Guidelines Sentence Reversed As Unreasonable

The refinement of "reasonableness" review continues with the Sixth Circuit’s decision in United States v. Vonner, __ F.3d __ (6th Cir. 6/29/06), 2006 WL 1770095. Vonner was charged with distributing at least 5 grams of cocaine with a Guidelines range of 108 - 135 months (and a 5-year mandatory minimum). At the sentencing hearing, defense attorney Steve Johnson of Knoxville presented evidence of his client’s childhood of "abuse, abandonment, violence, neglect, and trauma", and argued further that a history of drug and alcohol abuse, the circumstances of Vonner’s involvement in the offense, the conditions of pretrial confinement, and assistance provided by Vonner to the government (but, apparently, not arising to the level of a 5K1.1 motion) justified a sentence below the Guidelines range. The district court imposed a sentence of 117 months, the middle of the Guidelines range, referencing the 3553(a) factors, but providing no further explanation.

Before addressing the particulars in Vonner’s case, the Court reviewed the status of "reasonableness" review in the Sixth Circuit. Alluding to the lack of continuity in the decisions that this blogsite has previously detailed, the majority notes that "without a reasoned explanation", the Williams panel imposed a presumption of reasonableness for sentences within the Guidelines range. Even the dissent notes that "[t]he numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike."

The district court’s explanation for the sentence in this case was, in full, as follows:

"With respect to the sentence in this case, the Court has considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines, as well as the other factors listed in 18 United States 3553(a). Pursuant to Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Alvin George Vonner, is hereby committed to the custody of the Bureau of Prisons for a term of imprisonment of a hundred and seventeen months. It is felt that this term is reasonable in light of the aforementioned, in light of the aforementioned factors and is a sentence, furthermore, that will afford adequate deterrent [sic] and provide just punishment." Slip Op. p. 4.

The Court of Appeals reversed the sentence in this case based on the lack of detailed explanation by the district court for the sentence that was imposed. In doing so the Court noted that under U.S. v. Richardson, 437 F.3d 550 (6th Cir. 2006), "[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it." 437 F.3d at 553. In Vonner, however, the district court apparently never addressed the mitigation proof offered by the defense or its reasons for rejecting that proof, or offered any other explanation for the sentence that it imposed other than the stock language above.

Addressing the statement that the district court did make, the Court of Appeals noted that while it had previously held that the district court need not engage in a "ritualistic incantation" of the 3553(a) factors in order for a sentence to be found to be reasonable, the reverse was also true – a ritualistic incantation of the 3553(a) factors will not insulate a sentence from being found unreasonable. Slip Op. p 7 n.4.

Judge Siler’s dissent would, disappointingly, put the burden for the explanation of the sentence on defense counsel where the district court didn’t explain its rationale. (The majority opinion also urged defense counsel to press for district courts to give "a thorough rationale for their sentencing determinations," but noted that they were not required to do so.)

The Court did not find that the 117-month sentence was itself unreasonable for the offense committed (and even noted in a footnote that the district court was free to impose the same sentence so long as it was explained), only that an insufficient explanation for the sentence prevented the Court of Appeals from performing its review function. However, in the development of reasonableness review this decision sheds more light on the district court’s obligations, especially where the defendant has raised specific mitigating circumstances.

REDUX: Tolling of Supervised Release During Deportation

Several months ago, this writer posted about the Sixth Circuit's position that the district court has authority to order that a term of supervised release may be tolled while a defendant is out of the United States after being deported. See US v. Isong, 111 F.3d 428 (6th Cir. 1997). Today, in US v. Ossa-Gallegos, No. 05-5824 (6/30/06) (appeal by attorneys Jennifer Coffin and Ron Small of M.D. Tenn), the Court reviewed this issue in detail. The Court noted the strength of Judge Moore's dissent in Isong and "the weight of authority" from the 2nd, 8th, and 11th Circuits, which all found that such tolling is unauthorized. The Court nonetheless found that it was bound by the holding in Isong, but noted that Mr. Ossa might want to seek en banc review.

At sentencing in cases where the client is to be deported, practitioners should continue to object to a special condition tolling supervised release while deported, raise it on appeal and then in an en banc petition and/or cert. petition to the Supreme Court.

GOOD FAITH? GOOD GRIEF!

An issue that has been up in the air in the Sixth Circuit is to what extent the written contents of an affidavit filed in support of a search warrant application can be supplemented at a later suppression hearing by claimed oral statements to the issuing magistrate. While the issue was resolved earlier this year, the recent decision in United States v. Frazier, 423 F.3d 526 (6th Cir. 2005), has created the potential for confusion.

The issue was framed in United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc) as "whether the search could have been saved under the ‘good faith exception’ on the basis that the officers had other information that was not presented to the issuing magistrate, but that would have established probable cause." 360 F.3d at 597. The majority of the en banc court did not reach the issue, however, finding instead that the information that was presented to the magistrate was sufficient.

