S Ct Issue to Preserve---Crack

Supreme Court has granted cert in Dillon v. United States, No. 09–6338 (U.S. 2009).

Appellate court decision: 572 F.3d 146 (3rd Cir. 2009)

Cert granted on 12/7/2009

Issues:

I. Whether the Guidelines are binding when a district court imposes a new sentence under 18 U.S.C. § 3582;
II. Whether a § 3582(c)(2) sentencing is limited such that a district court must impose sentence based on an admittedly incorrectly calculated guideline range.

Have a great New Year!!!

Seriously, a Turkish Prison.

This sentence comprises Footnote One of a piece of legal prose that is totally worth a read!

Judge Boyce F. Martin, Jr., dissents from a denial of rehearing in Parlak v. Holder, No. 05–4488 (6th Cir. Nov. 24, 2009). This published order and dissent in an immigration case do not bear much on federal criminal law, but take a break and check it out.

Judge Martin does not agree with the way Mr. Parlak’s case was handled and would have granted rehearing en banc. Key excerpts:
* "[T]he government relied heavily upon evidence that no one genuinely disagrees was obtained by torture twenty-one years ago in a Turkish prison."
* The opinion issued in the lower tribunal "did little more than cut and paste from the government’s briefs, typographical errors and torture-induced admissions included."
* "I would describe it [the analysis used] as grossly over-inclusive and as having sprung, unwanted and uncontrollable, from the collective mind of the Board like Athena from the head of Zeus, except without Athena’s wisdom and elegance."
* "[W]e will not be accomplices in the government’s unprincipled slamming of doors on those ‘tempest-tost’ who, like Mr. Parlak, seek nothing more than to ‘breathe free.’"

A New Wave Washes Over Appellate Waivers and Related Cases

Interesting decision yesterday in United States v. Atkinson, No. 07–2144 (6th Cir. Dec. 3, 2009). It is unpublished, but it is worth a look. Panel of Judges Guy, Clay, and White.

Background:
* Defendant caught with drugs and gun.
* Charged with being a felon in possession, possession with an intent to distribute crack, and a § 924(c).
* Defendant was going to plead guilty with a plea agreement that dismissed the drug charge. Decided not to do so and requested new counsel.
* Defendant did plead a month later with new counsel.

Sentencing and Appellate Waiver:
* GL determination left open in second plea agreement.
* This second plea agreement did contain an appellate waiver. Pretty broad—waived right to appeal "any sentence which [wa]s at or below the maximum of the guideline range as determined by the Court." Also waived right to appeal sentence and manner in which it was determined in any collateral attack.
* PSIR scored the defendant as a career offender. Defendant objected based on his prior convictions being related. District Court rejected this argument, finding the offenses were not consolidated for trial/sentencing. (This case was pre-2007 amendments to Section 4A1.2(a)(2).)
* GL range of 262 to 327 months. OL 34, CH VI.
* Sentence of 240 months total.

Appeal:
* Defendant challenged his sentence.
* Government moved to dismiss the appeal because of the appellate waiver.
* Court concludes that under these circumstance, it could not be satisfied that the appellate waiver was knowing and voluntary. Circumstances included: uncertainty about whether the defendant would plead guilty, recent change in counsel, only passing reference to career-offender issue at time of plea.
* Regarding actual consolidation issue, Court found it was close call and that consideration of 2007 amendment might have led to different result in the District Court because of the District Court’s discretion. The Court so concluded even though it noted that the amendment would likely not be found to be retroactive.
* Case remanded.

Trophy Catch---SORNA Victory

United States v. Cain, No. 07–4535 (6th Cir. Oct. 13, 2009). Judges Guy, Rogers, and Griffin.

Facts: Defendant was convicted of attempted rape in Ohio in 1998. Defendant had to register as a sex offender. July 27, 2006, SORNA became law. That summer, the defendant wanted to move to Georgia. He met with his parole officer in Ohio. He then left for Georgia, but did not update his registration in either Ohio or Georgia. Ohio issued a warrant. On February 28, 2007, the U.S. Attorney General promulgated a regulation specifying that SORNA applied to people convicted prior to July 27, 2006. The defendant was arrested in Georgia in 2007. Ohio brought charges against the defendant, but these charges were dropped and the defendant was prosecuted federally.

Procedure: Defendant filed a motion to dismiss the indictment. After the government responded, however, the defendant decided to plead guilty and entered a conditional plea, preserving his right to appeal an adverse determination on his motion. The district court sentenced the defendant to five months of incarceration with credit for time served.

Issue: Was the defendant a person who was required to register under SORNA prior to the AG promulgating the regulation regarding registration by those convicted prior to SORNA.

Holding: Indictment dismissed because 42 U.S.C. § 16913 required the AG to issue regulations before SORNA applied to sex offenders convicted prior to SORNA’s enactment.

Conclusions:
* Plain meaning of § 16913(d) requires AG to make specifications before SORNA applies to offenders whose convictions predate SORNA.

* Congress did not make it the default position that SORNA applies unless the AG excused compliance. Rather, SORNA did not apply to certain individuals until the AG specified that it did.
* Even if § 16913(d) were ambiguous, ambiguity would be construed in favor of defendant.

* Also, the AG’s regulation could not take immediate effect for defendant because the DOJ did not provide good cause to dispense with notice and comment or with the 30-day waiting period (required by Administrative Procedure Act). Indictment covered period ending March 28, 2007, less than 30 days after promulgation of reg and a month before the end of the comment period. AG’s failure to comply with APA means defendant was not subject to the reg during period covered by indictment.

Judge Griffin dissented.

Dissent:
* SORNA applied to defendant. Violation indisputably occurred after SORNA enacted.

* Immediately upon enactment, SORNA applied to individuals whose convictions pre-dated it. "Shall have authority" language in § 16913(d) is permissive—not mandatory—so AG not required to promulgate regulations.

* Even if SORNA’s application to individuals with convictions pre-dating SORNA was not established until AG issued reg, majority still mistaken regarding the AG failing to demonstrate good cause to dispense with the 30-day notice-and-comment period. Public interest in safety gave good cause. Reg was valid and applicable to defendant.

Search and Seizure Resource

Great outline. Thanks to the 9th Cir./Oregon crew for putting together.

Really worth a look!
http://circuit9.blogspot.com/2009/10/search-seizure-update.html

CIs

Interesting story today about police recruiting CIs. Girl was 20 years old, no drug ties, got picked up for not paying traffic tickets and driving while license suspended. Police said she could avoid a night in jail by becoming a drug CI.

Interesting discussion of CIs, recruitment, the risks they take, etc.

Girl ended up calling her dad, a labor lawyer, who got upset and got the CI agreement voided.

Interesting, quick read.

http://www.buffalonews.com/home/story/854143.html

Intended Loss Amount

Unpublished opinion in United States v. Newson, No. 08–6080 (6th Cir. Nov. 16, 2009). Panel of Judges Moore, Cook, and Ludington (E.D. Mich.). Defendant pleaded guilty to document fraud (18 U.S.C. § 1028(a)(7)). Sentence of 30 months.

Because of lack of factual record regarding the defendant’s intent, the court vacated the sentence and remanded. Defendant used another individual’s Social Security number to complete two separate credit applications in an attempt to purchase automobiles. The first attempt failed when the salesman became suspicious and contacted the individual whose Social Security number the defendant was using. The defendant did not complete the second attempted purchase for unknown reasons. She simply left the dealership after completing the credit application. (The defendant also used the Social Security number to access credit at several retail stores.)

