An Article III Conundrum? Are There Limits on How Much Authority District Courts Can Delegate to the USPO in Supervising Defendants?

 A grand jury indicted Eric Vaughn for being a felon in possession of a firearm. After he pleaded guilty, the District Court sentenced him to 53 months' imprisonment followed by three years of supervised release.

Vaughn appealed Special Conditions 1 and 2 of his supervised release, claiming both conditions improperly delegated the District Court's Article III powers to the probation officer - the former delegating the authority to determine the frequency of his drug and alcohol testing, and the later giving the probation officer the leeway to decide whether he was to undergo inpatient or outpatient mental-health treatment.  In a published opinion, the Sixth Circuit disagreed. It noted that district courts could leave the implementation of drug and alcohol testing up to probation officers when they impose testing a special - as opposed to a mandatory - condition. Since the District Court imposed testing on Vaughn as a special condition of its supervised release, the Court concluded no Article III violation occurred.

The Court similarly held that the District Court did not err in allowing the probation officer to decide whether Vaughn had to undergo inpatient or outpatient drug treatment. Noting that Vaughn had failed to object to the imposition of this condition, and that there was no binding Sixth Circuit precedent on the issue, the Court held that the District Court did not commit plain error.  

 

Sunlight Does Not Extend to Snitches: Court Holds Plea Agreement Supplements are not Public Documents

In general, the First Amendment guarantees the public access to court proceedings and documents. Does this extend, however, to a defendant's cooperation agreement with the Government? The answer is no according to the Sixth Circuit's recently published opinion in United States v. Kincaide. 

Martavious Kincaide pleaded guilty to three federal firearms offenses in the Western District of Kentucky. Deandre Swain, who was facing murder and wanton endangerment charges before a Kentucky state court, filed a motion to intervene in Kincaide's federal case for the sole purpose of asking the district court to unseal Kincaide's plea agreement supplement. Swain presumably hoped to use the supplement to impeach Kincaide's testimony in the event he testified against him at his trial.

In support of his request, Swain argued that the Western District's general order protecting cooperation agreements was facially unconstitutional for violating the First Amendment. He appealed the district court's subsequent denial of his motion.

The Sixth Circuit subsequently affirmed the district court's decision in published opinion, holding that the First Amendment does not recognize a public right of access to cooperation agreements. Utilizing the "experience and logic" test established by the United States Supreme Court in Press-Enterprise Company v. Superior Court, the Court noted that substantial assistance agreements have a "relatively brief history" without a "consistent national practice...." Thus, the Court held, there was little historical record supporting any claim that the general public traditionally had access to plea agreement supplements.

The Court next noted that plea agreement supplements also failed the "logic" prong of the analysis. Citing data that nearly 600 government cooperators were either harmed or threatened over a three-year period, the Court concluded that granting the public access to such agreements endangered not only government cooperators but also government investigations.

The Court also rejected Swain's argument that United States v. DeJournett, which upheld public access to plea agreements, supported his request, noting that the Court only addressed plea agreements, not their supplements, in that case. In addition, the Court addressed a circuit split with the Ninth Circuit, noting that it found its decision In re Copely Press - holding that cooperation addendums were subject to First Amendment access - was not persuasive. 

This case presents an interesting example of the balance between the First Amendment right guaranteeing public access to government proceedings and the practical considerations facing defendants when they choose to cooperate with the Government. While there is apparently a circuit split, the Sixth Circuit has decided to err on the side of protecting cooperating defendants.

 

Tennessee Conviction for Attempted Second-Degree Murder is a Crime of Violence under the Guidelines

        Tarrence Parham pleaded guilty in federal court to being a felon in possession of a firearm. (18 U.S.C. § 922(g)(1)). The district court overruled his objection to the PSR’s determination that his prior Tennessee conviction for attempted second-degree murder is a “crime of violence” under U.S.S.G. § 4B1.2(a). The ruling was affirmed. United States v. Parham, ---- F4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0237p-06.pdf,

The Sixth Circuit began by examining the Guidelines’ definition of a “crime of violence” and then considering the elements of Tennessee’s second-degree murder and attempt statutes as written at the time of conviction. The Court determined that “the elements of the least culpable form of attempted second-degree murder are: ‘(1) the defendant acted with the intent to unlawfully kill the alleged victim; and (2) the defendant’s conduct constituted a substantial step toward killing the alleged victim.’” Slip Op. at 6. The bottom line is whether the least culpable conduct constituting attempted second-degree murder “necessarily includes as an element the use, attempted use, or threatened use of physical force against another person.” Slip Op. at 7 (emphasis original). 

