Error in admitting prior bad act leads to new trial for jail officer sentenced to 9 years for assault on inmate

Kevin Eugene Asher, a former Kentucky jail officer accused of beating inmates, is getting a new trial thanks to today's Sixth Circuit decision reversing his conviction for a violation of Federal Rule of Evidence 403.

Asher was a 32-year-old deputy officer at the Kentucky River Regional Jail when a jury convicted him of deprivation of civil rights and obstruction of justice for his role in (and later cover up of) an unprovoked, vicious assault of a 55-year-old inmate awaiting trial on a misdemeanor charge. The district court imposed a 9-year sentence.

Today's decision, written by Judge Bush, concluded that the trial court erred by allowing in testimony that Asher had beaten a prisoner and covered it up 2½ years earlier.

Asher conceded that prosecutors had sufficient evidence that the prior assault occurred, and that it was admissible under Rule 404(b) to prove that he acted purposefully.

But Asher argued that the evidence wasn't admissible under Rule 403, which provides a balancing test that allows exclusion of relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice."

The Sixth Circuit decided that -- despite deference due to the trial court's evidentiary decisions -- the risk of unfair prejudice from introduction of the prior assault so outweighed its probative value that it constituted reversible error. 

The court first addressed probative value, explaining that, if the jury believed Asher committed the vicious assault at issue, then specific intent would have been obvious. "It is specious to think," the court reasoned, "that the jury might have disbelieved Asher's denials, yet acquitted him for lack of specific intent." And as to prejudice, the court found that, because the two assaults were "virtually identical," a curative jury instruction wasn't enough to mitigate the negative inference about Asher's character that would arise from evidence of the prior assault.

The court thus vacated both the conviction and the 9-year sentence, and remanded for a new trial.

ICE may detain and deport a defendant regardless of a district court's detention determination

The Bail Reform Act (BRA) and the Immigration and Naturalization Act (INA) seem to be in conflict.  The INA requires that a person subject to removal is not entitled to bail, and must be deported.  But what to do if that same person is charged with a federal offense, and the district court finds that the person is entitled to bail under the BRA?

The Sixth Circuit has held that in such situations, the district court cannot interfere with the requirements of the INA.  In United States v. Veloz-Alonso, the district court found that the defendant, an illegal alien, was subject to bail under the BRA.  The United States informed the court that, if the defendant was released, ICE would likely detain and deport him prior to resolution of the criminal case.  The district court, wanting the defendant to be released on bail, then entered an order enjoining ICE from such action. 

The United States appealed, and the Sixth Circuit reversed.  Recognizing the conflicts between the BRA and the INA, the  Court found that "nothing in the BRA prevents other government agencies or state or local law enforcement from acting pursuant to their lawful duties."  Thus, while a district court is able to release such a defendant under the BRA, the court may not halt application of the requirements of the INA. 

Tennessee drug convictions were not “serious drug offenses” for purposes of the Armed Career Criminal Act (ACCA) 

           In United States v. Rockymore, the defendant, Dewayne Rockymore, pleaded guilty to being a felon in possession of a firearm and ammunition. Based on prior convictions for burglary and “three delivery-of-cocaine charges,” the government contended that Mr. Rockymore’s sentence should be enhanced under the ACCA, which requires that an offender have at least three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Mr. Rockymore conceded that his burglary conviction was a “violent felony” and one of his delivery-of-cocaine charges qualified as a “serious drug offense,” but he argued that the other two delivery-of-cocaine convictions did not meet the definition of a “serious drug offense.” The district court agreed and the government appealed. The Sixth Circuit affirmed the district court’s ruling.

          Since the ACCA defines a “serious drug offense” as any controlled substance conviction for which the “maximum term of imprisonment” is ten or more years, the Sixth Circuit looked to Tennessee law to determine the statutory maximum. That required consideration of two sentencing statutes which “work in concert.” The first is what the Sixth Circuit called “the felony-based statute” which classifies felonies and their authorized sentences. Delivery-of-cocaine is a Class C felony which is punishable by a minimum sentence of three years and a maximum sentence of fifteen years.

          The second statute is described as “the range based statute” which uses the offender’s criminal history to narrow the sentencing range. For example, an offender with no criminal record is classified as “Range 1” and if he or she were to commit a Class C felony the sentencing range would be three-to-six years imprisonment. The Sixth Circuit noted that unlike the federal sentencing guidelines, the “specific ranges are mandatory” under Tennessee law.   

          To decide whether the delivery-of-cocaine convictions were “serious drug offenses” under the ACCA, a federal court must consider the felony-based statute and the range-based statute to determine the “maximum term of imprisonment.” The district court did so and concluded that the two delivery-of-cocaine convictions were not ACCA predicates because Mr. Rockymore was a Range 1 offender convicted of two Class C felonies and was subject to a six-year maximum sentence for each.

          On appeal, the government cited Tennessee Supreme Court cases to support its argument that the district court should only have considered the felony-based statute which set out the “maximum term of imprisonment.” The Sixth Circuit found those cases inapposite because they either dealt with the limited power of state courts to review sentences in post-conviction or habeas corpus proceedings or they showed that a defendant could agree in a plea bargain to “a sentence beyond the maximum range.” There is, however, a caveat for a defendant who is in the latter situation.

          In footnote 1 of its opinion, the Sixth Circuit pointed out that Tennessee defendants can agree “to accept a higher sentence than that imposed by the range-based statute so long as it falls within the broader felony-based statute’s authorized sentences.” But, “a defendant like Rockymore is not subject to the broader penalty unless he agrees to a plea-bargained sentence (which waives any objection to his offender classification).” A defendant who agrees in a plea bargain to a higher sentence “would be subject to the ACCA’s enhancement under the broader felony-based statute. But for defendants like Rockymore, the range-based statute provides their maximum sentence.”

          The Sixth Circuit further noted that the government’s interpretation of Tennessee law would make its “statutory scheme ambiguous at best” and the rule of lenity requires that when there are “two equally-persuasive interpretations” of a criminal statute it must be construed in the defendant’s favor.

          The Sixth Circuit concluded that Mr. Rockymore’s delivery-of-cocaine- convictions were not “serious drug offenses” under the ACCA because the “maximum term of imprisonment” for each was six years. He therefore did not qualify for an ACCA sentence enhancement.   

 

         

                   

Does Operating an Airplane Include Preflight Activities?

In a case of first impression, the Sixth Circuit interpreted the term “operate” under 18 U.S.C. § 342, which criminalizes operating a common carrier while intoxicated.  The defendant—a commercial airline pilot—arrived to work drunk.  Scheduled to fly that day, he prepared the plane for flight, including calibrating and programming instruments and requesting clearance from traffic control.  However, before passengers boarded, the co-pilot informed authorities that the defendant was drunk, and he was arrested.

Charged with operating a common carrier while under the influence of alcohol, the only issue at trial was whether the defendant “operated” the plane through his preflight preparations.  The district court ultimately instructed the jury that “[f]or a commercial pilot [“operate”] includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if . . . the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight.”  The jury subsequently convicted the defendant.