Although not directly addressing this issue, the court did discuss what information could be reviewed in order to decide whether or not to uphold a search warrant. In United States v. Jenkins, 396 F.3d 751 (6th Cir. 2005) (decided January 28, 2005), the Court of Appeals was addressing whether the independent source rule could save the search in question. The court noted, "once the tainted information ... is eliminated, the probable cause analysis focuses on the written affidavit. A court determining the sufficiency of an affidavit in support of a search warrant is concerned only with the statements contained within the affidavit itself." 396 F.3d at 760.

The issue left open in Carpenter was finally squarely addressed in United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) (decided May 17, 2005), which also arose in the context of the application of the Leon good faith exception. After finding the affidavit insufficient, the court addressed whether the search could be saved by application of Leon. It noted that "[i]n reaching its decision, the district court explicitly considered not only what was in the affidavit, but also what other facts were known to the deputy, but not included in the affidavit." 409 F.3d at 751. The court noted that while it had postponed deciding this issue in the en banc decision in Carpenter, it could no longer do so. "We further conclude that a determination of good-faith reliance, like a determination of probable cause, must be bound by the four corners of the affidavit. Whether an objectively reasonable officer would have recognized that an affidavit was so lacking in indicia of probable cause as to preclude good faith reliance on the warrant’s issuance can be measured only by what is in that affidavit." 409 F.3d 751-52. The court noted that this ruling was consistent with the Supreme Court’s dictate in Leon "‘that the relevant question is whether the officer reasonably believed that the warrant was properly issued, not whether probable cause existed in fact.’" 409 F.3d at 752 (quoting Carpenter, 360 F.3d at 598 (Gilman, J., concurring)).

This clarity of authority lasted not quite 4 months. In Frazier, a separate panel of the Sixth Circuit addressed a drug case in which the case agent sought six different search warrants, one of which was for the defendant’s home. The magistrate instructed the officer to include in the affidavits information that two of the buys by the confidential informant had been recorded. For reasons not explained, the agent made changes to five of the warrant applications, but not to the one for defendant’s home. In reviewing the affidavit as submitted, the court finds that it is insufficient to establish probable cause. The panel goes on to find that the search is saved by Leon. While noting that Laughton held that "the good faith exception to the exclusionary rule does not permit consideration of information known to a police officer, but not included in the affidavit, in determining whether an objectively reasonable officer would have relied on the warrant", the panel decides that "we interpret Laughton’s holding as limited to answering the question that this court, sitting en banc, explicitly left open in Carpenter." 423 F.3d at 534-35. In other words, because this case did not involve information that wasn’t presented to the magistrate, the rule doesn’t apply. The reason for the exception is the panel’s perception that the agent’s failure here didn’t amount to anything more than "a scrivener’s error". (Id.)
In justifying its decision, the panel notes "[W]e are unable to envision any scenario in which a rule excluding from the Leon analysis information known to the officer and revealed to the magistrate would deter police misconduct. ... Because a judge’s initial probable cause determination is limited to the four corners of the affidavit [cite], an officer has no incentive to exclude from the affidavit information that supports a finding of probable cause only to reveal this information to the magistrate by parole." (Id.) (Emphasis in original)

This explanation betrays a naivete about the realities of the search warrant process and challenges thereto. The concern is not so much about whether the officer will supplement the facts with oral information at the time he applies for the warrant, but whether he will lie about what information he knew and/or conveyed to the magistrate when he is later challenged in a suppression hearing. This would be the reason that a written application is required in the first place – so that one would know later exactly what (and no more!) was presented to the magistrate. To allow parole evidence to supplement the written application throws the process open to widespread abuse. And, as the Laughton panel noted, to allow into evidence proof of what was in this officer’s mind, but not reduced to writing, is inconsistent with the Leon "reasonable officer" test, which is based on the four corners of the affidavit.

It is most likely that Frazier has little application outside of the unusual and unique factual circumstances on which it is based. The fact that it involved a "scrivener’s error" and that the information was included in the other five warrants will, one hopes, rarely, if ever, be repeated. This ruling should not be taken as an open invitation to supplement search warrant applications with oral evidence that bolsters an otherwise weak affidavit, especially where that information was not even told to the issuing magistrate at the time of the application for the warrant. This would seem to be confirmed by the Court’s recent decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006). In that case the district court found the search warrant deficient as being stale, but further found that the Leon good faith exception applied and denied the motion to suppress. The Court of Appeals held that despite the occurrence of a single controlled buy at the residence, the lack of recent information to measure whether or not the residence was a fixed drug distribution point rendered the warrant insufficient. It went on to hold that in determining good-faith reliance by the officer, a court can only consider the information in the four corners of the document. The limited exception in Frazier did not apply here to the inference that a recent controlled buy indicates that more drugs will be found in the location as there was no proof in the record that the magistrate knew or was told when the controlled buy took place.