            The Court’s analysis was buttressed by a Tennessee case (State v. Reeves, 916 S.W.2d 909 (Tenn. 1996)) in which two middle school girls conspired to kill a teacher by poisoning her coffee. The evidence showed that the teacher saw the girls leaning over her desk. Upon being observed, the girls “ran back to their seats.” They left behind a purse containing rat poison next to the teacher’s coffee cup. Slip Op. at 7. The Tennessee Supreme Court upheld a conviction for attempted second-degree murder. It reasoned that the defendant took a “substantial step” toward committing the crime when she and the other girl “possessed material to commit the crime near the scene of the attempted crime.” Id. 

Mr. Parham argued that under United States v. Taylor, 596 U.S. 845 (2022), his attempted crime is not a crime of violence under the Guidelines because “taking a substantial step toward second-degree murder does not necessarily include the use, attempted use, or threatened use of physical force.” Slip Op. at 8. In rejecting that argument, the Sixth Circuit reasoned that possession of materials “capable of killing someone near the scene of the intended crime … along with conduct that makes possession of such materials strongly corroborative of the actor’s overall criminal purpose, communicates the intent to inflict harm, which constitutes the threatened use of force” and “an attempted use of force.” Id. For that reason, attempted second-degree murder is a crime of violence under the Guidelines. 

Mr. Parham also made facial and as-applied challenges to the constitutionality of § 922(g)(1) but those arguments were foreclosed by United States v. Williams, 113 F.4th 637 (6th Cir. 2024). The Sixth Circuit pointed out that the statute is constitutional in “most applications” “so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.” Slip Op. at 10 citing Williams at 657, 663. So, the door is still open to a successful as-applied challenge by a defendant who can show that he or she is not “actually dangerous.”  

The Dreaded Appellate Waiver Strikes Again: Court Holds that a Challenge to an Indictment is Barred By Appellate Waiver

In a surprise to no one, United States Attorneys offices would prefer that defendants waive all of their appellate rights in their plea agreements. That is why they frequently ask for either broad or limited appellate waivers in them. Generally, appellate courts will enforce such provisions according to their terms, with certain exceptions. Those exceptions include where the waiver was not knowing or voluntary or where the appellate challenges the district court's subject matter jurisdiction. The Sixth Circuit recently addressed those exceptions in its published opinion in United States v. Ellis.  

Don Ellis entered into a binding plea agreement to several offenses, including two counts to carrying a firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). In exchange for the Government's agreement to propose a below-Guidelines sentence of 201 months' imprisonment, Ellis agreed to plead guilty to all six counts of the indictment and to waive his right to appeal his conviction and sentence except in limited circumstances.

During his change-of-plea hearing, the district court went through its plea colloquy with Ellis and explained the rights he would waive by pleading guilty, including his right to appeal his conviction and sentence. It chose not to accept the plea agreement at that time, however, opting to wait until after it reviewed his presentence investigation report. 

Over four months later, Ellis moved to withdraw his plea, arguing he had not understood that the appellate waiver in his plea agreement would bar him from pursuing issues regarding his § 924(c) charges. The district court denied his motion, noting he waited four months after his change-of-plea hearing.

During his sentencing, Ellis renewed his motion to withdraw his guilty plea. In addition, he alleged that count four of the Indictment -- charging a violation of 18 U.S.C. § 924(c) predicated on his underlying bank robbery charge -- did not allege a crime because it "mixed and matched" language of two different crimes encompassed in the statute. The district court rejected both arguments, adopted the parties' plea agreement, and sentenced Ellis to 201 months' imprisonment.

On appeal, Ellis argued the district court erred in denying his motion to withdraw his guilty plea and in denying his challenge to the sufficiency of his indictment. Additionally, he argued the district court constructively amended the indictment by relying on his plea agreement to clarify the § 924(c) charge. In response, the Government moved to dismiss his appeal.

The Court granted the Government's motion, holding that the referenced waiver barred Ellis's appeal. It first rejected his challenge that his plea was not knowing and voluntary, holding that the district court sufficiently explained the plea agreement to him during his change-of-plea hearing. Additionally, it rejected his claim that his lawyer did not spend sufficient time explaining the plea agreement to him.

