoked the right to remain silent. He was then released. Five days later, he was arrested for the murder. He then was subject to re-interrogation. This time, the police did not provide further Miranda warnings. After five hours of questioning, the defendant confessed. Officers, during that questioning, offered the defendant an illusory "deal", and told him that either he or his co-defendant would get the deal, whoever cooperated first. Only after confession was the tape player turned on, Miranda warnings given, and a taped confession obtained.

The Court found that the giving of Miranda warnings after the violation could not cleanse the constitutional violation. “The police designed a strategy to get a coerced confession without giving Miranda warnings. The confession would then be followed by the warnings given in a tape recording before the confession was recorded. Based on this inverted sequence of events — refusal to answer after Miranda warnings, reinterrogation without warnings, confession, recorded warnings, recorded confession — the prosecution argues that the warnings after the initial confession made the confession 'voluntary.'”

Obstructions Hanging from Rearview Mirrors

2010-12-06T11:20:00.007-05:00

Remember the controversy that went around in '08 and '09 over the Tweety Bird air freshener and the traffic stop based on this dangling air freshener hanging from a fellow's rearview mirror? Originally, the 6th Circuit found that Michigan's M.C.L. 257.709(1)(c) was unconstitutionally vague. United States v. Davis, No. 07--1964, slip op. at 7 (6th Cir. Dec. 19, 2008). The Court withdrew this opinion, however, and the State of Michigan was given the opportunity to intervene. The revised opinion did not address the vagueness of the statute; it simply stated that the police had probable cause to stop the defendant. United States v. Davis, 326 F. App`x 351, 353 (6th Cir. 2009).

For a refresher on the issue, check out:

http://www.thenewspaper.com/news/29/2928.asp

Well, it looks like Michigan has voted to amend the statute. On December 2, 2010, the state legislature approved Senate Bill 276 and recommended presentation to the Governor. Subsection (1)(c) has been amended, the subsection that prohibited dangling ornaments. No more language regarding dangling ornaments. Only prohibits obstructions. . . .

Get all the details here:

http://www.legislature.mi.gov/(S(epvv2muu1q22u1fojrbuqf55))/mileg.aspx?page=GetObject&objectname=2009-SB-0276

Crime-of-Violence and Scope-of-Remand Analysis

2010-11-29T10:22:00.008-05:00

United States v. Gibbs, 09-2031 (6th Cir. Nov. 24, 2010) (to be published). Panel of Judges Guy, Griffin, and Barzilay (U.S. Ct. Int'l Trade).

D convicted of being a felon in possession. Originally sentenced in June 2006 to 108 months. D appealed, arguing his sentence should have been concurrent with state prison term. Ct of Appeals concluded that 5G1.3(c) could not be treated as robbing the dist ct of discretion to impose a concurrent sentence. Case remanded. D resentenced in July 2009.

At resentencing, dist ct declined to recalculate GLs. Said recalculation outside scope of remand. Ct reimposed 108-month sentence and recommended that BOP give D credit for time served on state sentence. D appealed again.

5G1.3 and Concurrent Sentence:

* Whether sentence is concurrent or consecutive is within sentencing ct's discretion.

* Power to determine credit for time served belongs to BOP.

Scope of Remand and Review:

* Dist ct is bound by scope of appellate ct's remand.

* Limited remands explicitly outline the issues to be addressed by the dist ct and create narrow frameworks within which a dist ct must operate. General remands give a dist ct the authority to address all matters as long as there is consistency with the remand. Whether a remand is limited or general is a legal question that appellate courts review de novo.

* When the Ct of Appeals vacated the original sentence and remanded for resentencing "consistent with this opinion," the remand was general and did not bar the dist ct from revisiting the GL calculations.

* Gov argued that D waived GL arguments by not bringing them in initial appeal.

* D said that new amendments to GLs and developments in crime-of-violence analysis were not available at time of original appeal. Could not have brought arguments at that time.

* Ct of appeals does not address these issues, but finds that gov waived its waiver argument by not bringing it in the dist ct. Gov had taken position that dist ct could revisit GL calculations.

4A1.2(a)(2) and Crim Hist:

* D argued for application of amended version of 4A1.2(a)(2) (count sentences imposed on same day as single sentence).

* But GLs in effect at time of original sentencing apply per 18 U.S.C. 3742(g)(1). And amendment not clarifying, so not retroactive.

* Even if amended GLs did apply, D would be in same crim hist category. Intervening arrest barred counting certain sentences as a single sentence.

Offense Level and Prior Crime of Violence:

* Plain-error review applied b/c D did not object.

* 2nd Degree Home Invasion is a C of V (Michigan offense). It is C of V even if the residents had died and the house was vacant at the time of the offense.

