Crack Ratio and Sentencing Courts' Discretion

United States v. Johnson, No. 09--2173 (6th Cir. Dec. 28, 2010). Unpublished. Panel of Judges Martin, Moore, and Gwin (N.D. Ohio). Appeal after Spears remand.

Defendant was resentenced to 110 months (same as his original sentence). Rather than expressing agreement or disagreement with the crack guidelines, the sentencing court asserted that Congress had authorized the 100-to-1 ratio and deemed the courts an improper forum for reconsidering the ratio. Court of Appeals found that Kimbrough directly contradicts such an assertion.

When a district court indicates that policy disagreements are not a proper basis to vary from the guidelines, the resulting sentence is not presumptively reasonable. In such cases, the district court has committed procedural error by failing to appreciate the scope of the discretion it enjoys.

The district court here agreed with the 100-to-1 ratio. This agreement, however, was not with its substance, but because Congress had said it was the appropriate ratio by establishing the mandatory minimums, which, the district court said, had in effect engrafted a 100-to-1 ratio into the criminal statutes, and Congress had not changed the law despite many opportunities to do so.

The Court of Appeals found the district court’s analysis contrary to Kimbrough, which explained that the crack guidelines were not based on empirical data and national experience or guided by a professional staff with appropriate expertise, a trait that "normally characterizes the institutional competence of the Commission."

While district courts have wide discretion in fixing a crack-to-powder ratio, the courts are not free to cede their discretion by concluding that the courtroom is an improper forum for setting a crack-to-powder ratio.

The Court directs that "On remand from this decision, the district court may, as a matter of policy, agree or disagree with the Guidelines ratio that designates crack offenses as more serious than powder offenses. But it must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

Happy New Year!!!!

Enjoy your New Year's celebrations and I hope 2011 is peaceful for you all!

Shooting into Occupied Structure

United States v. Ruvalcaba, No. 09–3782 (6^th Cir. Dec. 22, 2010) (recommended for publication). Panel of Judges Martin, Siler, and Bell (W.D. Mich.).

Crime of Violence:

Issue was whether the defendant’s two prior convictions for discharging a firearm at or into a habitation (in violation of Ohio Revised Code § 2923.161(A)(1)) were crimes of violence for career-offender purposes.

The Ohio statute does not require the use of physical force against another and does not cover any of the specifically enumerated offenses in 4B1.2(a)(2). The issue then revolved around whether the offense captured by the statute "presents a serious potential risk of physical injury to another."

Ohio’s section 2923.161 provides that no person, without the privilege to do so, shall knowingly discharge a firearm at or into an "occupied structure" that is a "permanent or temporary habitation of any individual" and defines "occupied structure" broadly. This term covers houses, buildings, outbuildings, water- and aircraft, railroad cars, trucks, trailers, tents, vehicles, shelters, and other structures that are maintained as permanent or temporary dwellings. The definition covers temporarily unoccupied structures and it does not matter whether a person is actually present.

The statute, the Court concluded, covers behavior that "inherently presents a serious potential risk of injury to another." Firing a gun can "have unintended, dangerous consequences." This conclusion holds even if the structure was unoccupied.

The offense is also sufficiently similar to the enumerated offenses. While section 2923.161 does not require the intent to do harm, one must necessarily make a conscious decision to fire a gun when one discharges it at an occupied structure. Firing a gun in this manner presents a risk to others and is aggressive. The Court distinguishes walkaway escapes. Even though a walkaway-escape offender engages in purposeful conduct, such conduct is qualitatively different from the purposeful conduct required by the enumerated offenses. While walkaway escape is not a crime of violence, the Ohio offense at issue is far more similar to the enumerated offenses. Because a walkaway escapist does not overcome any barriers, their intentional conduct is attenuated from the risk of harm. With the Ohio offense, however, the intentional conduct is discharging a firearm. Such intentional conduct directly relates to the potential risk of harm from being struck by a bullet.

Potential Voiding of Prior Convictions:

After the district court sentenced the defendant, the Ohio Supreme Court concluded that sentences for offenders who did not receive appropriate post-release control notice are void. Because of this state decision, the defendant argued that his prior convictions were void and should not have been considered in determining career-offender status, as he did not receive proper post-release control notice. The Sixth Circuit, however, recently rejected the identical argument. So while a defendant may be able to challenge his or her prior convictions as void under state-court conclusions through state channels for seeking post conviction relief, they may not do so during sentencing for unrelated crimes in federal court—such challenges are impermissible collateral attacks.

Happy Holidays

Just wanted to wish all the readers of this blog Happy Holidays. May 2011 be full of peace and justice!

Almany on Remand: A Must Read

So, Mr. Almany got his extra five years back in light of Abbott. United States v. Almany, No. 08--6027 (6th Cir. Dec. 16, 2010) (to be published). Panel of Judges Merritt, Martin, and Cole.

"The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after the Supreme Court vacated our judgment and remanded it to us in light of the Abbott case."

http://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdf

Judges Merritt and Martin provide a must-read concurrence. It's brief.

* "The Supreme Court reversed our decision. We were wrong because in these kinds of statutes, Congress normally intends to make sentences longer, not shorter, more severe, not less."

* "[A]pparently the rule of lenity based on ambiguous language does not operate when the court resorts to the 'Equity of the Statute' to give it a construction opposite to the meaning the words ordinarily signify because the Court knows that what the legislature intended was not what it wrote. Nothing is mentioned about an ex post facto problem when a statute is interpreted contrary to its words. The Supreme Court is 'final but not infallible' and we must follow their interpretation of statutes. The 'Equity of the Statute' doctrine is alive and well — although unmentioned by the Supreme Court — more than seven centuries after its origin at common law."

Cert Grant: Rehab and Longer Sentences

Tapia v. United States, No. 10-5400 (cert granted Dec 10, 2010).

Issue:

May a dist ct give a defendant a longer sentence to promote rehab (Eighth and Ninth Circuits say yes), or is such a factor prohibited (as Second, Third, Eleventh, and D.C. Circuits have concluded)?

Lower ct: 376 F. App`x 707.

Look at 18 USC 3582(a): "imprisonment is not an appropriate means of promoting correction and rehabilitation."