Ellis also argued that the defects in his § 924(c) charges deprived the district court of subject matter jurisdiction, and, thus, the appellate waiver did not bar his appeal of that issue. Citing the United States Supreme Court's decision in United States v. Cotton, the Court held that defects in Ellis's indictment related to the merits of Ellis's case, and that they did not deprive the district court of subject matter jurisdiction. Ellis thus waived this claim on appeal.

Tread Carefully: Sixth Circuit Upholds Denial of Late-Filed Motion to Dismiss

 In United States v. Burrell, law enforcement received an anonymous tip that Burrell was engaged in drug trafficking. This prompted an investigation lasting approximately four months during which officers, using personal surveillance and GPS tracking information, tracked Burrell to and from several residences. In addition, agents tracked Burrell to a grocery store in Ohio, where he engaged in a suspected drug transaction with Stephanie Harris. Agents stopped Harris shortly after the transaction and found heroin in her possession. She also provided a description to the arresting officers that matched Burrell's description.

Based on their investigation, agents obtained search warrants for three residences they claimed Burrell used to further his drug transactions. Executing the search warrants, officers seized 800 grams of fentanyl, hundreds of prescription pills, three handguns, ammunition, and other drug trafficking evidence. They also arrested Burrell at one of his residences, where, during a post-arrest interview, he indicated he occasionally stayed at another location (Farnham Avenue) and "expressed concern that the DEA would search that residence as well." His concerns were well-founded. The DEA subsequently obtained a warrant for Farnham Avenue, where they discovered 83 grams of cocaine and a hydraulic press used to press drugs into bricks. 

Based on the evidence seized from the four locations, a federal grand jury indicted Burrell for possessing heroin and fentanyl intending to distribute the same, one count of maintaining a drug premises, one count of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The district court subsequently denied his motion to suppress the evidence received from the four residences. 

Two weeks prior to his trial, Burrell again moved to suppress the referenced evidence, and he moved to dismiss the counts of his indictment charging him with being a felon-in-possession of firearms and ammunition pursuant to New York State Rifle & Pistol Association Inc. v. Bruen. The district court again denied his motion to suppress, and it denied his motion to dismiss as untimely. Additionally, it denied Burrell's challenge to the indictment on its merits, noting that various courts nationwide had rejected Bruen challenges to § 922(g)(1). A jury ultimately convicted Burrell on all counts.

 In addition to raising several evidentiary issues on appeal, Burrell also challenged the district court's order denying his motions to suppress and dismiss. The Sixth Circuit affirmed, however. 

It first addressed Burrell's appeal from the district court's order denying his motion to suppress and his late-filed motion to dismiss his firearms charges. It first noted that the Sixth Circuit had yet to address the standard of review in such a situation, i.e. where a defendant raises an issue anew that he or she had previously raised in a pretrial motion that the district court denied as untimely. The Court held that it would review any order denying such a motion as untimely for an abuse of discretion. In addition, where the party raises the issue anew on appeal, it held it would treat such claims as forfeited and apply a plain-error standard to the forfeited claims. Applying this analysis, the Court held the district court did not abuse its discretion in denying Burrell's late-filed motion as untimely, and it held the district court did not plainly err in denying his motion to dismiss his firearms charges under Bruen.

The Court also upheld the district court's order denying Burrell's motion to suppress. It found that law enforcement sufficiently corroborated the informant's tip, which prompted their investigation that provided a significant basis for the search warrants. It further found that a sufficient nexus existed between the warrants and three of the four residences at issue. Although it found that the alleged nexus to the fourth location (Fairmont Avenue) was a closer call, it held Burrell did not establish he had standing to contest the search of that residence. Finally, it held that, even if the warrants were invalid, the Leon good faith exception applied. Finding no error, the Court affirmed the district court's order denying his motion to suppress. 

The Court also rejected Burrell's challenges to some of the district court's evidentiary rulings. During his trial, he objected to testimony provided by Zachary Snyder - the lead investigator in his case - in which he repeated out-of-court statements made to him by Renee Slaughterbeck (the previously unidentified tipster) that Burrell had tasked her with delivering drugs to Harris, and that she was afraid to return to him without the money or the drugs. The Court, however, held such statements were non-hearsay since the Government offered them to explain why the DEA decided to stage Harris's traffic stop. Thus, the Court concluded, the statements violated neither the hearsay rule nor the Confrontation Clause.

