Two takes on “substantive reasonableness” sentencing review

The Sixth Circuit issued two decisions this week that show both the promise and limits of appellate review of sentencing decisions.

1. The standard outcome

The first decision, United States v. Muchow, shows the usual limits that apply in a sentencing appeal.

Wesley Muchow pleaded guilty to child-pornography charges (he had 129 images and 4 videos) and faced a sentencing range of 135 to 168 months. He received 135 months. He argued on appeal that this sentence was substantively unreasonable, noting his other law-abiding conduct and that the district court held against him uncharged viewing of child pornography in the past.

In affirming, as is typical, the Sixth Circuit emphasized the “significant latitude” afforded to sentencing courts. It explained: "Where a district court acted reasonably in imposing a sentence, this Court must affirm its decision."

As an aside, two notables: (1) This is Judge Readler’s first authored opinion. (2) It is unusual to see this type of sentencing-review decision published.

2. When substantive-reasonableness review has teeth

In contrast, the second decision, United States v. Warren, shows when appellate review can make a difference. 

In the district court, the parties both agreed that a guidelines sentence of 51 to 63 months was appropriate for Davian Warren’s possession of a firearm. But N.D. Ohio Judge Adams varied upward to 120 months, the statutory maximum.

The Sixth Circuit reversed the sentence as substantively unreasonable.

In doing so, the court explained that sentences above the guidelines range are not given a presumption of reasonableness, and a sentencing court must adequately justify its variance from the range. The court then noted that Judge Adams had recognized his disparately harsh treatment of Warren but cited only Warren's criminal history as a reason for the disparity. The Sixth Circuit found this justification not "sufficiently compelling" to justify "the greatest possible upward variance under the statute." It explained:

"[B]ecause the Guidelines already account for a defendant's criminal history, imposing an extreme variance based on that same criminal history is inconsistent with 'the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct' under 18 U.S.C. § 3553(a)(6)."

Unfortunately, this decision is unpublished (at least for now). But it shows that there is still some hope of appellate courts reining in unusually harsh sentencing decisions.

Sixth Circuit Grants En Banc Review in United States v. Havis; Is There a Major Course Correction In the Offing Regarding the Use and Application of Guidelines Commentary at Sentencing?

The Sixth Circuit granted en banc review last week in United States v. Havis, a sentencing guidelines case. The panel decision, which was 2-1 for the government, unusually included concurring opinions by the two judges (Judge Thapar and Judge Stranch) that formed the panel majority.

The defendant in Havis was convicted on a 922(g) charge (felon in possession of a firearm). The district judge determined that a prior Tennessee conviction for selling or delivering cocaine qualified as a "controlled substance offense" under the Guidelines and accordingly increased his offense level and sentence.

Havis argued to the panel that the Tennessee drug conviction "does not match up with a controlled substance offense under the Guidelines because the former includes attempting to transfer drugs, while the Guidelines only include completed controlled substance offenses." This argument, however, was foreclosed by the Court's earlier decision in United States v. Evans, 699 F.3d 858, 866-67 (6th Cir. 2012), which relied on the expansive definition of "controlled substance offense" found in the Guidelines commentary to include "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. sec. 4B1.2 cmt. n. 1. And so the panel majority concluded Evans controlled and foreclosed Havis' argument.

Judge Thapar's and Judge Stranch's concurring opinions offer intriguing prospects regarding the ultimate scope of the en banc decision. Both focused on the Supreme Court's decision in Auer v. Robbins,  519 U.S. 452 (1997), which allows deference to administrative agencies to interpret and enforce the statutes they are charged to administer, a principle relevant to the Sentencing Commission and Guidelines by way of Stinson v. United States, 508 U.S. 36 (1993). Both agreed that the Guidelines commentary had exceeded the Commission's proper authority by expanding the Guidelines' reach at least as they bear on Havis and his prior conviction.

