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

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.)

Proffer Info in PSRs

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.

One More Post: Money Laundering

(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.

Plain-Error Review: Object in Bold Colors

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.

Reversal of Consecutive Federal Sentence

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).

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

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.

No Title to Capture Truly Deplorable and Heinous Facts

Trying to catch up with our AFPDs' summaries. This case is truly horrible. Defendants were guards at a detention center. Interesting discussion of plain error, Apprendi, and other issues.

WESLEY LANHAM (08-6504; 09-5094);

SHAWN FREEMAN (08-6506; 09-5095),

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0261p-06.pdf

Defendant were convicted of violating an inmate’s civil rights in violation of 18 U.S.C. §§ 241 and 242, and of making a false entry in violation of 18 U.S.C. § 1519. They were prison jailers when an inmate (J.S.) was raped in jail. Defendants and their supervisor decided to "scare" J.S. after the latter was arrested for a traffic violation. They placed him in a general population jail cell and incited atrocities. Defendants appealed their convictions and sentences, arguing that there was insufficient evidence to support their convictions, and Defendant Freeman claimed that he was entitled to a downward sentencing departure. The government appealed the district court’s application of the 2006 Sentencing Guidelines to the defendants’ sentences and the court's refusal to apply a sentencing enhancement to Defendant Lanham.

The Court of Appeals affirmed.

The Court sets of the facts of the offense in painful detail in the first 7 pages of the opinion. The conduct of these defendants was egregious.

The Circuit Court ruled that, although the trial court had abused its discretion in failing to exclude two jurors for cause, the error was harmless, as the jurors were struck peremptorily. The government’s striking of a third juror for cause was correctly allowed by the trial court. The panel was constitutionally acceptable.

The trial court’s limitation on the scope of cross-examination was reviewed for plain error where there was no preserved objection. Since there is no 6^th Circuit case on point, the Court of Appeals looked to other circuits and found a split of authority. In that case, plain error cannot be found.

"Where there are conflicting authorities, the district court could not have committed plain error." Court found that, at a minimum, a court of appeals cannot correct an error unless that error is clear under current law. Because the law on the issue was not clear, the district court did not commit plain error.

There was sufficient evidence as to each defendant to convict each of violating the inmate’s civil rights. As to filing false reports, the wilful omission of facts is sufficient falsification to be a crime.

The enhancement under the statute was properly submitted to the jury. The defendants were charged under 18 U.S.C. § 241 for conspiring to violate J.S.’s civil rights. The indictment charged that the acts in furtherance of the conspiracy included aggravated sexual abuse; the statute establishes a ten year maximum sentence for those convicted under the statute. But it includes an increased penalty of "any term of years or for life" if the conspiracy included an act of aggravated sexual abuse.

Because the question of whether an act of sexual abuse occurred is a factual issue that increases the penalty for a violation of § 241 beyond the otherwise prescribed statutory maximum, the question had to be submitted to a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The district court properly submitted the question of whether aggravated sexual abuse occurred to the jury, and adopted the definition of aggravated sexual abuse found in 18 U.S.C. § 2241 (Court cites 1998 version).

The sentence reduction for minimal was properly denied to Defendant Freeman.

The trial court’s use of the guidelines in effect at the time of the crimes was appropriate in the face of appeal by the government. Ex Post Facto concerns would have been implicated by use of a later version of the advisory guidelines and the trial court correctly recognized those concerns.

The trial court’s decision not to apply a leadership role to Defendant Lanham’s guideline scoring was appropriate and supported by the record.

The court sentenced Lanham to 180 months and Freeman to 168 months in prison.

Pre-Hearing Sentencing Opinion?

Here's what I've got for today. I want to thank this office's AFPDs for their analysis. I also want to thank the readers. We've gotten some good feedback lately, and that's really nice and we appreciate it!

LASHAWN WILSON

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0208p-06.pdf

Defendant pleaded guilty to a single count of mail fraud (in violation of 18 U.S.C. § 1341) and was sentenced to 48 months of imprisonment. She appealed her sentence, arguing that the district court committed plain error by selecting her sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks. Appellate court agreed and vacated the sentence and remanded for resentencing.

Finding the trial court relied on erroneous factual predicates, and finding plain error by the trial court in doing so, the appellate court reversed the sentence and remanded the case. Both the lead opinion and a strongly worded concurring opinion disagreed with the district court, which, the opinions note, seemingly determined its sentence prior to the sentencing hearing by bringing its sentencing decision to the courtroom already prepared and merely asking for comments on it.

Consecutive vs. Concurrent Time

JEFFREY THOMAS HARMON

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0156p-06.pdf

Defendant appealed the district court’s decision ordering that his 46-month sentence for being a felon in possession of a firearm be served consecutively to an undischarged state sentence on an unrelated conviction for voluntary manslaughter. Court of Appeals affirmed.

The only issue on appeal was the reasonableness of the sentence in terms of its consecutive nature, as opposed to the requested concurrent time. Applying plain-error review to the procedural aspect because objection was not specific, the Appellate Court found no procedural error. A review of the substantive aspect of the sentence, under an abuse of discretion standard, found no abuse.