Burrell next claimed the district court improperly allowed the Government to introduce improper testimony regarding the credibility of a gas station clerk present during the referenced drug transaction involving Harris. The clerk had apparently denied to Snyder that she had purchased drugs from Burrell. Snyder testified on direct examination, however, that he did not believe her, citing her criminal background. On appeal, Burrell argued the Court should reverse for prosecutorial misconduct. The Court disagreed, noting that Snyder, not the prosecutor, offered testimony regarding the clerk's lack of credibility. It also held such evidence was relevant and that it did not violate FRE 608 and 609 because the clerk was not a witness. Finally, it held Snyder did not offer improper opinion testimony in violation of FRE 701.

Among the many issues addressed by the Court in Burrell's appeal, perhaps one should stand out to practitioners: make use of motions to extend pretrial motion deadlines, or, if you do not, make a showing as to why you had to file your motion after the deadline. Otherwise, the district court and the Sixth Circuit may hold you are out of luck.    

Sixth Circuit Upholds Convictions in Massive Medicare Fraud Scheme... and the Hefty Sentences Imposed.

Defendants Joseph Betro, Mohammed Zahoor, Tariq Omar, and Spilios Pappas engaged in a broad conspiracy to defraud Medicare by giving patients medically unnecessary back injections. To make matters worse, the defendants billed Medicare for injections their patients never received while they  bribed them with opioid prescriptions. The defendants also supplemented their gains by ordering medically unnecessary urine-drug-testing panels and by referring patients to ancillary services like home healthcare in exchange for kickbacks.

Worried the DEA might learn of their scheme, the defendants also conspired to limit their working hours so their prescription practices would not stand out from other pain doctors. They were unsuccessful, however, and the DEA suspended their business, named Tri-County, from receiving future Medicare reimbursements. Undeterred, the defendants created a new company, called "Tri-State" so they could continue their operations. Over the duration of their conspiracy, the defendants fraudulently billed over $132 million to Medicare. 

The DEA ultimately caught on to the defendants' scheme again, and a federal grand jury subsequently indicted them for conspiracy to commit healthcare fraud and wire fraud under 18 U.S.C. § 1349 and for committing healthcare fraud under 18 U.S.C. § 1347. Several of the co-conspirators pleaded guilty and agreed to testify against the defendants. A jury convicted the defendants on all counts.

The defendants subsequently appealed their convictions and sentences. The Sixth Circuit affirmed the judgment in a published opinion.

Pappas, Zahoor, and Betro challenged the sufficiency of the evidence supporting their convictions. The Court rejected their arguments, holding that sufficient evidence supported the jury's decision. 

All four defendants argued that the Court should reverse their convictions for prosecutorial misconduct. Specifically, they asserted the prosecutor mislead the jury by: (a) incorrectly treating the defendants "as a collective"; (b) using the co-defendants' guilty pleas a substantive evidence by telling the jury "the only question" they had to consider was whether the defendants "were doing the same thing" as the co-defendants who pleaded guilty; and (c) referring to evidence that was unavailable to the jury. The Court disagreed with all three arguments. It held that the district court's jury instructions cured any confusion caused by referring the defendants collectively. In addition, while it admitted it was a "close issue," the Court held the prosecutor's references to the co-conspirators' plea agreements was insufficiently flagrant to reverse the district court's decision overruling the defendants' motions for a new trial. Finally, it held the prosecutor did not improperly bolster the testimony of the Government's witnesses by stating the Government could have called more patients. It found that the prosecutor was responding to challenges raised by the defendants during trial.

Omar challenged the district court's admission of evidence regarding his spending, arguing the risk of prejudice substantially outweighed its relevance pursuant to FRE 403, and that it was inadmissible propensity evidence under FRE 404(b). However, the Court held such evidence was relevant to prove Omar's motive for participating in the conspiracy.

Betro argued the district court erred in admitting testimony from three doctors who worked at Tri-County. Specifically, he asserted the district court permitted them to testify without qualifying them as experts pursuant to FRE 702 or by testing their reasoning using the Daubert factors. Finding that the doctors' testimony related to their roles in treating patients, the Court held the district court was not required to qualify them as experts.