* Walkaway prison escape (under Michigan law) is not a C of V (following Chambers and Ford).

* Resisting and Obstructing an Officer (under Michigan law) is not a C of V. Shepard docs revealed D failed to obey a lawful command by running away from a traffic stop when he had been a passenger in a car that officers pulled over.

* Errors plain, so remand necessary.

4th Am and Tech: Interesting Post

2010-11-29T10:15:00.003-05:00

Everyone should check out this post by Steve Sady, Chief Deputy Federal Public Defender, Portland, OR, on the 9th Cir. blog.

Mr. Sady discusses the evolving area of technology and 4th Amendment jurisprudence. Electronic surveillance, cell-site data, e-mail monitoring, and other forms of technological intrusions into privacy are critical, cutting-edge topics we need to be aware of and ready to address.

http://circuit9.blogspot.com/2010/11/judge-smith-fourth-amendment-and.html

Pepper in the Pot and Double Jeopardy

2010-11-19T14:16:00.005-05:00

While this fellow to the right appears to be making pancakes, the COA was using Pepper in its cooking.

In United States v. Vicol, No. 08--2547 (6th Cir. Nov. 19, 2010) (unpublished), the panel of Judges Martin, McKeague, and Ludington (E.D. Mich.), did not resolve for the 6th Cir. the Pepper v. United States issue currently pending in the Supreme Court (cert. granted June 28, 2010): whether post-sentencing rehab is fair game at a resentencing.

Procedural History:

*Nasty facts. D convicted at trial of kidnapping.

* Dist ct applied wrong (pre-offense) GLs, which called for base offense level of 24 rather than 32. D sentenced to 188 months (max under outdated GLs).

* Day after sentencing, gov moved to "correct" the sentence under Rule 35.

* Dist ct held hearing. Imposed new sentence of 360 months.

* On ORIGINAL appeal, COA said dist ct had lost jurisdiction by not acting within 7 days per Rule 35.

* Original COA remanded for imposition of 188-month sentence. Told both parties they could appeal after that sentence reimposed.

* 188-month sentence entered. Gov. appealed.

* COA once again heard the appeal. Found 188-month sentence was in error. Based on erroneous GL application. Another remand.

Second Remand:

* Case reassigned to new dist ct judge.

* D presented info on his rehab in prison. Asked for downward departure.

* Dist ct. said it had looked at Worley and Keller and decided it could not consider post-sentencing rehab. (These cases deal with post-Booker remands.)

* Dist ct said that even if it COULD consider post-sentencing rehab it would impose the same sentence of 360 months of imprisonment.

* D appealed.

Conclusions of COA:

* COA concluded that even if the dist ct erred regarding its decision not to consider post-sentencing rehab the error was harmless b/c dist ct was clear the sentence would not change.

* D also argued that Double Jeopardy Clause and gov's failure to cross-appeal (original 188-month sentence) should bar imposition of sentence greater than 188 months. But failed to make this argument in dist ct, so plain-error review applied.

* COA found that gov did not fail to appeal original sentence. No judgment was ever entered for original sentence. First judgment was entered for 360 months when dist ct originally "fixed" its sentence (beyond its jurisdiction). Judgment for 188 months was not entered until after first remand, and gov appealed at that time. Sentence not final, so increase in sentence upon remand did not implicate Double Jeopardy.

Chock Full of Interesting Conclusions

2010-11-19T11:38:00.010-05:00

Looking for an opinion chock full of juvenile adjudication, separate sentence, career offender, crack ratio, and precedential value conclusions? Look no further! Yesterday, the panel of Judges Martin, Cole, and Clay decided United States v. Curb, No. 07--5286 (6th Cir. Nov. 18, 2010) (to be published). And in case you're wondering, the picture is a chock-full balloon. :)

Facts:

* D pleaded in '05: two crack charges.

* Objected to career-offender status.

* Prior convictions for aggravated assault and possession of cocaine for resale. Occurred when D seventeen, but prosecuted as adult. Two different arrests for these offenses, but sentenced on same day.

* D sentenced for instant offenses in '07.

* Dist ct sentenced D as CO.

Issue I:

* Was D a CO?

* D argued that he didn't have two prior felony convictions. Argued: 1) 4A1.2(a)(1) had been amended (dealing with sentences imposed on same day counting as single sentence) and should apply to him; 2) there was no "intervening arrest" b/c juveniles are not "arrested" under Tenn. law when taken into custody.

Conclusion I:

* D was CO.

* Ct does not decide whether changes to 4A1.2(a)(1) were clarifying (and retroactive) or substantive (and not retroactive). Ct does note that other circuits have said the changes were substantive and thus not retroactive.

