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.

Watch Your Turn: Court Declines to Suppress Evidence Seized as a Result of Officers' Misreading of Turning Statute

On the morning of June 26, 2018, Herbert Marsh and his companions, Hakeem Mannie, and James Horton, robbed a pawn shop in Nashville, Tennessee. At the time, Horton was armed with a black pistol with an extended magazine. The three men ultimately stole eleven firearms and more than $8,000 in cash.

In response, the Nashville Police Department issued a "be on the lookout" report for a grey sedan. The next day, officers encountered Marsh, who was a passenger in a grey BMW sedan he owned. Believing it matched the description in the NPD's report, officers tailed the vehicle, waiting for it to commit a traffic violation. They believed their moment arrived when they witnessed the vehicle turn left into the outside lane of Rosa Parks Boulevard, which has two lanes of traffic traveling in each direction. Believing this violated Tenn. Code Ann. § 55-8-140(2), they stopped Marsh's vehicle.

Upon stopping the vehicle, officers encountered the driver (Horton), Marsh, and two other individuals. They subsequently searched the vehicle and discovered marijuana and five firearms - four they identified as being stolen in the previous day's pawn shop robbery. One of the firearms, a Springfield XD .45 caliber, was the gun Horton brandished during the robbery. 

A federal grand jury subsequently indicted Marsh for seven offenses, including conspiracy to commit Hobbs Act robbery. Marsh moved to suppress the evidence obtained from the search of his car, arguing the traffic stop was unlawful because he did not commit a traffic infraction in making a left turn on a green light. The District Court denied his motion, and Marsh proceeded to trial, where a jury convicted him of six of the seven charged listed in his Indictment.

Prior to his sentencing, Marsh objected to three enhancements in his PSR, which increased his based offense level by 10: (a)  (1) a § 2K2.1(b)(1)(B) enhancement because the offense involved between eight and twenty-four firearms; (2) a § 2K2.1(b)(4)(A) enhancement because the offense involved stolen firearms; and (3) a § 2K2.1(b)(6)(B) enhancement because he used or possessed a firearm in connection with another felony offense. Marsh argued these enhancements impermissibly double counted his conduct and improperly relied on acquitted conduct. The District Court disagreed and sentenced to 210 months' imprisonment.

In a published opinion, the Sixth Circuit affirmed Marsh's sentence and the District Court's order denying his motion to suppress. In challenging the denial of his suppression motion, the parties did not dispute that the officers mistakenly stopped Marsh's vehicle because they misunderstood Tenn. Code Ann. § 55-8-140(2). However, the Court held that the officers' reading of the statute was not objectively unreasonable, and that their decision to stop Marsh was therefore not unlawful.

In challenging his sentence, Marsh asserted the District Court engaged in impermissible double counting by applying a base offense level of 20 pursuant to USSG § 2K2.1(a)(4)(B) because he was a convicted felon and the offense involved a semiautomatic firearm cable of accepting a large capacity magazine in addition to the two-level enhancement pursuant to § 2K2.1(b)(6)(B) for using or possessing "any firearm....in connection with another felony offense." The Court disagreed, holding that "distinct harms" triggered both enhancements -- USSG § 2K2.1(a)(4)(B) stemming from the firearm's characteristics (a semiautomatic capable of accepting a large capacity magazine) and § 2K2.1(b)(6)(B) stemming the firearm's use in furtherance of another felony offense. 

The Court likewise held that the District Court did not impermissibly double count by applying the three firearms enhancements found in subsections (b)(1)(B), (b)(4)(A), and (b)(6)(B) of § 2K2.1 on top of his already enhanced base offense level. It held that subsection (b)(1)(b) applied because of the quantity of firearms involved, and it found that subsection (b)(4)(A) applied because the offense involved stolen firearms. The enhancements, the Court held, had distinct triggers from each other and from those that would trigger the base offense level set out in subsection (b)(6)(B). Finding no error, the Court affirmed both Marsh's conviction and sentence.

In his concurring opinion, Judge Murphy noted he would also have affirmed the District Court's order overruling Marsh's suppression motion. He would have, however, found that the Good Faith Exception to the Exclusionary Rule applied because, in his opinion, the officers did not recklessly or intentionally misconstrue the statute at issue.

Court Affirms Application of "Reckless Endangerment" Enhancement to Passenger

 In April 2021, Golson and three other individuals were involved in a shooting outside of a business in Elyria, Ohio. After the shooting, the individuals, including Golson, fled the scene and fled from law enforcement in their vehicle at a high rate of speed. Golson was a passenger in this vehicle. 

While pursuing Golson and his cohorts, police purposely disabled the vehicle, causing it to crash. Three of the occupants remained in the vehicle, but Golson fled on foot. Officers subsequently searched the vehicle and discovered four firearms, one of which contained Golson's DNA. Officers arrested Golson, and a federal grand jury indicted him for being a felon in possession of a firearm. 

Law enforcement again arrested Golson two months later in June 2021 after they responded to a new report of shots being fired in Elyria. As a result, a federal grand jury returned a superseding indictment containing an additional felon-in-possession count against Golson. 