The PSIR calculated the total intended loss as $44,600.03. This total led to a six-level enhancement under Guideline Section 2B1.1(b)(1)(D). Offense level was 13, criminal history IV, range of 24 to 30 months.

Issue: should the district court have included the value of the second automobile in the loss calculation? If an amount is to be included in intended loss, a defendant must have subjectively intended the loss and the defendant must have completed or been about to complete, but for interruption, all the acts necessary to bring about the loss.

Conclusion: not clear that defendant was going to complete the purchase of the second vehicle but for an interruption. Defendant said she completed the credit application and then abandoned her attempt to buy the automobile. She offered to prove, at the sentencing hearing, that the dealership personnel offered her possession of the vehicle, but she refused it. The district court rejected her offer of proof on the point. Appellate court concluded the district court’s refusal was clear error. If defendant refused the vehicle with the intent to abandon the scheme, the value of the vehicle should not have been included in the intended-loss calculation. In such a case, she would not have subjectively intended the loss. Nor would she have been about to complete all the acts necessary to bring about the loss.

Without the value of the second vehicle, the enhancement would have been only four levels.

Entrapment and Pre-Trial Delay

First, I apologize for my recent lack of posting. It has been a little hectic. I also apologize because this post will be quite brief—again, just a tad hectic.

This week, we have United States v. Schaffer, No. 09–3053 (6th Cir. Nov. 12, 2009). Panel of Chief Judge Batchelder, and Judges Daughtrey and Van Tatenhove (E.D. Ky.). Defendant caught in government sting operation—conspiracy to obtain military secrets and laser missile technology from a DOD contractor. Events began in July 2002. Indictment returned February 27, 2008. Defendant brought several pre-trial motions, including a motion to dismiss. The district court dismissed the portion of the indictment related to interstate transportation of stolen property, but otherwise denied the motion to dismiss. The defendant entered a conditional plea.

The Court of Appeals affirmed the district court’s decision. I will hit on the sections related to pre-indictment delay and entrapment. To sustain a pre-indictment-delay claim (under the 5th Amendment), a defendant must show substantial prejudice to his or her right to a fair trial and that the delay was intentional and used by the government to gain a tactical advantage. Courts will not presume prejudice. Here, the defendant failed to make a showing of actual prejudice.

In terms of entrapment, it is seldom appropriate for a district court to grant a motion to dismiss based on the defense. Defense generally goes to defendant’s state of mind, so it is an evidentiary question. District court here correctly concluded that issue could not be resolved until after evidence presented at trial. Question for jury—not court.

Child porn and probable cause

The Sixth Circuit today issued an opinion in United States v. Frechette that has already caused Douglas Berman over at Sentencing Law and Policy to ask "Is concern about child porn distorting normal criminal procedure rules?"

The facts are essentially that the defendant, a registered sex offender, paid for a one month subscription to a website that advertised the availability of child porn. After one month, the defendant did not renew the subscription. Sixteen months later, an ICE agent presented a magistrate with an affidavit that stated the above facts, described the depictions on the home page, and asserting that the defendant had paid for a one month subscription with a Pay Pal account registered to a bank account whose mailing address was the address of the home to be searched, as well as the address for the IP address used to access the website. The affidavit also made boiler-plate assertions about his experience and the storage of child pornography. No allegation in the affidavit stated that there was any evidence that someone from that IP address had ever actually entered the site, nor was there any allegations that someone at that address had downloaded child pornography. The warrant was executed and child pornography was found on the defendant's computer.

The defendant challenged the sufficiency of the affidavit supporting the search warrant, and the district court suppressed the evidence, finding the allegations in the affidavit to be stale because of the 16 month lapse between the supscription and the affidavit and that it lacked a "link between the factual basis and the conclusion that there was a fair probability that evidence of a crime would be found at the defendant's home or on the computer."

The government appealed, and the Sixth Circuit, over Judge Moore's vigorous dissent, reversed and remanded. The opinion (incidentally authored by a district court judge, not a Sixth Circuit judge, meaning we have one Sixth Circuit judge voting for reversal and one dissenting) found that given the nature of the crime alleged, the 16 months between the time of the subscription and the affidavit did not make the information stale. The Sixth Circuit found that the character of possession of child pornography argued against a finding of staleness because possessors of child pornography often kept stashes of child pornography for long term. Incidentally, there is no allegation of this fact in the affidavit as described by the Sixth Circuit. Further, other than the recitation of other judicially created statements to this affect, there is no citation to a source that empirically proves this assertion to be accurate.

The Sixth Circuit also found that the nature of the criminal argued against staleness because he had lived at the address for the entire 16 months. Also, it found that the thing to be seized "had an infinite lifespan," and that the defendant's house "was a secure operating base." These findings led the Sixth Circuit to find the information to not be stale.

As to whether the allegations in the affidavit were sufficient to create probable cause, the Sixth Circuit simply found that the agent's simple assertion that "consumers of child pornography usually maintain illegal images using their computers," was sufficient. I think the Sixth Circuit misapprehended the defendant's argument on this point. Without it being abundantly clear from the opinion, I would believe that the defendant's assertion must have been that the affidavit failed to establish that he had downloaded child pornography from that site, and that without such a link between the place to be searched and the probability of contraband being present the allegations were nothing more than an impermissible "hunch". Rather the Sixth Circuit finds that "the fact that the defendant had viewed the splash page that contained pornographic images of children, set up an account with Pay Pal on the same day, and transferred the exact amount of funds needed from his debit card to the Pay Pal account to pay for the subscription makes it all the more likely he would access what he paid to view. To hold otherwise would defy logic."

Judge Moore dissents, arguing that the majority opinion was based upon an affidavit that "established a single fact partricular to Frechette: Frechette bought a one-month membership to one website displaying child pornography." Moore argues that she "cannot think of any other circumstance where we have endorsed an invasion of a person's privacy with so few facts from which to draw an inference that the intrusion would likely uncover evidence of a crime." She then asks if the crime alleged had been pirating copywrited music, could the Sixth Circuit affirm a search under such circumstances? She concludes that it is the nature of the crime that was driving the majority's opinion, because its "conclusion is erringly shaped by the fact that child pornography cases are particularly appalling. As reprehensible as our society finds those who peddle, purchase, and view child pornography, we, as judges, must not let our personal feelings of scorn and disgust overwhelm our duty to ensure the protection of individual constitutional rights."

Resources Available at fd.org

This post breaks no new ground, but I just wanted to remind everyone, especially the panel attorneys out there, to turn to the Sentencing Resource page at fd.org for a variety of excellent materials. I turn to the papers there on a regular basis and dug in once again this past weekend. If you have a guideline issue, you will most likely find fantastic help on that page.

S. Ct. Updates

This is going to be brief b/c it's been quite a week here, but interesting things have been brewing.

Supreme Court:

* 924(c)---United States v. O-Brien, No. 08--1569.
Question Presented:
Sec. 924(c)(1) provides for escalating mandatory minimum sentences depending on the manner in which the basic offense is carried out. Is the sentence enhancement (for a 30-year minimum), applicable when the firearm is a machine-gun, an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or is it a sentencing factor that may be found by a judge by the preponderance of the evidence?