On appeal, a divided panel affirmed the conviction.  Noting that the no federal court of appeals had interpreted the term “operate,”  the Court held that the district court properly instructed the jury.  It rejected an interpretation of “operating” that would include only flight itself.  The Court held that such a definition would problematically excluded the preflight operations needed to fly safely. Thus, considering an airplane pilot's role and the statute's “public safety purpose,” the district court properly instructed the jury.

The dissent argued that the defendant’s actions were merely an attempt to operate the plane, a situation that the statute does not criminalize.  Focusing on the common law definition of “common carrier,” the dissent noted that not all airplanes are common carriers; only those transporting public passengers or freight qualify.  Accordingly, the key function of a common carrier is to transport such passengers or freight, and “operating” a carrier means controlling its functions. 

Thus, under the dissent’s view, the defendant never operated a common carrier.  While the defendant conducted preflight activities, no passengers boarded and the plane never moved.  Therefore, he never controlled the transport of passengers.

Instead, the defendant merely attempted to operate the carrier.  However, 18 U.S.C. § 342 fails to criminalize attempts.  Thus, the dissent would have reversed.

Given the divided panel and the issue of first impression, it will be interesting to see whether the Sixth Circuit reviews the decision en banc.  Opinion available here.

We Repeat, Time-Served Sentences Are Unlawful

In United States v. Mitchell, the Sixth Circuit addressed cross-appeals from a grant of habeas relief under 2255 based on the inapplicability of the Armed Career Criminal Act. Mr. Mitchell was resentenced at the district-court level, because he no longer qualified as an armed career criminal. Because he had already served a seventeen-year term of incarceration, more than the maximum sentence that applied to him without application of the ACCA, the district court imposed a sentence of "time served" and released Mr. Mitchell.

On appeal, the Sixth Circuit reminded the parties that "this precise issue" had already been decided in United States v. Nichols, 897 F.3d 729 (6th Cir. 2018). In Nichols, the Sixth Circuit held that a time-served corrected sentence is unlawful, because it makes the length of actual incarceration served the length of the sentence imposed, even though that amount of time is beyond the applicable Guideline range and often beyond the statutory maximum sentence available. The Court also took pains to point out the four different options available to a district court in habeas: 1) discharge the petitioner, 2) grant the petitioner a new trial, 3) resentence the petitioner, or 4) correct the sentence.

A corrected sentence is subject to reasonableness review. But interestingly, a full resentencing is not needed. Instead, the district court may "impose a corrected sentence based on a brief order, a hearing that resembles a de novo sentencing proceeding, or anything in between." Mitchell (quoting Nichols at 738). In other words, not ever habeas revision of a sentence requires a full resentencing - and what degree of corrected process is required is based on the individual situation at hand. It is also a matter of judicial discretion.

It is worth noting that Mr. Mitchell also attempted to challenge his three-year term of supervised release, presumably because he served additional time beyond the lawful sentence. However, the Sixth Circuit declined to address the question in light of the remand. Instead, it directed the district court to "take the opportunity to provide an appropriate rationale for its supervised release decision."

Appellate Waivers and the Elephant in the Room

This site does not often comment on unpublished cases, but, from time to time, an unpublished decision will provide guidance, and, in this case, a warning, for appellate counsel.  This is just such a case.

In United States v. Mason, the defendant, Mason, entered into a written plea agreement with the United States wherein the parties stipulated to a Guidelines range of 145-175 months.  In exchange, Mason agreed to waive his right to appeal his sentence so long as it did not exceed 175 months.

Prior to his sentencing, Mason raised numerous objections to this Guidelines calculations, which the district court subsequently denied.  This did not work to Mason's detriment, however, since the district court imposed a below-Guidelines sentence of 125 months.  Dissatisfied with this result, Mason appealed.

Citing the waiver in Mason's plea agreement, the Court promptly dismissed his appeal.  In its unpublished decision, the Court noted its annoyance with one critical fact: Mason failed to raise the appellate waiver as an issue.  "An unsuspecting reader," the Court noted, could waste his or her time reading the briefs only the discover that the appellant had waived all of the issues raised.  Judge Kethledge noted he was the unsuspecting reader, that Mason failed to respond to the issue after the United State raised it in its response brief, and that, were it a civil case, the appellant could face sanctions.  Ouch!

This author detests appellate waivers in plea agreements, especially the all to frequent language being employed by the United States where the parties try to play a guessing game about the defendant's Guidelines range.  Nevertheless, it is best not to ignore the elephant in the room on appeal.

A Better (Plea) Deal: Court holds Defendant can Show Strickland Prejudice by Losing the Right to Negotiate a Better Plea Deal

Although the Court has been light on published opinions this week (so far), it has managed to issue one habeas win.  In Rodriguez-Penton v. United States, the Court reversed the District Court's denial of Mr. Rodriquez-Penton's 2255 motion and remanded it for additional proceedings, holding that Mr. Rodriquez-Penton, who was told pleading guilty would not adversely impact his immigration status, could meet the Strickland prejudice prong by showing that, had he known about the risk to his immigration status, "he would have bargained for a more favorable plea."

Mr. Rodriquez-Penton moved from Cuba to the United States when he was only fifteen years old.  At the time of his indictment in 2011, he was living in Louisville, Kentucky as a permanent resident with a green card.  The Government subsequently made two separate plea offers to him in the year after his arrest.  Ultimately, Mr. Rodriquez-Penton entered an open guilty plea in October 2012.  In March 2013, the district court sentenced him to 121 months imprisonment.  According to Mr. Rodriquez-Penton, he did not learn his guilty plea would possibly lead to his deportation until he spoke with his prison counselor.

After the Sixth Circuit rejected his argument that his plea was not knowing and voluntary, Mr. Rodriquez-Penton filed a 2255 motion arguing his trial counsel was ineffective for not explaining the adverse immigration impacts of his guilty plea.   A magistrate judge, and subsequently the district court, concluded Mr. Rodriquez-Penton met the first Strickland prong, finding his counsel's performance deficient because, by his own admission, he could not recall informing Mr. Rodriquez-Penton that deportation was a possibility.  However, both the magistrate judge and district court found that Mr. Rodriquez-Penton could not satisfy the second Strickland prong because he could not show prejudice.  Crucial to this decision was Mr. Rodriquez-Penton's testimony that he would have gone to trial, even if he could have negotiated a better plea agreement.  Thus, the district court dismissed his 2255 motion and Mr. Rodriquez-Penton appealed.

On appeal, the Court quickly agreed that Mr. Rodriquez-Penton demonstrated deficient performance.  The critical issue, however, was whether he could show actual prejudice.  Noting a question raised, but not answered by the Supreme Court in United States v. Lee, and smartly raised by Mr. Rodriquez-Penton, the Court held that he could demonstrate Strickland prejudice by demonstrating that, absent his attorney's deficient performance, he would have bargained for a more favorable plea.