Ammo'ed and Dangerous

United States v. Coleman, No. 09--5052 (6th Cir. Dec. 10, 2010) (Judge Rose of S.D. Ohio delivered the opinion, in which Judge Griffin joined; Judge Gilman concurred in part and dissented in part.)

* Four-level enhancement for 23 rounds of ammunition that supposedly facilitated distribution of marijuana.

Defendant said that possession of ammo without a gun does not aid possession of drugs. COA finds that ammo was in close proximity to drugs. Emphasizes the GL's use of "any firearm or ammunition." Also applies "fortress theory": ammo potentially reduced difficulty of completing the drug trafficking. It "emboldened" him---he was one step closer to having a fully-loaded gun.

* Government declined to move for third acceptance-of-responsibility level.

Plain-error review. COA finds that government has broad discretion. Just can't be unconstitutional or arbitrary. Here, gov had argued for enhancement for obstruction of justice. Dist ct declined to find obstruction and gave defendant two-level reduction for acceptance. Gov declined to move for third level, saying that defendant had threatened a potential witness and this behavior was inconsistent with acceptance of responsibility.

*Judge Gilman's concurrence and dissent.

Judge Gilman concurs in the conclusions regarding acceptance of responsibility. Disagrees on issue of ammunition. "The record contains no evidence that Coleman had a gun anywhere around, and bullets alone could hardly embolden him or scare potential buyers who might be inclined to steal his marijuana." Having a gun without bullets is one thing (b/c a person faced with the gun doesn't necessarily know if it's loaded or not). But bullets alone aren't harmful. Fortress theory does not apply to ammo alone. Dissent notes there are circumstances in which ammo alone could justify the enhancement (e.g., if two ppl decided to rob a bank and one agreed to bring the gun and the other agreed to bring the ammo).

According to the dissent, this decision is the first and only published decision in the country applying the enhancement where ammo alone was deemed to facilitate the drug dealing.

Confession overturned as involuntary - Habeas Granted!

Today the Court rendered a decision in Dixon v. Houk. 10a0372p.06 The essential holding of the Court is - where a defendant refuses to answer after Miranda warnings, and later confesses during further interrogation without warnings, subsequent re-warning does not "cleanse" the otherwise bad confession. As Judge Merritt states in his opinion "A confession obtained by this kind of police pressure is inadmissible under Miranda and coerced and involuntary under the Due Process Clause. If the consequences of this kind of deliberate, unlawful conduct specifically designed to violate Miranda and get a confession is allowed to prevail, as our dissenting colleague contends, the time has come to simply overrule Miranda."

In Dixon, the defendant was brought to a police station, and questioned about a murder. He was given Miranda warnings, and invoked the right to remain silent. He was then released. Five days later, he was arrested for the murder. He then was subject to re-interrogation. This time, the police did not provide further Miranda warnings. After five hours of questioning, the defendant confessed. Officers, during that questioning, offered the defendant an illusory "deal", and told him that either he or his co-defendant would get the deal, whoever cooperated first. Only after confession was the tape player turned on, Miranda warnings given, and a taped confession obtained.

The Court found that the giving of Miranda warnings after the violation could not cleanse the constitutional violation. “The police designed a strategy to get a coerced confession without giving Miranda warnings. The confession would then be followed by the warnings given in a tape recording before the confession was recorded. Based on this inverted sequence of events — refusal to answer after Miranda warnings, reinterrogation without warnings, confession, recorded warnings, recorded confession — the prosecution argues that the warnings after the initial confession made the confession 'voluntary.'”

Obstructions Hanging from Rearview Mirrors

Remember the controversy that went around in '08 and '09 over the Tweety Bird air freshener and the traffic stop based on this dangling air freshener hanging from a fellow's rearview mirror? Originally, the 6th Circuit found that Michigan's M.C.L. 257.709(1)(c) was unconstitutionally vague. United States v. Davis, No. 07--1964, slip op. at 7 (6th Cir. Dec. 19, 2008). The Court withdrew this opinion, however, and the State of Michigan was given the opportunity to intervene. The revised opinion did not address the vagueness of the statute; it simply stated that the police had probable cause to stop the defendant. United States v. Davis, 326 F. App`x 351, 353 (6th Cir. 2009).

For a refresher on the issue, check out:

http://www.thenewspaper.com/news/29/2928.asp

Well, it looks like Michigan has voted to amend the statute. On December 2, 2010, the state legislature approved Senate Bill 276 and recommended presentation to the Governor. Subsection (1)(c) has been amended, the subsection that prohibited dangling ornaments. No more language regarding dangling ornaments. Only prohibits obstructions. . . .

Get all the details here:

http://www.legislature.mi.gov/(S(epvv2muu1q22u1fojrbuqf55))/mileg.aspx?page=GetObject&objectname=2009-SB-0276

Crime-of-Violence and Scope-of-Remand Analysis

United States v. Gibbs, 09-2031 (6th Cir. Nov. 24, 2010) (to be published). Panel of Judges Guy, Griffin, and Barzilay (U.S. Ct. Int'l Trade).

D convicted of being a felon in possession. Originally sentenced in June 2006 to 108 months. D appealed, arguing his sentence should have been concurrent with state prison term. Ct of Appeals concluded that 5G1.3(c) could not be treated as robbing the dist ct of discretion to impose a concurrent sentence. Case remanded. D resentenced in July 2009.

At resentencing, dist ct declined to recalculate GLs. Said recalculation outside scope of remand. Ct reimposed 108-month sentence and recommended that BOP give D credit for time served on state sentence. D appealed again.

5G1.3 and Concurrent Sentence:

* Whether sentence is concurrent or consecutive is within sentencing ct's discretion.

* Power to determine credit for time served belongs to BOP.

Scope of Remand and Review:

* Dist ct is bound by scope of appellate ct's remand.

* Limited remands explicitly outline the issues to be addressed by the dist ct and create narrow frameworks within which a dist ct must operate. General remands give a dist ct the authority to address all matters as long as there is consistency with the remand. Whether a remand is limited or general is a legal question that appellate courts review de novo.

* When the Ct of Appeals vacated the original sentence and remanded for resentencing "consistent with this opinion," the remand was general and did not bar the dist ct from revisiting the GL calculations.

* Gov argued that D waived GL arguments by not bringing them in initial appeal.