* SORNA---Carr v. United States, No. 08--1301.
Questions Presented:
1) May a person be prosecuted under § 2250(a) for failure to register when the defendant's underlying offense and the travel in interstate commerce both predated SORNA's enactment?
2) Does the Ex Post Facto Clause preclude prosecution under § 2250(a) if a person's underlying offense and travel in interstate commerce both predated SORNA's enactment?

Lots to think about! Have a great weekend.

P.S. Preserve, preserve, preserve. If you've got mandatory minimums (and they don't have to be 924(c)s) or SORNA cases, think about preservation of these issues!

Speedy Trial Win

United States v. Tinklenberg, Nos. 06–2646 and 08–1765 (6th Cir. 2009). Panel of Judges Keith, Clay, and Gibbons. In an opinion that addresses issues of first impression for the court, the panel dismissed the defendant’s case with prejudice.

Points:

* It is the date the defendant appears and not the date of the defendant’s not-guilty plea that starts the speedy-trial clock.

* The plain language of the Speedy Trial Act mandates excluding from the speedy-trial calculation the days on which motions are filed and resolved. This decision is in keeping with the conclusions of other courts of appeals.

* The duration of competency evaluations are not limited under the Speedy Trial Act, but delay in transporting a defendant to such an evaluation beyond ten days is presumptively unreasonable, and if no evidence in rebuttal is presented to explain the delay, the extra time is not excluded.

* Pre-trial motions are not excluded unless they cause an actual delay (or the expectation of delay) of trial. This holding breaks with the conclusions of other courts of appeals. The court concluded that "[e]xcluding time for mundane pretrial motions to allow a gun into the courtroom as evidence and depose a witness by video would frustrate the purpose of the Speedy Trial Act.

Holding:

* 73 non-excludable days elapsed prior to the defendant’s trial.

* The Speedy Trial Act was violated.

* Dismissal with prejudice was warranted. The defendant’s offense was serious and there was no evidence that the delay was in bad faith and only three days had elapsed to exceed the limit. But re-prosecution would not serve justice because the defendant had already served his sentence and a sentence for violating supervised release.

Judge Gibbons's Concurrence:

* She does not agree that delays in transporting a defendant for a competency evaluation should be counted in the speedy-trial calculus. She believes that 18 U.S.C. § 3161(h)(1)(A) (relating to competency evaluations) is specific and should not be qualified by what she feels are the more general dictates of § 3161(h)(1)(F) (relating to transportation to examinations).

* She still calculates the passage of 71 non-excludable days and would dismiss with prejudice.

More Is Brewing on the Crime-of-Violence Front

Very interesting opinion just released—United States v. Wynn, No. 07–4307 (6th Cir. Sept. 2, 2009). Panel of Judges Moore, Gibbons, and Friedman (of the Federal Circuit).

Issue: Is a conviction under Ohio’s Section 2907.03 for "sexual battery" a crime of violence?

Points:

* Court could not tell which subsection of the statute was the subsection under which the defendant had been previously convicted. So the Court had to look at the statute broadly.

* Offense does not have force as an element. Coercion is enough. And it is not an enumerated offense, so the analysis had to proceed under the "otherwise clause" of Section 4B1.2(a)(2).

* Based on Begay, this Court overruled its prior decision in United States v. Mack, 53 F.3d 126 (6th Cir. 1995), which had found the offense to be a violent felony for ACCA purposes. One can commit the offense of Ohio sexual battery without aggression or violence. The offense is not categorically a crime of violence.

* The commentary to Section 2L1.2, contributing to the definition of crime of violence as it regards sex offenses for purposes of that guideline section, does not broaden the definition for Section 4B1.2.

* Courts may not use the factual recitations in the PSIR to determine whether a prior offense was a crime of violence. PSIRs are not documents available for review under Shepard.

* United States v. Bartee, 529 F.3d 357 (6th Cir. 2008), foreclosed the use of the PSIR for such a purpose.

* On remand, the district court can consider Shepard documents to determine whether the prior offense qualifies as a crime of violence.

Dissent by Judge Friedman:

* Very interesting.

* Judge Friedman feels that courts should be able to consider the facts in the PSIR if the defendant does not object to them. He does not read Bartee as barring the PSIR’s recitation of facts from consideration. This approach is problematic though because it puts the defendant in the position of having to choose between fighting a crime-of-violence determination and not jeopardizing their acceptance-of-responsibility points (at least in some districts with some POs).

* Judge Friedman also believes there are resources available to use to determine the subsection under which the defendant was previously convicted of sexual battery. Judge Friedman determined the subsection using the state court’s on-line resources. The judge feels this approach to fact determination is appropriate under United States v. Alexander, 543 F.3d 819 (6th Cir. 2008), in which the Court looked to Michigan Department of Corrections on-line records to make a similar determination. Such judicial fact-finding is problematic. A colleague who reads this blog pointed out the dangers of such fact-finding when Alexander first came out. Now, his predictions are being fulfilled. . . . Judge Friedman feels that such judicial fact-finding is more reliable because there is no danger of the government giving inaccurate information. (The majority had to point out the government’s misquote of Taylor—the government quoted Taylor as requiring "that a court look to the ‘facts of conviction’" during the crime-of-violence determination.)

This case is worth a read to keep tabs on the crime-of-violence evolution.

New Blog on Snitches

This month, Alexandra Natapoff, a professor at Loyola Law School in L.A., launched a blog on snitching and the criminal justice system.

http://www.snitching.org/

Offers some interesting notes on snitches and snitching and legal news of interest.

New Limited Context Test for Lasciviousness

The Sixth Circuit issued three published criminal opinions this week, plus one quasi-criminal/quasi-civil case. However, other than the facts in a couple of them, only one of them, in my opinion, was particularly groundbreaking.

The Court's opinion in U.S. v. Brown, has the most interesting outcome and the widest impact. The issue was whether or not a district court in applying USSG S 2G2.1(d)(1) could find the lasciviousness of the defendant's photograph's of his step-grandchildren from evidence beyond the four corners of those photographs. Having already gone up and been remanded, the district court was charged with determining if the lascivious photographs contained more than one child, because the step-grandchildren were identical twins. In so determining, the district court looked to other evidence that was the basis of other child pornography charges to determine the defendant's sexual proclivities.

The question presented is whether or not extrensic evidence of other photographs helps determine if one of the United States v. Dost, 636 F.Supp. 828 (S.D. Calif. 1986) factors is present in photos where the 'laciviousness' is at issue. In assessing whether it was appropriate to consider outside evidence to determine the "intent" of the photographer in this context, the Sixth Circuit ruled that "[i]gnoring the contextual evidence contrues the statute too narrowly as it inevitably fails to capture behavior that is 'intended' to exploit children." The Sixth Circuit also noted that adherence to a strict 'four corners' test could harm wrongfully accused defendants because it would prevent them from proving the context of the images at issue through extrinsic evidence. However, the Court observed that 'if we frame the inquiry too broadly and place too much emphasis on the subjective intent of the photographer or viewer (in this case, the same person), a seemingly innocuous photograph might be considered lacivious based solely upon the subjective reaction of the person who is taking or viewing it."

Therefore, the Sixth Circuit formulated what it called a "limited context" test "that permits consideration of the context in which the images were taken, but limits the consideration of contextual evidence to the circumstance directly related to the taking of the images." The Sixth Circuit gives three factors to be considered under this "limited context" test:

(1) where, when, and under what circumstance the photographs were taken,
(2) the presence of other images of the same victim(s) taken at or around the same time, and
(3) any statements a defendant made about the images.