Judge Thapar began his lengthy dissent by stating the obvious: "[b]eing a criminal defense attorney is not easy."  Noting that criminal defense attorneys often have the odds and resources stacked against them, Judge Thapar criticized the majority for creating a new "right" that made their jobs only harder.  Noting that defendants do not have a constitutional right to a plea offer, Judge Thapar said the majority's opinion would open the flood gates for numerous 2255 motions claiming that defendants would have negotiated a better plea deal had their counsel not been ineffective.

Time will only tell whether Judge Thapar's fears hold true.  In the meantime, look for future habeas appeals to cite this case in an effort to undue plea agreements.

Hobbs Act Robbery Ruled Not a "Crime of Violence" Under Sentencing Guidelines

The Sixth Circuit ruled recently that Hobbs Act robbery, a violation of 18 U.S.C. § 1951(a), is not a "crime of violence" under the sentencing guidelines in United States v. Camp. As a result, the court held that the district court erred in finding that the defendant was a career offender under the guidelines and remanded the case for resentencing.

The defendant, Desmond Camp, pleaded guilty to three charges: (1) Hobbs Act robbery; (2) using a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He received a mandatory statutory minimum sentence of 25 years on the 924(c) charge owing to a prior conviction under that statute. The district court determined that Camp was a career offender under the guidelines finding that the Hobbs Act robbery conviction and his prior convictions -- a 2003 federal bank robbery conviction and a 1990 convicting in Michigan for armed robbery -- all qualified as crimes of violence. As a result, Camp received sentences of 72 months on the Hobbs Act robbery and felon in possession charges to run consecutively to the 25 years on the 924(c) charge.

The court considered whether Hobbs Act robbery was a "crime of violence" under the guidelines § 4B1.1 by applying the categorical approach to both the use-of-force clause and the enumerated offense clauses As an initial matter, the court discussed whether the categorical approach should be applied to both prior and instant offenses and concluded that it should.

The court held that Hobbs Act robbery was not a crime of violence under the Guidelines' use-of-force clause, because Hobbs Act robbery included use of force against property, not just a person as under the guidelines.

Turning to analysis under the enumerated offense clause the court saw two offenses, robbery and extortion, listed in § 4B1.2 that potentially were a categorical match to Hobbs Act robbery. The generic definition of robbery applied, the court concluded, and Hobbs Act robbery was broader than generic robbery for two reasons: (1) generic robbery includes a requirement of immediate danger; and, (2) it criminalizes threats to property alone untethered by any temporal immediacy. 

The Guidelines define extortion, see USSG § 4B1.2, comment. (n. 1), and it "does not include threats against property and, as a result, Hobbs Act robbery -- which plainly does -- is not a categorical match with Guidelines extortion." 

The court joined the 10th Circuit, United States v. O'Connor, 874 F.3d 1147 (2017), in holding that Hobbs Act robbery is not a crime of violence under the Guidelines.

Camp also argued that Hobbs Act robbery did not qualify as a crime of violence for purposes of 18 USC § 924(c), a contention the court found foreclosed by its holding in United States v. Gooch, 850 F3d 285 (6th Cir.), cert. denied, 137 SCt 2230 (2017).

            Sixth Circuit construes 18 U.S.C. §3583(h) in a case of first impression

             In United States v. Price, Andre Price pleaded guilty to bank robbery and was sentenced to 60 months imprisonment followed by 36 months of supervised release. Shortly after his release from prison he twice tested positive for cocaine. No action was taken regarding those violations. Within two weeks of those violations, Mr. Price twice tested positive for cocaine. At the revocation hearing Mr. Price proposed inpatient substance abuse treatment rather than imprisonment. The district court considered the sentencing options and imposed a below-Guidelines sentence of 2 months of imprisonment followed by 34 months of supervised release.

Two weeks after Mr. Price was released from imprisonment, he violated the terms of his supervised release by possessing and using crack cocaine and being absent from his halfway house without permission. At the revocation hearing, Mr. Price again sought treatment instead of incarceration. The district court considered that option inappropriate and sentenced him to 24 months imprisonment and a 12 month term of supervised release. The conditions of supervised release included 6 months in a halfway house. Inpatient treatment could possibly be substituted for time in the halfway house “on a month-for-month basis.” (Op. at 3).

On appeal, Mr. Price argued that his term of supervised release was procedurally unreasonable because it exceeded the maximum authorized by 18 U.S.C. §3583(h). That claim was reviewed for plain error since there was no objection in the district court to the length of the term of supervised release.

Section 3583(h) provides that the length of a term of supervised release “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” The statute’s last clause not only requires the district court to subtract “the length of any newly-imposed period of incarceration from a term of supervised release” but it also requires the court to “subtract the length of any term of imprisonment imposed upon a prior revocation of supervised release related to the same underlying offense.” (Op. at 5).

Applying §3583(h) in Mr. Price’s case, the district court correctly noted that the maximum term of supervised release on the bank robbery conviction was 36 months. The court then subtracted the most recent 24 month term of imprisonment and determined that the maximum for any new term of supervised release was 12 months. The district court, however, erred by failing to reduce the term of supervised release by the 2 month term of imprisonment that was imposed when Mr. Price was initially revoked. The panel majority determined that plain error occurred and had to be corrected on remand.

Mr. Price also argued that his 24 month sentence was substantively unreasonable because he was not granted inpatient treatment rather than incarceration. The Sixth Circuit found no abuse of discretion because the district court “explicitly considered” the treatment option under 18 U.S.C. §3583(d) and determined it was inappropriate under the circumstances. Thus, Mr. Price failed to rebut the presumption that his within-Guidelines sentence was reasonable.

Accordingly, Mr. Price’s 24 month term of imprisonment was affirmed but the panel majority vacated the 12 month term of supervised release and remanded the case for the imposition of a new term of supervised release that did not exceed the maximum allowed by §3583(h).

In a separate opinion, Judge Batchelder agreed with the majority that Mr. Price’s 24 month sentence was not substantively unreasonable. She would have joined the majority’s ruling on Mr. Price’s procedural reasonableness challenge if the issue were reviewed de novo but she dissented because in her view the error was not “plain” or “obvious or clear.” Judge Batchelder noted that the interpretation of §3583(h) is a matter first impression in the Sixth Circuit and the Supreme Court has not addressed the issue. Under Sixth Circuit plain error precedent Judge Batchelder viewed that as “fatal” to Mr. Price’s procedural reasonableness challenge. (Concurring-Dissenting Op. at 9).   

Shepard documents are used to establish Tennessee aggravated assaults as ACCA predicate offenses. 

The use of Tennessee’s aggravated assault statute as an ACCA predicate offense is again at issue in the Sixth Circuit.

In Davis v. United States, Jeremiah Davis pleaded guilty in 2001 to being a felon in possession of a firearm under 18 U.S.C. §922(g)(1). On the basis of three prior Tennessee aggravated assault convictions he was sentenced as an armed career criminal under the ACCA. In 2016, Mr. Davis filed a habeas petition seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). He contended that the earlier of those assault convictions were not ACCA predicate offenses.