* D said that new amendments to GLs and developments in crime-of-violence analysis were not available at time of original appeal. Could not have brought arguments at that time.

* Ct of appeals does not address these issues, but finds that gov waived its waiver argument by not bringing it in the dist ct. Gov had taken position that dist ct could revisit GL calculations.

4A1.2(a)(2) and Crim Hist:

* D argued for application of amended version of 4A1.2(a)(2) (count sentences imposed on same day as single sentence).

* But GLs in effect at time of original sentencing apply per 18 U.S.C. 3742(g)(1). And amendment not clarifying, so not retroactive.

* Even if amended GLs did apply, D would be in same crim hist category. Intervening arrest barred counting certain sentences as a single sentence.

Offense Level and Prior Crime of Violence:

* Plain-error review applied b/c D did not object.

* 2nd Degree Home Invasion is a C of V (Michigan offense). It is C of V even if the residents had died and the house was vacant at the time of the offense.

* Walkaway prison escape (under Michigan law) is not a C of V (following Chambers and Ford).

* Resisting and Obstructing an Officer (under Michigan law) is not a C of V. Shepard docs revealed D failed to obey a lawful command by running away from a traffic stop when he had been a passenger in a car that officers pulled over.

* Errors plain, so remand necessary.

4th Am and Tech: Interesting Post

Everyone should check out this post by Steve Sady, Chief Deputy Federal Public Defender, Portland, OR, on the 9th Cir. blog.

Mr. Sady discusses the evolving area of technology and 4th Amendment jurisprudence. Electronic surveillance, cell-site data, e-mail monitoring, and other forms of technological intrusions into privacy are critical, cutting-edge topics we need to be aware of and ready to address.

http://circuit9.blogspot.com/2010/11/judge-smith-fourth-amendment-and.html

Pepper in the Pot and Double Jeopardy

While this fellow to the right appears to be making pancakes, the COA was using Pepper in its cooking.

In United States v. Vicol, No. 08--2547 (6th Cir. Nov. 19, 2010) (unpublished), the panel of Judges Martin, McKeague, and Ludington (E.D. Mich.), did not resolve for the 6th Cir. the Pepper v. United States issue currently pending in the Supreme Court (cert. granted June 28, 2010): whether post-sentencing rehab is fair game at a resentencing.

Procedural History:

*Nasty facts. D convicted at trial of kidnapping.

* Dist ct applied wrong (pre-offense) GLs, which called for base offense level of 24 rather than 32. D sentenced to 188 months (max under outdated GLs).

* Day after sentencing, gov moved to "correct" the sentence under Rule 35.

* Dist ct held hearing. Imposed new sentence of 360 months.

* On ORIGINAL appeal, COA said dist ct had lost jurisdiction by not acting within 7 days per Rule 35.

* Original COA remanded for imposition of 188-month sentence. Told both parties they could appeal after that sentence reimposed.

* 188-month sentence entered. Gov. appealed.

* COA once again heard the appeal. Found 188-month sentence was in error. Based on erroneous GL application. Another remand.

Second Remand:

* Case reassigned to new dist ct judge.

* D presented info on his rehab in prison. Asked for downward departure.

* Dist ct. said it had looked at Worley and Keller and decided it could not consider post-sentencing rehab. (These cases deal with post-Booker remands.)

* Dist ct said that even if it COULD consider post-sentencing rehab it would impose the same sentence of 360 months of imprisonment.

* D appealed.

Conclusions of COA:

* COA concluded that even if the dist ct erred regarding its decision not to consider post-sentencing rehab the error was harmless b/c dist ct was clear the sentence would not change.

* D also argued that Double Jeopardy Clause and gov's failure to cross-appeal (original 188-month sentence) should bar imposition of sentence greater than 188 months. But failed to make this argument in dist ct, so plain-error review applied.

* COA found that gov did not fail to appeal original sentence. No judgment was ever entered for original sentence. First judgment was entered for 360 months when dist ct originally "fixed" its sentence (beyond its jurisdiction). Judgment for 188 months was not entered until after first remand, and gov appealed at that time. Sentence not final, so increase in sentence upon remand did not implicate Double Jeopardy.

Chock Full of Interesting Conclusions

Looking for an opinion chock full of juvenile adjudication, separate sentence, career offender, crack ratio, and precedential value conclusions? Look no further! Yesterday, the panel of Judges Martin, Cole, and Clay decided United States v. Curb, No. 07--5286 (6th Cir. Nov. 18, 2010) (to be published). And in case you're wondering, the picture is a chock-full balloon. :)

Facts:

* D pleaded in '05: two crack charges.

* Objected to career-offender status.

* Prior convictions for aggravated assault and possession of cocaine for resale. Occurred when D seventeen, but prosecuted as adult. Two different arrests for these offenses, but sentenced on same day.

* D sentenced for instant offenses in '07.

* Dist ct sentenced D as CO.

Issue I:

* Was D a CO?

* D argued that he didn't have two prior felony convictions. Argued: 1) 4A1.2(a)(1) had been amended (dealing with sentences imposed on same day counting as single sentence) and should apply to him; 2) there was no "intervening arrest" b/c juveniles are not "arrested" under Tenn. law when taken into custody.

Conclusion I:

* D was CO.

* Ct does not decide whether changes to 4A1.2(a)(1) were clarifying (and retroactive) or substantive (and not retroactive). Ct does note that other circuits have said the changes were substantive and thus not retroactive.

* Ct says that regardless of retroactivity, the intervening arrest means the sentences were separate. State law does not inform Guideline interpretation (unless Congress instructs otherwise). Custody of a juvenile is an arrest.

Issue II:

* 100:1 ratio in CO GL.

* Ct cites United States v. Michael, 576 F.3d 323 (6th Cir. 2009) (discussed somewhere in this blog), and agrees that the crack ratio is incorporated in the CO GL (b/c maximum sentences set CO base offense levels).

* Remand necessary, so dist ct can consider varying from CO GL based on flawed crack ratio.

* Interesting discussion of United State v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Simmons, 587 F.3d 348 (6th Cir. 2009). Johnson called for remand when record not clear on whether the dist ct would have varied from the crack GL if it had known it could do so. Simmons said no remand unless there's an express statement by the dist ct requiring it.