* Ct says that regardless of retroactivity, the intervening arrest means the sentences were separate. State law does not inform Guideline interpretation (unless Congress instructs otherwise). Custody of a juvenile is an arrest.

Issue II:

* 100:1 ratio in CO GL.

* Ct cites United States v. Michael, 576 F.3d 323 (6th Cir. 2009) (discussed somewhere in this blog), and agrees that the crack ratio is incorporated in the CO GL (b/c maximum sentences set CO base offense levels).

* Remand necessary, so dist ct can consider varying from CO GL based on flawed crack ratio.

* Interesting discussion of United State v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Simmons, 587 F.3d 348 (6th Cir. 2009). Johnson called for remand when record not clear on whether the dist ct would have varied from the crack GL if it had known it could do so. Simmons said no remand unless there's an express statement by the dist ct requiring it.

* This Curb court says Johnson, the older precedent, trumps. B/c COA couldn't tell from record whether the dist ct would have varied based on policy disagreement with the GLs if it thought it could, remand necessary.

* COA notes that Simmons also distinguishable b/c in that case the D explicitly raised the ratio issue. The D in this case, Curb, did not raise the ratio issue.

A strong warning from the Court: make sure you file your motions even if you think a plea may occur

2010-11-17T15:18:00.002-05:00

Today the Court issued a decision in United States v. Walden. 10a0354p.06 The defendant (and defense counsel) in Walden were pursuing a plea agreement, and as a result, let a motions deadline pass. The defendant did plea, however, when things did not go as planned, he withdrew his plea. He then asked for time to file a motion to suppress, which was denied. The defendant went to trial, and received a life sentence.

On appeal, defendant argued that the district court abused its discretion in not allowing him to file a motion to suppress. The Court first provided a definition of "good cause", stating "
Good cause is a flexible standard heavily dependent on the facts of the particular case as found and weighed by the district court in its equitable discretion. At a minimum, it requires the party seeking a waiver to articulate some legitimate explanation for the failure to timely file."

The Court then found that "if the failure to timely file occurred as a result of a lawyer’s
conscious decision not to file a pretrial motion before the deadline, the party seeking a
waiver will not be able to establish good cause." The Court found that under the facts of the case, counsel's decision not to timely preserve a suppression issue was on the defense, and could not provide "good cause" for an untimely motion.

The moral of the story? Make sure you get an extension on the motions deadline, or file the motion to preserve the claim!

A sad day. . . .

2010-11-15T15:44:00.004-05:00

Still reviewing opinion, but here's what I understand has gone down in Abbott and Gould regarding the “except” clause of 18 U.S.C. § 924(c).

Unanimous decision (Justice Kagan did not participate). Docket No. 09--479 (Abbott was consolidated with Gould). A defendant subject to a mandatory, consecutive sentence under 924(c) is not spared from that sentence by virtue of receiving a higher mandatory minimum for a different count of conviction.

Abbott was convicted by jury on a 924(c) count and three other counts, namely two predicate drug-trafficking counts and being a felon in possession of a firearm. Under the ACCA, he was subject to a 15-year mandatory minimum sentence for the felon-in-possession conviction. Court sentenced him to 20 years total, stacking the 15-year ACCA mandatory minimum with the 924(c) 5-year mandatory sentence.

Gould pleaded guilty to one 924(c) offense and to conspiracy to possess with intent to distribute cocaine base (10-year mandatory minimum sentence). District court sentenced him to 137 months on the drug count and added the 924(c) 5-year mandatory sentence to that term (for a total of 197 months).

Abbott and Gould argued that the additional 5-year mandatory sentence in 924(c) should not apply to them because of the statute's direction that the 5-year mandatory sentence should be imposed as a consecutive sentence "except" to the extent a greater mandatory minimum sentence is otherwise applicable under any other provision of law.

Supreme Court disagreed, concluding "except" clause applied only to 924(c) and (per a footnote without citation to any provisions other than 18 U.S.C. 3559(c)) that it applies to other provisions imposing greater mandatory minimums for offenses that embody all of the elements of a 924(c) offense. Court reasoned that the "except" clause, which was added in 1998, was part of a bill to throttle criminal use of guns. Bill’s primary objective was expansion of 924(c)'s coverage to reach firearm possession. Court reasoned that the interpretations of the clause offered by Abbott and Gould would produce sentencing anomalies.

Abbott and Gould argued that the then-mandatory Guidelines would have resolved any disparities. Court concluded it would not contradict that Abbott and Gould presented a rational, less harsh, mode of sentencing. But the Court did not think it was the mode Congress had ordered. Court also pointed to the syntax and context as bases for its decision. Court rejected application of the Rule of Lenity.