            The district court agreed with Mr. Davis. The court relied on United States v. McMurray, 653 F.3d 367, 376 (6th Cir. 2011) which held that reckless aggravated assault was not a violent felony under the ACCA’s use of physical force clause. 18 U.S.C. §924(e)(2)(B). The court concluded that Mr. Davis was entitled to Johnson relief because he could only have been sentenced under the ACCA’s residual clause.

            The Sixth Circuit reversed the grant of habeas relief. The court noted that Mr. Davis argued in the district court that the prior convictions were not predicate offenses under the ACCA’s use-of-force clause because aggravated assault could be committed with a reckless mental state. But that argument was mostly abandoned on appeal “and for good reason.” (Op. at 4). The Sixth Circuit observed that McMurray was effectively overruled by Voisine v. United States, 136 S.Ct. 2272 (2016) in which the Supreme Court “found recklessness sufficient to constitute a crime that has, as an element, the use or attempted use of physical force.” (Op. at 4).

            Subsequent to Voisine, the Sixth Circuit held in United States v. Verwiebe, 874 F.3d 258, 264 (6th Cir. 2017) that reckless conduct can qualify a conviction as a crime of violence under U.S.S.G §4B1.2’s use-of-force clause. Verwiebe was applied in United States v. Harper, 875 F.3d 329 (6th Cir. 2017) to support the conclusion that reckless aggravated assault in Tennessee is a crime of violence under §4B1.2’s use-of-force clause. Although Verwiebe and Harper involved §4B1.2’s use-of-force clause, their holdings applied to the ACCA’s use-of-force clause because both clauses are construed to have the same meaning. (Op. at 4). In Mr. Davis’s case, the Sixth Circuit said Harper was binding and Tennessee’s aggravated assault statute (Tenn. Code Ann. §39-13-101(a)(1)) “is categorically a crime of violence.” (Op. at 4). (Note – Harper (17-7613) and Verwiebe (17-8413) are pending on petitions for writs of certiorari and are scheduled for the Supreme Court’s conference on 9-24-18).

            Against that backdrop, Mr. Davis argued that he was entitled to Johnson relief because the government failed to show that his convictions were under a subsection of the statute that brought him within the ACCA’s scope. The Sixth Circuit found that the juvenile petitions on which the government relied showed that Mr. Davis was charged with aggravated assaults that stemmed from two separate shootings in which the victims sustained “serious bodily injury.” (Op. at 5). The court rejected Mr. Davis’s contention that the juvenile petitions were not Shepard documents because, “after a bench trial, the sentencing court can consider only the judge’s formal rulings of law and findings of fact.” (Op. at 6). The Sixth Circuit found that charging documents can be considered whether a bench trial or a guilty plea occurs.

            Mr. Davis further argued that one of the juvenile petitions could not be considered because it originally charged him with attempted first degree murder and he was convicted of the lesser included offense of aggravated assault. In the Sixth Circuit’s view, however, the only possible lesser included offense was contained in the subsection of the aggravated assault statute that qualified as an ACCA predicate.

            Thus, the Sixth Circuit concluded that Mr. Davis was not entitled to Johnson relief because Tenn. Code Ann. §39-13-101(a)(1) is a crime of violence under the ACCA’s use-of-force clause.

 

 

 

When does a judge go too far in controlling the courtroom?

Circuit court judges are at their most polite when writing about district court judges, rarely criticizing their lower-court colleagues even when correcting their errors. But sometimes the cracks show through. Take for example today's unpublished opinion in United States v. Jones, in which appellant Tommy Lee Jones (presumably unrelated to the famously mercurial actor) accused the district court judge (also perhaps a bit mercurial) of misconduct. The panel did not grant relief on that claim, but it did politely articulate some concerns.

At trial, the judge made comments presumably intended to speed along the trial, but seemingly all directed at the defense's attempts to question witnesses. Without ever naming the judge, the opinion states on several occasions that the judge's conduct "was not model judicial behavior." Indeed, the  judge made multiple sua sponte admonishments that defense counsel was "wasting the jury's time." In contrast to the district judge's tone, the appeals court's language is a model of restraint:

• "Most of the comments, read in context, amounted to inarftul attempts by the district court to promote trial efficiency . . . ."
• "It is true that the district court could have been more restrained . . . ."
• "The court should have chosen its words more carefully . . . ."
• "[T]he district court's expressions of frustration and its interjections were imperfect attempts to run the trial in a focused and efficient manner . . . ."

In supporting its determination that this conduct did not result in an unfair trial, the opinion cited to a prior decision, tactfully noting that the earlier case involved the "same presiding judge ma[king] twenty-six comments like the ones cited by Jones" (emphasis added), and quoting that decision's conclusion that this was "acceptable, though not necessarily model, judicial behavior."

The opinion notes two particularly concerning comments, both of which appeared to make positive conclusions about the credibility of the prosecution's case agent. Although the judge's comments "c[a]me very close to judicial misconduct," they did not cross that line due to the "extensive curative instructions" given before and after the trial. Although it found no abuse of discretion, the Sixth Circuit took the time to remind courts everywhere to "be mindful of their conduct in the presence of the jury and . . . take necessary precautions to prevent appearing partial to one side."

Although Mr. Jones failed to prevail on this claim, the opinion does grant relief on certain sentencing and restitution issues, so Mr. Jones will be back in front of the same judge soon.

Another habeas win: Michigan's sentencing practices run contrary to established Supreme Court precedent

In any given week, it is rare to see a Sixth Circuit opinion granting habeas relief. This week's bumper crop of four habeas wins is may set a record. Today's habeas win, Robinson v. Woods, will likely have the most significant implications for other litigants, at least those in Michigan. The opinion holds that one of Michigan's standard sentencing practices is unconstitutional in light of the Supreme Court's 2013 decision in Alleyne.

In Michigan, the state's Department of Corrections prepares a presentence report that calculates a score based on certain offender variables, some of which "do not reflect the mere elements of the offenses for which a defendant was convicted." If adopted by the judge, this score can result in a higher minimum sentence than would have been warranted without those judge-found facts.

The problem with this approach is that the Supreme Court held in Alleyne that it is unconstitutional to to use judge-found facts to increase the defendant's minimum sentence. (The Court's prior decisions in Apprendi and Blakely addressed increased maximum sentences, not minimum sentences.) The Sixth Circuit holds today that Michigan's sentencing scheme violates Alleyne. Strangely enough, the Michigan Supreme Court appears to have reached the same conclusion about its own practices in a 2015 decision, and yet the State of Michigan still argued in this case that the practice was not unconstitutional.