After rejecting several other claims raised by the defendants, it next turned to the challenges raised by Pappas, Omar, and Zahoor to their sentences. First, the three defendants claimed the district court erred in calculating the conspiracy's intended loss as $108,900,000 -- the full amount billed by the coconspirators. Pappas argued the district court erred in calculating this figure because it did not make an explicit finding of "pervasive fraud." Noting the conspiracy involved a "shots-for-pills protocol" intended to maximize profits, it held the Government presented sufficient evidence to establish pervasive fraud by a preponderance of the evidence. The Court also rejected Pappas's argument that the district court erred by sentencing him based on the intended, not actual, loss.

Omar alleged the district court in refusing his request to reduce his loss amount for claims he billed for services not related to his fraud. The Court rejected this argument, noting he had produced no evidence to the district court that he provided legitimate services. 

Finally, Zahoor argued the district court erred by assessing amounts billed by other doctors in the conspiracy to his loss calculation and by applying the two-level enhancement for an offense involving sophisticated means pursuant to U.S.S.G. § 2B1.1(b)(10)(C). The Court disagreed on both counts. It held the district court did not err in finding the amounts attributable to the other co-conspirators was reasonably foreseeable to Zahoor. It also affirmed the district court's application of the "sophisticated means" enhancement because the Government produced evidence the co-conspirators manipulated their shifts to stay under the DEA's radar, that they used special templates for patients designed to pass a Medicare audit, and that they created a new entity to continue the conspiracy after Medicare suspended the Tri-County clinic.

Zahoor challenged the substantive reasonableness of his 96-months sentence. Noting the district court varied downward from the bottom of the 262 to 372-month range recommended by the Guidelines, it held that his sentence was substantively reasonable. 

Acquitted Conduct Remains Fair Game in Sentencing: Court Upholds 450% Upward Variance Based (In Part) on Acquitted Conduct

The word "acquittal" generally carries with it some finality...except in federal sentencing. The use of acquitted conduct under the lesser preponderance of the evidence standard poses a particular thorny problem for federal courts, so much so that the United States Sentencing Commission recently promulgated amendments to exclude federally acquitted conduct from the definition of "relevant conduct" in USSG § 1B.3. As the Sixth Circuit demonstrated in United States v. Ralston, however, courts may still consider acquitted conduct in fashioning a sentence, even one significantly above the recommended Guidelines range.

Ramon Villegas nearly died after overdosing on heroin laced with fentanyl. After his girlfriend gave law enforcement access to his cell phone, they discovered text messages indicating "Roy" Ralston likely sold him the heroin. Further investigation revealed that "Roy" was actually the defendant, Gregory Ralston. After setting up a fake drug buy, law enforcement subsequently arrested Ralston at a local restaurant.

After arresting Ralston, officers searched him and his vehicle, discovering the cell phone the police had texted using Villegas's phone. In addition, they recovered a plastic bag containing 4.7 grams of fentanyl. Officers later obtained a search warrant to search Ralston's cell phone. That search revealed text messages between Ralston's phone and Villegas's regarding other drug transactions. After waiving his Miranda rights, Ralston admitted he had traveled to the restaurant's parking lot to sell drugs to Villegas. 

A federal grand jury subsequently indicted Ralston for possessing fentanyl intending to distribute it in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). A second superseding indictment charged him with distributing a controlled substance, and it included an enhanced statutory penalty for causing serious bodily injury to another pursuant to 21 U.S.C. § 841(b)(1)(C). A jury subsequently convicted Ralston of both the possession and distribution charges, but it acquitted him of the enhancement for serious bodily injury.

Neither party objected to Ralston's presentence investigation report, which recommended a sentencing range of 27 to 33 months' imprisonment. Prior to his sentencing, however, the district court entered an order indicating it was considering varying upward based on the sentencing factors set forth in 18 U.S.C. § 3553(a). The Government also argued for an above-Guidelines sentence, pointing to Ralston's 2018 state court conviction for drug trafficking, tampering with physical evidence, and reckless homicide. This conviction stemmed from a gruesome incident in which Ralston sold drugs that caused an overdose death.

Noting that Ralston's case was atypical, the district court sentenced him to 180 months' imprisonment -- varying upward by almost 450% from the top of the recommended Guidelines range. Neither party raised any objections to the sentence pursuant to United States v. Bostic.