Sentencing Disparity in Meth Cases Involving § 2D1.1(b)(5)(C) Increase to Offense Level 30 for Creating a Substantial Risk of Harm to Life of a Minor

In the post-Booker world in which we live where most sentences are being upheld on appeal as being reasonable, it is even more important to be creative at the district court level in showing that a sentence within the advisory guideline range is not reasonable, especially in light of the Sixth Circuit’s Williams/Foreman decisions extending a presumption of reasonableness to sentences falling within the advisory guideline range. Below is an example of creative lawyering by my colleague, Assistant Federal Defender Rita LaLumia, in a methamphetamine case to combat the unfairness that results when the offense level is increased to Offense Level 30 pursuant to U.S.S.G. § 2D1.1(b)(5)(C) for having created a substantial risk of harm to the life of a minor. The reasoning applies equally to any mandatory guideline enhancement to a certain offense level where a less culpable offender is treated more harshly than a more culpable offender by the mandatory offense level increase. Because the Sentencing Guidelines are now merely advisory, the district court’s are no longer required to sentence within the guideline range and the below reasoning gives a good argument pursuant to 18 U.S.S.G. § 3553(a)(6) ("the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct) to impose a more reasonable sentence falling far below the advisory guideline range.

Pursuant to U.S.S.G. § 2D1.1(b)(5)(C), a 6-level increase in offense level is applied if the offense (1) involved the manufacture of methamphetamine, and (2) created a substantial risk of harm to the life of a minor. If the resulting offense level is less than 30, the offense level mandatorily is increased to 30, regardless of the drug quantity involved in the offense of conviction Given this provision and the district court’s determination that the enhancement applied, the offense level in this case rose to Offense Level 30 from Offense Level 14 (based upon the drug offense involving 7 grams of methamphetamine). With only a 6-level increase, the resulting guideline range would have been 30 to 37 months based on a total offense level of 19 and a criminal history category of I. Without any enhancement for risk of harm, the defendant faced an offense level of 16 based on the drug quantity alone, providing a guideline range of 12 to 18 months. Thus, the 6-level increase alone essentially more than doubled his guideline range. With the full 14-level increase to Offense Level 30, he faced a guideline range of 70 to 97 months or almost six times the sentence he would receive at his base offense level.

The automatic increase to offense level 30 creates a sentencing disparity among defendants with similar records who have been found guilty of similar conduct, something that should be avoided under 18 U.S.C. § 3553(a)(6). Any defendant who has a base offense level of 24 or higher receives only a 6-level increase for creating a substantial risk of harm to a minor or incompetent. Any defendant who has a base offense level of 23 or lower receives a higher increase for the same criminal conduct, with that increase growing as the base offense level goes down. This example shows that while the Sentencing Commission may be in the best position to issue blanket policies regarding offenders as a group, the district courts and appellate courts are in the best position to fine tune a reasonable sentence to a particular defendant as required by Booker.

Judicial Recommendation to BOP for up to 6 Months Halfway House - Will the BOP Listen?

Prior to December 2002, the Bureau of Prisons allowed an inmate to be placed in a Community Corrections Center (CCC, a.k.a. halfway house) up to six months, regardless of the total length of the inmate’s sentence. On December 13, 2002, the Office of Legal Counsel for the Department of Justice issued a memorandum stating that the practice was not consistent with 18 U.S.C. § 3624(c), which in its opinion, limited an inmate’s placement in a halfway house to the lesser of six months or ten percent of the inmate’s sentence. The BOP adopted this interpretation of the statute. In light of decisions in other circuits, Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004), and Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004), the created new regulations noting the BOP could exercise its discretion to "designate inmates to CCC confinement only . . . during the last ten percent of the prison sentence being served, not to exceed six months," requiring that it consider various factors (resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, any statement by the court that imposed the sentence, concerning the purpose for the sentence for the sentence of imprisonment was determined to be warranted, or recommending a type of penal or correction facility as appropriate, and any policy statement issued by the Sentencing Commission. 28 C.F.R. § 470.20-21.

Recently, two circuits have ruled the BOP’s February 2005 regulation invalid as it restricts its discretionary transfer and placement in a halfway house to those serving the last 10% of their incarceration term. See Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Fed. BOP, 432 F.3d 235 (3d Cir. 2005). These courts ruled that the BOP’s interpretation fails to consider the § 3621(b) factors "by excluding an entire class of inmates – those not serving the final ten percent of their sentences – from the opportunity to be transferred to a CCC." Fults, 442 F.3d at 1092.

In light of this developing law, it is recommended that among the request for judicial recommendations to be made at sentencing should be that the Bureau of Prisons consider placement of the client at a halfway house for 6 months. Several district courts are willing to include judicial recommendations (to include the 500-hour drug and alcohol - DAP - program, psychological treatment, vocational and educational training, participation in UNICOR, etc.). In the wake of Booker and the developing case law to "fix" Booker, a judicial recommendation of this sort will make a different to your client, especially if it is honored by the BOP. One client of this office has written asking for such a judicial recommendation, noting that his counselor explained to him that the BOP likely would honor the recommendation given his circumstances (completed 40-hour drug treatment program but he did not have a lengthy enough sentence for acceptance and completion of the 500-hour DAP program). Additions of judicial recommendations are more difficult after the entry of the judgment, and therefore, it is advisable to ask for these recommendations in the front end. Let's ask for the judicial recommendations then see if the BOP will listen.

