Court Holds 18 U.S.C. § 111(b) Does Not Require Specific Intent to Injure

Fleeing United States Marshals in his mobile meth lab, William Milliron decided to aid his escape by lighting bottles containing the chemicals he was using and launching them at his pursuers. After 35 miles, however, Milliron's chase ended when he crashed his vehicle into a building.

Pursuant to a written plea agreement with the Government, Milliron pleaded guilty to four counts of a seven-count indictment, including a violation of 18 U.S.C. § 111(a)(1) and (b) for using a deadly or dangerous weapon to forcibly assault, resist, oppose, impede, intimidate, and interfere with federal officers performing their official duties. However, Milliron subsequently moved the district court to allow him to withdraw his plea citing his counsel's failure to correctly explain that, in order to convict him of violating 18 U.S.C. § 111(b), the Government had to prove he specifically intended to cause injury during the chase. The district court disagreed and denied Milliron's motion. At sentencing, the district court varied upward from the recommended Guidelines sentence and imposed a sentence of 110-months imprisonment. Milliron appealed. 

At the outset, Milliron faced a significant hurdle in his appeal: an appellate waiver. In its opinion, the Court held that the appellate waiver in Milliron's plea agreement was valid and limited his appeal to considering the validity of the plea agreement.

The Court first turned its attention to Milliron's claim that his counsel misread 18 U.S.C. § 111(a)(1) and (b). Noting that the Sixth Circuit had already held that subsection (a) only required general intent, the Court held, for the first time, subsection (b) likewise required general intent. Thus, the Government did not have to prove Milliron specifically intended to injure his pursuers, and his plea agreement was valid.

Turning to Milliron's sentence, the Court likewise found no error. Specifically, the Court rejected his argument that the district court erred in imposing a three-level enhancement for possessing and threatening to use a "dangerous weapon" pursuant to USSG § 2A2.4(b)(1)(B). Noting the "functional approach" taken by the Court to considering what constitutes a dangerous weapon, it concluded that the makeshift Molotov cocktails lobbed at the pursuing marshals by Milliron were "dangerous weapons" as defined under the Guidelines. It therefore affirmed his sentence.

Important Guidance on Courts' Expansive Discretion to Grant Compassionate Release

2020 was a big year for compassionate release. Although Congress enacted the "First Step Act" more than two years ago—allowing incarcerated people to directly ask federal courts for release when "extraordinary and compelling" reasons warranted release—the pandemic sparked a flurry of litigation about the meaning of the law. 

As of December 2020, as Prof. Douglas Berman points out, COVID-19 has "killed in nine months more US prisoners than capital punishment over last 50+ years." So far, between BOP and privately run facilities, nearly 200 federal prisoners have died of this disease.

This week the Sixth Circuit continued to provide important guidance on district courts' wide discretion to decide what constitutes "extraordinary and compelling" reasons for release.

Background. Before the First Step Act, the BOP rarely moved for release for ill prisoners. According to the NYT, "[f]rom 2013 to 2017, the BOP approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody."

Even before the pandemic, the First Step Act's provision allowing incarcerated people to petition the court directly was already making a difference. But the pandemic accelerated its use, as the Sixth Circuit explained recently:

In 2019, federal courts granted 145 compassionate release motions; incarcerated individuals filed ninety-six (67.1%) of the motions, and the BOP filed the other forty-seven (32.9%). See [USSC Report, at 47]. We are now well into the second year of the First Step Act's implementation, a year defined by COVID-19. The BOP denied or ignored more than 98% of compassionate release requests in the first three months of the pandemic. See Blakinger & Neff [] (citing data provided by the BOP). Now unhindered by the BOP's procedural bars, incarcerated persons' filing and federal courts' granting § 3582(c)(1)(A) motions have surged this year. 10,940 federal prisoners applied for compassionate release between March and May 2020, id., and federal courts have compassionately released an estimated 1,700 persons in 2020 so far, compare [USSC Report, at 47] (twenty-four grants of compassionate release in 2018; 145 grants in 2019), with [BOP Statistics] (1,992 grants since December 2018).

Roadblocks. Federal prosecutors have vigorously fought many of these COVID-19-related petitions for release. The first roadblock to release was the "administrative exhaustion" requirement, and whether petitioners had to wait 30 days after asking the BOP to petition for release before asking the courts. As covered here, the Sixth Circuit sided with the government, holding that the requirement was mandatory.