Finally, this case highlights the importance and potential injustice of the Supreme Court's byzantine retroactivity doctrine. The Sixth Circuit has held that Alleyne does not apply retroactively on collateral review because the Court did not expressly make it retroactive, and it is not (1) a "substantive" rule or (2) a "watershed rule of criminal procedure."* See In re Mazzio, 756 F.3d 487 (6th Cir. 2014). The only reason that habeas relief was warranted in this case is that the Supreme Court issued Alleyne approximately one month before the Michigan Court of Appeals issued its opinion in this case, and thus Mr. Robinson's conviction was not yet "final" at the time of Alleyne. Had the Supreme Court waited one month, Mr. Robinson's sentence would still have been unconstitutional, but he would not have been entitled to habeas relief.

*Only a page after its discussion of retroactivity, the Robinson opinion makes this curious statement: "Alleyne was a watershed opinion, overruling two prior precedents . . . ." Taken at face value, that language would suggest that Alleyne should be considered retroactive.

The Door is Merely Cracked for § 3582(c)(2) Sentencings

Case Background:

In 1998, the Sixth Circuit reviewed Matthew Otis Charles’ case for the first time (United States v. Charles, 138 F.3d 257 (6th Cir. 1998)). 

He was convicted by a jury of several counts including conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846.   At sentencing, the court adopted the recommended guidelines range of 360 months to life but varied upward and sentenced him to 420 months imprisonment. In his direct appeal, Charles raised several challenges pertaining to the search warrant, the insufficiency of the evidence at trial, and the district court’s application of the sentencing guidelines - including the amount of crack cocaine applied to him and the enhancement for obstruction of justice.  The Sixth Circuit found his arguments lacked merit and upheld the conviction and sentence. 

In 2008, the Sentencing Commission retroactively amended the sentencing guidelines to reduce the disparity between penalties for crack cocaine and powder cocaine offenses.  This reduced Charles’ guideline range and he moved for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).   The government objected because he was a career offender, and the district court did not act on his motion.  In 2010, Congress amended and lowered the guidelines for crack cocaine offenses, and Charles filed a subsequent 18 U.S.C. § 3582(c)(2) motion.   The court did not respond so Charles sent follow-up letters to the district court and filed a third motion.  In 2014, after objections were made by the government, the district court granted the third motion and reduced his sentence to 292 months. 

The government appealed (United States v. Charles, 843 F.3d 1142 (6th Cir. 2016)).  In this second appeal, the Sixth Circuit recognized that Charles’ §3582 motion “hinges on his original sentence and direct appeal and whether he has already been deemed a career offender.”  The Sixth Circuit found that they had already ruled on that point in his direct appeal finding him to be a career offender.  This made him ineligible for the sentencing reduction and the Sixth Circuit reversed the sentence and remanded the case to the district court “for the purposes of entering an order that rejects Charles’ § 3582(c)(2) motion.” Charles, 843 F.3d at 1147.

Present Appeal:

Following remand, the district court imposed the original sentence and Charles appealed.  On appeal, He argued that the district court misread the Sixth Circuit’s previous decision and missed an opportunity to correct an illegality through a new sentencing.  The Sixth Circuit disagreed and noted a few principles of sentencing. 

First, a district court must respect the scope of the remand.  Here, the remand was quite limited and only permitted the lower court to enter an order denying the motion. 

Second, “§ 3582(c)(2) presents a narrow exception to the general rule that a district court may not modify a final sentence.” But this statutory provision limits who is eligible for relief and career offenders are not eligible.   Further, § 3582(c)(2) does not throw open the door to permit a full resentencing.  The door is merely cracked ‘to allow the sentencing court to reduce a sentence based on an amended guideline that the Commission has made retroactive.”  This does not enable a defendant to “‘take advantage of any changes’ in the law that occurred in the years after his original sentencing, be they ‘retroactive or not.’”

Charles raised other arguments pursuant to Alleyne v. United States, 570 U.S. 99, 103 (2013), Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and also 18 U.S.C. 3742(g) and 28 U.S.C. § 2106.  However, the Sixth Circuit provided “the federal courts thus may not provide relief for Charles.” 

As a final note, the Court commended Mr. Charles for his spotless incarceration record and his educational pursuits.  While on supervised release, he earned noteworthy testimonials from supervisors and was noted to not only maintain a job but also volunteer.   Though the lower court’s denial of his § 3582(c)(2)  motion was affirmed, the  Sixth Circuit offered that “executive clemency provides Charles another avenue for relief.” 

A fool for a client?

In this week's third significant habeas win, Ayers v. Hall, the Sixth Circuit somehow manages to simultaneously prove and disprove the old bon mot that people who represent themselves in court have a fool for a client. (For the other two habeas wins, see here.)

Attorney William Ayers was accused of failing to file state tax returns. He was "an experienced criminal defense attorney and represented himself for twenty-one months between indictment and trial. In all that time, however, he managed never to expressly waive his right to counsel, file a notice of appearance, or seek permission to proceed pro se. Most importantly, the trial court somehow never informed him of his right to counsel or determined on the record whether his self-representation was a voluntary waiver of that right.

This is the rare case where Supreme Court precedent runs directly contrary to the state-court decisions denying Mr. Ayers relief. The Court's decisions in Faretta and Tovar have long since mandated that a judge obtain an express and knowing waiver of the right to counsel, and require that waiver to be evident from the record. The State of Kentucky had successfully argued --- all the way to and through the federal district court --- that this rule did not apply to an experienced criminal defense attorney who presumably knew that he had a right to counsel. The Sixth Circuit disagreed, clearly unwilling to write into Faretta an exception that the Supreme Court had never recognized: "Every defendant --- regardless of his profession --- is entitled to counsel unless he waives his right to counsel." (Op. at 6.)

A rare dual habeas win

These days it seems well-nigh impossible to eke out a win in a habeas case, and even more difficult to get one in a published opinion. And so the occurrence of today's two habeas wins in two published opinions (both reversing decisions of the district court) is nothing short of astonishing.

English v. Berghuis --- Here, English was convicted in Michigan of third-degree criminal sexual conduct, based on alleged sexual conduct with a sleeping acquaintance. During voir dire, a member of the venire who was ultimately chosen as a juror in the trial failed to disclose that she had previously been the victim of sexual assault. After a winding procedural history, the Sixth Circuit faced the threshold question of the standard of review. It determined that if the state appellate court had addressed this claim at all, it had done so using the wrong standard or a less protective state standard. Accordingly, the "strong presumption" that the claim was "adjudicated on the merits" did not apply here. With a less deferential standard of review, the panel determined that the juror appeared to have deliberately concealed a material fact, and that the juror's disclosure would have provided a valid basis of a for-cause challenge. It reversed and remanded to the district court.

Lobbins v. United States --- In this § 2255 case, the defense attorney failed to object to a jury instruction for federal witness-tampering that lowered the standard of proof by allowing conviction if there was a "mere possibility" that the defendant's actions prevented the victim from communicating with law enforcement, rather than a "reasonable likelihood." The court was unpersuaded by the government's arguments that this mistake was harmless error, and it fell back on the general presumption that counsel is deficient when he or she fails to object to an instruction that materially lowers the burden of proof.