* This Curb court says Johnson, the older precedent, trumps. B/c COA couldn't tell from record whether the dist ct would have varied based on policy disagreement with the GLs if it thought it could, remand necessary.

* COA notes that Simmons also distinguishable b/c in that case the D explicitly raised the ratio issue. The D in this case, Curb, did not raise the ratio issue.

A strong warning from the Court: make sure you file your motions even if you think a plea may occur

Today the Court issued a decision in United States v. Walden. 10a0354p.06 The defendant (and defense counsel) in Walden were pursuing a plea agreement, and as a result, let a motions deadline pass. The defendant did plea, however, when things did not go as planned, he withdrew his plea. He then asked for time to file a motion to suppress, which was denied. The defendant went to trial, and received a life sentence.

On appeal, defendant argued that the district court abused its discretion in not allowing him to file a motion to suppress. The Court first provided a definition of "good cause", stating "
Good cause is a flexible standard heavily dependent on the facts of the particular case as found and weighed by the district court in its equitable discretion. At a minimum, it requires the party seeking a waiver to articulate some legitimate explanation for the failure to timely file."

The Court then found that "if the failure to timely file occurred as a result of a lawyer’s
conscious decision not to file a pretrial motion before the deadline, the party seeking a
waiver will not be able to establish good cause." The Court found that under the facts of the case, counsel's decision not to timely preserve a suppression issue was on the defense, and could not provide "good cause" for an untimely motion.

The moral of the story? Make sure you get an extension on the motions deadline, or file the motion to preserve the claim!

A sad day. . . .

Still reviewing opinion, but here's what I understand has gone down in Abbott and Gould regarding the “except” clause of 18 U.S.C. § 924(c).

Unanimous decision (Justice Kagan did not participate). Docket No. 09--479 (Abbott was consolidated with Gould). A defendant subject to a mandatory, consecutive sentence under 924(c) is not spared from that sentence by virtue of receiving a higher mandatory minimum for a different count of conviction.

Abbott was convicted by jury on a 924(c) count and three other counts, namely two predicate drug-trafficking counts and being a felon in possession of a firearm. Under the ACCA, he was subject to a 15-year mandatory minimum sentence for the felon-in-possession conviction. Court sentenced him to 20 years total, stacking the 15-year ACCA mandatory minimum with the 924(c) 5-year mandatory sentence.

Gould pleaded guilty to one 924(c) offense and to conspiracy to possess with intent to distribute cocaine base (10-year mandatory minimum sentence). District court sentenced him to 137 months on the drug count and added the 924(c) 5-year mandatory sentence to that term (for a total of 197 months).

Abbott and Gould argued that the additional 5-year mandatory sentence in 924(c) should not apply to them because of the statute's direction that the 5-year mandatory sentence should be imposed as a consecutive sentence "except" to the extent a greater mandatory minimum sentence is otherwise applicable under any other provision of law.

Supreme Court disagreed, concluding "except" clause applied only to 924(c) and (per a footnote without citation to any provisions other than 18 U.S.C. 3559(c)) that it applies to other provisions imposing greater mandatory minimums for offenses that embody all of the elements of a 924(c) offense. Court reasoned that the "except" clause, which was added in 1998, was part of a bill to throttle criminal use of guns. Bill’s primary objective was expansion of 924(c)'s coverage to reach firearm possession. Court reasoned that the interpretations of the clause offered by Abbott and Gould would produce sentencing anomalies.

Abbott and Gould argued that the then-mandatory Guidelines would have resolved any disparities. Court concluded it would not contradict that Abbott and Gould presented a rational, less harsh, mode of sentencing. But the Court did not think it was the mode Congress had ordered. Court also pointed to the syntax and context as bases for its decision. Court rejected application of the Rule of Lenity.

What was that guideline range?

United States v. Peebles, No. 09--1986 (6th Cir. Nov. 4, 2010) (published) (panel of Judges Martin, McKeague, Ludington [of E.D. Mich.]).

As condition of supervised release, defendant was not allowed to have contact with other felons. Had romantic relationship with another felon. Defendant falsely stated she had not had contact with other felons. Finally admitted the contact.

Defendant told to submit a report explaining the rationale behind the prohibition on contact with other felons. She failed to complete the report. Ultimately charged with ten violations of supervised release. Defendant pleaded guilty.

District court did not calculate the sentencing guidelines. It was unclear what the advisory range was. Probation report listed range of 3 to 9 months. Several revisions of these calculations later, however, showed the range to be 8 to 14 months. Court imposed sentence of 10 months.

Conclusions:

* District court did not address guideline range at all.

* Range was not discussed by either attorney or by the judge.

* Impossible to determine range court relied on or whether the court meant to impose a sentence within the range or above it.

* Sentence procedurally unreasonable.

Civil Commitment for Sex Offenders

This summary is not available. Please click here to view the post.

ACCA Footnote that Sheds New Light on Juvenile Adjudications

An interesting, unpublished decision came out on October 18, 2010, dealing with prior juvenile adjudications and the ACCA. In United States v. Laferriere, No. 09--1369 (6th Cir. Oct. 18, 2010), the panel of Judges Kennedy, Rogers, and Kethledge addressed the Shepard inquiry as it relates to juvenile adjudications.

The defendant challenged the district court's determination that he qualified for the ACCA sentencing enhancement and 15-year mandatory minimum. One of the prior offenses used to invoke the enhancement was a juvenile adjudication for "assault with intent to rob---armed." The Court rejected the defense's two main arguments, but it decided, on its own, to remand the case for a third, and interesting, reason. (The defense argued 1) that the order of juvenile disposition was ambiguous as to the adjudication, and 2) that the judicial determination that the defendant had been adjudicated of the offense violated Apprendi.)

The Court concluded that "[w]hile Laferriere's primary arguments on appeal lack merit, he is nonetheless entitled to resentencing because of a particular requirement of the ACCA. Laferriere's conviction of armed assault with intent to rob cannot be counted as a sentence-enhancement predicate offense under the ACCA because the evidence fails to establish that the conviction was for a crime that actually involved the use or carrying of a firearm, knife, or destructive device, as required for an act of juvenile delinquncy."

Juvenile adjudications must involve a firearm/knife/destructive device to count as violent felonies for ACCA purposes. Shepard governs to prove whether or not the offense did involve such a weapon.

