Waiver or Invited Error? It Could be Both...or Either.

 When does a defendant invite error or forfeit his or her argument on appeal? As the Court held in United States v. Carter, the defendant can sometimes do both - or either. 

A grand jury indicted Kejuan Carter of three counts of distributing methamphetamine. Carter subsequently pleaded guilty to one count pursuant to a written plea agreement. In his sentencing memorandum, Carter made two arguments for a downward variance. He first made a policy argument, asserting the Guidelines' focus on drug quantity and purity improperly punished low-level offenders like him. Second, Carter argued his life experience and characteristics justified a downward variance.

During his sentencing hearing, Carter only made a "passing reference" to his policy argument, instead opting to focus on his life experience and characteristics. The district court likewise did not directly discuss Carter's policy argument and instead focused on his the relevant § 3553(a) factors and focused on Carter’s primary argument, his life experience and characteristics. It subsequently denied Carter's motion for a downward variance and sentenced him to 108 months' imprisonment - the lowest sentence recommended by the Sentencing Guidelines. 

After announcing its sentence, the district court asked: “Pursuant to United States v. Bostic, is counsel satisfied that I’ve addressed on the record all non-frivolous arguments asserted?” Carter's counsel agreed and only raised one objection to his sentence -- one unrelated to his policy argument. Carter subsequently appealed. 

On appeal, Carter argued the Court did not adequately address his policy argument.  The Court, however, held it did not need to reach this question either because he forfeited the argument or invited the alleged error. In reaching this conclusion, the Court focused on the district court's Bostic inquiry. It acknowledged that although the district court's initial Bostic question was "somewhat out of place" because it narrowly addressed a a single issue  -- whether counsel was satisfied it had addressed all non-frivolous arguments -- instead of the more general inquiry, Carter either waived his argument or invited error because his counsel specifically conceded the district court's inquiry. More specifically, the Court held that because Carter specifically agreed that the district court had addressed all non-frivolous arguments asserted, he either waived his right to complain on appeal that the Court had not done so, or he "invited the alleged error by encouraging the court to believe" that it did not need to say any more. 

In his concurring opinion, Judge Gilman asserted the government itself waived any waiver or invited error arguments by not arguing the same on appeal. Nevertheless, it held the district court did not commit plain error in sentencing him -- something the Government actually argued on appeal. 

Officer saying "Let me see it" held to be request, not command

Over a dissent, the Sixth Circuit in United States v. Tellez upheld on clear error review a district court’s finding that a motorist consented to a search of his wallet when an officer told him to “let me see” the wallet.

During a traffic stop, Officer George Camacho asked for, and received, Yanier Tellez’s consent to search his vehicle. The officer then asked Tellez if he had his wallet. In response, Tellez initially appeared to reach for the wallet, and the officer reached for it as well. At the same time, the officer said “let me see it for a moment.” Tellez complied, and the search uncovered evidence of credit-card fraud.

A simple interaction, but a difficult legal question. Did Tellez “voluntarily consent” to a search of his wallet?

The panel decided that it could not reverse the district court’s finding of voluntary consent. It emphasized that Tellez agreed to the search of his vehicle and that the wallet request came right after. The court also pointed out that Tellez reached for the wallet while the officer made the “let me see it” comment, and that Tellez handed it over—actions the court called “telltale signs of a consent-to search.”

The panel cautioned that Officer Camacho’s wording “could, in some contexts, perhaps be viewed as a command”—which would have made the search illegal. But the panel leaned on the standard of review, deciding that it could not find “clear error” in the district court’s finding.

In dissent, Judge Moore highlighted the stark difference between Officer Camacho’s request to search the car and his directive for Tellez to hand over the wallet. And she explained that the court has “consistently held that mere acquiescence to a show of authority, like Camacho’s imperative command here, falls short of our demanding standard for establishing voluntary consent.” She would have found clear error because “Tellez was simply responding to a command issued by Camacho, rather than providing specific, unequivocal, and affirmative consent for Camacho to look through the wallet.”