Another potential hurdle was whether, as the government argued, petitioners needed to satisfy the detailed guidance about compassionate release found in Sentencing Commission policy statement USSG 1B1.13 and its corresponding "commentary." This argument found support in the language of the First Step Act, which amended 18 U.S.C. § 3582, stating that compassionate-release reductions must be "consistent with applicable policy statements issued by the Sentencing Commission." But on the other hand, 1B1.13, by its own terms, addressed the old (pre-First Step Act) procedure where motions were made by "the Director of the Bureau of Prisons," not those made directly by an incarcerated person to the court directly. 

Given that the policy statement was so clearly outdated, could it truly be called "applicable"?

Recent Rulings. In November, the Sixth Circuit answered "no." In United States v. Jones, the court held: "Until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full discretion in the interim to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion." One Sixth Circuit judge concurred, but argued that the court didn't need to reach the 1B1.13 question.

Nevertheless, this question continued to percolate in the district courts in the Sixth Circuit because the government insisted that the holding in Jones was dicta. This argument was met with criticism from district courts, with one particularly striking rebuke

The government may not like the Jones court's answer to the question it posed, but calling it dictum misrepresents that holding in that case. Ethical lapses by the Executive Branch like this do not advance the cause of justice, irrespective of the underlying merits of the motion.

Yesterday, the Sixth Circuit affirmed its decision in Jones. In United States v. Elias, the Sixth Circuit cemented its view, restating its holding as follows (citations removed):

§ 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates. The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion. The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts. Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.

Thus, the inapplicability of 1B1.13 is firmly established in the Sixth Circuit, removing another potential barrier to compassionate release as COVID-19 continues to ravage the Bureau of Prisons.

Playing with Government Money? With Restitution Owed, Court Okays Anti-Gambling Probation Modifications

Jodi Lynn Budzynski pled guilty to defrauding the government of Social Security benefits and was sentenced to two years of probation and ordered to repay more than $48,000. When the probation office found out she was withdrawing money at a casino she was brought back before the district court, which modified her probation conditions to prohibit her from gambling and to allow a search if supported by reasonable suspicion that she had violated her probation terms. She appealed these added conditions.

In United States v. Budzynski, the Sixth Circuit affirmed both modified probation conditions, relying on the district court’s detailed explanation that drew a line from Ms. Budzynski’s issues with gambling to the statutory requirements for imposing discretionary probation conditions.

The panel began by side-stepping a question on the scope of its review by finding that even under Ms. Budzynski’s preferred approach the district court did not abuse its discretion. (This appears to be the first published decision from the Sixth Circuit finding that modifications of probation, and not only revocations, are reviewed merely for an abuse of discretion.) The government argued that 18 U.S.C. § 3742(a)(3) limits appellate review to probation conditions relating to restrictions on occupations and intermittent confinement, while Ms. Budzynski framed her request as one for review of a sentence imposed “in violation of law” under subsection (a)(1). 

The Court found that the district judge adequately justified the no-gambling condition based on Ms. Budzynski’s background and the permissible reasons for discretionary probation conditions. Such conditions must be tied to the familiar 3553(a)(1) and (2) factors and be no more restrictive than needed to serve the factors in 3553(a)(2).

Although her convictions were not for offenses involving gambling, the connection between her crimes and a history of financial improprieties and investigations related to her gambling sufficiently linked the condition to her characteristics and the offenses’ circumstances. It also served deterrent, rehabilitative, and retributive purposes.

The panel distinguished a Seventh Circuit case disapproving of a gambling restriction where there was no evidence the defendant had a gambling problem or even was a gambler, such that the condition would redirect money that might be lost from gambling towards restitution. Here the evidence showed that Ms. Budzynski frequented casinos even while she had failed to make any restitution payments. Also, the argument in that case that a gambling prohibition would redirect would-be gambling losses to restitution came from the government on appeal, not from the district court, whereas Ms. Budzynski’s judge expressed that very worry.

Nor was the restriction overbroad in outright barring gambling, rather than merely requiring truthful reporting of winnings as Ms. Budzynski would have it, since it was the loss of money that concerned the district court and the condition did not bar all recreational spending.

As for the search condition, the panel found that it aided compliance with probation conditions and was again justified by the 3553(a)(1) and (2) factors. It also distinguished a second Seventh Circuit decision where the district judge gave no explanation for a broad search condition.