There are other Guidelines sections where commentary similarly adds to the scope of the Guidelines text. U.S.S.G. sec. 2B1.1 deals principally with fraud cases and escalates the offense level based on the amount of "loss," which commentary states "loss is the greater of actual loss or intended loss." This appears to present the same type issue as in Havis, since an intended loss is a loss attempted to be caused but not actually caused.

Another example is U.S.S.G. sec. 2K2.1(b)(4)(A), which deals with firearm offenses and adds two levels if any firearm involved was "stolen." The commentary advises this enhancement applies "regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number." U.S.S.G. sec. 2K2.1 cmt. n. 8(B). The Guidelines' commentary abolition of a mens rea requirement distinguishes the enhancement from the federal statute, 18 U.S.C. § 922(j), that prohibits possession of a stolen firearm and also has an explicit mens rea requirement. As such, it is contrary to the statutory directive in 28 U.S.C. § 994(a) that the guidelines be “consistent with all pertinent provisions of any Federal statute.” 

Other examples abound in the guidelines; we'll see how if at all the en banc Sixth Circuit trims the reach generally of the Guidelines by limiting the use and application of expansive commentary. 

The panel opinions in Havis are here.

Robert L. Abell
Lexington, Ky.

Despite confessed error defendant not entitled to relief.

Jimmie White moved to dismiss the indictment against him due to a speedy trial violation. The district court denied the motion, relying on a joint stipulation to exclude a two-week period of time that the parties were involved in plea negotiations and 18 U.S.C. § 3161(h)(7).

White appealed, arguing that the lower court did not make the requisite findings for the time to be excluded under 18 U.S.C. § 3161(h)(7). The government argued that the court did make the necessary findings, and, for the first time, that the two weeks spent in plea negotiations was automatically excluded from the speedy trial clock under 18 U.S.C. § 3161(h)(1). The Sixth Circuit panel, relying on prior circuit precedent, agreed.

White filed a writ of certiorari, arguing that the Sixth Circuit’s decision – that time during plea negotiations was automatically excluded under § 3161(h)(1) – was inconsistent with Bloate v. United States, 559 U.S. 196 (2010). “The government then changed horses in midstream, conceding – also for the first time before the Supreme Court – that [Sixth Circuit] precedent was incorrect and inconsistent with Bloate. The Supreme Court granted certiorari, vacated the judgment, and remanded for consideration “in light of the confession of error by the Solicitor General.”

On remand, the government changed horses again. The government agreed the time for plea negotiations is not automatically excluded under § 3161(h)(1) but now argues that White is not entitled to relief because he either waived or forfeited the argument, or, alternatively, the time was properly excluded under § 3161(h)(7).

In the fractured opinion issued on April 10th, there is some common ground. The panel agrees that Bloate v. United States, 559 U.S. 196 (2010), is intervening Supreme Court law that abrogates this Circuit’s precedent. In light of Bloate, the time spent during plea negotiations is not automatically excluded under § 3161(h)(1).

Judge Griffin would agree with the government that White forfeited the argument that Bloate prevented a finding of automatic exclusion under § 3161(h)(1). Both Judge Guy and Clay, writing separate opinions, disagree, going as far as saying “it is the government that forfeited its § 3161(h)(1) argument by failing to make it before the district court.” While this appears to be an interesting tête-à-têtes, it does not change the disposition of the appeal.

The majority (Judges Guy and Griffin) hold that White’s two week period was properly excluded under § 3161(h)(7). Judge Clay dissents, concluding that the lower court did not make the requisite findings to justify excluding the time based on the “ends of justice.”

Asylum seeker failed to show Guatemalan government was unwilling or unable to control her persecutors and protect her.

In K.H. v. Barr, a published opinion issued Monday, the Sixth Circuit set forth an analysis to be used when determining if an asylum seeker has established that her home country is "unwilling or unable" to control persecutors and protect her.