Judges disagree on denial of rehearing en banc on First Step Act retroactivity language

The Sixth Circuit denied en banc review of its decision in United States v. Carpenter, and the majority of active judges weighed in on the denial. This leaves intact the court’s holding that the First Step Act did not apply to Mr. Carpenter’s resentencing because his first sentence was not vacated until after the Act became law and thus was not “imposed as of such date of enactment” as required by Section § 403. United States v. Carpenter, No. 22-1198, 2023 WL 3200321, at *2 (6th Cir. May 2, 2023). 

Judge Kethledge (who wrote the original Carpenter opinion), joined by Chief Judge Sutton and Judges Thapar and Bush, concurred with the denial. He defended the court's decision in United States v. Jackson, 995 F.3d 522 (6th Cir. 2021), cert. denied, 142 S. Ct. 1234 (2022), which controlled the outcome in Carpenter. He wrote that “the ordinary meaning of § 403(b) is straightforward: it simply asks whether, as of December 21, 2018, a sentence (meaning any sentence) has been imposed on the defendant. Carpenter's sentence had been imposed as of that date, and indeed had not even been vacated yet. Thus—even under the reasoning of the Seventh Circuit opinion from which then-Judge Barrett dissented—the First Step Act does not apply to Carpenter's resentencing.” Carpenter at 4. That aside, Judge Kethledge described Mr. Carpenter’s sentence as “extreme by any measure,” a situation he primarily blamed on Congress’s mandatory minimum sentencing law. Id. at 6.

Judge Griffin, joined by Judges Moore and Stranch, dissented. He explained that Jackson was wrongly decided and wrote that the language in Section § 403 "raises the question of whether “a sentence” refers to a historical fact or one with legal effect—i.e., does it encompass a prior, invalid sentence or does it require an existing, valid one?” Id. at 7. He argued for the latter, presuming that Congress intended the common-law meaning for a vacated sentence: “ab initio, as if it never happened,” and noted that all sister circuits considering this issue have gone the other way.

Finally, in her first authored opinion, Judge Bloomekatz, joined by Judges Moore, Clay, Griffin, Stranch, and Mathis, also dissented, describing the case as one with “all the hallmarks of one that warrants the full court's consideration.” Id. at 12. In her view, Carpenter “clashes” with the prior decision in United States v. Henry, 983 F.3d 214 (6th Cir. 2020) and is “exceptionally important:”

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. . . . The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court. 

Id. at 13. 

The denial of en banc review cements a circuit split on this issue, one the Supreme Court will likely resolve.

No good faith for search of electronic device, even after consent to preview device

Last month, the Sixth Circuit issued an important Fourth Amendment decision regarding searches of electronic devices, United States v. Lewis.

In 2019, Kentucky police opened an investigation after a tip from Homeland Security stated a particular IP address, connected to Edward Lewis, was "viewing child pornography." Two years later, agents knocked on Lewis's door.

At his house, Lewis consented to a search of his phone and laptop after officers asked to look at them. A forensic examiner then previewed the items, revealing suspected child pornography. At the same time, Lewis made incriminating statements about possibly viewing child pornography.

Officers then arrested Lewis, and Detective Anthony Gatson prepared a search warrant for his house and electronic devices. The warrant explained: "An HSI investigation identified Edward L Lewis . . . as a person of interest. HSI SA Minnick requested assistance with interviewing Mr. Lewis. Mr. Lewis was located at his residence at [address.] Mr. Lewis gave consent to search his laptop and cell phone. During [the] search it became apparent that Mr. Lewis had used his laptop to view images of child sexual exploitation."

Subsequent searches confirmed illegal pornography on the devices on the devices, leading to federal charges.

The Sixth Circuit found exclusion of the evidence appropriate. The court decided Lewis consented only to a preview of his devices, not seizure of the devices and full forensic examination. "None of the law-enforcement officers testified that Lewis was asked for his consent to seize his devices or to a perform a second, more invasive search of the devices at a state forensic laboratory, or that he voluntarily consented to those actions." Instead, "Detective Gatson and the other officers reached the limit of Lewis’s consent once they terminated the consent search, arrested Lewis, and left his home to obtain a search warrant." 