The Sixth Circuit does state that "we explicitly reject consideration of factors that do not relate directly to the taking of the images, such as past bad acts of the defendant, the defendant's possession of other pornography (pornography of another type or of other victims), and other generalized facts that would relate only to the general "unseemliness" of the defendant."

In applying this new test to the present case the Sixth Circuit found that the district court was correct in determining that the defendant took lascivious photographs of more than one minor. First, the Circuit Court found that all of the seventy photographic images depict the children nude, "with a general tendency to focus on the girls' genitals." The court finds that "the sheer number of photographs in wich the girls' genitals are prominently visible suggests that photographs were taken to elicit a sexual response in the viewer." Second, the court notes that the one clearly lascivious photograph "casts doubt upon any contention that the photographs were innocent family photographs." Third, the Court noted that the defendant placed seventeen of the photographs on a CD with other child porn downloaded by the defendant. Finally because many of the images focus on the girls genitals, it was doubtful they were innocent family photos.

The Sixth Circuit then went on to determine that the district court did not err in finding that the photographs depicted both girls. However, the Sixth Circuit found that it was error for the district court to consider the images of other child porn, but that this error harmless. Finally, the Sixth Circuit found the sentence to be substantively reasonable.

This "limited context" test is a new one formulated solely by the Sixth Circuit. This seems to be replacing the test that considers "whether a visual depiction is intended or designed to elicit a sexual response." Be aware that this will be the appropriate test for district court's to apply in sexual exploitation of minors cases.

Guns and Intent and Other Things---2 Cases

I don't have the best cases to blog, so I thought I'd at least post a cheerful picture!

United States v. Davis, No. 08–1349 (6th Cir. Aug. 20, 2009)—panel of Judges Cole, Clay, and Cleland (E.D. Mich.). Defendant charged with being a felon in possession of a firearm. Went to trial. Objected to admission of 1) statement by unidentified woman to police officer that woman had seen defendant with a gun; and 2) similar statements made during a 911 call. Jury found defendant guilty. Defendant appealed several issues, including the issue of admission of this evidence.

Court found that unidentified woman’s statements were not offered to prove truth of their content. Rather, the statements explained why the police officer took the subsequent actions. 911-call statements were properly admitted as excited utterances and present sense impression.

　
United States v. Shafer, No. 07–2574 (6th Cir. July 21, 2009)—panel of Judges Moore, White, and Tarnow (E.D. Mich.). Well, we heard about this case earlier this year. The panel, however, has withdrawn that earlier opinion, following the government’s petition for rehearing, and has issued a new opinion.

Court holds that "sexual contact," as defined in 18 U.S.C. § 2246(3), can include self-masturbation. This conclusion does not vary from that of the original opinion. The new aspects of the Court’s conclusions relate to the intent element of § 2246(3)—the intent to abuse, humiliate, harass, degrade, and/or arouse/gratify a person’s sexual desires.

This intent clause was not extensively briefed in the original round of briefing. Because of "extraordinary circumstances," such as the fact that this panel is the first to address § 2246(3) and the issue of self-masturbation, the fact that the decision could be a guide to other courts, the fact that the opinion was binding precedent, and the fact that the new argument raised for the first time in the petition for rehearing goes to the heart of the holding and was not intentionally omitted, the Court considered that new argument.

The government’s new argument was that the intent clause goes to the defendant’s intent—regardless of who does the actual touching, the victim or the defendant. The Court focused on the legislative history of the statute. The Court held that where the conduct involves the defendant causing the victim to self-masturbate courts should consider the intent of the defendant—not the victim.

Enhancement of the defendant’s sentence under U.S.S.G. Section 2G2.1(b)(2)(A) was proper. Sentence affirmed.

Judge Tarnow concurred, stressing the importance of legislative history.

Looking For the Substantively Reasonable Number

In United States v. Harris, 07-4175 (6th Cir. July 27, 2009), Judges Gibbons, McKeague, and Shadur, vacated Harris’s sentence and remanded for resentencing. Harris had pled guilty to two counts of possessing child pornography, one count of receiving and distributing child pornography, and one count of knowingly possessing a computer with child pornography on it. The advisory Guidelines range was 210-262 months of imprisonment. The PSR, however, suggested a downward variance would achieve the statutory purposes of sentencing.

In sentencing Harris, the district court varied downward and imposed a sentence of 84 months of imprisonment, a term which more than encompassed the 60-month statutory, mandatory minimum sentence. The district court also imposed a supervised release term of 3 years. In explaining the downward variance, the district court addressed the 18 U.S.C. § 3553 factors and stated:

Now it's, I think in light of all of these factors, I think a sentence of 84 months would be an appropriate sentence in this case. Now, I think it must be more than the mandatory minimum. I think the defendant has to feel the seriousness of this matter, which is very serious. And I think that given his history, lack of other criminal involvement before, I think this sentence sends a very strong message to him that something that he thought maybe wasn't that serious, sitting there at his computer looking at some images, not hurting anybody, that it hurts and that he'll be away from his family, away from his job, not being able to contribute at all. So he's gone from living a life of comfort and caring, to one where he's locked up, locked up for seven years or 84 months.

I think that wouldn't be enough in many cases, but I think that it is enough in this defendant's case. When I consider the supervised release period that I am going to impose on him, when I consider the structures that are going to be on him as a result of being designated as a person who has been convicted of child pornography, and also given the restrictions that are going to be put on him going forward, I think that those would serve to protect the public, not just to put him away for 84 months, but to brand him in a way which he could be identified, and also the public will be protected because he will not be free to move about as other persons move about in society without significant restrictions. I think that would protect the public here, and I think that the information here suggests that there is less to protect the public from than there might be in some other cases, although, clearly, it needs to be protected.

So I think that when you consider all of those factors it does reflect the seriousness of the offense, it does serve as an adequate deterrent. I think it would protect the public. And then I'm going to require him to have some treatment, and again that's something that will be part of his supervised release, which will require him to deal with the issues, mental health issues, or possible mental health issues, growing out of this problem. . . .

Though the district court considered the § 3553 factors and the statutory purposes of sentencing, the panel vacated Harris's sentence, stating:

The bottom line is that the factors the district court relied on, as articulated in the record, do not appear to justify a variance of this size. This is not to say that the variance itself is per se unreasonable – only that the district court must provide a sufficient justification for such a major variance. The district court in this case did not do so. Instead, the district court placed an unreasonable amount of weight on Harris’s character. It did so despite Harris’s lack of distinguishing characteristics and despite the seriousness of the offense. Accordingly, we find the variance here substantively unreasonable based on the current record.

Clearly, the panel did not state a variance was impermissible. In fact, the panel suggested a sentence below the advisory Guidelines range could be reasonable. It is unclear from the opinion, however, what magical combination of explanation and variance is necessary to avoid having a sentence be deemed substantively unreasonable.

The Sixth Circuit has affirmed below-the-Guidelines sentences in seemingly similar child pornography cases. For example, in United States v. Weller, 2009 WL 1349779 (6th Cir. (Tenn.) May 13, 2009), the Circuit recently affirmed a sentence of 120 months’ imprisonment when the advisory Guidelines range was 324 to 405 months' imprisonment. Weller had pled guilty to eight child pornography-related offenses. The Harris case thus only adds to the difficulty of determining "how much" is enough. "How much" explanation? "How much" variance? "How much" time?

