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.