This decision thus presents a compelling example of the important distinction between officers looking at a device versus seizure and forensic exam of that device.

As to the search warrant, the district court thought the later search warrant showed officers acted in good faith, but the Sixth Circuit disagreed. First, the affidavit failed to establish probable cause because the detective "provided the state judge only one fact in support of the existence of probable cause: that a search of Mr. Lewis's laptop and cell phone had occurred." The court thus observed, quoting prior decisions, that "the combined boilerplate language and minimal information provide few, if any, particularized facts of an incriminating nature and little more than conclusory statements of affiant’s belief that probable cause existed regarding criminal activity." 

Moreover, no good faith applied because the warrant contained only a "bare-bones affidavit." The court explained that, although the affidavit "clearly expresses Detective Gatson’s belief that Lewis had committed a crime, but it does not provide a factual basis upon which a magistrate could independently reach that conclusion.

The Sixth Circuit thus decided: "Lewis consented to the initial search of his laptop and cell phone performed at his home, and the law-enforcement officers' account of that search and the preview generated during the search were validly obtained and are admissible under the Fourth Amendment. All other evidence taken from Lewis's electronic devices, by contrast, was obtained through searches and seizures that were not supported by a valid warrant or a valid claim to an exception to the warrant requirement. Accordingly, we REVERSE the district court's order denying Lewis’s motion to suppress, VACATE Lewis's conviction, and REMAND for further proceedings."

Taylor Doesn’t Help Those Convicted of § 924(c) Based on Aiding and Abetting a Crime of Violence

Joining every other circuit to decide the question, the Sixth Circuit held in Nicholson v. United States (No. 21-1768) and Sorrell v. United States  (No. 21-1779), that aiding and abetting a "crime of violence" is still a "crime of violence" under the force clause in 18 U.S.C. § 924(c).  

The petitioners in these consolidated 2255 appeals were convicted after a jury trial of (among other things) using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).  The “crime of violence” element was predicated on the jury finding that the defendants committed either one of two other offenses charged under the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. § 1959—both arising from the assault of a rival gang member but with one being VICAR conspiracy to commit assault and one being VICAR aiding and abetting assault with a dangerous weapon.

Everyone agreed that under existing precedent, VICAR conspiracy to commit a crime of violence is not a crime of violence no matter the predicate offense.  And the Court quickly dispatched the question whether VICAR assault with a deadly weapon is a crime of violence, relying on its rule that any assault, no matter how minimal, satisfies the force clause when committed with a gun. The central issue became whether the § 924(c) conviction remained valid as alternatively predicated on VICAR aiding and abetting that crime of violence. 

Under § 924(c), the force clause requires that the offense have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  In United States v. Taylor, 142 S. Ct. 2015 (2022), the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence under § 924(c).  It reasoned that because the attempt crime at issue requires proof only of an intent to commit the crime and a substantial step toward it—which could be just arriving at the planned location with intent and tools—it does not satisfy the force clause.

The petitioners here contended that aiding and abetting as defined in Rosemond v. United States, 572 U.S. 65 (2014), means that the government must prove only two elements: an affirmative act in furtherance of an offense (which could be mere words of encouragement) and the intent to facilitate the offense’s commission.  But the Sixth Circuit was not swayed, focusing on the fact that the government still must prove that someone committed all the elements of the charged crime of violence—unlike for the incomplete attempt offense in Taylor. The Court also relied heavily on the fact that a person convicted of aiding and abetting is treated as a principal.

Finally, the Court in Nicholson rejected the petitioners’ claim that because the jury could have been non-unanimous in its decision about which predicate supported the § 924(c) conviction—the invalid VICAR conspiracy or the valid VICAR aiding-and-abetting—their conviction must be vacated. Following its recent decision in Baugh v. United States, 64 F.4th 779 (2023), the Court held that the invalid conspiracy offense did not encompass conduct beyond the scope of the valid aiding and abetting offense (both arising from the same scheme to assault the rival), so the error was harmless.