Ralston appealed both his conviction and sentence. Specifically, he argued the district court erred in denying his motion to suppress, asserting it should have held an evidentiary hearing to clear up certain contested issues of fact surrounding his claim that the police lacked probable cause to stop and arrest him. The Court disagreed, however, holding that since the determination of whether probable cause existed was "entirely legal in nature," the district court did not abuse its discretion in denying his motion without an evidentiary hearing.

Ralston next challenged the district court's decision to limit the scope of his cross-examination of both Villegas and Detective Craig Payne -- one of the arresting officers. During his trial, the district court ruled Ralston could not ask Payne whether he thought Villegas was a "threat to the community," finding that such testimony suggested the police showed favoritism toward Villegas. Although it noted that "read in isolation," the district court's ruling seemed to exclude "core impeachment evidence," it concluded the district court did not err because Ralston was not questioning whether the Government made any promises to Villegas, but whether he was a "threat to the community."

The Court also rejected Ralston's challenge to his sentence. First, it rejected his argument that it should apply the typical abuse-of-discretion standard because the district court did not conduct an appropriate Bostic inquiry because it asked his trial attorney if he had any "Bostic objections" instead of the traditional query as to whether counsel had any "objections, corrections, [or] any arguments not previously raised...." Noting that Bostic "does not require a shibboleth," the Court held it would review the reasonableness of his sentence for plain error.

Although the district court varied upward by almost 450% from the high-end of the Ralston's recommended Guidelines range, the Court found it did not plainly err because it adequately explained its reasons for doing so under 18 U.S.C. § 3553(a). Likewise, the Court held the district court did not err in finding Ralston caused Villegas's overdose and serious bodily injury in imposing his sentence. While it noted an upcoming amendment will soon prohibit the use of acquitted conduct in calculating a Guidelines range, it held the district court could still consider such conduct varying upward pursuant to § 3553(a). It also held the record supported the district court's finding. 

Noting that he had offered to plead guilty to both counts without the penalty enhancement, Ralston also challenged the district court's decision not to grant a two-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1. Citing Ralston's refusal to admit he knowingly distributed fentanyl as charged in the indictments, the Court held that the district court did not plainly err in refusing to give him credit for acceptance of responsibility.

Finally, the Court also held Ralston's sentence was substantively reasonable. Although the district court varied upward substantially from his recommended Guidelines range, the Court found it had sufficient reason to do so based on the record.

The Court's opinion offered a sliver lining for Ralston, however. It remanded the case to the district court to determine whether Amendment 821, which changed how "status points" are allotted in calculating a criminal defendant's Guidelines sentence, entitled him to a sentence reduction.

 

Can A Stash House Have More Than One "Principal Purpose?"

When is a house a "stash house?" It truth, it can be both, as the Sixth Circuit held in United States v. Tripplet.

Tripplet lived with his girlfriend and her two young children in an apartment she rented. Law enforcement obtained a search warrant for the apartment after undercover agents conducted four controlled buys involving an intermediary who traveled to meet Tripplet there. The search uncovered significant quantities of methamphetamine, fentanyl, cocaine, and crack cocaine. In addition, agents discovered additional evidence of drug trafficking, along with a handgun and ammunition. A federal grand jury subsequently indicted Tripplet for one count of possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty to the first count pursuant to a written plea agreement with the Government. Overruling his objection to the application of the two-level "drug premises" enhancement pursuant to U.S.S.G. § 2D1.1(b)(12), the district court sentenced Tripplet to 188 months imprisonment, varying downward to the bottom of the Guidelines range that would have applied had it not applied the enhancement.

Tripplet's appeal focused on the district court's application of the "drug premises" enhancement. Specifically, he argued that since he lived at the residence with his girlfriend and her two children, the Government did not prove that drug trafficking was the residence's "primary purpose." Citing the commentary to the Guidelines, the Court held that a residence could have multiple principal purposes, and that it could qualify for the "premises enhancement" so long as one of those "principal purposes" was the manufacturing or distribution of controlled substances. Noting the significant quantities of controlled substances, drug distribution equipment (i.e. two blenders with drug residue), cash, and a firearm recovered from Tripplet's apartment, the Court affirmed the district court's decision. It also held the district court reasonably inferred from this evidence that the drug activity at the apartment was more than "incidental."