Defense practitioners may find Budzynski most useful as a reminder to judges (or probation officers) that discretionary conditions must fit the person, the offense, and narrowly to probation’s purposes, or as a contrast to district court decisions that have failed to draw those connections.

Still an Open Question Whether Attempted Hobbs Act Robbery Is a Crime of Violence

In United States v. Clancy, the Sixth Circuit addressed only one of the two questions Mr. Clancy raised on appeal. The other circuits are split on the second question, and we'll have to wait to find out the Sixth Circuit's view.

First, the question the court did resolve: when Lamar Clancy tried to rob a store at gunpoint, the store manager and an employee grabbed their guns and shot. One bullet hit Mr. Clancy in the arm. His colleagues took him to the hospital, where staff took off his bloody clothes and left them on the trauma room floor.

Police officers went to the store, where employees described the suspects and what they were wearing. A short time later, they learned that the hospital had admitted a shooting victim, and two officers headed there. When they walked in, they saw Mr. Clancy in the trauma room and clothes, matching a description they'd heard at the store, lying on the floor. After staff airlifted Mr. Clancy to another hospital, crime-scene investigators retrieved his bagged clothes from the trauma room.

Mr. Clancy moved to suppress the clothes, and the district court denied the motion. The Sixth Circuit affirmed. The court held that, while officers were lawfully in the hospital, they saw the clothes in plain view, and they matched what one of the robbery suspects was wearing. Seeing and seizing the clothes from the hospital room thus didn't violate the Fourth Amendment.

Second, the question left open: the jury convicted Mr. Clancy of attempted Hobbs Act robbery and of using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). On appeal, he argued that, unlike a completed Hobbs Act robbery, attempted Hobbs Act robbery is not a crime of violence. Other courts of appeals have given different answers to that question. Compare United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018) (attempted Hobbs Act robbery is a crime of violence) with United States v. Taylor, No. 19-7616, 2020 WL 6053317 (4th Cir. Oct. 14, 2020) (attempted Hobbs Act robbery is not a crime of violence).

For Mr. Clancy, though, that split of authority was fatal to his argument on appeal. He did not object at trial, so the court reviewed the issue only for plain error. And because the courts of appeals are split, even if there were error, it was not plain. We'll find out the Sixth Circuit's view on this question one day, but not yet.

Telling Jurors *They* Are the Victims of Bank Fraud Is Plain Error, But Not So Flagrant to Reverse

The ban on "Golden Rule" arguments means prosecutors can't ask jurors to put themselves in the victim's shoes. In Sharon Hall's bank-fraud trial, the prosecutor "went a step further and called them [the jurors] the victims of Hall's crime." But in United States v. Hall, even though the Sixth Circuit concluded that those statements were "no doubt improper," the court affirmed Ms. Hall's convictions.

The problem for Ms. Hall's appeal was in the court's analysis of whether the statements were flagrant, using the so-called Carroll factors: (1) whether the remarks tended to prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether they were deliberate or accidental; and (4) whether the evidence against the defendant was strong. The court concluded that the remarks prejudiced Ms. Hall and a post-closing general curative instruction didn't eliminate the harm, but that the three remarks weren't extensive or deliberate, and the evidence against Ms. Hall was strong. 

Two Phones Does Not Provide Reasonable Suspicion to Search


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When courts decide whether a warrantless search is “reasonable,” and therefore constitutional, they essentially ask if the ends justify the means. By this I don’t mean whether the search uncovered evidence of a crime, which is nearly always true when there is a motion to suppress evidence. Instead, the search must advance a government interest other than pure investigation, which must be balanced by the person’s privacy interest in the thing searched.

In Riley v. California, the Supreme Court issued a robust opinion that acknowledged the unique privacy interests we have in our phones. When law enforcement officers search a phone, there must be a significant government need to conduct the search to with the warrant requirement.

In United States v. Fletcher, the Sixth Circuit addressed whether the search of a probationer’s cell phone was sufficiently justified. Fletcher was convicted of “importuning a minor” under Ohio law. He was sentenced to five years’ probation. A condition of probation was that Fletcher agreed to warrantless searches of his person, car, and home. Note that phones and computers are not expressly enumerated.