Opinion here:  https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0183p-06.pdf

While certainly a blow for post-Taylor aiding and abetting arguments in this Circuit, Nicholson still leaves room for (and provides inferential support for) challenging predicates that do not rise to the level of aiding and abetting, either because they do not require proof of the commission of the completed offense (by anyone) or because they do not treat the defendant the same as a principle or an aider or abettor, but something less.  E.g., United States v. Benton, 639 F.3d 723 (6th Cir. 2011) (holding that Tennessee solicitation to commit aggravated assault is not a violent felony under the ACCA’s force clause because solicitation is “distinguished from” criminal responsibility as an accessory before the fact or as an aider and abettor under Tennessee law).

District Court: "I'm tired of this defendant. I'm tired of getting the runaround . . . This guy looks like like a criminal to me. This is what criminals do." Sixth Circuit: new trial, new judge


Due process safeguards against trial by an impartial arbiter. To ensure an impartial arbiter, courts must avoid even the appearance of bias, or, said differently, the objective risk of actual bias. In US v. Liggins, a district court's pretrial remarks crossed the line.

Leron Liggins was indicted in February 2018. During a lengthy pretrial process, he struggled to build durable relationships with his appointed attorneys, and wrestled with the decision to plead guilty or go to trial. Eventually, he decided to forego a plea and the district court set the matter for trial.

Two months prior to the trial date, Mr. Liggins filed a pro se pleading expressing dissatisfaction with counsel. The district court held a hearing, and when the judge learned Mr. Liggins wished to fire his attorney, the judge, admittedly, lost their cool. The judge said:

"I’m tired of this case. I’m tired of this defendant. I’m tired of getting the runaround. This has been going on since February 6, 2018. We’ve got a case out of Kentucky that came here under Rule 20. Rule 20 says the reason for the transfer was the defendant has agreed to plead guilty. I feel as if the Court has been misled. I’ve been told in an official pleading and informally the defendant was going to plead guilty. We cancelled jurors. We got a trial date. Now we got this."

Mr. Liggins asked to speak, the judge said no, and then the judge addressed Mr. Liggins' lawyer, adding: 

This guy has got my attention, [counsel]. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn’t what innocent people, who want a fair trial do. He’s indicted in Kentucky. He’s indicted here. He’s alleged to be dealing heroin, which addicts, hurts and kills people, and he’s playing games with the Court. Do you agree? 

The court granted counsel's request to withdraw, appointed new counsel and, eventually, the case headed to jury trial. Prior to trial, Mr. Liggins moved to recuse the court, citing the above comments as evidence of bias and thus reason to doubt the court's impartiality. Although the court apologized for and walked back the above comments, the court denied the motion. A jury convicted Mr. Liggins, the court sentenced him to 127 months, and Mr. Liggins appealed. 

The Sixth Circuit issued a published opinion reversing and remanding for a new trial before a new judge. 

Two pieces of the published opinion warrant comment. One, the court's statement that Mr. Liggins "looks like a criminal to me" raised the specter of racial bias. Regardless of the court's intent in making the remark, an objective risk of bias took root when the judge commented on Mr. Liggins' appearance, especially so because Mr. Liggins is an African American man. Second, the court appeared to prejudge Mr. Liggins' guilt. Casting Mr. Liggins' dissatisfaction with counsel and desire to go to trial as doing "what criminals do" sure looked like voiding the presumption of innocence. 

At bottom, the court's gratuitous, personal, and condemnatory comments too readily risked undermining public confidence in the judicial process. So the panel vacated Mr. Liggins' conviction.


Sixth Circuit Upholds Application of Attempted Murder Cross Reference in Shooting of Kentucky State Trooper.

While pursuing a truck being driven by Tiffany Miller, Kentucky State Trooper Bradley Couch ordered her to stop and get out of her vehicle. As he approached the vehicle and attempted to open the door, however, Miller opened fire, hitting him in the shoulder. Additional pursuing troopers opened fire, hitting Miller several times. Both Miller and Couch survived.

