Holder Memo on Appeal

United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence.  The COA rejected the argument.

Crack case.  Defendant was a career offender.  GLs 151 to 188.  D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer).  Dist ct granted downward variance and sentenced D to 130 months of imprisonment. 

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"   

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement.  Confers no rights.  Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender).  Also said that he was not a candidate for the policy b/c of his lengthy criminal history.    

Sentence affirmed. 

Stalking Is a Violent Felony

This case came out about a month ago, but I think it's worth noting.

United States v. Johnson, No. 11-5769 (6th Cir. Feb. 20, 2013) (for publication).  Panel of Judges Boggs, White, and Black (S.D. Ohio). 

Denial of suppression motion affirmed (traffic stop).

Use of Kentucky stalking conviction as violent felony for ACCA purposes affirmed.

I'm a little pressed for time, so I won't go into the suppression issue.  Nothing earth shattering. 

Prior Conviction:
* Kentucky first-degree stalking (Chapter 508 of Kentucky Penal Code, Ky. Rev. Stat. 508.104).
* Stalking---new issue for Sixth Cir., but COA looks to other circuits for guidance here.
* This statute does not necessarily require threatened use of violent force, so doesn't count for ACCA under force provision.
* But counts under serious-potential-risk provision.  Potential for confrontation that could result in bodily injury.  COA compares stalking to extortion. 

Career-Offender Discussion: Misdemeanors, Shepard Documents

Not a big week for decisions in the 6^th Cir. 

But here’s a little career-offender discussion. . . .

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6^th Cir. Jan. 23, 2013) (unpublished).

The first defendant challenged the district court’s finding that he was a career offender.  He argued that his California conviction for assault with a deadly weapon other than a firearm was not a felony.

The sole question on appeal for this defendant was whether the California conviction for assault with a deadly weapon other than a firearm was a prior felony conviction for career-offender purposes.

The Court of Appeals concluded it was such a conviction.

The California conviction fell under California Penal Code section 245(a)(1): “[a]ny person who commits an assault upon the person of another with a deadly weapon other than a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.”

When a sentencing court sentences a defendant in accordance with the last option, the offense is treated as a misdemeanor under California law.  Such convictions are termed “wobbler” offenses because sentencing judges have the option of making the offense a felony or a misdemeanor, depending on the sentence imposed.

The defendant argued that his conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in county jail, which made the conviction a misdemeanor “for all purposes.”  But the Court of Appeals found otherwise. 

Under the Guidelines, a “prior felony conviction” is a prior adult conviction for an offense punishable by a term greater than one year, regardless of whether the offense is specifically designated as a felony and regardless of the actual sentence imposed.  The Court of Appeals looked to guideline section 4B1.2’s application note 1. So the designation of the offense under California law and the actual sentence imposed were irrelevant. The sole question was whether the California offense was punishable by a term exceeding one year.

The defendant tried arguing that the California statute effectively encompassed two offenses: one that was punishable by a longer term in state prison and one punishable by county jail for a term “not exceeding one year.”  But the Court of Appeals found that the statute encompassed a single offense: “assault with a deadly weapon . . . other than a firearm.” And that single offense “shall be punished by imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.” The statute provided for multiple punishment options—not multiple offense options. The single offense was punishable by a term exceeding one year, so it counts for career-offender purposes.

Even if the Court were to look more closely at the intent of California law, the prior offense would not be considered a misdemeanor. The Court found that the defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365 days in county jail, suspended, credit for 144 days, and five years of probation. Under California law, when a court suspends a sentence and orders probation, there is a conviction, but no judgment has been rendered. The offense here would be regarded as a felony until judgment is entered.

The defendant did not argue that a judgment was actually rendered, so the prior conviction would not be considered a misdemeanor even in California. The district court did not err in finding that the defendant was a career offender.

For the second defendant, the issue was one of Shepard sources and the categorical approach. The government acknowledged that the sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to provide Shepard documents because the defendant did not challenge the fact of the prior conviction and the statutory definition was adequate to determine the nature of the offense.

This prior conviction was for a violation of a statute that provided that “every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or two or three years,” under the California Health and Safety Code sections 11359 and 1170(h).

There was no other way to violate the statute. A conviction under that provision is a controlled-substance offense under section 4B1.1, as it is an offense “punishable by imprisonment for a term exceeding one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Such a conviction for possession of marijuana for sale fits this definition.