When the probation conducted a routine check of Fletcher’s home, she saw that Fletcher had two phones. When the officer stated that she was going to search the phones, Fletcher “responded nervously” and began looking through one of the phones. The officer thought Fletcher might be deleting something, so she grabbed the phone, demanded the passcodes, and then required Fletcher to unlock the phones with his fingerprint. During the warrantless search of the phone, the probation officer saw a pornographic image of a child. She contacted a detective, who obtained a warrant. Federal charges were filed, and Fletcher pled guilty and was sentenced to 35 years in prison.

The Ohio statute governing warrantless searches of probationers’ person and property requires that, before a search, the probation officer “must have reasonable grounds to believe” the person is committing a crime or not abiding by the terms of probation. The Sixth Circuit held this statute is reasonable before turning to answer the question about whether Fletcher’s conduct provided reasonable cause to search the phone. The court then turned to the question of whether the officer had reasonable cause to conduct the warrantless search.

Does the possession of two phones create reasonable cause to believe there is something nefarious on the phone? Not really. As the majority explained, “there are countless, innocent reasons for having two cell phones, and possessing more than one cell phone is a practice common in the general public.” So, that fact alone is not enough.

Does the fact that Fletcher was convicted of a sex offense (not involving child pornography) change the equation? Also no. Important to the majority’s analysis was the fact that Fletcher’s conviction was not for a pornography offense, and therefore the terms of his probation did not include restrictions on or monitoring of his digital devices.

How about Fletcher’s nervous behavior when the probation officer asked to see the phone? This also wasn’t enough because officers cannot create an exigency to justify a warrantless search. Even though the officer thought Fletcher was deleting something, she created this risk by threatening to search. The important moment was when the officer said she would search and whether there were reasonable grounds to search at that moment. The majority held that the probation officer did not have reasonable suspicion at the moment she asked to search the phone.

Although the government tried to claim that the condition requiring consent to warrantless searches of the probationer’s person, car, and home extended to cell phones, the majority was unpersuaded. The plain terms of the condition did not authorize warrantless searches of cell phones, so the probation officer could not reasonably rely on that condition.

The majority acknowledged that probationers have a diminished expectation of privacy. But a probationer has a greater expectation of privacy than parolee (who is free as an act of grace) or someone on supervised release. The terms of probation can also create or diminish a probationer’s expectation of privacy. And the fact that the search condition did not expressly cover cell phones was critical here—particularly because the privacy interests in cell phones may actually be greater than the privacy interest in a house.

In the majority’s view, the government’s interests in ensuring successful completion of probation, crime prevention, and evidence preservation do not outweigh Fletcher’s interest in the privacy of his phone. This was true particularly when the officer could have prevented the destruction of evidence by merely seizing the phone.

Even if a violates the Fourth Amendment, the Supreme Court has said suppression of evidence is not always warranted. But here, the majority concluded that the probation officer’s disregard for the warrant requirement was deliberate. The officer could not rely in good faith on the warrant issued after the fact based, in part, on the photo the officer saw during the warrantless search.

Judge Batchelder dissented. She believed the possession of two cell phones provided enough reason to conclude Fletcher was violating probation. And she thought that his reaction to the request to see the phone elevated her cause for concern.

Strict Liability Enhancement for Possessing a Stolen Firearm Survives Havis, Rehaif

The sentencing guideline for unlawful possession of a firearm increases the offense level if the firearm was stolen. This enhancement applies on a strict liability basis; it does not require any mens rea. The Sixth Circuit had previously approved holding defendants strictly liable for possessing stolen firearms, noting the commentary to the guidelines states that the enhancement applies regardless of whether the defendant knew or had reason to know the firearm was stolen.

However, in light of recent case law, Anthony Palos argued for a mens rea requirement. First, the defendant relied on the Sixth Circuit’s en banc opinion in United States v. Havis, 927 F.3d 382 (6th Cir. 2019). In Havis, the Court held that the commentary to the guidelines improperly added attempt crimes to the list of controlled substance offenses. Applying Havis, the defendant argued that the commentary improperly expanded § 2K2.1(b)(4) by stating that there is no mens rea requirement.

The Sixth Circuit rejected this argument. Instead, the Court held that the text of the enhancement—through its silence on mens rea—bore the strict liability interpretation contained in the commentary. Because other parts of § 2K2.1 impose mens rea requirements, the fact that the stolen firearm enhancement fails to do so supports a strict liability interpretation.

The defendant also relied on Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court established a mens rea requirement for convictions under 18 U.S.C. § 922(g), despite the statute's lack of an express mens rea element. The Rehaif Court relied on a “presumption of scienter” to apply the requirement. Mr. Palos argued that the same presumption of scienter should apply to create a mens rea requirement for § 2K2.1(b)(4).