In the removal proceeding below, “the parties stipulated that (1) the harm K.H. experienced rose to the level of persecution and (2) K.H. was persecuted on account of her race and her membership in a particular social group.  Thus, the only remaining issue was whether the Guatemalan government was unable or unwilling to control K.H.’s persecutors and protect her.”

The Sixth Circuit took the opportunity to provide guidance on the “unwilling or unable” analysis. In so doing, it rejected the First Circuit’s “one-dimensional approach.” Instead, the Sixth Circuit has instructed the immigration courts to “look to two general categories of information:  (1) the government’s response to an asylum applicant’s persecution and (2) general evidence of country conditions.”

Despite the Immigration Judge and BIA applying the incorrect analysis, the Sixth Circuit proceeds to review the facts of the case and concludes there is “substantial evidence” to support the BIA’s determination that “K.H. failed to show that the Guatemalan government was unwilling or unable to control her persecutors and protect her.” The Circuit therefore affirms the BIA’s finding that K.H. failed to meet her burden for asylum.

The Sixth Circuit further held that the BIA did not abuse its discretion when if found K.H. was not eligible for humanitarian asylum because she had failed to establish that she suffered past persecution.

Pre-2004 Version of Michigan Unarmed Robbery Qualifies as a “Violent Felony”

In Chaney v. United States, decided last week, the Sixth Circuit considered whether Duryane Chaney was entitled to post-conviction relief from his ACCA-enhanced sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015).  Before reaching the merits, the court first had to decide whether Chaney met his burden of showing that the sentencing court relied on the now-void residual clause when it deemed him an armed career criminal at his original sentencing.  

The record was equivocal.  The government’s arguments at sentencing pointed to the residual clause, while the sentencing court made an “off-the-cuff statement” that used language from the elements clause.  Relying on Raines v. United States, 898 F.3d 680 (6th Cir. 2018) (per curiam), the Sixth Circuit held that it was enough for Chaney—a first-time § 2255 movant—to show that the sentencing judge “might have” relied on the residual clause to apply the ACCA.  The court also summarily dispatched the government’s argument that Chaney had procedurally defaulted his claim, declining “to fault Chaney for not making an argument that would have had no practical effect whatsoever given the then-viable residual clause”—an outcome the court said would be “harsh.”  

Unfortunately for Chaney, getting past these procedural hurdles (and avoiding that harsh outcome) did not result in relief.  

On the merits, the question was whether his 1981 conviction for Michigan unarmed robbery still qualifies as a “violent felony” under the ACCA’s elements clause. 18 U.S.C. § 924(e)(2)(B)(i).  Before 2004, a person could be convicted of unarmed robbery in Michigan upon proof that he stole or took property from the person of another, in his presence and not being armed by a dangerous weapon, “by force and violence, or by assault or putting in fear.”   Mich. Comp. Laws § 750.530 (1981).  

Chaney argued that neither the “putting in fear” version nor the “force and violence” version of the Michigan statute qualifies as a “violent felony” under the elements clause because neither version has as an element the use, attempted use, or threatened use of “violent force—that is, force capable of causing physical pain or injury to another person.”  Johnson v. United States, 559 U.S. 133, 140 (2010).       

The Sixth Circuit rejected his arguments.  Relying on a Michigan Supreme Court decision, the court held that the “putting in fear” version satisfies the “violent force” test because it is derived from the common law, and the Michigan court equates common-law “putting in fear” with putting the victim “in fear of immediate personal injury.”  (Emphasis added.)   As with Tennessee robbery, because Michigan unarmed robbery requires “fear of bodily injury from physical force offered or impending,” it satisfies the elements clause of the ACCA. 

The court encountered a bit more headwind when it turned to the “force and violence” version of the Michigan statute.  Chaney pointed to two Michigan decisions and a Michigan pattern jury instruction indicating that the words “force and violence” under Michigan law mean “any use of physical force against another person so as to harm or embarrass him.”  This unusual meaning has been used in the context of assault statutes (as opposed to the unarmed robbery statute), but the Sixth Circuit assumed that “if Michigan unarmed robbery could be accomplished by using physical force to embarrass the victim, then it would fall outside of the ACCA.” 