How can we defense attorneys help to answer the "how much" questions? The most obvious suggestion is to file sentencing memorandums that address all the § 3553 factors that pertain to our cases – which did not appear to have occurred in the Harris case and which may not have changed the end result even if one had been filed. However, in my humble opinion, if we hope to have a sustainable record, we need to contribute to that record. Before walking into a sentencing hearing, we should have created a written roadmap for each applicable sentencing factor that supports a departure or variance, complete with signposts, rest areas, and scenic views, so, maybe, we can more effectively help shape the determination of "how much" is enough.

Computer Searches, The Fourth Amendment, and Sarah Palin

While I know this is not directly related to Sixth Circuit actions in cases, I thought it might be of interest to criminal defense practitioners in addressing searches of computers.

I am not sure if this story has made national news, but it is turning into an interesting case down here in Tennessee. Over in Knoxville, David Kernell, the 21 year old son of Memphis democratic state representative Mike Kernell, has been charged with illegally accessing Gov. Sarah Palin's Yahoo email account during last year's presidential campaign. Apparently, he is alleged to have gathered together readily available personal information of Gov. Palin, and guessed at what her password was. According to this article in today's Memphis Commercial Appeal newspaper, his attorneys are seeking to suppress any evidence discovered as a result of the search of Mr. Kernell's computer. According to the news report, "the attorneys contend federal authorities went beyond the authority granted in a search warrant and went instead on an illegal fishing expedition inside the laptop." According to another newspaper account in the Knoxville News-Sentinel, the defendant is also now seeking to subpoena Palin's records regarding her use of the Yahoo account for government purposes and other documents relating to the private nature of her email account, but that is not what is interesting to me. The challenge to the breadth of the government's search of the defendant's computer presents an issue that has yet to be adequately addressed by most courts, and could prove to be fruitful ground for defense practitioners seeking to suppress evidence obtained from a defendant's computer.

What makes these newspaper reports interesting to me, beyond the extraordinary facts, is that it reminded me of an article in last month's cyber-crime issue of Champion magazine from NACDL entitled "Arguing for Suppression of 'Hash' Evidence," by Marcia Hoffman of the Electronic Frontier Foundation. While I doubt that this case depends upon the use of 'hash' evidence given the nature of the evidence being sought, the questions of the breadth and scope of officers' searches of computers, even under a search warrant, is one that will soon have to be addressed by courts. As Hoffman explains: "Because Fourth Amendment jurisprudence has evolved around traditional notions of physical property and common law trespass, its application to new technologies has been an ongoing challenge for the courts. It is well-settled that people generally have a reasonable expectation of privacy in their personal computers, but forensic examinations--a key component of many police investigations--raise some difficult questions."

Along those lines, another article in the Georgia Bar Journal this past February by Edward Garland and Samuel Williams (the attorneys that fashioned the sentencing alternatives for rapper T.I. that recently made news) entitled "The Fourth Amendment and Computers: Are computers just another container or are new rules required to reflect new technologies," addressed the many issues presented by officers broad searches of computers. Garland and Williams argue in their article that "[a]lthough there is considerable debate about whether traditional Fourth Amendment jurisprudence can adequately address any issue that arises in the context of a computer search, or whether an entirely new set of rules is needed, the fact of the matter is that the computer presents new and intriguing problems in the area of the Fourth Amendment, regardless of whether the courts ultimately rely on adapting old rules to solve the problems, or adopting new rules to reflect the technologies." Their article identifies a myriad of issues relating to computer searches and proposes that adapting old rules will be insufficient to address the problems presented by broad computer searches. They contend that the promulgation of new rules will be necessary to prevent the circumvention of the 4th Amendment's privacy protections in persons effects found on hard drives. In addressing the Georgia courts' view of a computer as simply another briefcase, they state, "[t]his simplistic view fails to recognize the scope of the searches that are being undertaken; fails to consider the amount of information found in computers that has nothing to do with legitimate law enforcement concerns and results in the violation of the particularity requirement of the Fourth Amendment and the requirement that searches and seizures be reasonable."

I believe that the Kernell case might present an excellent situation for the Sixth Circuit to address the parameters of the 4th Amendment in the digital age, and the district court's actions in this case bears watching. While Garland and Williams identify other issues presented by computer searches, I believe the particularity requirement of the 4th Amendment is going to be the key to evaluating search warrants seeking to seize computers from a defendant. When you seize most people's computers these days, you aren't just seizing their storage device for evidence of crimes or illicit contraband, but also, their checkbooks, their entertainment systems, their writings, "their papers and effects" if you will. Given the myriad of uses computers are involved in, are warrants that describe the item to be seized simply as a "computer" enough to fulfill the particularity requirement, or will agents need to identify the specific type of file that they are searching for in the computer? If agents go in searching for one thing, but do a little nosing around, and find evidence of another crime, is that 'plain-view'? These are just two of many questions that have yet to be answered regarding computer searches.

Based on an admittedly cursory review of the caselaw this morning, I could find no cases where the Sixth Circuit has directly addressed the particularity requirement in regards to searches of computers. Maybe Mr. Kernell's case will give them the opportunity to do so, judging from the nature of his motion to suppress. Regardless, I believe this is an issue that is going to be addressed by higher courts in the immediate future, and the defense practitioner needs to take a second look at warrants that simply identify a 'computer' as the object of the search.

Plea Agreements and Mandatory Minimums

The panel of Chief Judge Boggs and Judges Moore, and Sutton issued an opinion in United States v. Jones, No. 08–1352 (6th Cir. July 7, 2009), considering mandatory minimums and construing plea agreements. The panel made clear a few interesting points, among them:

* A plea agreement will always be construed against the government if there is any ambiguity.

* Mandatory minimum sentences are not likely to be found cruel and unusual—a life sentence for a first-time offender has been upheld.

The defendant received a fifteen-year sentence for crack cocaine and a firearm in furtherance of the dugs. The defendant had waived his right to appeal a sentence at or below the maximum guideline range as determined by the district court. The issue was: what is the guideline range? Was it the mandatory minimum or the range calculated under the Guidelines? The Court looked to U.S.S.G. Section 5G1.1(b), which says that a mandatory minimum dictated by statute becomes the guideline range when it is higher than the range calculated under the Guidelines. The Court concluded there was ambiguity as to what the "range" was and gave the defendant the benefit of the doubt. The Court cited plea agreements from other circuits that made clear what was intended by "range."

It is fairly clear from Chief Judge Boggs’s concurrence/dissent that the defendant was aware that he had to receive the mandatory minimum sentence.

In terms of the substance of the sentence, the Court rejected the defendant’s Eight Amendment challenge to the ten-year mandatory minimum sentence for possessing with the intent to distribute more than 50 grams of crack cocaine. The Court concluded that the Eight Amendment is only offended when there is an extreme disparity between the crime and the punishment—the narrow proportionality principle.