Under Michigan law, one could be convicted of armed assault with intent to rob by using a toy gun, a finger, an object hidden in a bag, other objects to simulate a weapon, a bike chain, etc. In this case, there was "no indication on the order of disposition that Laferriere conceded possessing an actual firearm." The charge involving possession of a firearm had not been sustained. Because of the age of the adjudication, the plea transcript was not available to review. The Court stated that "[w]ithout proof that a firearm . . . was involved, this conviction is meaningless for ACCA purposes."

The Court found it could remand because the error was plain and the Court could raise the issue in the interest of justice, even though the issue had not been raised on appeal.

The interesting note comes in footnote 3. The charging petition for the offense mentioned "a 'sawed-off shotgun,' [but] the language of the charge ('an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, a sawed off shotgun') does not preclude the possibility of an article that merely looks like a shotgun." This note provides real food for thought about what the Shepard documents actually show!

CDAM Conference

For the Michigan attorneys out there....

Just a friendly reminder that the Criminal Defense Attorneys of Michigan (CDAM) Advanced Criminal Defense Practice Conference is November 11 to 13 in Traverse City. The entire conference should be quite informative. There is a federal practice session from 4:00 p.m. to 6:00 p.m. on Thursday, the 11th. Presenters (from the Federal Defenders' Offices in Detroit and Grand Rapids) will cover plea agreements, Supreme Court updates, Sixth Circuit updates, and guideline developments.

Hope to see you there!

Cert Grants and Issues to Preserve

Just a quick note on some issues to look for and recent grants of cert.

Sykes v. United States, 09--11311 (Sept. 28, 2010): Does fleeing police in a vehicle (under the Indiana fleeing-and-eluding statute) constitute a violent felony for ACCA purposes?

The Seventh Circuit held that fleeing police in a vehicle in violation of the Indiana statute was sufficiently similar to the ACCA's enumerated offenses to counts as a violent felony. United States v. Sykes, 598 F.3d 334 (7th Cir. 2010).

United States v. Tinklenberg, No. 09-1498 (Sept. 28, 2010): Is the time between the filing of a pretrial motion and its disposition automatically excluded from the deadline for starting trial under the Speedy Trial Act (18 U.S.C. § 3161(h)(1)(D)), or is it excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial?

The Sixth Circuit interpreted 18 U.S.C. § 3161(h)(1)(D) to mean time is excluded when pretrial motions are filed and pending if they could possibly cause any delay of trial. United States v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009).

Mr. Tinklenberg is represented by this blog's own Kevin Schad, Appellate Division, Office of the Federal Defender for the Southern District of Ohio.

Michigan court decisions citing Rule 6.508 do not constitute a "reasoned" decision

In an en banc decision, 10a0333p.06 , the Court held that when Michigan courts issue a decision citing to their Rule 6.508(D), this does not constitute a reasoned decision to uphold a procedural bar to habeas relief. The court reviewed the way that Michigan courts utilized the rule, and found ample precedent that such summary orders were used both for decisions on the merits, as well as procedural decisions. The Court found "Michigan’s primary argument that orders citing Rule 6.508(D) can only refer to procedural default is untenable in light of Jackson and the procedural history of cases like Allen and the present case." The Court further found "a duty to protect a state’s interest in its procedural rules is only applicable once we determine that the state has decided a given case on a procedural basis."

Further, the Court found that, once the State had lost this procedural issue, it had failed to preserve a challenge to the district court's holding regarding ineffective assistance on the merits. As such, the Court granted habeas relief.

Social Media

Social media is becoming more and more of an issue for us and our clients. There are those advocating use of it for sentencing purposes, but in many ways, it seems that social media is more likely to hurt our clients than help. It seems prudent to advise clients not to blog or post anything on-line. Experience and common sense point to mostly negative consequences when clients post things on-line. And there are numerous examples of the government using this media to our clients' disadvantage.

Just something to think about and talk about with clients.

Suppression Decision Worth a Read---Evidence Suppressed

United States v. Domenech, Nos. 08--1220 & 1221 (6th Cir. Oct. 7, 2010) (published). Judges Cook and Griffin in majority. Judge Norris dissented.

The defendants, two brothers, appealed their convictions for multiple firearm and drug offenses. Court found the brothers' legitimate expectation of privacy entitled them to suppression of certain inculpating evidence and reversed the trial court's denial of the defendant's motion to suppress.

Facts:

* Man calling himself simply "Rogelio" rented two rooms at motel.

* Officers noted "suspicious activity" in one of the rooms and approached it.

* Two officers knocked on door while another went behind the building and stationed himself behind the frosted bathroom window of the motel room in question.

* Officer by bathroom window saw the lights go on and a figure enter the bathroom and lean over. The frosting on the window prevented the officer from seeing the person or any fixtures in the room.

* Expecting the figure to be disposing of evidence, the officer opened the bathroom window and swung his flashlight at one of the defendants.

* Commotion prompted the officers at the room's front door to burst into the room.

* Officers found the defendants, two women, drugs, guns, and counterfeit money.

State Proceedings:

* State court suppressed the evidence.

* Federal charges then brought.

Federal Suppression Motion:

* Defendants jointly moved to suppress the evidence.

* At hearing, government focused on the defendants' expectation of privacy.

* District court denied motion to suppress, finding the brothers lacked an expectation of privacy in the motel room, as they failed to show that they were the registrants or that they were sharing the room with the registrant.

* Defendants went to trial. At trial, one of the women testified that one of the brothers paid for the rooms and had directed Rogelio to rent the rooms for the group. The brothers were in a state of undress at the time of the officers' entry, had keys to the rooms, and had luggage in the rooms.

Appellate Opinion:

* Government conceded that the defendants had a subjective expectation of privacy in the room, but argued that the expectation was not objectively reasonable because of the criminal activity conducted in the rooms, the use of an agent to rent the rooms, and the agent's use of an alias.

* Court rejected idea that criminality undermines privacy expectations.

* Use of agent to rent rooms did not defeat a legally cognizable expectation of privacy.

* Use of alias by agent did not defeat reasonable expectation of privacy.

* "The Domenech brothers demonstrated lawful control/possession with evidence that they procured the room for their own use through their agent, paid for the room, possessed the key to the room, and occupied it both physically and with belongings."