The defendant did not challenge the fact of the offense or the specific convicting statute. He argued only that the government did not prove its case. The government presented a case summary from California, case “minutes” from California, a criminal history report from Los Angeles County, and an indictment to prove the nature of the prior conviction. These were the only documents regarding the offense and they showed that the defendant was charged with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals concluded that the district court did not err in relying on these documents to show the fact of the prior conviction.

As to the last challenge that the district court did not understand its sentencing discretion, the defendant waived his appellate rights.

Career Offenders and Crack Reductions

United States v. Jackson, 678 F.3d 442 (2012). 

Panel of Judges Merritt, Boggs, and Clay.  Judge Boggs dissented.

Decided May 8, 2012.

Rehearing en banc denied on July 9, 2012.  Mandate issued July 17, 2012. 

This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc. 

Career offender.  Sentencing was delayed to see if Congress would lower the crack penalties.  Court finally sentenced the defendant on July 16, 2010.  Court did not apply the CO GLs.  Instead, gave the D 150 months.  This sentence was w/i the crack GLs that would have applied but for the CO enhancement. 

While the case was on appeal, the FSA became law.  D sought remand for reduction of sentence. 

Was the sentence based on the career-offender GL or the crack GL?

While the D qualified for the CO enhancement, the focus was the crack GL actually applied.  "To do otherwise is to impose a harsh sentence on defendant when the severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system, as well as by Congress."

Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs. 

The crack GLs were "a relevant part" of the sentencing framework. 

The procedural posture of this case makes it a little different---direct appeal.  But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).   

Judge Boggs dissented.

He finds that the applicable GL range was the pre-departure range: the CO range here.  That range did not change with the FSA, so no reduction in sentence possible.  Also finds that FSA statutory sentencing ranges are not retroactive.  Cites Carradine. 

Escape from a courtroom is not a "violent felony"

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.

Chock Full of Interesting Conclusions

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.

July 21---No Suprise on CO Seeking Crack Reduction

JEFFREY L. BASS

Crack resentencing

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0444n-06.pdf

The district court denied the defendant a reduction in sentence because he had been sentenced as a career offender. He was thus ineligible for a reduction. Affirmed.

July 2---Crack Resentencing

RASHEED J. SEWELL

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0398n-06.pdf

Defendant appealed district court’s denial of his motion to reduce sentence under 18 U.S.C. § 3582(c)(2). Because the career-offender guidelines and not the crack-cocaine guidelines controlled the original sentence, the district court correctly concluded that the defendant was not eligible for a sentence reduction. Court affirmed the denial of the motion.

The defendant’s arguments that his case could be distinguished from Dillon and its 6^th Circuit predecessors were rejected.

6th Cir Weighs in on 3582(c)(2) Circuit Split

Last Friday, the Sixth Circuit weighed in on an interesting circuit split over what constitutes the "applicable guideline range" in the crack-resentencing context.

In United States v. Pembrook, No. 08--6452 (6th Cir. June 11, 2010) (to be published) (panel of Judges Boggs, Suhrheinrich, and Rogers), the Sixth Circuit joined the Eighth and Tenth Circuits in finding that the applicable guideline range at the original sentencing was the initial range, not the range determined after downward departures to the crack-guideline level. This conclusion conflicts with decisions in the Fourth and Second Circuits.

Basic issue: defendant was a career offender, but district court (at original sentencing) departed to the crack-guideline range because the CO range overstated the defendant's criminal history. Should such a defendant be able to get a reduction in sentence under 3582(c)(2) based on the crack-guideline amendments?

Conclusion: the CO guideline range was the applicable range, so no reduction allowed.

The Second and Fourth Circuits allow a reduction in such circumstances: United States v. Munn, 595 F.3d 183 (4th Cir. 2010); United States v. McGee, 553 F.3d 225 (2d Cir. 2009). Sixth Cir., however, followed the Eighth and Tenth. See United States v. Darton, 595 F.3d 1191 (10th Cir. 2010); United States v. Blackmon, 584 F.3d 1115 (8th Cir. 2009); United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009).

Interesting considerations: the panel relies on Sections 1B1.10 (policy statement on resentencings) and 1B1.1 (application instructions for guidelines). Seems that the weight of such authority could be impacted by Dillon, depending on what the SCOTUS decides.

Judge Rogers provides a strong dissent. Sees two different "applicable guideline ranges" that apply at different stages of the guideline-calculation process. The crack amendments lowered the guidelines that actually, in the end, applied to the defendant. Dissent looks to other guideline contexts and case law in which the "applicable guideline range" is the range after departures. Also looks to the rule of lenity.