However, the Sixth Circuit rejected this argument. The Court held that the guidelines are “fundamentally distinct” from statutes when it comes to mens rea. Namely, statutes define the boundaries of lawful conduct, while the guidelines punish defendants for the consequences of their unlawful acts.

In a different part of the opinion, the Court once again held that an offer to sell does not qualify as a controlled substance offense. Mr. Palos had a previous conviction under Ohio Revised Code § 2925.03(A)(1), which criminalizes “sell[ing] or offer[ing] to sell a controlled substance.” Following United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020) and United States v. Alston, ___ F.3d ___, 2020 WL 5755465 (6th Cir. Sept. 28, 2020), the Court held that an offer to sell a controlled substance qualifies as an attempt crime. Accordingly, after Havis, an offer to sell cannot qualify as a controlled substance offense under the guidelines.

Full opinion available here.

Admission of Defendant’s Racist Rant Violates Rules 403, 404

Does after-hours racism reflect poor business judgement? That question is the crux of the Sixth Circuit’s recent decision in United States v. Hazelwood. The government charged multiple employees at a large gas company with conspiracy to commit wire fraud. The fraud centered around rebates which the employees promised, but then failed to deliver. Many employees pleaded guilty, but Mark Hazelwood—the company’s president—took the case to trial.

Hazelwood’s main defense was that he did not know about the fraud that his subordinates committed. However, defense counsel also elicited some testimony about Hazelwood’s business acumen. One witness testified that Hazelwood was an excellent president who had great relationships with customers. Counsel cross-examined another witness about whether it would have been logical for Hazelwood to participate in the fraud. Counsel established that because the fraud was such a small part of the company’s sales, it was “incredibly stupid and dumb from a business standpoint” to risk bringing down the company by committing fraud. 

The government then sought to introduce a recording of Hazelwood making extremely racist comments and using slurs. A cooperating witness had worn a wire to the company’s retreat. The witness had recorded an earlier session where executives discussed the fraud scheme. However, Hazelwood had not been present at that session. After the business meetings had ended, the employees watched a football game while drinking and “spewing profanities about African Americans and women.” Hazelwood arrived and participated prominently in this racism.

The government argued that this recording was appropriate rebuttal to Hazelwood’s character evidence for good business judgement. Hazelwood objected, arguing that he had not introduced character evidence, that the recording was not related to good business judgement, and that the danger of unfair prejudice outweighed any probative value.

The district court agreed with the government. It ruled that the defense had elicited testimony that Hazelwood was too good a businessman to risk the fraud. And the racist recording supported the argument that Hazelwood was not too good a businessman to engage in conduct that would put the company at serious risk if it were discovered. 

On appeal, a divided panel reversed the decision. The majority held that Hazelwood’s racism was not relevant to the elements of the crime or to Hazelwood’s argument that he was a good businessman. The Court cited Henry Ford, “a rabid anti-Semite” who nevertheless had great business acumen. Hazelwood’s despicable comments—made at a private after hours gathering—did not reflect on his business judgement.

Additionally, the district court violated Rule 405 in two ways. The court had allowed the government to present extrinsic evidence of alleged character evidence, and the evidence was of specific instances of conduct rather than testimony about reputation.

The racist recording was also improper propensity evidence. The government was “using another act (racist and misogynist language), to prove that Hazelwood had a character trait (recklessness), such that on a particular occasion he acted in accordance with that character trait (by committing fraud).”

Finally, the danger of unfair prejudice substantially outweighed any probative value. The recording was so offensive that it posed an extreme risk of unfair prejudice; “Hazelwood and his companions ma[d]e absurdly offensive remarks about African Americans and women and laugh[ed] along to a wrenchingly racist and misogynistic tune.” Accordingly, the Sixth Circuit reversed and remanded.

The dissent would have affirmed the district court. The dissent argued that the recording was relevant. If Hazelwood was willing to use such offensive language with his subordinates, even after hours, it made it less probable that he was a good businessman. And whether Hazelwood was a good businessman was relevant as to whether he would have risked participating in the fraud.

Full opinion available here.