One might think this assumption would end the matter in Chaney’s favor, since the Michigan unarmed robbery statute by its terms criminalizes taking “by assault,” and a person in Michigan can be convicted of assault by spitting on another person with no physical harm resulting.  E.g., People v. Terry, 553 N.W.2d 23 (Mich. Ct. App. 1996); People v. Cheatum, 2005 WL 1652221 (Mich. Ct. App. 2005).  But the Sixth Circuit could not imagine how theft-by-embarrassing-touch could occur.  And even if one could creatively imagine how it might occur, Chaney did not cite any Michigan case in which the “force and violence” clause in the unarmed robbery statute was applied where the defendant stole property and the “force and violence” was accomplished through an “embarrassing touch alone.”  The court therefore held, in the absence of a realistic probability that the statute was applied in that non-qualifying way, that the “force and violence” clause meets the ACCA’s requirement of violent force.

The court bolstered its conclusion by highlighting the ACCA’s original common-law-derived definition of “robbery,” recently operative in Stokeling v. United States, 139 S. Ct. 544 (2019), as well as decisions of other circuits reaching the same conclusion about Michigan unarmed robbery, and this and other circuits’ decisions interpreting state robbery statutes likewise derived from the common law. 

Chaney’s final argument was that Michigan attempt sweeps more broadly than generic attempt, thereby disqualifying his attempted unarmed robbery conviction.  But the court was unmoved.  It held that Michigan’s “substantial step” requirement for attempt matches generic attempt, and in any event, the attempt factor applies only to the felonious taking, not the force element.  The level of force required was thus not altered by the fact that Chaney was convicted of an attempt.

On the bright side, the court noted that Michigan amended the statute in 2004 to require either “force or violence.”  Several district courts have recognized that the amended statute requires less force than the pre-2004 version (which required force and violence), holding that a post-2004 conviction for Michigan unarmed robbery is not a crime of violence under the Guidelines’ identical elements clause.  E.g., United States v. Harris, 323 F. Supp. 3d 944, 948 (E.D. Mich. 2018).  Those decisions were left undisturbed.

The Reckless Endangerment Enhancement Is Inapplicable Based on Discarding Firearm Alone

    In a divided opinion, the Sixth Circuit held last week that the reckless endangerment enhancement under Guideline 3C1.2 did not apply where the defendant discarded a sawed-off shotgun after bailing from a vehicle. United States v. Brooks. Under 3C1.2, the enhancement applies when a defendant creates a substantial risk of death or serious bodily injury to another person.
    Judge Moore, writing for the majority on this issue but not the remaining issues, explained that the reckless endangerment enhancement can be applied when a defendant discards a gun, because it creates a risk of harm from the gun being found and fired or even fired when it is dropped. But in Mr. Brooks' case, the gun was unloaded.
    The enhancement can also apply where the defendant draws the firearm in front of officers, creating an increased risk of gun play between the defendant and law enforcement. This creates a risk to officers and bystanders. However, the record in Mr. Brooks' case did not clarify whether officers saw Mr. Brooks pull out the firearm. Rather, the Sixth Circuit only had a short description in the PSR, which indicated Mr. Brooks dropped the gun in front of a residence. As a result, the majority held the facts were inadequate to support the enhancement.
    Judge Suhrheinrich wrote a dissenting opinion as to this issue and argued all the surrounding circumstances, including Mr. Brooks' flight from officers, increased the risk of harm and justified the enhancement.

