Wal-Mart is a Single Victim

In United States v. Stubblefield, published today, the Sixth Circuit found a two-level enhancement for multiple victims under U.S.S.G. § 2B1.1(b)(2) was procedurally unreasonable because Wal-Mart is a single victim. While multiple false checks were cashed at various Cleveland Wal-Mart locations, each location is automatically reimbursed for the loss by the Wal-Mart Corporation. Only the single corporation suffered actual loss and is therefore the only victim.

The full opinion is available here.

Congratulations to Vanessa Malone here at the Northern District of Ohio!

Good CP Case

United States v. Aleo, Nos. 10-1569/1570/1833 (6th Cir. May 15, 2012). 

Panel of Judges Boggs, Rogers, Sutton.  Judge Sutton also issued a separate concurrence. 

D sentenced to 720 months for producing, possessing, and transporting CP.  GLs were 235 to 293 months. 

Ct finds no justifications for the upward variance and remands. 

D's counsel was sanctioned $2,000 (dist ct's inherent power to sanction) b/c of motion to compel gov to make a formal motion regarding any victim who wanted to speak at trial under the Crime Victim Rights Act (name victim and provide preview of statement).

No evidence motion filed in bad faith, so sanction reversed. 

Notes on sentence:
* Psychotherapist said D met definition of pedophile.
* Risk assessment score indicated low risk to re-offend sexually.  Low risk of violence. 
* Sentence was procedurally reasonable.
* COA compares sentence to other sentences for similar conduct.  See slip opinion at 14 to 16. 

Notes on sanction:
* Gov had recommended against sanctioning the attorney. 
* Counsel had cited a defense-community article on the issue.  Check out footnote 11.
* COA questions whether inherent authority to sanction even exists in a criminal case like this one.  See footnote 13.  Suggests Fed R Crim P 42 may be only option for sanctions.  COA doesn't answer question b/c doesn't need to do so.  No basis for sanctions under either approach. 

Judge Sutton's concurrence:
* Skeptical of dist ct's inherent authority to sanction.  Looks instead to 18 USC 401 and Fed R Crim P 42.  Contempt power only option in crim cases. 

Exciting Tapia developments!

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!

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.

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

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.

No connection between gun and drugs found in car

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.

What was that guideline range?

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.