Published Clarification on Sec. 3582(c)(2)

On June 30, 2009, the panel of Judges Moore, Gilman, and Phillips (E.D. Tenn.) decided United States v. Johnson and Moss, Nos. 08–3925, 08–3926 (6th Cir. June 30, 2009). The published opinion considers the § 3582(c)(2) motions of two defendants who were indicted for crack and powder cocaine offenses, but who were ultimately sentenced based only on the powder. The court makes clear that a sentence must be based on crack cocaine if a defendant is going to be eligible for relief under the retroactive crack amendments. A conviction that involved crack is insufficient. To be eligible for relief, a defendant must be serving a sentence on which the amount of crack cocaine had an impact. Otherwise, a district court is not authorized to reduce the sentence under § 3582(c)(2).

Defense Attorneys, As Well As Judges and Prosecutors, Must Get Their Heads In The Post-Booker Process

In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), when a proffered plea agreement required her to plead guilty to additional conduct that she denied committing in order for the government to file a §5K1.1 motion for assistance she had provided, Blue decided to accept an offer that did not require her to admit the additional conduct, but which did not include the filing of the §5K1.1 motion. In the post-Booker landscape, so far so good. Blue filed a motion for downward departure under §5K1.1, and argued that the district court should depart downward based on her assistance to the government. When the district court declined the invitation, and sentenced her to 292 months, Blue appealed.

In an opinion written by Judge Martin, the Court notes that, "post-Booker, the government's failure to file a Section 5K1.1 departure does not necessarily preclude a sentencing court from taking into account substantial assistance when considering the appropriate sentence in light of the Section 3553(a) factors." (557 F.3d at 685) What does matter, however, is whether the district court is considering the issue as a §5K1.1 departure motion, or a request for a variance under § 3553(a). And this is where the case goes off the track for Ms. Blue.

"Even after Booker, absent an unconstitutional motive, a district court may not award a Section 5K1.1 departure pursuant to the Guidelines without a government motion." (Id. at 686.)(emphasis in original) And a district court's refusal to depart downward is still, after Booker, not reviewable on appeal.

Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.

Blue's Lesson for the Rest of Us: Always present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing. If we fail to do this, then not only will our clients not get the lower sentences they deserve, but all of our appellate efforts will be in vain.

Three Quick Notes on Cases---Rule 35(b), Fleeing and Eluding, and Explanations of Sentences

United States v. Grant, No. 07–3831, 2009 U.S. App. LEXIS 12330 (6th Cir. June 9, 2009) (panel of Judges Gibbons, Keith, and Merritt):

* "What factors a district court may consider when ruling on a Rule 35(b) motion is an issue of first impression in this circuit, though we have stated in an unpublished opinion that ‘[i]n evaluating a Rule 35(b) motion for reduction, a district court can consider a broad array of factors.’"

* "It stands to reason that a defendant’s substantial assistance will be the predominant factor in a district court’s decision to reduce a sentence pursuant to Rule 35(b). But that does not mean that a district court is precluded from considering other factors at the same time, whether those factors ultimately militate in favor of a larger, smaller, or identical sentence to the one it would have imposed on the basis of substantial assistance alone."

* So, the door is open for broader consideration of the issues.


United States v. LaCasse, No. 06–2212 (6th Cir. June 4, 2009) (panel of Judges Gibbons, Norris, and Rogers):

* Begay analysis does not change earlier holding that Michigan Fleeing and Eluding is a crime of violence. (Note—check your subsection. Fourth-Degree F and E not categorically a crime of violence.)

* Holding seems to be in tension with other recent conclusions.


United States v. Grams, No. 08–1697 (6th Cir. May 29, 2009) (panel of Judges Clay, McKeague, and Holschuh [S.D. Ohio]):

* Sentencing courts must clearly identify any deviations from the guideline range. Was this deviation a departure or a variance?

* District courts must provide specific reasons for departures and variances.

* Good discussion of the need to explain sentences.

Michigan R and O NOT a C of V

Hooray! Published opinion that Michigan Resisting and Obstructing a Police Officer is not a crime of violence! In United States v. Mosley, No. 08–1783 (6th Cir. June 5, 2009), panel of Chief Judge Boggs and Judges Moore and Sutton considered Michigan R and O under M.C.L. § 750.81d(1) and held that it’s not a crime of violence. No force, not an enumerated offense, and doesn’t fit into "otherwise clause." In terms of the Begay analysis, the panel found that, even though the offense may be purposeful, the statute does not require violence or aggression.

In Michigan, one can commit R and O by failing to obey a lawful command. This aspect of the statute was important in the decision.

Two things to keep in mind:

* Offenses under other subsections of 750.81d may involve crimes of violence. See United States v. Alexander, 543 F.3d 819 (6th Cir. 2008) (finding that a violation of Section 750.81d(2) is a crime of violence—that subsection has as an element causing bodily injury).

* The panel still remanded for review of the Shepard docs. The opinion allows for a review of the docs to determine whether the defendant did indeed assault an officer.

Staving Off Attack—Child-Porn Sentencing Victory

In United States v. Cole, No. 07–4506 (6th Cir. May 22, 2009) (unpublished), the panel of Judges Kennedy, Norris, and Cole affirmed the judgment of the district court after the government appealed the defendant’s sentence. The defendant had pleaded guilty to transporting and possessing child pornography. The district court had declined to enhance the defendant’s sentence based on his previous state conviction "relating to" statutorily enumerated sex crimes with minors. The defendant had a 1999 conviction for possession of matter portraying a sexual performance by a minor, in violation of Kentucky law. The district court sentenced the defendant to 120 months of imprisonment.

The panel looked to the case of United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), in which the court applied the categorical/modified-categorical approach to determine whether a prior conviction was sufficiently similar to the federal offense to trigger the enhancement. The Cole panel considered that at the time of the Cole defendant’s prior conviction the statute under which he was convicted was overly broad because it criminalized every instance in which a child is photographed exhibiting his or her genitals—without requiring proof that the exhibition was volitional and in a lewd manner. The federal statutes, in contrast, require lascivious exhibition.

Because there was no proof under the categorical approach that the defendant’s prior conviction involved the "lewd manner" element, his prior conviction was not categorically equivalent to the federal offenses. The panel declined to adopt the broader reading of "relating to" urged by the government. The panel concluded it was bound by McGrattan.

Ghosts of Sentences Past---Procedural Reasonableness

Yesterday in United States v. Barahona-Montenegro, No. 08–1345 (6th Cir. May 14, 2009), the panel of Judges Moore, McKeague, and Forester (E.D. Ky.) vacated a sentence as procedurally unreasonable and remanded the case for resentencing. At sentencing, the defense had objected to the criminal-history category in the PSIR. The defense argued that the defendant should have been in category III rather than IV. At IV, the guidelines were 37 to 46 months. At III, they were 30 to 37 months.

The district court never resolved the objection. The court sentenced the defendant to 48 months, an above-guidelines sentence whether or not the objection was sustained. The court noted the seriousness of the offense (illegal alien in possession of a firearm) and that the defendant had five children, all born out of wedlock, whom he was not supporting.

Some two months after the hearing, the court issued its written judgment. In that judgment, the court assigned the defendant criminal-history category III and said the sentence was based on an upward departure under Section 4A1.3, as category III under-represented the defendant’s criminal history.

The appellate court found that the district court failed to properly calculate the guidelines and did not adequately explain the sentence it imposed. The panel found that the district court failed to focus on the Section 4A1.3(a)(2) factors to support an upward departure. The events and convictions the district court cited were already accounted for in the guideline scoring. The panel also found that it could not determine whether the above-guidelines sentence was based on an upward departure or a variance and that the explanation the district court provided focused on irrelevant factors such as the children being born out of wedlock.

