Can a conviction involve a non-existent child and still be a crime "involving a minor"?

Can a conviction involve a non-existent child and still be a crime “involving a minor”? It can and does the Sixth Circuit has held in United States v. Fortner, a decision deviating from the court’s recent emphasis on a textualist approach to statutory interpretation.

The defendant, Fortner, attempted to set up some sexual encounters with children by going through who he thought were their parents but were in fact undercover FBI agent. So there were no actual children only fictitious ones involved.

Fortner was charged with two counts: (1) attempting to coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b); and, (2) committing a felony offense involving a minor while required to register as a sex offender in violation of 18 U.S.C. § 2260A. Fortner moved unsuccessfully in the district court to dismiss the second count advancing a textual argument that he did not commit an offense involving a minor, because the children he sought to coerce were not real, actual children.

The Sixth Circuit framed the issue as follows: “Does a sex offender commit an ‘offense involving a minor’ if, in the course of a sting operation, he attempts to commit a sex crime with a pretend child?”

First, the court elected to rely on what it concluded was the intent of the phrase “involve[e] a minor,” concluding first that its import was to differentiate convictions that can only involve a minor from those that may or may not. The court further asserted that the “phrase did not purport to eliminate all attempt crimes, as the reach-extending term ‘involve’ suggests.”

Second, the court observed that § 2422(b) supported the same conclusion, because that “crime always involves a minor, [and] convictions under it always lead to the enhancement if the defendant commits the offense while under a reporting requirement.”

Third, the court stated that Congress intended the phrase “involve a minor” to include a nonexistent, fictional minor, because other statutes, 18 U.S.C.§ 2252A(a)(3)(B)(ii), (c)(2), (e), made specific reference to an “actual minor.” A similar distinction, the court further asserted, was found in 18 U.S.C. § 2256(8), which defines separately “identified minor” and “a minor.”

Finally, the court cited a similar holding by the Eleventh Circuit in United States v. Slaughter, 708 F.3d 1208 (11^th Cir. 2013).

Safety-Valve Application: Sixth Circuit Joins Seven Other Circuits

In United States v. Barron, et al. (18-5222-5515), the Sixth Circuit thoroughly analyzed the second prong and fifth prong of the safety valve guideline. (See U.S.S.G. § 5C1.2). 

Second Criterion of § 5C1.2

The Court found that a defendant is not precluded from meeting the second prong simply because a §2D1.1(b)(1) firearm enhancement was applied.  Also, the Sixth Circuit joined seven other circuits in finding that possession of a firearm by a co-conspirator does not always render a defendant ineligible for relief under the second criterion. (See U.S.S.G. §5C1.2).

The Court held that the  language for the safety valve application (U.S.S.G § 5C1.2(a)(2)) limits consideration to the defendant’s own actions; whereas the firearm enhancement under U.S.S.G. § 2D1.1(b)  omits any reference to the defendant and uses a passive voice – requiring enhancement if the firearm was “possessed.” Allowing a defendant to be charged with possession of another’s gun is contrary to congressional policy for safety valve application, which is “to permit courts to sentence less culpable defendants to sentences under the guidelines, instead of imposing mandatory minimum sentences.”   However, if the defendant induced another co-conspirator to possess a firearm, the application does not apply. (See U.S.S.G. § 5C1.2 cmt. n.4).

Fifth Criterion of § 5C1.2

To meet this fifth prong,  a defendant may have to do more than merely answer all questions posed by the government, because the “provision ‘clearly require[s] an affirmative act by the defendant truthfully disclosing all the information he possesses concerning his offense or related offenses.’”  However, the information does not have to be helpful to the government since “the individuals for whom the safety valve was directed will not have useful testimony to provide because of their relatively low position in the criminal enterprise.”  

The government may challenge whether a defendant has met this criterion by pointing out inconsistencies or implausibility.   Yet, “the government’s lack of confidence in a proffer is insufficient, in and of itself, to justify a denial of access to the safety valve.” Further, a sentencing court may not find a defendant was not truthful ‘solely on speculation, devoid of any factual support.”

This is an excellent opinion to thoroughly read if defense counsel is litigating an issue concerning whether § 5C1.2 applies.  Additionally, the Sixth Circuit briefly discussed the significant risk for jury confusion when a law enforcement officer testifies at trial as a fact witness and expert witness in the same case. 

The Right to Self-Representation Includes Conspiracy Theorists, Even to Their Detriment

In United States v. Tucci-Jarraf, this Sixth Circuit affirmed the convictions of co-defendants Beane and Tucci-Jarraf for defrauding the United States out of $31 million. Beane became immersed in internet conspiracy theory and adopted the "straw man conspiracy theory." The theory essentially held that all American citizens have a right to tap into unlimited funds from the Federal Reserve. To his detriment, Bean then stumbled upon Tucci-Jarraf, a one-time attorney turned conspiracy wonk who posted videos and other information about how to access these funds.The two joined forces to obtain $31 million in government money before being arrested. (The detailed facts are well-worth reading if you have the time). Their actions amounted to wire fraud with both individuals facing serious prison time and an incredible amount of restitution.