Habeas skeptics would note that neither petitioner had to overcome so-called "AEDPA deference," which likely accounts for the results. But those practitioners who have toiled away in the habeas salt mines are happy for whatever victories they can get.

Fraud or just a wee mistake?

After a steady stream of disappointing decisions, you wouldn't have to be a whiz to guess that the number one case in today's opinions would come out poorly for the defendants, who all ended up in hot water. Okay, okay, enough puns. Today's published opinion in United States v. Bertram et al. is about, well, urine. Urine and health care fraud.

The five defendants in this case started a company that provided urinalysis testing services for drug treatment clinics. At some point, the company's equipment broke down, resulting in a testing backlog --- a problem for a company offering their physician customers quick results to determine whether patients were abusing drugs. The company held those samples on ice, sometimes for months. When they managed to clear the backlog, they tested the now-months-old samples and billed for them. The government accused the defendants of billing for services that they knew to be medically unnecessary. The government (never opposed to gilding the lily) brought an indictment containing over 100 counts against the defendants. The jury ultimately acquitted them of more than eighty counts, but convicted of seventeen counts. 

In challenging the sufficiency of the evidence, the defendants argued that they had provided the services they billed for, they never made any material misrepresentations, and they did not omit any information that the doctors requested. Indeed, the doctors never required that the tests be performed in a specific amount of time. These might seem to be necessary facts in a fraud case, which requires proof of "any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to the truth." It does not appear that there were any such misrepresentations here. The court disagreed, holding that when they submitted bills for services rendered many months after they were requested, the defendants knew that the tests were no longer necessary and failed to inform the doctors of this fact. This omission was itself fraudulent, and the court affirmed the convictions.

One of the defendants successfully appealed his sentence, however, arguing that the court erred in imposing a manager enhancement because there was no evidence that he exerted control over any other criminal participant. The appeals court agreed, noting that the district court's conclusion that "everybody's making decisions in this case" did not suffice to justify the enhancement. Once again, the Sixth Circuit requires express findings on the record that a defendant exerted control over another criminal participant.

It's an overall disappointing decision, but if you're looking for a helpful sentencing argument then urine luck.

Note change in oral argument times.

At least some oral arguments for the October sitting are being scheduled for 8:30 a.m. instead of 9:00 a.m. Counsel are still instructed to check-in at the clerk's office at 8:00 a.m., but argument is starting half an hour earlier than it used to start.

6th Circuit Raines in Potter, a.k.a., Attention Hardcore Habeas Nerds

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Federal criminal practitioners spent over a decade trying to figure out what the heck a “violent felony” was under the Armed Career Criminal Act’s so-called “residual clause.” In 2015, the Court put an end to this misery and held, in Johnson v. United States, that the residual clause is unconstitutionally vague. Johnson and its issue have liberated numerous federal prisoners from lengthy sentences. Johnson has also forced federal courts to wade into the muck that is the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Johnson made it possible for men and women to file motions to vacate and correct their sentences under 28 U.S.C. § 2255, which otherwise requires prisoners to file such motions within 1 year after their conviction (after appeals) becomes final. There are two types of people who file these motions: (1) first-time petitioners, and (2) “second or successive” petitioners. First-time Johnson petitioners had one year to file motions to vacate their sentences because Johnson was a “right . . . initially recognized by the Supreme Court [that] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. 2255(f)(3). SOS petitioners have an additional hurdle to clear: they must receive a certification from the Court of Appeals, which confirms that the motion “contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).

Damon Raines fell into the first category: he had never filed a § 2255 motion before. Raines is a federal prisoner who was subjected to the ACCA’s 15-year mandatory minimum because he had been convicted of three crimes, which the district court believed were predicate felonies: (1) a 1991 Michigan conviction for assault with intent to do great bodily harm less than murder; (2) a 2002 federal conviction for distributing cocaine base; and (3) a 2002 federal conviction for collecting credit by extortionate means. On his own, Raines filed his first § 2255 motion to vacate his sentence within one year of Johnson, arguing that his third conviction for collecting credit by extortionate means is no longer a violent felony now that the ACCA no longer has a residual clause.

The government raised a number of procedural defenses to the claim, arguing that the court should not even address whether that conviction remains a predicate ACCA felony conviction: forfeiture, procedural default, and timeliness. The Sixth Circuit swiftly rejected each of these attempts to obviate the need to address the merits. Raines adequately preserved his Johnson claim in the district court by citing the case throughout his pro se briefs. He had cause for not challenging his ACCA enhancement on direct appeal because Johnson was a brand new rule announced after his conviction became final, and he suffered prejudice because (as the court later explained), the application of the enhancement was unconstitutional. Finally, Raines’s motion was timely because he filed the motion less than a year after Johnson was decided.

But the greatest hurdle for Raines to clear was the government’s claim that he could not obtain relief because the sentencing judge did not make clear whether his convictions were “violent felonies” under the residual clause or the two other clauses of the ACCA. As the panel noted, the government (and the 10th and 11th Circuits) require first-time petitioners to fulfill “the seemingly improbable task of proving that [their] sentencing judge[s] relied only on the residual clause in sentencing him.” That was the rule of Potter (which we covered here), which held that motions for relief from the judgment must fail unless the 2255 movant can prove that his ACCA sentence was based only on the residual clause. Interestingly, Judges Cole, Gibbons, and Bush expressed disagreement with Potter’s central holding, noting that “[t]his burden . . . presents a tall order when a movant’s sentencing record . . . is silent as to which ACCA clause a district court applied.” What is more, the panel noted, such silence was the norm and made sense before Johnson.

Despite the panel’s disagreement with Potter, it was bound by that decision, and so the three judges had to decide whether Potter precluded Raines from obtaining review of his conviction. And here, the panel reined in Potter’s reach, reading it to apply only when “(1) the movant is bringing a second or successive motion and (2) there is evidence that the movant was sentenced under a clause other than the residual clause, such as the sentencing judge’s averment that the movant was indeed sentenced under another clause.”

Chief Judge Cole went further and wrote separately to explain why Potter’s holding “that a second-or-successive habeas petitioner must show that a sentence was based only on the residual clause” is wrong.

He began by noting that the Supreme Court granted relief to a similarly situated man in Welch v. United States, when it held that Johnson’s holding was retroactive to cases on collateral review. Welch’s case came to the Supreme Court as an appeal from a denial of a certificate of appealability. Habeas petitioners must obtain a COA from a court, which has decided that the petitioner has made a “substantial showing” that he has been denied a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court held that Welch had made such a showing even though the record was not clear as to whether the judge imposed the ACCA enhancement under the residual clause. In fact, the sentencing court had said that Welch’s predicate convictions qualified under the residual clause and the elements clause. Despite this fact, the Supreme Court held that telegraphed that when a petition “pairs a new-rule-of-constitutional-law challenge and an old-rule-of-statutory-law challenge satisfies § 2253(c)’s constitutional right requirement . . ., then such a petition also satisfies § 2255(h).”