What was that guideline range?

2010-11-04T10:55:00.005-04:00

United States v. Peebles, No. 09--1986 (6th Cir. Nov. 4, 2010) (published) (panel of Judges Martin, McKeague, Ludington [of E.D. Mich.]).

As condition of supervised release, defendant was not allowed to have contact with other felons. Had romantic relationship with another felon. Defendant falsely stated she had not had contact with other felons. Finally admitted the contact.

Defendant told to submit a report explaining the rationale behind the prohibition on contact with other felons. She failed to complete the report. Ultimately charged with ten violations of supervised release. Defendant pleaded guilty.

District court did not calculate the sentencing guidelines. It was unclear what the advisory range was. Probation report listed range of 3 to 9 months. Several revisions of these calculations later, however, showed the range to be 8 to 14 months. Court imposed sentence of 10 months.

Conclusions:

* District court did not address guideline range at all.

* Range was not discussed by either attorney or by the judge.

* Impossible to determine range court relied on or whether the court meant to impose a sentence within the range or above it.

* Sentence procedurally unreasonable.

Civil Commitment for Sex Offenders

2010-10-28T15:12:00.006-04:00

Interesting, though old now, post on Sex Crimes blog regarding civil commitment.

http://www.sexcrimes.typepad.com/

It's from Aug. 30, 2010, and cites a New York Times series discussing the effectiveness (or lack thereof) of civil commitment.

It's definitely "take it with a grain of salt" stuff for various reasons, but it's interesting background material.

ACCA Footnote that Sheds New Light on Juvenile Adjudications

2010-10-28T11:34:00.005-04:00

An interesting, unpublished decision came out on October 18, 2010, dealing with prior juvenile adjudications and the ACCA. In United States v. Laferriere, No. 09--1369 (6th Cir. Oct. 18, 2010), the panel of Judges Kennedy, Rogers, and Kethledge addressed the Shepard inquiry as it relates to juvenile adjudications.

The defendant challenged the district court's determination that he qualified for the ACCA sentencing enhancement and 15-year mandatory minimum. One of the prior offenses used to invoke the enhancement was a juvenile adjudication for "assault with intent to rob---armed." The Court rejected the defense's two main arguments, but it decided, on its own, to remand the case for a third, and interesting, reason. (The defense argued 1) that the order of juvenile disposition was ambiguous as to the adjudication, and 2) that the judicial determination that the defendant had been adjudicated of the offense violated Apprendi.)

The Court concluded that "[w]hile Laferriere's primary arguments on appeal lack merit, he is nonetheless entitled to resentencing because of a particular requirement of the ACCA. Laferriere's conviction of armed assault with intent to rob cannot be counted as a sentence-enhancement predicate offense under the ACCA because the evidence fails to establish that the conviction was for a crime that actually involved the use or carrying of a firearm, knife, or destructive device, as required for an act of juvenile delinquncy."

Juvenile adjudications must involve a firearm/knife/destructive device to count as violent felonies for ACCA purposes. Shepard governs to prove whether or not the offense did involve such a weapon.

Under Michigan law, one could be convicted of armed assault with intent to rob by using a toy gun, a finger, an object hidden in a bag, other objects to simulate a weapon, a bike chain, etc. In this case, there was "no indication on the order of disposition that Laferriere conceded possessing an actual firearm." The charge involving possession of a firearm had not been sustained. Because of the age of the adjudication, the plea transcript was not available to review. The Court stated that "[w]ithout proof that a firearm . . . was involved, this conviction is meaningless for ACCA purposes."

The Court found it could remand because the error was plain and the Court could raise the issue in the interest of justice, even though the issue had not been raised on appeal.

The interesting note comes in footnote 3. The charging petition for the offense mentioned "a 'sawed-off shotgun,' [but] the language of the charge ('an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, a sawed off shotgun') does not preclude the possibility of an article that merely looks like a shotgun." This note provides real food for thought about what the Shepard documents actually show!

CDAM Conference

2010-10-27T13:44:00.002-04:00

For the Michigan attorneys out there....

Just a friendly reminder that the Criminal Defense Attorneys of Michigan (CDAM) Advanced Criminal Defense Practice Conference is November 11 to 13 in Traverse City. The entire conference should be quite informative. There is a federal practice session from 4:00 p.m. to 6:00 p.m. on Thursday, the 11th. Presenters (from the Federal Defenders' Offices in Detroit and Grand Rapids) will cover plea agreements, Supreme Court updates, Sixth Circuit updates, and guideline developments.

Hope to see you there!