The Court's decision did not foreclose challenges to the "drug premises" enhancement, although it held that a premises could have multiple primary purposes, both legal and illegal. Defendants challenging such an enhancement should focus on evidence suggesting that drug activity at the residence was "incidental."

 

Giving teeth to the Speedy Trial Act for competency-evaluation delays

Vindicating the right to a speedy trial is often difficult, likely because courts may be hesitant to impose harsh sanctions for timing issues. Further, one area where delay is particularly likely (and challenging) is when a defendant must undergo a competency evaluation. In the federal system, such an evaluation must happen in-custody at a federal medical center, usually hundreds of miles from the courthouse.

As National Association of Federal Defenders has explained:

[M]andatory detention can lead to significant delays in treatment and competency restoration. Federal Medical Centers lack treatment beds. Although the Bureau of Prisons operates six prison medical centers, only two facilities offer competency restoration programs for men, FMC Butner, North Carolina, and FMC Springfield, Missouri, while a single facility provides such programs for women at FMC Carswell, Texas. In February 2019, the BOP represented that the 7 shortest wait-time for competency restoration placement for men was approximately nine weeks. 

Because the FMCs are often located thousands of miles from the court in which charges are pending, transportation is problematic. In-custody transportation through the United States Marshals can take many weeks, with long bus rides during which defendants are shackled, and overnight stays are often in county jails and other contract facilities ill-equipped to address the needs of our incompetent clients.

This week, however, the Sixth Circuit gave teeth to the statutory requirements of the Speedy Trial Act in United States v. Brown.

Federal authorities accused Carlos Brown of stealing more than $177,000 through credit card fraud. But the prosecution hit a roadblock when, at the parties’ request, the court ordered Brown, who had been on pretrial release, to surrender to an FMC for a competency evaluation. Later that same day, Brown “returned to his residential treatment center and broke down, screaming, crying, and hitting staff members.” The district court, in response, ordered that the U.S. Marshals detain Brown pending the evaluation and ordered that “he must immediately report as soon as a facility is designated and the examination shall be conducted as soon as possible.”

As is all too common, transportation was delayed. The Bureau of Prisons and U.S. Marshals encountered problems interpreting the two orders from the court. This led to a delay that, if the time started running from the day the court first ordered transportation to an FMC, violated the Speedy Trial Act, under which the government only gets 10 days to transport a defendant to a facility for a competency evaluation. 

The government argued, however, that the time did not run from the day of the court’s transportation order because, at that point, the Bureau of Prisons had not yet designated which federal medical center would conduct the evaluation. The government argued the time only started running after the designation, about 30 days after the court’s transportation order.

The Sixth Circuit disagreed, finding that the time ran from the date of the district court’s transportation order. The court then turned to the question of the reasonableness of this delay. Recognizing that this type of delay is presumptively unreasonable under the Speedy Trial Act, the court found that the government did not rebut that presumption. The disruption caused by the bond violation and subsequent detention order did not excuse the delay, nor did the record presented provide sufficient explanation for the delay.

The Sixth Circuit thus found that this delay warranted vacating Brown’s conviction.

But there’s more. The Sixth Circuit also addressed additional delay, after Brown came back from the medical facility, resulting from the district court taking too long to rule on his motion to dismiss based on the delayed transportation. The Speedy Trial Act allows district judges 30 days, from the time a pretrial motion is taken under advisement, to issue a ruling.

Here, the court took 49 days to rule on the motion but attempted to excuse the delay by retroactively finding that the ends of justice excused the delay. The Sixth Circuit decided that the district court abused its discretion in making this ends-of-justice finding. The Sixth Circuit explained that the court’s explanation—its own schedule, counsel’s availability, and other continuances in the case—did not suffice. 

In the end the Sixth Circuit remanded for the district court to decide whether the case should be dismissed with or without prejudice, so it is too soon to know if Brown will get relief. But the decision cements the importance of adherence to the timing rules for criminal trials.

Coram No Deal: Sixth Circuit Denies Petition to Overturn Guilty Plea that Resulted in Denaturalization Proceedings

Must a district court confirm a defendant understands his or her guilty plea could lead to the cancellation of their citizenship? In United States v. Singh, the Sixth Circuit answered "no."

Karnail Singh fraudulently obtained residency in the United States, and, using the same false information, he obtained a United States passport. A federal grand jury subsequently indicted him for using a fraudulent procured passport and for making false statements to immigration officials. 