Miller subsequently pleaded guilty to possession of a firearm by a convicted felon and possession of a stolen firearm. Although Miller's presentence report calculated her recommended Guidelines sentencing range as 324 months to 405 months imprisonment by applying the cross-reference to attempted murder, the Court reduced her sentence to 240 months imprisonment in order to match the maximum sentence she could receive based on the firearms offenses to which she pleaded guilty.

Miller appealed her sentence, arguing the District Court should have applied the cross-reference to aggravated assault pursuant to U.S.S.G. § 2A2.2 rather than attempted murder pursuant to U.S.S.G. § 2A2.1. Specifically, she argued the District Court erred in finding she specifically intended to kill Trooper Crouch because there was evidence she was intoxicated at the time and there were unspent rounds in her revolver -- evidence she claimed supported her argument that she intended to shoot past Trooper Couch to scare him. She also argued her sentence was substantively unreasonable because the District Court failed to recognize she accepted responsibility for her actions by pleading guilty.

The Sixth Circuit disagreed. In a published opinion, it held the sentence imposed by the District Court was neither procedurally nor substantively unreasonable. The Court specifically held the District Court's finding she possessed a specific intent to kill Trooper Crouch was not clearly erroneous. Additionally, it held that Miller's sentence was not substantively unreasonable because the Guidelines already took her timely guilty plea into account by reducing her offense level for her acceptance of responsibility. 


What is a "Trade Secret"? Court Affirms Conviction for Economic Espionage and Theft of Trade Secrets.

Dr. Xiaorong You, a foreign-born U.S. citizen of Chinese origin, was a chemist employed by the Coca-Cola Company to test the chemical coatings used in the company's beverage cans. In recent years, Coca-Cola sought to utilize coatings that were free of bisphenol-A (“BPA”). In working toward its goal, it worked with six chemical companies that developed BPA-free formulas. Each company required Coca-Cola to sign nondisclosure agreements in order to protect their formulas. You was one of the only Coca-Cola employees with access to these formulas. 

Unbeknownst to Coca-Cola or You's other employers, she sought to form a new company in China that would manufacture a BPA-free chemical. She also requested funding from the Chinese government, stating she had developed the world's "most advanced" BPA-free coating technology. 

After discovering You's actions in China, Coca-Cola informed her it would terminate her employment in sixty days. In response, she transferred confidential files regarding the companies' BPA-free formulas from Coca-Cola's servers to her own devices. In addition, she transferred confidential files regarding the same information from her subsequent employer. 

A grand jury subsequently indicted You for conspiring to commit theft of trade secrets in violation of 18 U.S.C. § 1832(a)(5); seven counts of possessing stolen trade secrets, in violation of 18 U.S.C. § 1832(a)(3); wire fraud, in violation of 18 U.S.C. § 1343; conspiracy to commit economic espionage, in violation of 18 U.S.C. § 1831(a)(5); and economic espionage, in violation of 18 U.S.C. § 1831(a)(3). A jury ultimately convicted her on all counts. 

During sentencing, the district court estimated You intended to impose $121.8 million of loss on the referenced chemical companies. In reaching this calculation, the district court admitted it based its calculations on the following assumptions, among others that: (a) the Chinese market for BPA-free coatings would remain fixed; (b) You would absorb all sales in China from Chinese can makers; and (c) Chinese companies were already buying BPA-free coatings from the chemical company victims. The district court's intended loss calculation resulted in a 24-level enhancement to You's base offense level, which increased her total offense level of 41 and resulted in a recommended Guidelines range of 324 to 405 months imprisonment. The district court subsequently varied downward to impose a 168-month sentence.

You raised several issues on appeal challenging her conviction and sentence. Notably, she argued the district court's jury instructions misstated the intent requirements for economic espionage and trade-secret theft. In addition, she argued the district court's sentence was procedurally unreasonable because "intended loss" is referenced in the Guidelines' commentary and not in its actual text. In the alternative, You argued that, even if the district court could rely on the Guidelines' commentary, it miscalculated her intended loss.  