* Use of an invalid motel registration did not defeat the reasonable expectation of privacy. "Because the Domenech brothers exercised control over Room 22 with this de facto permission of the motel, their lawful possession/control legitimizes their expectation of privacy, even if diminished by their agent’s use of an alias."

* The one brother had a reasonable expectation of privacy in the other brother's room b/c the first brother paid for the room, had personal belongings in the room, and held a key to the room.

* Exigent circumstances did not justify the search. Officers must have reasonably believed that the room's occupants were likely to destroy evidence.

* "Because the trooper could not see through the frosted window, the district court correctly held that he lacked probable cause to believe that the defendant would destroy evidence of a drug crime. Without probable cause, the officers cannot rely on exigent circumstances to justify this warrantless search."

Dissent:

* "This is not a case where appellants, acting on their own behalf used an alias to register as hotel guests. Instead, the appellants instructed a third party to rent a motel room under an assumed name (purportedly for his own use) where they could conduct illegal activity. While defendants had a subjective expectation of privacy, I am unconvinced that they have met their burden to establish that society would recognize that their expectation as legitimate when viewed 'in light of all of the surrounding circumstances.'"

Yikes! Extremely Sad Story of "Justice"

Wilson v. Rees, No. 09--6306 (6th Cir. Oct. 14, 2010). Petition for rehearing en banc denied, but Judge Martin offers a chilling dissent. He writes "to highlight this particularly ugly example of why 'the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.'"

This case, explains Judge Martin, involved a scandal that "is an embarrassment to all segments of the judiciary, from the judge who violated the Code of Judicial Conduct by having a sexual relationship with a defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex." Judge Martin goes on, "When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying."

Judge Martin recounts how "the defense in this case began with a handwritten note begging for volunteers, and ended with Wilson clumsily attempting to defend himself because he lacked competent counsel." Judge Marin reflects on Gideon v. Wainwright and its admonition:

From the very beginning, our state and national constitutions and laws have laid great emphasis

on procedural and substantive safeguards designed to assure fair trials before impartial tribunals

in which every defendant stands equal before the law. This noble ideal cannot be realized if the

poor man charged with crime has to face his accusers without a lawyer to assist him.

Judge Martin finds that "[n]early half a century after Gideon, its promise remains unfulfilled. Capital defendants like Wilson are routinely appointed counsel without the experience, skill, or commitment to adequately represent them. Much of the arbitrary and discriminatory nature of our current death penalty stems from the fact that quality of representation is the single greatest factor in determining when it is applied."

Judge Martin closes, "When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death."

When does an informant become an agent?

Today, the Court issued a very helpful opinion in the case of Ayers v. Hudson. 10a0324p.06 The defendant in Ayers was charged with murder, and detained prior to trial. As so happens with many cases, he allegedly confessed to another inmate, who promptly cooperated with authorities against the defendant. Sound familiar? The twist in this case, however, was that after the inmate cooperated with authorities, he went back to the defendant, and obtained additional information. This additional information was used against him at trial, despite the defendant's claim that it was obtained in violation of his right to counsel.

The Court granted habeas relief, finding that the inmate's discussions with the defendant, after initial contact with investigators, violated the defendant's right to counsel. The Court determined that investigators armed the inmate with information, and that the inmate elicited, during a second interview with the defendant, information investigators were looking for to incriminate the defendant. The Court noted "Here, the 'combination of circumstances is sufficient to support the . . . determination' that the State intentionally created a situation likely to violate Ayers’ Sixth Amendment rights when it returned Hutchinson to Ayers’ jail pod and he thereafter deliberately elicited statements from Ayers regarding the murder weapon and the amount of money allegedly taken from Brown’s apartment."

The Court further held that whether or not investigators gave specific instruction to an inmate to elicit information was not determinative of this issue. The Court noted that "we hold that although direct written or oral instructions by the State to a jailhouse informant to obtain evidence from a defendant would be sufficient to demonstrate agency, it is not the only relevant factor. A court must also analyze the facts and circumstances of a particular case to determine whether there exists an express or implied agreement between the State and the informant at the time the elicitation took place that supports a finding of agency. To hold otherwise would
allow the State to accomplish 'with a wink and a nod' what it cannot do overtly."

Kudos to the Cuyahoga County Public Defender's office on this significant win, and the precedent it creates!

New Crack Amendments DO NOT apply to pending cases

This may be old news to most of you at this point, but because it bears posting on this blog (and because I was out of town last week), here is the rundown on the Sixth Circuit's FSA decision.

In United States v. Carradine, 10a0305p.06 , issued on September 20, 2010, the Court determined that the Fair Sentencing Act of 2010, which was enacted on August 3, 2010 lowering crack cocaine mandatory penalties, only applied to those defendants whose conduct occurred after the date of enactment. The Court, relying chiefly on 1 U.S.C. 109, found "The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question. We affirm the district court’s imposition of the 60-month mandatory minimum sentence."

The silver lining, if any, in this decision is that the Court did admit that the statute was amended, and not repealed. The Federal Public Defenders office for the Southern District of Ohio, which has this appeal in their appellate division, will be filing for en banc review.

Interesting case on drug calculations

In an unpublished decision rendered on September 14, 2010, (United States v. Daniels, 10a0610n.06), the court has remanded a case for resentencing where the district court failed to make sufficient findings of fact to support a drug weight calculation.

Although the remand itself is not "new ground" for the court, the findings are interesting in that the court seemed to indicate that reliance on the PSI Report was not adequate to support a drug weight calculation finding. The Court in remanding noted "Even if the district court implicitly found that Daniels was responsible for at least 1.5 kilograms of cocaine, it did not provide any explanation for such a conclusion, apart from its reliance on the presentence report. The district court’s failure to make a particularized finding and to set forth the reasons for that finding is procedurally unreasonable."

This would seem to contradict the axiom in the Sixth Circuit in United States v. Lang, 333 F.3d 678, 681 (6th Cir.2003) that a "defendant cannot show that a PSR is inaccurate by simply denying the PSR's truth. Instead, beyond such a bare denial, he must produce some evidence that calls the reliability or correctness of the alleged facts into question. If a defendant meets this burden of production, the government must then convince the court that the PSR's facts are actually true. But the defendant gets no free ride: he must produce more than a bare denial, or the judge may rely entirely on the PSR.”