Giving Officers a Tour of Your Marijuana Grow Operation Constitutes Consent to Search

 In United States v. Blomquist, the Sixth Circuit held a search of the defendant's property that included an expansive marijuana grow operation did not violate the Fourth Amendment where the defendant voluntarily led them on a detailed tour of the grounds and discussed his operation with them at length. Officers arrived on Mr. Blomquist's father's property with a search warrant for the premises. They placed Mr. Blomquist in cuffs and Mirandized him. He agreed to talk, at which point he was uncuffed. He explained he was running a legal growing operation and took officers on a tour of his plants in a chicken coop and greenhouse, as well as a storage facility, answering all of their questions along the way.

Unfortunately, his operation was not legal. This was true for a variety of reasons including that the operation was too large to comply with Michigan law, Mr. Blomquist had a prior felony conviction that prohibited him from owning such an operation, and he admitted to police that he sold his product to a drug dealer (not a legitimate dispensary). At the trial level, Mr. Blomquist argued that officers exceeded the scope of the search warrant based on the expansive search conducted. However, the trial court found that Mr. Blomquist voluntarily consented to the search.

On appeal, Mr. Blomquist argued that the chicken coop and greenhouse were outside the scope of the search warrant, rendering the search illegal. The Sixth Circuit applied a two-factor evaluation of whether there was consent to a more expansive search: 1) whether an individual's actions adequately demonstrated consent, and 2) whether other factors contaminated that consent. As to the first factor, the Sixth Circuit held Mr. Blomquist's actions supported consent where he cooperated, volunteered information, and led officers around the property as they followed. As the Sixth Circuit characterized it, "Not only did Blomquist consent to the search, he practically directed it."

As to the second factor, the Sixth Circuit looked to the totality of the circumstances to assess whether other factors negatively impacted consent. While Mr. Blomquist argued that the officers' search warrant and his initial detention tainted his "consent," the Sixth Circuit pointed to his Miranda advisement, his cooperation from the moment officers arrived, and the lack of any evidence of duress or coercion as support that the consent was valid.

Unfiltered: Court Upholds Obstruction Enhancement Imposed for Defendant's Facebook Post

Facebook often provides a goldmine of information in litigants in civil and criminal actions. For Harry French, it led to an obstruction of justice enhancement and a lengthier sentence.

Prior to his sentencing for carjacking and possession of a firearm in furtherance of a crime of violence but prior to his sentencing, French, apparently using a contraband cell phone while in custody, posted a message on his Facebook page referring to one of the co-defendants who testified against him during his trial, Dequan Blackmon, as a "rat." His co-defendant also had a Facebook account, so French tagged him in the post, meaning that Blackmon's friends also saw the post.

This post led the probation officer to recommend a two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1.  The district court subsequently agreed and imposed the enhancement over French's objection.

On appeal, French challenged the sufficiency of the evidence supporting his convictions, claimed his convictions violated the Double Jeopardy Clause of the United States Constitution, and that the Court erred in imposing the obstruction of justice enhancement. The Court disagreed. In its opinion, the Court quickly dispensed with French's sufficiency of the evidence and double jeopardy arguments and affirmed French's sentence. It rejected French's argument that he could not have intended to obstruct justice unless he thought Blackmon would testify at his sentencing, holding that since others besides Blackmon could view his Facebook post, his threat could have influenced potential witnesses, including the victims in his case. Thus, the Court concluded the District Court reasonably inferred French was attempting to influence witnesses who might testify during his sentencing and that the enhancement was proper.

For good or ill, social media provides a forum where millions of people can express their opinions and air their grievances. For Harry French, this decision led to an obstruction of justice enhancement.

Havis Strikes Again: Ohio Convictions for Offering to Sell Drugs are not Career Offender Predicates


The District Court enhanced Pierre Alston's sentence as a career offender pursuant to USSG § 4B1.1 based on his prior convictions under Ohio Revised Code § 2925.03(A)(1), which criminalizes offers to sell drugs. It did so, however, without addressing whether such convictions qualified as predicate offenses after United States v. Havis and United States v. Cavazos.

Although the parties did not discuss Havis during sentencing, the Government conceded that, under Havis and Cavazos, the Ohio convictions did not qualify as predicate offenses. In a brief published opinion, the Sixth Circuit agreed and remanded Mr. Alston's case for a resentencing.

Perhaps more interesting than the Court's brief analysis was its note that, while the Government conceded Cavazos prevented the enhancement, it argued Havis and Cavazos were wrongly decided and that the  Government had preserved the issue for en banc review. If anything, this statement signifies the Government's continuing efforts to have the Court chip away at Havis.