"Ding Dong the Witch is dead?"

The trend of late in the Sixth Circuit Court of Appeals has been to cite to the "rebuttable presumption" language of United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) when affirming a criminal sentence upon appellate review, while still examining the sentencing process and findings of the district court. This reasoning has created confusion in the standard for appellate review of criminal sentences in the Sixth Circuit and has led many to question whether there is a split within the Circuit with respect to the correct standard. (See Sumter Camp's post "Williams' 'Per Se' Rule Clarified" February 8, 2006).

Just one of a number of examples of this confusion exists in the unreported case of United States v. John Jackson, 2006 WL 1208063, *1+, 2006 Fed.App. 0298N, 0298N+ (6th Cir. May 1, 2006). In this case, the defendant's sentence was affirmed over the defendant's claim that the "rebuttable presumption" was "overcome." The defendant argued that the presumption had been rebutted "because the court did not duly 'consider' the sentencing factors listed in 18 U.S.C. § 3553." In affirming the sentence, the Court cited to Williams, and stated: "[a]s this sentence is within the advisory guidelines range, it is credited with a rebuttable presumption of reasonableness." Yet, the panel still examined the district court's review process and reasons for imposing the sentence and determined that the district court had "clearly articulatet[ed] the reasons for the sentence imposed."

Perhaps today's opinion in United States v. Daniel Morris, -- F.3d --, No. 05-1623 (6th Cir. May 19, 2006), (opinion available here), sounds the death knell for the "rebuttable presumption." In a well reasoned and articulated concurrence, Judge Clay wrote:

The majority opinion cites United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), for the proposition that a sentence within the Guidelines range creates a "rebuttable presumption" of reasonableness. While the majority goes on to note that this "rebuttable presumption" does not relieve the district court of its obligation to articulate its sentencing rationale, I believe that the Williams' "rebuttable presumption" language is surplusage in light of controlling Sixth Circuit precedent that the district court must consider the §3553 factors and provide this Court with some indication that it has properly done so. See United States v. Webb, 403 F.3d 373, 385 n.8, n.9 (6th Cir. 2005)(requiring the district court to provide a reasoned explanation for its sentence and rejecting the proposition that a sentence within Guidelines ranges is per se reasonable). The Guidelines range is only one of a number of factors which §3553 requires sentencing judges to consider. Without an adequate statement from the sentencing court that it properly considered other relevant §3553 factors, and not just the Guidelines range, a sentence should not be credited with a "rebuttable presumption" of reasonableness.

Judge Clay continued by citing to Judge Martin's explanation of "Williams' proper place" in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006). Judge Clay concluded his concurrence with a forward looking desire for future panels to essentially abandon the "rebuttable presumption" when conducting appellate review of criminal sentences in the Sixth Circuit. Judge Clay wrote:

Hopefully, future panels of this Court will not attempt to use the "rebuttable presumption" language of Williams as semantic leverage simply to avoid the considered appellate review we are duty-bound to perform. It should be remembered that Circuit precedent which antedates Williams requires district courts to consider all relevant §3553 factors and make a record which provides this Court with some indication that such consideration was properly undertaken. See Jackson, 408 F.3d 305; Webb, 403 F.3d at 385 n.8, n.9.

The future of the "rebuttable presumption" in the Sixth Circuit continues to dim. Hopefully, as more panels conduct appellate review of criminal sentences, the "rebuttable presumption" will die, or at least fade away. . . .

Is Anyone Really Listening?

Do judges really listen to defense lawyers and give deference to their opinions, particularly where the subject matter relates to the defense lawyer’s opinion as an officer of the court? Two Sixth Circuit cases that were decided in April shed some light on this burning question.

First, the question came up in the context of a competency issue from a state court proceeding in Filiaggi v. Bagley, 04-3513 (4/14/06). In Filiaggi, the stun belt defendant was to wear during his state murder trial accidentally discharged. As a result, the defendant was evaluated by a psychologist who concluded that he was competent, but that further testing may be warranted. Based upon this information, and the testimony from a deputy guarding the defendant, the court decided that he was competent and proceeded to trial. The defendant’s two attorneys (one of whom was also a medical doctor!) then repeatedly, and incessantly, requested further psychological testing of the defendant because they both felt that defendant was incompetent to stand trial. All requests for further competency evaluations were denied and defendant was ultimately convicted and sentenced to death.

On appeal to the Sixth Circuit from the denial of the habeas petition, Judges Batchelder and Gibbons ruled that no further competency testing or hearing was required and affirmed the conviction. In so holding, the court noted: "Although the evidence before the court was mixed, evidence in favor of finding [the defendant] incompetent came solely from his attorneys." Id.