Although the Lang case is a burden of proof/production case, and the Daniels case is one of adequate findings, nonetheless, it is certainly worthy to note that a court may not apparently rely simply on the PSR recitation to meet procedural reasonableness standards.

This Just In!!!!! Sixth Circuit finds police CANNOT enter private residence without permission or probable cause!!!

On September 2, 2010, the Court found suppressible evidence obtained where police officers, without a warrant, probable cause, or permission entered a private building by kicking in the back door. In United States v. Kimber, 10a0583n.06, officers, on routine patrol, came upon a private apartment building, which they knew in general was a "hot spot" for criminal activity. The building was protected by a keyed entry system. Officers did not have key access; however, undeterred, officers forced the back door of the property open. After entering the lobby area, the defendant, Mr. Kimber, entered the building, using a valid key. Upon seeing the officers, he turned around to leave; however, officers detained him, frisked him, and found a weapon.

In attempting to rationalize their breaking and entering of the building, officers contended that they had received from the owner of the building a "trespassing letter", which allowed them permission to be on the property. Unfortunately, the letter was dated two months after the defendant's arrest, and the letter did not cover forcible entry. Thus, the Court found this argument to be unavailing. The court also found unimpressive a letter dated two years previous to the arrest, as it was issued by a former owner of the property.

The Government also argued that because the rear door of the building was easily accessible by shoving or kicking the door, that the defendant (and presumably other tenants of the building) had no real reasonable expectation of privacy. The court disagreed with this position, finding "
the appropriate inquiry was not whether it was physically possible for an officer to gain entry, but rather, whether the tenant would have expected him to do so and whether society would regard such expectation as reasonable." The Court therefore reversed the decision of the district court, vacated the conditional plea, and remanded the case for suppression of the evidence as the entry to the property violative of the Fourth Amendment.

Nice to see that the Court still provides reasonable restrictions on police intrusions onto private property. Kudos to AFPD Jim Maus (Southern District of Ohio) on a job well done!

The day the Fourth Amendment Died

As Don McLean might say: "But february made me shiver With every paper I’d deliver.Bad news on the doorstep; I couldn’t take one more step. I can’t remember if I cried When I read about the decision inside, But something touched me deep inside The day the Fourth Amendment died."

In a published decision issued todayhttp://www.ca6.uscourts.gov/opinions.pdf/10a0276p-06.pdf, the Sixth Circuit provided two important rulings in its Fourth Amendment jurisprudence. First, the Court determined that where a state court lacked jurisdiction, under state law, to issue a warrant, the warrant violates the Fourth Amendment. The magistrate in this case had issued a warrant for property located in one county, but the magistrate was from another county. Under Tennessee law, the magistrate only had jurisdiction in his sitting county. The Court therefore ruled "In this case, Judge Faris’ authority to issue warrants stems exclusively from Tennessee law, but that same source of law provides that Judge Faris had no authority to issue a warrant for a search of Defendant’s home. The search therefore violated Defendant’s Fourth Amendment rights."

Unfortunately, the Court then determined that, even though there was a clear Fourth Amendment violation, there might not be a remedy. The Court, citing newer Supreme Court precedent, found that it needed to re-examine its good faith exception jurisprudence. The Court noted that, post Herring v. United States, 129 S.Ct. 695 (2009), the Court could not longer find that a presumption of suppression, based upon a Fourth Amendment violation, applied. Rather, a court must now balance the factors of (1) the benefits of deterrence against (2) the cost of excluding the evidence. The Court therefore remanded for the district court to consider this balancing test, but noted that "Arguably, the issuing magistrate’s lack of authority has no impact on police misconduct, if the officers mistakenly, but inadvertently, presented the warrant to an
incorrect magistrate."

The case thus presents a serious limitation on Fourth Amendment protections. In addition (and exclusive of) showing a Fourth Amendment violation, the defense must bear the burden of proving how the deterrent effect of suppressing the evidence would outweigh the cost of its exclusion in a particular case. Of course, the cost is presumably always going to be high; otherwise, why would exclusion be sought? Therefore, this case seems to present a significant hurdle for a successful Fourth Amendment challenge.

No Title to Capture Truly Deplorable and Heinous Facts

Trying to catch up with our AFPDs' summaries. This case is truly horrible. Defendants were guards at a detention center. Interesting discussion of plain error, Apprendi, and other issues.

WESLEY LANHAM (08-6504; 09-5094);

SHAWN FREEMAN (08-6506; 09-5095),

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0261p-06.pdf

Defendant were convicted of violating an inmate’s civil rights in violation of 18 U.S.C. §§ 241 and 242, and of making a false entry in violation of 18 U.S.C. § 1519. They were prison jailers when an inmate (J.S.) was raped in jail. Defendants and their supervisor decided to "scare" J.S. after the latter was arrested for a traffic violation. They placed him in a general population jail cell and incited atrocities. Defendants appealed their convictions and sentences, arguing that there was insufficient evidence to support their convictions, and Defendant Freeman claimed that he was entitled to a downward sentencing departure. The government appealed the district court’s application of the 2006 Sentencing Guidelines to the defendants’ sentences and the court's refusal to apply a sentencing enhancement to Defendant Lanham.

The Court of Appeals affirmed.

The Court sets of the facts of the offense in painful detail in the first 7 pages of the opinion. The conduct of these defendants was egregious.

The Circuit Court ruled that, although the trial court had abused its discretion in failing to exclude two jurors for cause, the error was harmless, as the jurors were struck peremptorily. The government’s striking of a third juror for cause was correctly allowed by the trial court. The panel was constitutionally acceptable.

The trial court’s limitation on the scope of cross-examination was reviewed for plain error where there was no preserved objection. Since there is no 6^th Circuit case on point, the Court of Appeals looked to other circuits and found a split of authority. In that case, plain error cannot be found.

"Where there are conflicting authorities, the district court could not have committed plain error." Court found that, at a minimum, a court of appeals cannot correct an error unless that error is clear under current law. Because the law on the issue was not clear, the district court did not commit plain error.

There was sufficient evidence as to each defendant to convict each of violating the inmate’s civil rights. As to filing false reports, the wilful omission of facts is sufficient falsification to be a crime.