In Chief Judge Cole’s view, “[w]hen a petitioner’s sentencing record is unclear as to which clause the petitioner was sentenced under, the petitioner satisfies the ‘new constitutional rule’ requirement” of § 2255(h)(2) “so long as the challenge includes a claim under Johnson.” Under those circumstances “any Johnson error would not be harmless,” because the sentence may have rested on a ground that the Constitution forbids.

For those who bore with me through all of this procedural discussion, I hope to provide a payoff. Once the judges reached the merits of Raines’s claim, they held that his 2002 federal conviction for using extortionate means to collect an extension of credit, 18 U.S.C. §894(a)(1), is not a “violent felony” for ACCA purposes. This is so because it does not have as an element the actual threatened, or attempted use of force because a person can commit the crime by causing harm to a person’s reputation or property.

Raines also provides some clues about the outcome of a battle that is already brewing. In June, the en banc court heard arguments in Williams v. United States (audio here). The court asked the parties to address whether the § 2255 movant has the burden of showing that his sentence was based only on the residual clause and what evidence should be used to decide whether the residual clause was the cause of the 15-year enhancement. Stay tuned.

Reminder to Counsel: Representation Includes Filing Petitions for Certiorari

According to the fine folks at SCOTUSBlog, the U.S. Supreme Court grants certiorari in approximately 80 cases each year. Nearly 8,000 litigants petition the Court for review. And so, the odds that the Supreme Court will grant certiorari in any particular case are extremely poor—somewhere around a 1% chance, according to one estimate. Those chances are even lower if the petitioner must file the petition in forma pauperis, i.e., a motion for permission to file without paying the Court’s filing fee. This can leave counsel appointed under the Criminal Justice Act to represent criminal defendants on appeal feeling like filing a petition for certiorari is a waste of time even when the client wishes to do so.

In an unpublished order, in United States v. Givhan, the Sixth Circuit reminded all CJA appointees that, even though counsel need not file a frivolous petition for certiorari, they must follow a certain protocol before they may withdraw. Counsel must inform the defendant of his or her right to file a petition and file a certification that, after reviewing the records, “there exist no non-frivolous grounds for appeal.” In Givhan’s counsel did not follow this required procedure.

The Sixth Circuit’s reminder raises the question: Why not file a petition for certiorari? If the Supreme Court can change the law, are there any claims that are non-frivolous? Sometimes writing a certification takes as much time to draft as a petition for certiorari. Plus, who knows? Maybe you can be like the defense lawyers who have prevailed against all odds before. The modern Commerce Clause jurisprudence would not be what it is without the efforts of two Federal Public Defenders who happened to catch the Supreme Court’s eye in United States v. Lopez.

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Tennessee Delivery of a Controlled Substance Qualifies as a “Serious Drug Offense” under ACCA

In a recently published opinion, the Sixth Circuit held that delivery of a controlled substance under Tenn. Code. § 39-17-417(a) is a “serious drug offense” under the Armed Career Criminal Act.  The Court rejected the defendant’s argument that the term “deliver” under Tennessee law is broader than term “distribute” under the ACCA.

Under the ACCA, the term “distribute” means to deliver, other than by administering or dispensing, a controlled substance.  Likewise, under Tennessee law, “distribute” means to deliver, other than by administering or dispensing, a controlled substance.  However, Tennessee law prohibits “delivery” while the ACCA includes convictions for “distribution.”

Accordingly, Mr. Goldston argued that delivery is broader than distribution, because the definition for distribution excludes delivery by administering or dispensing.  In other words, delivery necessarily includes delivery by administration or dispensation, while distribution excludes those two types of delivery.

Although the Sixth Circuit acknowledged that “at first glance there might appear to be merit” to this argument, the Court ultimately rejected it.  The Court held that Tennessee did not actually criminalize either administering or dispensing controlled substances, because the definitions of these terms necessarily included only legal deliveries.  Thus, delivery includes only one category of prohibited conduct, which is distribution. 

Opinion available here.

Court Reverses Fraud Sentences Based on Faulty Loss Calculations

Defendants Zafar Mehmood and Badar Ahmadani ran several companies in Michigan that purported to provide home health services to home bound patients.  The United States, however, alleged they ran a complicated scheme to defraud Medicare.  A jury subsequently convicted both defendants of conspiracy to commit health-care fraud and of engaging a conspiracy to pay and receive kickbacks.  In addition, the jury convicted Mehmood of health-care fraud, conspiracy to commit money laundering, money laundering, and obstruction of justice.  After calculating the amount of loss for each defendant, the District Court sentenced both defendants to below-Guidelines sentences and ordered them to pay approximately $40 million in restitution.

On appeal, both Mehmood and Ahmadani challenged their convictions and sentences.  Although the Court found the District Court committed plain error by not following the procedures outlined in the Court Interpreters Act in finding that Mehmood waived his right to an interpreter during trial, it held the error did not require reversal since he presented no evidence he did not understand the proceedings or that the error otherwise affected the outcome of his trial.  The Court also dispensed with the defendants' remaining arguments against their convictions.

The Court, however, viewed the defendants' sentences differently.  In particular, Mehmood argued the district court erred in calculating his loss based on the full amount of gross billings submitted by his companies between 2006 and 2011—amounting to $47,219,535.47 -- even though he presented evidence that some of his billings were legitimate.   The district court concluded that since Mehmood made fraudulent representations to Medicare, it could consider all of his billings fraudulent and Mehmood could not offset any of the loss amount.  Citing precedent from the Eleventh Circuit and the Guidelines, the Court disagreed and held the district court erred by not first considering whether any of the medical services were legitimate before counting all of his claims as losses.  This error, the Court concluded, was not harmless, because it was a procedural.

The Court similarly reversed Ahmadani's sentence, albeit on different grounds.   On appeal, Ahmadani claimed the district court erred in assessing his total loss at $38,150,113.64 because it included Medicare claims submitted after he was no longer listed as a co-owner of one of Mehmood's companies.  The Court agreed, holding that the district court incorrectly relied upon Sixth Circuit precedent in United States v. Shannon and that it should have relied on USSG § 1B1.3(a)(1)(B) instead of § 1B1.3(a)(2).  Noting the district court failed to make a finding that Mehmood's conduct was reasonably foreseeable to Ahmadani, the Court concluded it committed plain error and remanded the matter for resentencing with an instruction to reconsider his sentence under USSG § 1B1.3(a)(1)(B).

This case is a good example of thorough defense advocacy.  Both defendants faced an uphill battle in challenging their loss calculations (Mehmood would have had to reduce his loss calculation by $15 million to reach the lower range); yet, they persisted in their challenges.  In the end, the process mattered as the Court found that the district court erred in calculating their loss figures.

The opinion is styled United States v. Mehmood, and you can find it here.  

Court upholds 2255 waiver provision

Defendant Slusser entered a guilty plea back in 2011.  As part of the plea, he agreed to not file any "motions or pleadings pursuant to 28 U.S.C. section 2255."  Despite this, he filed one in 2012.  It was denied.  In 2016, after Johnson v. United States, 135 S. Ct. 2251 (2015), he filed leave to file a second or successive petition.  The Sixth Circuit granted leave to file a petition, and remanded to the district court.  The district court ultimately denied the motion.