Judge Cole, writing in dissent, took the majority to task for discrediting the representations of the two attorneys for the defendant: ""Yet when defense counsel – one of whom was a licensed physician and all of whom were, in the words of the Ohio Supreme Court, ‘officers of the court whose assertions cannot be dismissed,’ – repeatedly asked for further evaluation upon specific, verifiable, and relevant bases, the trial court repeatedly denied the requests." Id.

Although the Sixth Circuit majority in Filiaggi completely discredited the two defense attorneys’ opinions, the court took a much more favorable view of a defense attorney’s judgment in Gillard v. Mitchell, 03-4261 (4/26/06). Defendant and his brother were being investigated for murder. An attorney undertook representation of the brother during the course of the state investigation, and the brother ultimately was not prosecuted. Defendant, however, was charged with murder and the same attorney represented him throughout his court proceedings. At defendant’s state murder trial, the attorney called the brother as a witness. The prosecutor objected, claiming that the attorney may have a conflict of interest. The attorney told the court that he did not feel a conflict existed. Based upon the attorney’s representation, the court allowed him to proceed. Nonetheless, just to be safe, the court appointed separate counsel for the brother during his testimony.

Eventually, in a habeas petition, defendant claimed that his attorney acted under an actual conflict of interest and that he was ineffective for failing to raise the defense that the brother, not defendant, was the perpetrator of the offense. The district court granted habeas relief on this ground. On appeal Judges Siler, Daughtrey, and Sutton found that the attorney was not operating under an actual conflict of interest. The miraculous nature of this conclusion aside, of importance for this blog is that the court emphasized how the trial court "properly deferred to [the attorney’s] judgment that no conflict existed." Id.

It would seem that an attorney’s concern that her client may be incompetent and an attorney’s opinion regarding a conflict of interest among her clients both are matters that rely on the attorney’s representations as an officer of the court, as opposed to the attorney’s role as advocate. Yet in Gillard, the attorney’s opinion that he had no conflict (when it would appear that he obviously did) was entitled to deference, while in Filiaggi, the two attorneys concerns that their client was not competent to proceed were discredited. Reading the two decisions, one is left with the distinct feeling that a defense attorney’s opinion is important when it happens to fit within the court’s agenda in deciding the case, but that it otherwise may be completely disregarded. Or maybe I read too much into this, and should simply remind myself of the important, unwritten, long-standing principle of jurisprudence: The law is always construed against the obviously guilty defendant.

The Fourth Amendment: Swiss Cheese and Cannonballs

In December, the Sixth Circuit ruled in United States v. McClain, 430 F.3d 299 (6th Cir. 2005) that under the facts of that particular case, the Leon good faith exception to the warrant requirement should apply to a warrant obtained with evidence arising from a police search of a residence even though the initial police search violated the Fourth Amendment.

Last Friday, the Sixth Circuit issued an order denying the defendants’ request for rehearing or rehearing en banc. In a spirited, well-reasoned 18 page dissent that traces the history of the good-faith exception, Judge Martin (joined by Judges Moore, Cole, and Clay) argued that the McClain panel opinion should be overturned because it misinterprets and over-extends the good-faith exception to the exclusionary rule. In Judge Martin’s words, "Because the Fourth Amendment already has more holes in it than a piece of Swiss cheese and the panel’s decision adds another errantly-fired cannon-ball sized hole, I dissent from the Court’s decision denying rehearing en banc."

As Judge Martin’s dissent points out, the McClain decision appears to be in conflict with Sixth Circuit precedent, particularly United States v. Davis, 430 F.3d 345 (6th Cir. 2005) (published ten days prior to McClain). In Davis, police obtained a warrant using information from an unlawfully extended traffic stop. The Court found that after removing the unlawfully obtained information from the affidavit in support of the warrant, no probable cause existed, and the warrant therefore did not cure the initial illegal seizure. In footnote 4, the Court stated that "we agree with the numerous other circuits that have held that the Leon good-faith exception is inapplicable where a warrant was secured in part on the basis of an illegal search or seizure." (Citations omitted).

To minimize the damage wrought by McClain, criminal defense practitioners should continue to cite and reply upon Davis, which is still good law and was not addressed at all in McClain. Further, the McClain panel itself noted that it is was presented with "unique circumstances," 430 F.3d at 306, and practitioners should argue that McClain is limited to the precise factual scenario of that case.