In a published opinion, the Sixth Circuit affirmed You's conviction but reversed her sentence. It held the district court properly instructed the jury regarding the mens rea requirements for You's economic espionage and trade-secret theft counts, rejecting her argument that the jury had to find that the information she took met each element in the Economic Espionage Act's definition of a "trade secret." It was sufficient, the Court held, for the jury to find that You knew she was taking "confidential information" she had no right to claim.

With respect to You's sentence, the Court held the district court properly considered her "intended loss" pursuant to the Guidelines' commentary. Finding the definition of "loss" ambiguous, the Court held it was proper for the district court to rely on the United States Sentencing Commission's interpretation of the term.

Although it held the district court could sentence You based on her "intended loss," the Court found its calculation flawed in two ways. First, although the district court rejected other estimates You provided in her grant application with the Chinese government as "speculative," it used the $2.9 billion estimate she provided regarding the annual Chinese market for can coatings. In addition, the Court found that, although the district court claimed to determine the loss amount based on You's anticipated profits, it actually used her anticipated sales with no reduction for her profit margin. A "reasonable reduction" for You's profit margin, the Court concluded, could have affected her Guidelines range and resulted in a lesser sentence. Accordingly, the Court reversed her sentence and remanded the matter for resentencing.

Community-Caretaking Doctrine Not Unlimited

In United States v. Morgan, the Sixth Circuit clarified the limits of the community-caretaking doctrine. 

On a winter morning, a police officer saw a man seemingly passed out at the wheel of his stopped but running car. Without investigating further or taking any action to rouse the driver, the officer opened the car door. This led to an altercation and Mr. Morgan was arrested for possession of a firearm and drugs. The district court denied his motion to suppress, finding the seizure justified by the community-caretaking exception. The Sixth Circuit reversed.

In doing so, the Court first discussed the history of police community service, running back to “watchman’s roles long before the dawn of the Republic.” Slip Opin. at 4. Ultimately however, the Court emphasized the limitations of the doctrine, finding that “[c]oncerns about the health of a driver by themselves generally do not permit the unannounced opening of a car door.” Id. at 6. There were “myriad, less intrusive paths available” to the officer to investigate any concerns about the driver, like activating his emergency lights, shining a flashlight at the driver, calling out to him, or knocking on the window. The Court emphasized that the intrusion must be reasonable, matching the actual problem.

The Court also dismissed the officer’s contention that he needed to open the car door suddenly to keep the driver from hitting the gas and causing harm, as suddenly opening the driver’s side door was more startling than any of the other less intrusive options. An officer must first, in some way, confirm that an actual exigency exists to rely on the community-caretaking exception.            

The Not So Friendly Skies: Court Upholds Conviction for Flying Without a License

Delbert Stewart flew legally with a properly issued private airman's certificate for almost 40 years. In 2014, however, the Federal Aviation Administration suspended his certificate when he failed to respond to the FAA's claim that he flew at altitudes and in weather conditions for which he was not authorized. Claiming the FAA had no jurisdiction over private pilots, Stewart never responded to allegations, and he never surrendered his certificate, as required by the FAA. In fact, he continued flying, despite the issuance of numerous fines against him by the FAA and even after suspending the airworthiness certificate for his plane. 

By 2019, the FAA had finally had enough. After Stewart landed his plane without landing gear, it revoked his airman's certificate and ordered its surrender. Stewart again refused to surrender his certificate, prompting the FAA to issue yet another $5,000 fine. This did not stop Stewart from flying, however. 