The enhancement under the statute was properly submitted to the jury. The defendants were charged under 18 U.S.C. § 241 for conspiring to violate J.S.’s civil rights. The indictment charged that the acts in furtherance of the conspiracy included aggravated sexual abuse; the statute establishes a ten year maximum sentence for those convicted under the statute. But it includes an increased penalty of "any term of years or for life" if the conspiracy included an act of aggravated sexual abuse.

Because the question of whether an act of sexual abuse occurred is a factual issue that increases the penalty for a violation of § 241 beyond the otherwise prescribed statutory maximum, the question had to be submitted to a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The district court properly submitted the question of whether aggravated sexual abuse occurred to the jury, and adopted the definition of aggravated sexual abuse found in 18 U.S.C. § 2241 (Court cites 1998 version).

The sentence reduction for minimal was properly denied to Defendant Freeman.

The trial court’s use of the guidelines in effect at the time of the crimes was appropriate in the face of appeal by the government. Ex Post Facto concerns would have been implicated by use of a later version of the advisory guidelines and the trial court correctly recognized those concerns.

The trial court’s decision not to apply a leadership role to Defendant Lanham’s guideline scoring was appropriate and supported by the record.

The court sentenced Lanham to 180 months and Freeman to 168 months in prison.

The Old Corpus Delicti Rule

Thanks goes to our AFPD summarizers for their summaries. There have been a number of cases, and I'm not keeping up, but I'll try to get more up here!

DAVID E. BROWN

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0258p-06.pdf

Jury convicted defendant of being a felon in possession of a firearm. Defendant moved for a post-verdict judgment of acquittal, arguing that the only evidence presented against him at trial (his confession) did not support the jury’s verdict. Trial court invoked the "corroboration rule" and acquitted him. Government appealed. Finding that sufficient independent evidence established the trustworthiness of the defendant's statements, the Court of Appeals reversed.

The case involved what in Michigan is called the corpus delicti rule, and the Circuit Court found sufficient evidence that the crime of stealing a gun and possessing it had occurred. The rule is a bit different than the Michigan rule, but relatively similar.

The Court found that "[t]oday’s corroboration rule differs from its predecessor in form but not in function. Wary that '[the] weakness of the accused under the strain of suspicion' may cause the accused to give a false, even if voluntary, confession," the Court continues, "the Supreme Court in 1954 embraced a variation on the rule to prevent 'errors in convictions based upon untrue confessions alone.'" The Court goes on, "[u]nlike the corpus delicti rule, the government need not introduce evidence independent of the accused’s confession to establish that the crime occurred."

The government generally may satisfy the rule by introducing substantial independent evidence that tends to establish the trustworthiness of the statement. This approach, the Court found, has the virtue of ensuring that these trustworthiness considerations extend to all confessions, including confessions in cases in which no one doubts a crime occurred, only who committed it.

The corroboration requirement differs from another requirement—that the confession be voluntary. Voluntariness goes to admissibility. Corroboration goes to sufficiency. A court may admit a confession into evidence as voluntary, but then reject it as uncorroborated (on the theory that even voluntary inculpatory confessions may be unreliable). Basically, jurors should not vote to convict based upon such a statement alone.

The Circuit Court concluded that there was sufficient independent evidence of the crime to provide corroboration of the defendant’s confession.

*******

Acceptance Issue

An AFPD in our office offers this summary of a denial-of-acceptance case.

GLENN LEE BACON

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0252p-06.pdf

Defendant pleaded guilty to one count of bank fraud. The plea agreement provided that the government would not oppose the defendant's request for a reduction for acceptance of responsibility, but the presentence report recommended only "reservedly" that he receive the reduction.

At the sentencing hearing, the district court denied acceptance-of-responsibility credit, citing the PSR and a letter the defendant had written after his guilty plea that deflected responsibility for the offense. The district court placed the defendant in a higher guideline range than the defendant had anticipated, and utilized that range to impose a within-guidelines sentence of 34 months of imprisonment. Defendant appealed. Appellate court affirmed.

The appellate court rejected the defendant’s contention that the trial court erroneously denied him the acceptance-of-responsibility downward adjustment. Although the defendant pleaded guilty in a timely manner, post plea, he wrote a letter to probation claiming that he was the victim and that a co-defendant was entirely responsible for the offense. (The defendant had lied on loan applications, which, among other things, said he was employed and promised a salary of $52,000 annually. The defendant persisted in his denials at sentencing, even after the trial court had warned that it was seriously considering not granting the reduction for acceptance.)

The burden of proving that one qualifies for the acceptance reduction falls on the defendant. This defendant failed to make the required showing.

The sentence of 34 months, within the guidelines, was substantively reasonable.

*******

A blip or a storm?

Yesterday, the Court issued a published decision in the case of Cvijetinovic v. Eberlin. Case No. 08-3629 http://www.ca6.uscourts.gov/opinions.pdf/10a0256p-06.pdf

The holding of the case is somewhat unremarkable (counsel not ineffective for failing to anticipate Blakely and state court precedent applying Apprendi); however, the dicta regarding the futility doctrine bears review. The defendant had argued that he was excused from raising an Apprendi claim on direct review, as the state courts had consistently held that Apprendi did not apply to Ohio sentencing schemes. The Court, in rejecting this claim, eliminated, or at least gutted, the futility doctrine to excuse procedural default. The Court noted that "the alignment of the circuits against a particular legal argument
does not equate to cause for procedurally defaulting it."

The Court recognized that, in holding in this fashion, it was inviting (and apparently requiring) counsel to raise all issues, in all cases, no matter how frivolous they may seem at the time in light of then existing law. The Court admitted "this rule could, under certain circumstances, lead to some potentially undesirable results. One jurist predicted that 'defense counsel will have no choice but to file one ‘kitchen sink’ brief after another, raising even the most fanciful defenses that could be imagined based on long-term logical implications from existing precedents.' United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001) (Wood, J., dissenting from denial of rehearing en banc). However, '[u]nless and until the Supreme Court overrules its decisions that futility cannot be cause, laments about those decisions forcing defense counsel to file ‘kitchen sink’ briefs in order to avoid procedural bars are beside the point.'”

So readers, what do you think? Are attorneys now tasked with filing "kitchen sink" briefs in all cases in order to preserve any and all claims, no matter how futile they may seem, until there is a Supreme Court ruling on the issue?