DR. EVIL’S GUIDELINES CRIMINAL HISTORY CALCULATION or The Challenge of Finding “Related Cases” in The Sixth Circuit

In United States v. Martin, No. 04-6428 (6th Cir. 2/21/06), the Court of Appeals has refused to find that four auto thefts in three weeks were related despite proof of similar modus operandi in the commission of the offenses. (Here, http://www.ca6.uscourts.gov/opinions.pdf/06a0067p-06.pdf) The court found that the commission of a series of individual, similar crimes does not mean that the resulting multiple convictions are combined for criminal history purposes. In his concurrence, however, Judge Martin argues that "the inquiry in these cases has become so narrow that it now exists only as a nebulous concept." He finds that about the only person who would benefit from the Guidelines’ definition of "related cases" would be Dr. Evil from the Austin Powers movies. (See extensive dialogue quotation in footnote 1 of the concurrence.) What could drive an otherwise mild-mannered jurist to not only quote Michael Meyers, but also beg the forgiveness of PETA for flogging a long-dead horse one more time? Perhaps a body of caselaw that renders impossible one provision of the Sentencing Guidelines.

Under the criminal history provisions of Chapter Four of the Guidelines, cases that are "related" to each other do not receive separate criminal history points. Application Note 3 to §4A1.2 defines "related cases" as any cases not separated by an intervening arrest and "that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing." (Emphasis added) Seems fairly straightforward. What could be so hard to apply?

In fact, not only have the cases contrived the most narrow possible reading of the above phrases, but, in one case, have also nullified one of the Commission’s categories.

A. Occurred on the Same Occasion

This category from the Application Note has received little to no attention in the Court of Appeals. This may perhaps be because as a practical matter it would be easier to determine whether or not prior convictions occurred "on the same occasion" and the resulting decisions don’t get appealed.

B. Part of a Single Common Scheme or Plan

In United States v. Irons, 196 F.3d 634 (6th Cir. 1999), defendant argued the his prior convictions for violating a protective order against his ex-girlfriend on one occasion and breaking-and-entering her house and stealing from her brother on another occasion were "related." The Court notes that "common scheme or plan" is not defined in the Guidelines and adopts the definition from other circuits that "‘"scheme" and "plan" are words of intention, implying that [offenses] have been jointly planned, or at least that ... the commission of one would entail the commission of the other as well.’" 196 F.3d at 638. Labeling defendant’s argument as being that the convictions are related because they are part of a crime spree, the Court goes on to note that, "‘We are not persuaded that the Commission intended criminal behavior prompted by the same root causes of criminal deviance, even a spree of such crimes, to constitute a "single common scheme or plan" as contemplated by §4A1.2.’" Id. "[C]rimes are not ‘related’ merely because each was committed with the same purpose or common goal. ... This is true even if the prior convictions have the same victim." 196 F.3d at 639.

Using this same logic, the Court decided in United States v. Alford, 436 F.3d 677 (6th Cir. 2006), that the defendant’s prior convictions for robbery were not "related" despite the fact that all occurred in a single night within blocks of each other. The Court held that the crimes could be part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one of the offenses necessarily requires the commission of the other. Offenses are not necessarily related merely because they were committed within a short period of time or are part of a crime spree.) See, also, United States v. Horn, 355 F.3d 610 (6th Cir.), cert. denied, __ U.S. __, 124 S.Ct. 2436 (2004) (crimes are part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one offense necessarily requires the commission of the other; the simple sharing of a modus operandi cannot alone convert separate offenses into one offense by virtue of their being a single common scheme or plan; merely because crimes are part of a crime spree does not mean that they are related); United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (for two convictions to be related due to having been part of a single common scheme or plan, they must have been jointly planned or the commission of one offense necessarily requires the commission of the other); United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002) (cases cannot be considered as "part of a single common scheme or plan" because the three prior drug offenses were not jointly planned in the inception and the commission of one offense did not entail the commission of the others).

While the Guidelines list them as separate reasons for finding cases to be "related," the Court of Appeals’ caselaw on "single common scheme or plan" reads more like "occurred on the same occasion." Yet the fact that the Sentencing Commission included them in the alternative surely means that two offenses that didn’t occur on the same occasion could still be considered related if the were part of a common scheme or plan. It is difficult to see from the above cases just what that could be.

C. Consolidated for Trial or Sentencing

What should be the most straightforward of the three categories has likewise been limited out of existence.

While the Court of Appeals noted in United States v. Coleman, 964 F.2d 564 (6th Cir. 1992), that "[n]o federal court has provided an all-encompassing definition of the term "consolidated for sentencing", it refused to take such opportunity, stating, "and we do not purport to do so here." 964 F.2d at 566. Coleman had two prior convictions for armed robbery, one occurring the day after the other. They were charged separately, and Coleman went to trial in the first case and was convicted by a jury. He thereafter pleaded guilty in the other case, they were sentenced on the same day, and, apparently, concurrent sentences were imposed. In upholding the district court’s finding that the two prior cases were not "related," the Court of Appeals finds "that the two convictions were, at all relevant times, treated separately and distinctly. There was no order by the trial court expressly or implicitly consolidating the cases for sentencing. In each case, there was a separate criminal complaint and separate indictment. The cases proceeded under separate court numbers." Id.