In May 2021, a federal grand jury returned an indictment charging Stewart with three counts of knowingly and willfully flying "without an airman's certificate...." 49 U.S.C. § 46306(b)(7). Stewart subsequently moved to dismiss the indictment, arguing he was never "without" his airman's certificate because he never surrendered it to the FAA and thus had it in his possession each time he flew. Moreover, he argued that the 49 U.S.C. § 46306(b)(7) did not require that he possess a "valid" certificate. The district court denied Stewart's motion, holding that the statute required airmen to have certificates authorizing them to fly, and that his suspended, and subsequently revoked, license did not authorize him to do so. Stewart subsequently entered a conditional guilty plea, and the district court sentenced him to two years of probation.

In a published opinion, the Court affirmed the district court's order. After reviewing the statutory text, the Court concluded that 49 U.S.C. § 46306(b)(7) required more than a mere certificate: it required the pilot to have actual authorization from the FAA to fly. Since Stewart repeatedly flew without such authorization, the Court concluded the statute applied.

Sixth Amendment does not require that counsel be clairvoyant to be effective.

In Kimbrough v. United v. States, --- F.4th --- (6th Cir. 2023), the defendant was charged with numerous offenses including attempted Hobbs Act robbery (18 U.S.C. § 1951(a)), two counts of murder with a firearm during a crime of violence (18 U.S.C. § 924(j)), and murder of a federal witness (§ 1512(a)(1)(C)). The latter charge carried a mandatory life sentence.

Under the terms of a plea agreement, Mr. Kimbrough agreed to a stipulation admitting the crimes and he would plead guilty to multiple charges including two counts of murder with a firearm during a crime of violence. The government would dismiss the remaining charges and agree to a binding sentencing range of 480 to 520 months. The district court imposed concurrent 504-month sentences on the two § 924(j) convictions and concurrent statutory maximum sentences on the other counts.

Mr. Kimbrough subsequently filed a motion under 28 U.S.C. § 2255 to vacate his sentence. He claimed that his attorneys were ineffective because they advised him to plead guilty to the § 924(j) charge that did not involve the federal witness. Mr. Kimbrough argued that counsel was ineffective because attempted Hobbs Act robbery was not a crime of violence under the “elements clause” of § 924(c)(3)(A). Although the district court agreed with Mr. Kimbrough, it rejected his claim because in the absence of evidence that he would have rejected the plea, he could not demonstrate prejudice.

After Mr. Kimbrough file notice of appeal, the Supreme Court held in Taylor v. United States, 142 S.Ct. 2015 (2022) that attempted Hobbs Act robbery does not qualify as a crime of violence. The Sixth Circuit issued a certificate of appealability on the ineffective assistance claim. In his reply brief, Mr. Kimbrough requested that a certificate of appealability to challenge his § 924(j) convictions. The request was denied because Mr. Kimbrough procedurally defaulted the Taylor argument by failing to raise it in district court and on direct appeal in his opening brief.

The Sixth Circuit affirmed the denial of Mr. Kimbrough’s § 2255 motion. In its analysis of the deficiency prong of the test in Strickland v. Washington, 466 U.S. 668 (1984), the Sixth Circuit found that “existing precedent did not ‘clearly foreshadow’” Taylor. Slip Opin. at 4. As the court put it, “the Sixth Amendment guarantees a competent attorney, not a clairvoyant one.” Slip Opin. at 5. Moreover, foregoing a potentially meritorious argument to obtain a favorable plea agreement does not render counsel’s performance deficient. The Sixth Circuit noted that Mr. Kimbrough “did not have a strong hand to play in plea negotiations.” Slip Opin. at. 6. He did not deny the charges and did not offer a viable defense to them. Moreover, he was looking at a mandatory life sentence on one charge. Even if the Taylor argument was viable, “counsel must only consider ‘clearly foreshadowed’ arguments, not every ‘viable’ one.” Slip Opin. at 6 (citation omitted).

Mr. Kimbrough also failed to show prejudice under the Strickland test. The Sixth Circuit reiterated that he did not claim to be innocent or offer a viable defense. He also did not contend that he would have rejected the plea deal and gone to trial. In addition, he did not show that he had a legal argument that “materially mitigates the risk of a mandatory life sentence or a factual argument that materially improves the odds of an acquittal.” Slip Opin. at 7.