Both Beane and Tucci-Jarraf opted for self-representation. They wanted to represent themselves to advance the conspiracy theories they both adopted as defensive arguments. These beliefs were varied but included some of the same features as the "sovereign citizen" arguments that many defense attorneys are familiar with hearing from conspiracy-leaning clients. The district court conducted full Faretta hearings for both defendants, granted their request, and appointed standby counsel. Both defendants were convicted and sentenced to lengthy prison terms.

On appeal, both individuals argued that they should not have been allowed to represent themselves because their unorthodox views rendered them essentially incapable of self-representation or meant that they were incompetent to proceed to trial. But authoring Judge Sutton eloquently explains that the right to represent yourself does not include a paternalistic duty on the part of the court to save you from yourself where actual counsel would be a better choice. There was also no evidence of mental incompetency.

In a particularly stirring paragraph, Judge Sutton explains that while being a citizen does not give unlimited access to government funds, "it does come with a view of the dignity of individuals to make weighty decisions for themselves." The Court noted that the right to self-representation does not come with the same requirements of effectiveness that the Sixth Amendment right to counsel contains. "Exercising these rights sometimes costs individuals more than they ever could stand to gain. But the Constitution lets American citizens learn that lesson the hard way."

The Not So Saving Clause: Court Tightens Relief Available for Second Habeas Petitions

It would be an understatement to say that the saving clause found in § 2255(e) has been heavily litigated. The Sixth Circuit continued that trend in Wright v. Spaulding…with a flourish.

In the pre-Johnson era, William Wright pleaded guilty to being an armed career criminal and received the mandatory minimum fifteen-year sentence. Wright did not dispute his status as an armed career criminal during his sentencing, and he did not pursue an appeal. After the Supreme Court handed down its landmark decision in Johnson, however, Wright filed a § 2255 motion seeking a re-sentencing. The Maryland District Court denied his petition, however.

A year later, after the Supreme Court announced its decision in Mathis, Wright again filed a § 2255 motion and argued that the Court should re-sentence him because one of his prior convictions did not qualify as an ACCA predicate. Since he had previously filed for relief before the district court that sentenced him, Wright filed his second petition in the Northern District of Ohio – the district in which he was imprisoned. He was again unsuccessful, however.

Mincing few words about the current scope of habeas law, the Court affirmed the district court’s denial of Wright’s second habeas motion. Judge Thapar, who wrote for the majority and also authored a separate concurring opinion, criticized the current extension of habeas law, which, in the Court's opinion, had progressed “far beyond the limits set by Congress.” Summarizing the state of habeas law since 1948 and the application of the “saving clause” found in § 2255(e), the Court held that federal prisoners must demonstrate they had no “prior reasonable opportunity” to bring their claims in a previous habeas motion in order to bring a claim of actual innocence in a § 2241 petition.

Turning to the merits of Wright’s second motion, the Court held that he failed to demonstrate he had no “prior reasonable opportunity” to bring his ACCA argument in his prior motion. Wright failed to do so, the Court noted, because while Mathis may have clarified the categorical approach and bolstered his ACCA predicate argument, it did not create the categorical approach, and he could have raised that argument during sentencing, on direct appeal, or in his previous habeas motion. The saving clause was thus of no avail to him.

            30-Day Sentence for Assault on Senator Rand Paul was Substantively Unreasonable

            Senator Rand Paul was doing yard work at his home when he was attacked from behind by his next-door neighbor, Rene Boucher. Senator Paul sustained six broken ribs which “caused long-lasting damage to his lung, and led to several bouts of pneumonia.”

            Mr. Boucher pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e) and while he admitted tackling the Senator, he denied that he did so for political reasons. He told the police that the assault stemmed from “a property dispute that finally boiled over.”

            Mr. Boucher’s guidelines range was 21 to 27 months but he was sentenced to 30 days imprisonment. The government appealed and argued that the sentence was substantively unreasonable. In United States v. Boucher, the Sixth Circuit agreed, vacated the sentence and remanded for resentencing.            

            The Sixth Circuit noted that the district court’s rationale for imposing a 30 day sentence “rested primarily on two observations.” The first was that the confrontation was “strictly a dispute between neighbors.” The second was Mr. Boucher’s “excellent background.”

            The Sixth Circuit’s opinion provides a thorough discussion of substantive reasonableness analysis and role that the 18 U.S.C. § 3553(a) factors play in it. The court applied a familiar principle in resolving this case – the more a district court varies above or below the guidelines, the more compelling the justification must be.

            The district court’s analysis was found to be flawed for several reasons. It did not adequately explain why the 30-day sentence was appropriate given the severity of the Senator’s injuries. Although the assault may not have been politically motivated, the Senator’s “status as a national political figure is still relevant to the broader ‘goals of societal deterrence’” because § 351(e)’s objective is to protect elected representatives from harm. But here the district court offered no explanation why that objective did not warrant a within guidelines sentence.           