In United States v. Odom, 199 F.3d 321 (6th Cir. 1999) (Norris, Keith, Clay, JJ.) Defendant appealed his career offender status, pursuant to § 4B1.1, arguing that his two prior felony convictions had been "consolidated" for sentencing as contemplated by Application Note 3 to § 4A1.2, and should, therefore, only count as one conviction as "related cases." Defendant, after being made aware that if his priors were consolidated he would not be a career offender, had asked his prior state counsel to file a motion to consolidate the two prior convictions and the state court signed an order of consolidation. Using Coleman, (above), as a guide, the convictions were found to be unrelated because they occurred over a period of months, involved different victims, did not constitute a "single common scheme or plan", were charged in five different indictments with different cases numbers and different (although concurrent) sentences. The Court discounted the order of the state court for consolidation because it did not indicate any nunc pro tunc effect, was obtained in an ex parte proceeding, did not indicate whether the prosecutor agreed to it, and did not indicate whether the judge had any background information on which to base his decision, and the Court recognized that the order was only given to the state court judge to help reduce defendant’s federal sentence. [in footnote 2, the Court states that such an order will have probative value if the record reflects that the prosecutor was apprised of the motion to consolidate and that the state court judge was aware of the circumstances of the case, as well as the significance of the order with respect to the pending federal sentence.]

Defendant in this child pornography case had three prior drug convictions occurring on 3 different days in a 17-day span. Despite the fact that the offenses were charged in separate indictments, they were all sentenced at the same time, the sentences were run concurrently, and the judgments each listed all 3 dates as the date that the events occurred, the Court in United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002), held that the cases cannot be considered as "consolidated for trial or sentencing". The court’s rationale was that "the fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the offenses were consolidated. [cite omitted] Further, given the separate entries of judgment and the absence of on order of consolidation, the record below does not demonstrate an intention on the part of the trial court to consolidate the cases." Id. at 758.

The defendant in United States v. Horn, 355 F.3d 610 (6th Cir.), cert. denied, __ U.S. __, 124 S.Ct. 2436 (2004), faired no better. He was found to be a career offender in this bank robbery case based on 2 robbery convictions that had been charged in separate informations, set for the same trial date, to which guilty pleas were entered at the same time, and which had sentences imposed at the same time. The cases had been docketed separately and no order was entered consolidating the cases for trial or sentencing. The Court of Appeals held that cases are not consolidated when offenses proceed to sentencing under separate docket numbers, the cases are not facially related, and there was no order of consolidation. The fact that judgment was pronounced on the same day with sentences to run concurrently, without more, does not establish that the cases were in fact consolidated. "We require some explicit indication that the trial court intended to consolidate the prior convictions." See, also, United States v. (Edward) Carter, 374 F.3d 399 (6th Cir. 2004) (refusing to find prior convictions "related" despite the fact that they were pleaded and then sentenced together, citing Horn, and noting that there was no order of consolidation.)

In United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005), Hazelwood argued that his prior convictions for car theft and robbery offenses were ‘related’ under the Guidelines in part because there was no intervening arrest, and because they were effectively consolidated for sentencing. The Court held that although it was true that a formal consolidation order need not be entered in order for cases to be considered functionally consolidated for sentencing, sentences are not functionally consolidated ‘when offenses proceed to sentencing under separate docket numbers, cases are not related, and there was no formal order of consolidation.’" (This certainly appears to say that, although a formal consolidation order need not be entered in order for cases to be considered functionally consolidated, sentences cannot be considered functionally consolidated where there is no formal order of consolidation.)

This language of "functional consolidation" comes from Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001). While the issue in that case was what was the appropriate standard of appellate review for cases questioning whether prior convictions were "related", the Supreme Court’s ruling stated, "[t]he district court is in a better position than the appellate court to decide whether a particular set of individual circumstances demonstrates ‘functional consolidation.’" 532 U.S. at 64, 121 S.Ct. at 1280. As can be seen from the above-cited cases, what the Sixth Circuit has done through its cases is to insist on literal consolidation; there is no room for "functional consolidation."

Despite the fact that the Guidelines provide for considering as related any cases that were "consolidated for ... sentencing," such a finding would be impossible under Horn and the other cases just described unless a number of other judicially-created hurdles could be overcome. Under the express language of the guideline commentary, three indictments charging the defendant with a series of drug sales which indictments are all arraigned together, are pleaded out on the same date, are sentenced on the same date and are ordered to run concurrently would clearly be functionally "consolidated for sentencing." Not in the Sixth Circuit, however.

Potential for Disparity

In United States v. (Terry Lee) Carter, 283 F.3d 755 (6th Cir. 2002), although upholding the district court in finding the prior convictions to be not "related" for §4A1.2 purposes, the Court discusses the large potential for sentencing disparity that can result from application of the principles that were used to affirm the district court. Specifically, the Court found that "charging decisions, rather than the criminal conduct itself," could determine whether or not prior convictions were "related," thus warranting an increase in criminal history. The Court notes with approval those other circuits that have adopted a definition of "common scheme or plan" from the "relevant conduct" provisions of the Guidelines, §1B1.3, in determining whether prior convictions are part of a "single common scheme or plan" for criminal history purposes. While this approach may, in fact, have some appeal, and is certainly a move in the right direction, it also addresses only that one category and doesn’t speak to the category ("consolidate for trial or sentencing") that is the most divorced from common sense and practice and, therefore, has the greatest potential for creating disparity.