Golson entered into a non-binding Rule 11 plea agreement to both counts. In his PSR, the United States Probation Office recommended a two-level enhancement pursuant to USSG § 3C1.2 for "reckless endangerment during flight." In support of its recommendation, the USPO noted Golson drove the vehicle at a high rate of speed and left a firearm therein after he fled the scene. 

Golson objected to the enhancement, arguing he was "running on foot from law enforcement" and that "at no time did he discharge a firearm." During sentencing, Golson, through counsel, argued the enhancement should not apply because there was no "potential risk of serious bodily harm" during his flight. He did not, however, cite to the fact he was only a passenger in the vehicle. The district court overruled his objection and sentenced Golson to 56 months’ imprisonment, three years of supervised release, and a $200 special assessment. 

On appeal, Golson argued the District Court erroneously applied USSG § 3C1.2 because he was not the driver of the vehicle and did not facilitate the chase. The Sixth Circuit disagreed and affirmed his sentence. It first held that Golson did not properly preserve his objection that the enhancement should not apply because he was only a passenger in the vehicle. While it acknowledged Golson raised the issue during his allocution, it held this was insufficient to preserve it for appellate review, noting he should have raised it through his counsel. Since his counsel did not do so, he did not preserve it for appellate review.

Applying plain error review, the Court held the District Court properly applied USSG § 3C1.2 because it reasonably inferred from the undisputed facts contained in his PSR that Golson actively participated in fleeing from law enforcement. It noted the PSR established Golson was an active participant in a crime during "broad daylight" with many witnesses and thus found it was necessary for Golson to flee the scene. It also held it was proper for the District Court to infer he had a reason to flee due to his extensive criminal history. Finally, it held the District Court could infer from Golson's subsequent flight in June 2021 that he had a "pattern and history of flight after dangerous situations." It thus held the District Court did not plainly err in sentencing him.

 

 

District court sufficiently explained upward variance of 19 months in vehicular homicide case.

United States v. Axline, --- F.4th --- (6th Cir. 2024) involves a vehicle accident in the Great Smoky Mountains National Park. One passenger in defendant Bryce Axline’s car was killed and another suffered severe permanent injuries. At the time of the crash, Mr. Axline was intoxicated and driving 90 miles an hour which was twice the speed limit. He pleaded guilty to vehicular homicide and vehicular assault in violation of Tennessee law and 18 U.S.C. §§ 7(3) and 13. The plea agreement specified that he “would be ‘subject to a like punishment’ under the penalties specified by Tennessee law.” Slip Opin. 2, n.2.

The guideline range was 37 to 46 months (total offense level 21 and criminal history category I). Mr. Axline was sentenced to 65 months imprisonment and 3 years of supervised release. The Sixth Circuit affirmed that sentence over Mr. Axline’s argument that it was substantively unreasonable because the district court did not provide sufficiently compelling reasons for a 19-month upward variance. The primary factors underlying the Sixth Circuit’s decision were the severity of the offenses and Mr. Axline’s criminal history.

Mr. Axline first argued that the district court gave too much weight to the nature and seriousness of the offenses because the involuntary manslaughter guideline (U.S.S.G. § 2A1.4(a)(2)) already took the seriousness of vehicular homicide into account. The Sixth Circuit, however, concluded that the guideline “does not necessarily contemplate the lethal combination of Axline’s decision to drink underage and his decision to fully accelerate his car at over 90 miles an hour on a winding mountain road.” Slip Opin. 7 (emphasis original). Neither do the guidelines “necessarily adequately account for the effect of [his] actions on multiple victims.” Id. at 8. Thus, the district court did not abuse its discretion by determining that Mr. Axline’s recklessness was outside the heartland of similar cases.

Mr. Axline’s next argument was that the district court overemphasized his criminal history by crediting misdemeanor convictions and other conduct for which no criminal history points were given. He maintained that the prior misdemeanor convictions were not similar to the present offenses and his criminal history score already took into account any repetitive or serious conduct.

The district court expressed concern that Mr. Axline had been arrested or cited four different times between the ages of 18 and 19 for conduct involving drugs and/or alcohol. The court was particularly troubled by Mr. Axline’s conviction for an offense involving the underage use of alcohol only two months before the car crash. Moreover, Mr. Axline admitted daily use of marijuana and regular consumption of alcohol.

The Sixth Circuit acknowledged that “the link” between Mr. Axline’s criminal history and the present offense “is weaker” than cases in which an upward variance was affirmed primarily on the defendant’s “pattern of criminal history.” Slip Opin. 10. Nevertheless, the district court did not abuse its discretion in finding that Mr. Axline’s prior underage substance abuse was sufficiently related to his present conviction, “because the instant offense was likely caused—or, at the very least, exacerbated—by [his] drinking” and he had been charged with an underage alcohol offense two months earlier. Id. Furthermore, criminal history was considered in conjunction with Mr. Axline’s history and characteristics and was only one of the factors underlying the upward variance.  

Lastly, Mr. Axline raised the issue of an unwarranted sentencing disparity and cited Sentencing Commission data to support his argument. The Sixth Circuit rejected the argument and stated that where an upward variance is based on other § 3553(a) factors, a district court “is not required to consider national sentencing statistics, regardless of whether it enters a within-Guidelines sentence or one that falls outside of the Guidelines range.” Slip Opin. 13 (citation omitted).