On appeal, the Government pressed the issue that Slusser had waived his right to file a 2255 petition as part of his plea agreement.  The Court determined that, in fact, the waiver provision was enforceable.  The Court further dismissed the claim that Slusser could not have voluntarily waived his right to attack a sentence above the statutory maximum.  The Court dismissed prior case law references by Slusser as dicta, and held "Slusser waived his right to collaterally attack his sentence, including his designation as an armed career criminal. The subsequent developments in this area of the law 'do[] not suddenly make [his] plea involuntary or unknowing or otherwise undo its binding nature.'”

Those Devilish Details: Forfeiture and Restitution

At sentencing proceedings, the parties usually focus on the amount of time the defendant will spend in prison. In certain cases—like fraud cases—the focus of the proceedings shifts to the amount of money to be forfeited or paid in restitution. Sometimes these calculations are complicated. Very often, the money is never collected. But that does not mean there aren’t things to fight about on appeal!

Daniel Sexton and others managed to convince multiple banks to lend them more than $8.1 million. Once these banks and the government got wind of this scheme, charges and pleas followed. The sentencing judge imposed a sentence of 109 months’ incarceration and ordered Sexton to pay over $2.6 million in restitution and to forfeit property, including a money judgment of over $2.5 million. Although Sexton did not challenge the restitution or forfeiture orders in the district court, he did so on appeal. (He also challenged the calculation of his guidelines and the substantive reasonableness of the sentence, but those holdings are not the subject of this appeal.)

The Sixth Circuit’s published opinion is interesting for two reasons. First, the Sixth Circuit split with the Third and Eleventh Circuits. Second, the judges divided over the question about how to apply plain-error review.

On the first issue, the court grappled with the applicability of the Supreme Court’s interpretation of 21 U.S.C. § 853 issued in Honeycutt v. United States, 137 S. Ct. 1626 (2017). Section 853 provides: “[a]ny person convicted of a violation of this subchapter . . . shall forfeit to the United States . . . (1) any property constituting, or derived from, any proceeds the person obtained directly or indirectly as the result of such violation.” The Supreme Court clarified that the defendant must have actually obtained the property and the property must be tainted, i.e., the product of criminal activity. The italicized phrase was the reason the government must prove the defendant actually obtained the property. It also becomes important later.

18 U.S.C. § 981(a)(1)(C) differs slightly from § 853. It provides, “[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of section . . . 1334 of this title . . . or a conspiracy to commit such offense” is “subject to forfeiture to the United States.” Missing from this text is the phrase “the person obtained,” which the Sixth Circuit reasoned, means defendants can be liable to forfeit property they did not personally acquire. In other words, as long as the property is connected to the crime, the defendant is liable, even if the property is in the possession of co-defendants. Note that, in this instance, the court addressed whether the district court committed error even though it could have said that any error that may have occurred was not plain.

When the Sixth Circuit turned to the restitution issue, another recent Supreme Court case came into play: Lagos v. United States, 138 S. Ct. 1684 (2018). The Sixth Circuit made clear that Lagos abrogated the holding of United States v. Elson, 577 F.3d 713, 726 (6th Cir. 2009) (remember to Shepardize!). But, in this case, the court rested its decision to affirm the restitution order on the first prong of plain-error analysis. You see, the government never clarified whether money paid by one of the banks was connected to its participation in the investigation or prosecution of the crime. Because of this lack of certainty, the majority said that the district court’s error was not clear or obvious.

Judge Moore disagreed with the majority’s approach to pain-error analysis. She would have vacated the restitution order because courts of appeals must apply the law in effect at the time of the appeal, and the government always has the burden of proof to establish victims are entitled to restitution. In Judge Moore’s view, the fact that the defendant did not object to the restitution amount in the district court did not matter when the record made plain that the government had not satisfied its burden in the first instance.

In the end, the dispute is about $12,554.14 the bank will likely never receive. But Sexton provides an example of how some judges approach plain-error review. It also serves as a reminder to trial counsel: object to those devilish details!

Intentional Assault by Any Other Name is Still Intentional Assault

Is an intentional assault committed during an extreme emotional disturbance a “violent felony” for the purposes of the Armed Career Criminal Act? In United States v. Maynard, the Sixth Circuit says it is.

Kentucky allows defendants accused of committing first, second, or fourth-degree assaults to mitigate their conduct by presenting evidence that, at the time of the assault, they were “under the influence of extreme emotional disturbance.” Ky. Rev. Stat. § 508.040. In a published opinion, the Sixth Circuit clarified what the court had already said in unpublished opinions: the mitigating factor does not change the fact that the statute has as an element the actual, threatened, or attempted use of physical force. The statute requires proof that the defendant actually caused physical harm, and so the court had no trouble finding that the Ky. Rev. Stat. § 508.040 qualifies as a violent felony under the elements clause of the ACCA.

The overall takeaway of Maynard is this: statutes that permit mitigation arguments do not alter the elements of the offense.

In a very short concurrence, Judge White makes clear that she concurred only because United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which interpreted Ohio’s felonious assault statute, compelled the conclusion. Sixth Circuit court watchers may be interested to know that the Sixth Circuit had en banc arguments in June to address whether Anderson was correctly decided. See Williams v. United States, 875 F.3d 803, 807–09 (6th Cir. 2017) (Moore, J.) (explaining why Anderson was incorrect). True nerds anxiously await the en banc court's forthcoming opinion.

Procedural error to impose steep sentencing increase based on online article, without notice to parties

The Sixth Circuit on Friday, in United States v. Fleming, condemned a sentencing court's decision to "surprise" the parties by varying upward by five years based on a short Cleveland.com newspaper article published a couple days before sentencing.

Here's what happened:

• Both sides walk into sentencing, expecting a 60-month sentence for a cocaine crime.

• On counsel’s table is a very short (just over 200-word) Cleveland.com article summarizing an Ohio state report about overdose deaths from cocaine mixed with opioids.

• At the start of the hearing, the court says it plans to consider the newspaper article, but doesn’t say how.

• Both sides recommend a 60-month guideline sentence. Neither discusses the article.

• District court varies upward by 5 years, to 120 months, based on the newspaper article.

The Sixth Circuit reverses. 

Notably, the defendant’s crime dealt with cocaine alone, not cocaine mixed with opioids. The defendant also contested on appeal the way the newspaper article summarized the state report.

The Sixth Circuit found that it was procedural error – and “plain error” at that – for the judge to base its upward variance on the article without giving the defendant notice. The newspaper article was littered with potential errors, and the court’s procedure deprived the parties of a meaningful way to challenge it as unreliable.

This district judge has a recent history of being reversed and removed from cases, which led to some discussion at oral argument, and in the opinion, about whether this case should be re-assigned to a different judge. Ultimately, the court concluded that the judge will be able to follow its instructions on remand.