So what does "consolidated for ... sentencing" mean? Although the Court of Appeals appears in Hazelwood to back off some from the requirement of an "order of consolidation," all of the earlier cases use the lack of such an order to justify finding cases that have otherwise proceeded through the criminal justice system together as not "related." However, when the defendant in Horn argued that the Court had never explicitly held that prior convictions must be formally consolidated in order to be "related," the Court stated, "We have stated several times that ‘cases are not consolidated when offenses proceed to sentencing under separate docket numbers, cases are not factually related, and there was no order of consolidation.’ [cites omitted] Those cases make it clear that we require some explicit indication that the trial court intended to consolidate the prior convictions. In each of those cases, there was no order from the trial court consolidating the earlier offenses, nor was there any statement by the trial court implying they should be considered consolidated." 355 F.3d at 614. This, of course, raises the question why isn’t the trial court’s handling of two cases on the same track, taking guilty pleas at the same time, imposing sentence at the same time, and/or imposing concurrent sentences not an implicit statement that the trial court considers the two cases to be considered consolidated? This is not explained.

What is this "order of consolidation" and how did such a requirement get grafted onto the definition in Application Note 3? This writer can only speculate, because such an order is unknown to the practice in Tennessee. (It also appears that the attempt in Hazelwood to get an "order of consolidation" was motivated by the Sixth Circuit’s insistence on having one before cases could be declared "related," and not because that was otherwise the practice.) Does this also mean that, since there is no such practice in Tennessee, defendants with Tennessee convictions will be punished more harshly than defendants with convictions from some jurisdiction which has an order by that name that is routinely used whenever cases are put together for plea and sentencing? It would seem likely to be true. Perhaps what is needed is proof in the record at sentencing about the local plea bargaining and sentencing practices in the state court system from which the defendant’s conviction come showing that for all intents and purposes, the prior cases were "consolidated for sentencing." Until something else happens, this category continues to be impossible to reach in this Circuit.

Survey of Post-Booker Sentences Reviewed In The Sixth Circuit

Recently, there was discussion about conducting circuit-centric surveys of post-Booker sentences and then compiling them for an upcoming House hearing on March 16th. That idea was quashed because of difficulties presented in classifying and compiling the information in certain circuits. Ultimately, the goal was to establish that appellate review is ensuring sufficient uniformity. In other words, that no Booker "fix" is necessary because nothing is broken. Before this ambitious project was scrapped, curiousity got the best of me (as it often does), and I compiled the stats for the Sixth Circuit.

As of March 7, 2006, there have been 11 decisions reviewing sentences imposed post-Booker (after 1/12/2005) -- four published and seven unpublished. Of those eleven, two involved above-Guideline sentences and both were affirmed as "reasonable" in unpublished orders; seven involved within-Guideline sentences (two published) and all seven were affirmed as "reasonable." The final two decisions (both published) were Government appeals of below-Guideline sentences: one of the sentences was affirmed, the other vacated.

In sum, thus far in the post-Booker era, the Government is prevailing in 100% of defendant appeals of within- and above-Guideline sentences, and 50% of its own appeals of below-Guideline sentences.

Technology Advances - E-mail from Clients in BOP Custody

Did you know your client in Bureau of Prison custody now has the option of adding you to his approved e-mail list? This new invent is coming to a prison near you, but with the added warning that all content will be monitored. I recently received a letter from a client asking that I give approval to be added to his e-mail list. You too may receive a similar request. If you choose to do so, a letter must first be forwarded to the client noting the approval for e-mail purposes. You will then receive an e-mail (both in English and in Spanish) giving you three options: (1) approve the prisoner for message exchanges, (2) refuse the specific prisoner's request for message exchange, or (3) refuse this and all future federal prisoners' request for message exchanges. If approval is given, you will later receive a confirmation that the request has been granted. With each e-mail received from the client, you have the following options: (1) take no action which results in your remaining on the prisoner's contact list, (2) remove yourself from this specific prisoner's contact list, and (3) removing yourself form this specific contact list and refuse all future federal prisoner request's for message exchanges. Messages may not exceed 4,000 characters (approximately 2 pages) or have any attachments. If this requirement is not followed, the message will be rejected with such notification of rejection by return e-mail. For additional information related to this program, you can visit the www.inmatemessage.com Frequently Asked Question page.

Be forewarned of the small print (as with any contract): "By approving this transaction, you consent to have Bureau of Prisons staff monitor the content of all electronic messages exchanged." If you choose to accept e-mail, you likely will want to warn your client not to exchange messages that relate to confidential matters, as this information will be learned by the staff. Matters of confidential information should instead be discussed through arranging a conference call through the client's inmate case manager at the prison.