            The district court described Mr. Boucher as “a 60 year old highly educated medical doctor, Army veteran, father, church member, and good standing community member with no criminal history.” But, as the Sixth Circuit pointed out, those factors (with the exception of military service) are disfavored as reasons for a below guidelines sentence and the district court failed to explain “what unusual circumstances justified relying on them” in this case.

            The last factor to consider was unwarranted disparities. Although the district court did not state that it used Kentucky law as a reference to determine Mr. Boucher’s sentence, the Sixth Circuit reiterated that “it is impermissible for a district court to consider the defendant’s likely state court sentence as a factor in determining his federal sentence.” The only relevant disparities “are those among federal defendants on a national scale” and while cases under § 351(e) were considered, the “more telling comparators are in cases drawn from other federal assault statutes.” The Sentencing Commission’s national sentencing data is also an important factor in avoiding unwarranted sentence disparities. The district court in Mr. Boucher’s case, however, did not address the risk of sentence disparities.

            Because Mr. Boucher’s case was a “mine-run case,” the Sixth Circuit applied “closer review” to the variance from the guidelines and it found “no compelling justification” for his “well-below Guidelines sentence.” The Sixth Circuit acknowledged, however, that Mr. Boucher “may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.”

 

 

 

 

         

2255 Provides No Relief for Defendants Sentenced Under Mis-Advisory Guidelines

“The lodestar,” the “starting point,” the “initial benchmark,” and “central”—these are words the U.S. Supreme Court has used to describe the Sentencing Guidelines. As the Court acknowledged, the U.S. Sentencing Commission’s research confirms, those words accurately describe the anchoring effect of the Sentencing Guidelines. When the Guidelines range increases, then sentences get longer.

More recently, the Supreme court held that “an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than ‘necessary’ to fulfill the purposes of incarceration.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018). Thus, plain Guidelines errors should be corrected even if they are unpreserved because “[t]he risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because of the role the district court plays in calculating the range and the relative ease of correcting the error.” Id. at 1908.

One of the most consequential guidelines in the Sentencing Manual is the Career-Offender Guideline, U.S.S.C. § 4B1.1. Under that provision, defendants who have been convicted of two or more felonies that are “crimes of violence” or “controlled substance offenses” face a dramatic increase in the overall offense level. Their Criminal History Category also changes, as it must be VI—the highest level available. Consequently, the career-offender designation catapults defendants into significantly higher Guidelines ranges.

What should happen if, a few years after a sentence became final, a defendant learns that the court should not have treated him as a career offender in the first place?

At the time Dwight Bullard was sentenced, the Sixth Circuit treated attempted drug trafficking offenses as “controlled substance offenses” based on the commentary to the Career-Offender Guideline. Nothing in the text of the Guideline supported the theory that attempt offenses satisfied the definition of a “controlled substance offense,” and so the Sixth Circuit corrected course this year in United States v. Havis.

Because of Havis, the “starting point” for his sentence changed from 292–365 months to 92–115 months, Mr. Bullard filed a motion under 28 U.S.C. § 2255 to vacate his sentence. Although judge did not sentence him within the advisory Guideline range, his final sentence of 140 months’ incarceration was above the correct sentence.

This week, the Sixth Circuit held that Mr. Bullard cannot get a new sentencing hearing because the incorrect Guideline calculation did not result in “a complete miscarriage of justice.” According to the Court, the advisory nature of the Guidelines makes it too hard to determine of the misapplication of the Guideline renders a sentence fundamentally unfair, and so these claims are not cognizable on collateral review.

Mr. Bullard and his family may not think a sentence 35 months above “the initial benchmark” is fair. But unless the en banc court or the Supreme Court intervene, people like Mr. Bullard, whose time as passed to file a direct appeal, have to serve sentences affected by erroneous Guideline calculations.

§ 2255 waiver does not bar an ACCA challenge

Today's published decision in Vowell v. United States giveth and taketh away. It "giveth" in the form of some very helpful published law disambiguating conflicting precedent regarding whether and when a knowingly-entered § 2255 waiver in a plea agreement bars a § 2255 motion asserting that a defendant was wrongly designated as an armed career criminal. A prior published decision in Slusser v. United States suggested the waiver could bar such a motion. However, the Vowell panel found that Slusser improperly considered even earlier precedent (in Untied States v. Caruthers) to be dicta when in fact it was not. The upshot? An improper ACCA designation falls squarely within the category of cases in which a defendant is challenging an increased sentence above the statutory maximum, and thus the waiver does not bar the motion.

That huge procedural win notwithstanding, the Vowell decision "taketh away" in concluding that Mr. Vowell's Georgia burglary was still an ACCA-predicate. The statute is divisible, and a Shepard analysis revealed that his conviction fell into the portion of the statute that would require entry into a "dwelling house" and thus meet the standard for generic burglary.

A few final notes:

1. Numerous footnotes are doing a lot of heavy lifting in this decision.

2. It is not clear when judges started referring to armed career criminals as having been "sentenced as a career offender under the ACCA," as this decision does 13 times, but this is incredibly confusing for criminal practitioners.