United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).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.
Showing posts with label Reasonableness of Sentence. Show all posts
Showing posts with label Reasonableness of Sentence. 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.
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!
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.
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.
Bad News on CP Sentencing
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.
No Lengthening of Sentence to Complete Treatment Program
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.
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.
United States v. Taylor: An Extra Dash of Pepper
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.
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.
New Crack Amendments DO NOT apply to pending cases
This may be old news to most of you at this point, but because it bears posting on this blog (and because I was out of town last week), here is the rundown on the Sixth Circuit's FSA decision.
In United States v. Carradine, 10a0305p.06 , issued on September 20, 2010, the Court determined that the Fair Sentencing Act of 2010, which was enacted on August 3, 2010 lowering crack cocaine mandatory penalties, only applied to those defendants whose conduct occurred after the date of enactment. The Court, relying chiefly on 1 U.S.C. 109, found "The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question. We affirm the district court’s imposition of the 60-month mandatory minimum sentence."
The silver lining, if any, in this decision is that the Court did admit that the statute was amended, and not repealed. The Federal Public Defenders office for the Southern District of Ohio, which has this appeal in their appellate division, will be filing for en banc review.
In United States v. Carradine, 10a0305p.06 , issued on September 20, 2010, the Court determined that the Fair Sentencing Act of 2010, which was enacted on August 3, 2010 lowering crack cocaine mandatory penalties, only applied to those defendants whose conduct occurred after the date of enactment. The Court, relying chiefly on 1 U.S.C. 109, found "The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question. We affirm the district court’s imposition of the 60-month mandatory minimum sentence."
The silver lining, if any, in this decision is that the Court did admit that the statute was amended, and not repealed. The Federal Public Defenders office for the Southern District of Ohio, which has this appeal in their appellate division, will be filing for en banc review.
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.
Subscribe to:
Posts (Atom)