United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).
Med MJ issues.
Panel of Judges Cole, Gilman, Donald.
Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application? COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)? COA said yes.
* COA affirmed district court.
Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law. Gov said issue waived b/c not raised in dist ct. COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly.
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application. Actually seemed like the defendants were not complying, given what officer knew. The deputy did not know another officer had advised the defendants earlier about complying with the MMMA. So failing to include that info in warrant application could not be deliberate. Info not imputed here. No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency. But deputy's position gave him flexibility to choose whether investigation would go state or federal.
* No error in failing to suppress evidence.
* Defendants waived and forfeited chance to challenge sufficiency of indictment. Issue raised first time on appeal. Won't fly unless the alleged defect is jurisdictional. No jurisdictional defect here. COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013).
Showing posts with label Appellate Jurisdiction. Show all posts
Showing posts with label Appellate Jurisdiction. Show all posts
Well, Blewett Is Out . . . .
Well, the Sixth Circuit en banc released Blewett yesterday. Get out your hankies. This one's a tear jerker.
United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented.
The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."
Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.
*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.
Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."
Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.
I will explore the dissent tomorrow.
United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented.
The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."
Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.
*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.
Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."
Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.
I will explore the dissent tomorrow.
Habeas Fun for the Whole Family
Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).
Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).
Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.
Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.
Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).
This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand.
Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).
Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.
Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.
Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).
This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand.
Troubling Decision on Jurisdiction
An AFPD in our office offers this summary and analysis.
A
NTHONY BOWERSCrack Re-sentencing and Rule 35 Denial Combined
Published
http://www.ca6.uscourts.gov/opinions.pdf/10a0243p-06.pdfThe panel (Judges Boggs and Gilman and Chief District Judge McCalla) ruled that it had no jurisdiction to consider an appeal from the trial court’s denial of relief to the defendant under either the crack amendment or the Rule 35 request.
The Court found that, although it has been over five years since Booker, a number of open questions remain regarding Booker's ramifications. The instant case required the panel to decide Booker’s impact (if any) on the Court's jurisdiction to hear an appeal from a district court’s decision to reduce (or decline to reduce) a final sentence under § 3582(c)(2) and/or Rule 35(b). Panel points out that "the Supreme Court has recently clarified that Booker does not apply to such sentence-reduction proceedings," and cites Dillon. The panel concludes that it lacks jurisdiction to hear a defendant’s appeal of a grant/denial of a sentence reduction pursuant to these sections on Booker “reasonableness” grounds.
Dismissed the appeal for lack of jurisdiction.
Panel begins and ends the analysis by examining whether there is jurisdiction to consider the appeal at all. The government argued that the Court lacked jurisdiction to hear the appeal of the district court’s Rule 35(b) determination, but the government did not challenge jurisdiction to hear the appeal of the district court’s § 3582(c)(2) determination.
The Court, however, noted that subject-matter limitations on federal jurisdiction may be policed by the courts themselves sua sponte.
It would appear that this ruling---published as it is---severely limits a defendant’s access to the appellate court for a review of the denial of relief under Rule 35 and 18 U.S.C. 3582, perhaps more so than might have appeared to be the case based upon numerous cases where the 3582 denial has been routinely reviewed by the Circuit Court (e.g., career-offender denials).
*******
Appellate Jurisdiction
SUSAN SWANSON
State Habeas
Published
http://www.ca6.uscourts.gov/opinions.pdf/10a0163p-06.pdf
The appeal by the State of Michigan challenging the district court’s decision to allow the petitioner’s exhausted state claims to proceed in federal court (while staying the unexhausted state claims for disposition by the state courts) was dismissed for lack of appellate jurisdiction.
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