Unreasonable Speculation Claims from Sentencing Are Issues of Procedural and Not Substantive Reasonableness

    Last week, the Sixth Circuit decided United States v. Parrish, which dealt with the defendant's in-prison possession of a cellphone. Mr. Parrish plead guilty to a possession of contraband misdemeanor and asked that he be given a one day sentence to run after his 250-month underlying term. That request was based on Mr. Parrish's argument that he had already been punished for the cell phone by the BOP and that he used the phone to contact family. The government argued for a Guideline sentence of four to ten months of incarceration. The district court imposed a Guideline sentence.
    On appeal, Mr. Parrish argued that the sentence was substantively unreasonable, because it was based on factual speculation. Specifically, a woman had provided an anonymous tip to the prison that Mr. Parrish was texting her. The district court determined that that fact undermined Mr. Parrish' claim that he was using the cell phone to contact his family. Instead, the district court found Mr. Parrish was contacting someone it determined did not want to be contacted. Mr. Parrish contended there was no evidence to support that he was using the cell phone to harass someone.
    The Sixth Circuit held this was a question of procedural and not substantive reasonableness, as it sounded in the claim that the district court "select[ed] a sentence based on clearly erroneous facts." Rejecting the cases cited by Mr. Parrish for support that this was substantive unreasonableness, the Court held that the prior decisions cited were decided at a time when "it was unsettled in the circuit whether a district court's consideration of an impermissible factor should be treated as procedural or substantive error." The Sixth Circuit noted that it had settled the question as one of procedural reasonableness in 2016 in United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016). Further, the district court is free to make "reasonable inferences from the record."

Not so fast! Court holds that the district court went too far in fashioning habeas relief.

On habeas review, what should a district court do when faced with clear evidence that a state court failed to properly address jurors' "extracurricular fact-finding" by conducting internet research?  In   Ewing v. Horton, the Sixth Circuit held that the district court went too far. 

After four days of strenuous deliberations -- during which it unsuccessfully asked the trial court to declare it deadlocked -- a jury convicted Darrell Ewing of first degree murder.  Approximately two months after the jury issued its verdict, however, one of the jurors filed an affidavit stating that two of her fellow jurors had searched for information on the Internet about Mr. Ewing using Google and Facebook.  Faced with this information, Mr. Ewing moved for a new trial and, in the alternative, for an evidentiary hearing regarding the newly presented information.  The trial court subsequently denied the motion, finding that the extraneous information was merely duplicative of the evidence presented against Mr. Ewing at trial.  The Michigan Court of Appeals subsequently affirmed, and the Michigan Supreme Court denied further review.

Having exhausted his state court remedies, Mr. Ewing filed a habeas action wherein he asserted the trial court violated his constitutional rights to a fair trial and impartial jury because of the jury's consideration of extraneous facts.  In addition, Mr. Ewing asked the district court to order a new trial or a hearing to determine the impact of the extraneous information presented to the jury.  The district court subsequently agreed and ordered that the state grant Mr. Ewing a new trial within ninety days or otherwise order his release.

On appeal, the parties conceded that the trial court had violated Mr. Ewing's constitutional rights.  However, they disagreed on the remedy.  Was Mr. Ewing entitled to a new trial or to the the Remmer hearing the trial court failed to hold?  The Sixth Circuit agreed with the latter.  Through no fault of his own, the Court concluded, Mr. Ewing had not developed sufficient evidence to prove the jury's consideration of extraneous information denied him his constitutional right to a fair trial and impartial jury.  Since the trial court denied Mr. Ewing such an opportunity, the Court held that the proper remedy was to remand the matter to the trial court to conduct an evidentiary hearing.

As noted in the majority opinion and in Judge Moore's dissent, the case also touched upon the appropriate discretion provided to district courts in fashioning relief in habeas cases and upon principles of federalism.  The Court concluded that the district court abused its discretion by imposing a new trial upon the state court without allowing it an opportunity to conduct a Remmer hearing.

This case presents examples of the pitfalls that juries face in an era of easily accessible information and about how the Sixth Circuit views principles of federalism in habeas proceedings.  In this instance, at least, the Court believed the district court went too far in fashioning relief.