Pursuant to a written plea agreement, Singh pleaded guilty to the fraudulently procured passport charge in exchange for the Government's agreement to dismiss the false statement count and a lower sentencing range. In his plea agreement, he agreed that while guilty plea would "not necessarily result in immigration consequences" it could affect his removability "in conjunction with possible future criminal charges." During his rearraignment, Singh confirmed he pleaded guilty despite any potential immigration consequences, and the District court informed him his plea could result in the cancellation of his citizenship.

After the Government began proceedings to revoke Singh's citizenship, he petitioned the District Court for a writ of coram nobis, asking it to set aside his conviction. The District Court subsequently denied his petition, and Singh appealed.

According to the Court, Singh's petition suffered from a fatal flaw: the District Court did not commit a fundamental error in accepting his guilty plea. Since immigration consequences are collateral, and not direct, consequences of a guilty plea, the Court concluded Singh knowingly and voluntarily pleaded guilty, whether or not he understood it would lead to the Government denaturalizing him. 

Singh also argued his written plea agreement led him to reasonably believe his guilty plea would only affect his citizenship if he committed another crime, and that the District Court violated Rule 11 by not correcting his misunderstanding. The Court disagreed, noting Rule 11 only required a "generic warning" regarding a guilty plea's immigration consequences. 

The Court next rejected Singh's claim he received ineffective assistance of counsel because his counsel allegedly did not explain the impact his guilty plea would have on his citizenship. Finding that the District Court adequately warned him about the potential immigration consequences posed by his guilty plea, it found Singh had not demonstrated a "reasonably probability" that but for his counsel's error, he would have rejected the plea agreement and either gone to trial or negotiated a different plea agreement. Finding no error, the Court affirmed the District Court's order denying his petition.

The Sixth Circuit Again Reminds Us that Supervised Release Revocation Proceedings are Different.

Those who have participated in supervised release revocation proceedings know they operate under different rules. For example, a district court can conclude criminal conduct occurred under a lesser evidentiary standard than what it would have to otherwise apply. The Sixth Circuit recently reminded us of this in United States v. Jaimez. 

Timothy Jaimez initially pleaded guilty to conspiring to possess narcotics with the intent to distribute them. After a previous revocation, police arrested him for transporting marijuana with co-felons from his original conviction. An Ohio court subsequently found him guilty of attempting to traffic marijuana, a misdemeanor.

Citing his Ohio conviction, the District Court found Jaimez violated his supervised release by: (1) being charged with a new crime; (2) associating with known felons; and (3) possessing drug paraphernalia. Over his objection, the District Court sentenced him to sixty months' incarceration based on a "Grade A" violation.

The Court first found Jaimez's sentence procedurally reasonable, noting the District Court properly considered the federal sentencing factors, including the seriousness of his offense, promotion of respect for the law, and the provision of just punishment -- factors it was not required to consider pursuant to 18 U.S.C. § 3583(e). Finally, it held the District Court properly sentenced him for a "Grade A" violation, even though an Ohio court only found him guilty of a misdemeanor offense, noting it could have reasonably concluded, under a preponderance of the evidence standard, that Jaimez knowingly transported under a kilogram of marijuana aware it was intended for resale, which is punishable by over a year imprisonment in Ohio.

The Court next rejected Jaimez's argument that his sentence was substantively unreasonable. It held the District Court did not place too much weight on his underlying conduct, noting such conduct demonstrated a "flagrant lack of" deterrence and respect for the law considering the similarity between it and his original offense. 

Jaimez also argued his sentence constituted "double punishment" for his Ohio offense. Not so, the Court said. It noted the longstanding rule that federal and state courts can punish defendants separately. Moreover, it held Jaimez's sentence was not, in fact, punishment for his Ohio conduct. Instead, it noted that revocation sentences are never punishment for the actual release violations; instead, they are punishment for the original offense and for breaching the court's trust.

The Court also rejected Jaimez's challenge to the length of his within-Guidelines sentence. First, noting that "every drug trafficker could have shipped more drugs," it rejected Jaimez's argument that a maximum sentence was not warranted because his underlying conduct could have been worse. It then concluded the District Court gave sufficient weight to Jaimez's "paper-thin" mitigating evidence. Finding it both procedurally and substantively reasonable, the Court affirmed his sentence.