The panel ruled that the statement of reasons provided with the judgment did not cure the defects. It was issued some two months after sentencing and did not provide the necessary explanation. The sentence was procedurally unreasonable because of the lack of guideline calculation and explanation of the sentence.

Void for Vagueness ruling withdrawn

The Sixth Circuit issued an opinion today in U.S. v. Davis, Case No. 07-1964, ruling that officers had reasonable suspicion to believe that Mr. Davis's vision was obstructed by a stuffed Tweety Bird hanging from the mirror. This would not be that exceptional if it wasn't for the fact that this opinion is in direct conflict with a prior opinion by the Court from last December ruling that the statute was void for vagueness. That opinion, written by Judge Martin, was withdrawn after the State of Michigan intervened to argue for the constitutional validity of the statute. Judge Martin apparently decided to punt by not addressing the constitutional validity of the statute after realizing that Mr. Davis had not raised the issue below.

Good News Re. Crack--Powder Disparity!

Yesterday, DOJ came out in support of eliminating the disparity between crack and powder cocaine sentences. Lanny Breuer, Assistant Attorney General, spoke before the Senate Subcommittee on Crime and Drugs.

Here's his written testimony:
http://judiciary.senate.gov/pdf/09-04-29BreuerTestimony.pdf

Webcast:
http://judiciary.senate.gov/hearings/hearing.cfm?id=3798

Check out www.fd.org and http://www.famm.org/ for more info.

There are, it seems, four proposals in the House now to address cocaine sentencing. Nothing's in the Senate yet.

Lots of material here for sentencing memos. Buzz seems to be that changes will be retroactive, but you can't be too careful! Let's bring it up now!

When Are We Burros? IAC Claims and Petitions for Cert...

In United States v. Nichols, No. 05–6452 (6th Cir. Apr. 29, 2009), the Circuit en banc considered whether it is ineffective assistance of counsel to fail to preserve a "future change in the law" argument, one hoping that the Supreme Court will strike down existing law while a defendant’s case is still pending on direct appeal. The Court found that the petitioner couldn’t prevail on any IAC claim, so it avoided the broad constitutional question.

The petitioner and a co-defendant were sentenced in October 2002. The Apprendi opinion was out there, but otherwise, it was a pre-Blakely and Booker world. The petitioner got 405 months. Petitioner appealed. The panel affirmed. One day before the expiration of time to file for rehearing en banc, Blakely came down. Counsel didn’t ask for rehearing. Counsel did not petition for certiorari. The co-defendant’s counsel did petition for certiorari. Booker came down and the co-defendant got relief. Nine months were eventually knocked off co-defendant’s sentence—he got 396 months when resentenced.

The petitioner filed a pro se motion under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. Petitioner claimed, among other things, that counsel had been ineffective for failing to raise an Apprendi argument or a Blakely argument later. The district court denied the motion. The petitioner got a certificate of appealability on the issue of whether counsel was ineffective when they failed to raise the issue of the petitioner’s sentence being enhanced based on facts not proved to the jury beyond a reasonable doubt. The panel hearing the appeal ruled for the petitioner. The government moved for rehearing en banc. The Court granted the motion. For the rehearing, the issue was a bit different: the petitioner argued that by failing to raise the Apprendi argument at sentencing, on direct appeal, and in a petition for certiorari, his counsel was ineffective.

Essentially, the Court concluded that the petitioner could not "link the two pieces of the ineffective-assistance standard—deficient performance and prejudice—on the same side of the demarcation: he cannot show prejudice at any point at which he had a right to counsel, and he cannot show a right to counsel (and, hence, deficient performance) at any point at which he could show prejudice." Basically, the Constitution does not entitle a defendant to the assistance of counsel for a discretionary appeal—like a petition for certiorari. So, the failure to file for such review cannot amount to constitutionally ineffective assistance.

The petitioner claimed prejudice because he was denied the benefit of Booker’s change in
the law—a resentencing under an advisory Guidelines scheme—which was a benefit he would have received had he petitioned for certiorari. Had he petitioned, his conviction would not have become final before the Supreme Court decided Booker. The Court found that the petitioner could show prejudice on this claim, so the question became that of whether his counsel’s failure to petition for certiorari amounted to constitutionally deficient performance.
The Court said no. The Constitution does not entitle a defendant to the assistance of counsel for the filing of a petition for certiorari. Counsel’s failure to file a petition does not amount to constitutionally ineffective assistance.

The Court also addressed the petitioner’s assertions based on Sixth Circuit Rules 101(a) and (g), which impose certain obligations on counsel (e.g., trial counsel must continue representation on appeal until they are specifically relieved by the Court and losing appellate counsel must petition for certiorari under certain circumstances). The petitioner’s claims for relief came under 28 U.S.C. § 2255, however, which calls for allegations of an error of constitutional magnitude, a sentence imposed outside the statutory limits, or an error of fact or law that was so fundamental as to render the proceedings invalid. The petitioner claimed a constitutional error. Absent a constitutional right, he had no claim. The procedural rules alone do not create constitutional rights or impose constitutional duties.

In terms of counsel’s failure to petition for rehearing en banc, the Court did not decide the issue because, "even if we were to assume that [petitioner’s] original appellate counsel performed deficiently by failing to move this court for rehearing . . . [petitioner] cannot show any resulting prejudice." At the time, the law was that the Federal Sentencing Guidelines did not violate the Sixth Amendment.

In short, the petitioner did not show that his counsel was constitutionally ineffective for failing to anticipate the changes that did come about in the law—counsel was not ineffective for failing to raise an Apprendi-based challenge at sentencing or on direct appeal, for failing to move the appellate court for reconsideration on a Blakely-based claim in post-appellate proceedings, or for failing to petition the High Court for certiorari under Booker.

Judge Moore dissented. She thought that the majority’s focus on the petitioner’s original counsel’s failure to petition for certiorari ignored the fact that there were actually several routes by which the petitioner could have had an appeal pending at the necessary time to obtain relief. Had counsel raised the Sixth Amendment argument at sentencing or on direct appeal, the petitioner likely would have known to raise the argument at a later date.

Judge Moore concludes that Apprendi and Blakely cast the constitutionality of the Federal Sentencing Guidelines into serious doubt, and that the petitioner’s sentence presented circumstances that were called into question by Apprendi and Blakely. Petitioner’s original counsel was therefore constitutionally ineffective for failing to preserve a Sixth Amendment challenge to the petitioner’s sentence.

Sentencing---Remand for Drug-Quantity Error

In United States v. White, No. 07–2404 (6th Cir. Apr. 16, 2009), the panel of Judges Kennedy, Martin, and Cole affirmed the defendant’s conviction, but remanded for resentencing. A jury found the defendant guilty of several cocaine and firearm offenses and the district court imposed a life sentence. The panel affirmed the district court’s discovery and evidentiary rulings and denied the defendant’s claims regarding prosecutorial misconduct.

The panel did, however, remand for resentencing. The defendant had argued that his base offense level should be 36 rather than 38 based on the amount of cocaine attributable to him. Under plain-error review, the panel found that the amount of drugs calculated was too high. The witness testimony on the issue was equivocal and a "drug quantity estimate must ‘err[] on the side of caution and likely underestimate[] the quantity of drugs actually attributable to the defendant.’" The panel decided to exercise its discretion to remand for plain error because the sentence was a life sentence. Had the base offense level been 36 (and total offense level 42), the range would have been 360 to life, a big difference for a 29-year-old defendant.

Every Man a King (or at least a Commentator)

I know that many of you have been itching to comment on the posts at this site, but have been frustrated by the lack of access. Well, remain silent no more! We have worked out our issues with the "comment" feature of the site and anyone should now be able to post comments to the articles on the blog. You will have to register with the site, but this shouldn't be too big a hassle and is mainly to keep out the robo-blog advertising. So now you have no excuse! Let us hear from you. In a truly representative democracy, every citizen has a voice in his/her government and its operation. Let us know how you feel! (If you run into problems that can't be resolved, e-mail me at sumter_camp@fd.org.) Blog on!

Trajectory of Change? Power to Vary from All Guidelines Based on Policy Reasons?

In a very short, published opinion, the panel of Judges Keith, Merritt, and Gibbons remanded a crack case for resentencing. United States v. Vandewege, No. 07–2250 (6th Cir. Apr. 8, 2009). The gist of the case is that the sentencing court did not err in attributing 12.3 grams of crack found in the car to the defendant.

The highlights are in the dicta:

—The panel remanded for resentencing under 18 U.S.C. § 3582(c)(2). The panel noted "that the sentencing court instructed the Bureau of Prisons to attempt rehabilitation by treating and trying to cure the defendant’s drug addiction. This § 3582(c)(2) is part of the same subsection that allows courts to modify sentences for compelling reasons upon motion of the Bureau of Prisons. It may be that the Bureau of Prisons will have further information concerning rehabilitation worthy of consideration under § 3553."

—Are courts beginning to recognize a broader scope for § 3582(c)(2) resentencings?

—Case also should be remanded under United States v. Johnson, No. 07–2447 (6th Cir. Jan. 26, 2009) (remanding in light of Spears, in which Supreme Court reiterated sentencing courts’ ability to reject crack guideline on policy grounds).

—Majority recognizes sentencing courts may vary from guidelines in general on policy grounds. Closer review may apply if the variance is in a mine-run case. Judge Gibbons disagrees with this point in her concurrence. She believes that "[n]either Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests."

Sign of things to come?

Getting Funky—Gov Moves Ct to Dismiss Appeal

United States v. Funk, No. 05–3708 (6th Cir. Mar. 27, 2009).

On March 27, 2009, the Circuit granted the government’s unopposed motion to dismiss the appeal with prejudice. The panel opinion that was going to be considered en banc remains vacated.

What this move means for us. . . .

It’s worth checking out fd.org to look at the materials in this case. In a nutshell, on July 22, 2008, the panel of Judges Boggs, Batchelder, and Bell (W.D. Mich.) concluded that the variance in the case was unreasonable. Guidelines were 262 to 327 b/c of career-offender status. Dist. ct gave 150-month sentence. Panel said sentence unreasonable b/c not based on individual circumstances of case, but rather, on disagreement with career-offender guideline. Dismissal of the appeal based on the government’s motion seems good.

And it seems natural after Spears v. United States, 129 S. Ct. 840 (2009), and United States v. Johnson, 553 F.3d 990, 992 (6th Cir. 2009) (vacating sentence and remanding for resentencing because "Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this" and "because the district court sentenced [the defendant] without the benefit of Spears"—remand for resentencing necessary "to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines"). Maybe Funk is a sign that courts are recognizing that policy disagreements with the Guidelines will support a variance outside the arena of the crack guideline.

"A Walkaway Escape Is Not Unambiguously a Crime of Violence"

In United States v. Ford, No. 08–5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky’s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1.2(a)(2). Court used some good language. For example, "[t]hat an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence." Court goes on to note that "all walkaway offenders have engaged in purposeful conduct." But there is no requirement of purposeful violence or purposeful aggressiveness. Court points out that "[t]he ‘otherwise’ requirement demands not just that the offense involve a similar risk of injury but also that it involve a similar type of crime." Finally, the Court finds that if any doubt remains the benefit of that doubt must go to the defendant under the Rule of Lenity. Court still notes the Shepard issue, which is an issue (see Mr. Strong’s post of March 16, 2009). The issue is a little different, as this offense is not a "reckless" one, but the analysis still seems unsettled in the Shepard area.

St. Patty’s Day Treat—924(c)s Not Always Consecutive in 2nd Cir.

(Pic in celebration of the Emerald Isle.)

Well, following up on my post of March 12, the Second Circuit (Judges Pooler, Hall, and Trager, of the Eastern District of New York) has held that a mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A) is inapplicable when a defendant is subject to a longer mandatory minimum sentence for a drug-trafficking offense that is part of the same criminal transaction as the firearm offense. United States v. Williams, No. 07–2436 (2d Cir. Mar. 5, 2009). The court had previously held in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), that the "except clause" of § 924(c) means that the minimum sentences do not apply when a greater sentence is otherwise provided by another provision of law. That case addressed the Armed Career Criminal Act (ACCA). The Williams court simply extended this holding to cover non-firearms minimum sentences and sentences provided by the predicate offense (i.e. a mandatory minimum for a drug-trafficking offense).

The Williams court cites United States v. Rodriquez, 128 S. Ct. 1738, 1788–89 (2008), to support the need to faithfully read statutory text and refrain from inserting language into statutes. The court also cites United States v. Jolivette, 257 F.3d 581, 587 (6th Cir. 2001). The court notes that the 6th Circuit has cited with approval cases that have read the "except clause" as having a firearms limitation. It has cited cases that at least leave open the option that other firearms provisions could lead to a non-consecutive sentence under 924(c) (e.g., ACCA).

The Williams court points out that it is not unbridling the "except clause" to let it run wild. The court’s holding requires that the firearm was possessed in relation to the predicate offense—that the offenses arise from the same criminal transaction. The court also notes that the general rule is that 924(c) penalties are cumulative and that the "except clause" is just that: an exception.

The court made an interesting observation in a footnote. Case law does not point to any statutory provisions currently in force that could increase a sentence for a violation of § 924(c) that is not codified in that section. So really, the "except clause," as read by some courts, would allow for a greater minimum sentence in the event Congress enacts one in the future in some other section of the Code. They read it, essentially, as a hypothetical given the current state of the law.

What all this means for us. . . .

Well, first, seems to mean there’s a good cert. issue out there. But I think it also means we may actually have a little ground to challenge consecutive 924(c) sentences. As the Williams court points out, the Jolivette court cited United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000), with approval. In Alaniz, the Eight Circuit concluded that the "except clause" refers only to firearm-related conduct and would not apply to a drug-trafficking sentencing provision. The Jolivette court described this reasoning as "entirely correct." So, we might be able to argue that ACCA and 924(c) sentences should not be consecutive (as in Whitley). There’s bad language in Jolivette, but that case’s support of Alaniz is helpful. The bad language is dicta. ACCA was not the issue in Jolivette. (Nor, for that matter, was a mandatory minimum drug-trafficking sentence. . . . ) Maybe, with such an argument and the help of Whitley and Williams, cases like Guthrie, discussed below, could come out even better. See United States v. Guthrie, Nos. 07–6215/07–6286 (6th Cir. Mar. 2, 2009). Just a thought . . . I could not find a case out of the Sixth Circuit directly refuting this argument, but that does not mean it is not out there.