Sixth Circuit Remands Sentence in § 924(c) Case in Light of Dean.

In United States v. Henry, the Sixth Circuit reiterated that district courts have more flexibility in considering the mandatory minimums required by § 924(c)(1) in order to depart from the Guidelines for the underlying predicate convictions.  Michael Henry, who had obtained a reversal of his convictions for three counts of bank robbery and three counts of violating 18 U.S.C. § 924(c)(1), was again convicted by a jury on all six counts.   His first § 924(c) conviction came with a mandatory minimum sentence of 60 months, while his second and third convictions carried mandatory minimum sentences of 300 months each.  The Guidelines also recommended a sentencing range of 70 to 87 months for his three predicate bank robbery charges.  The District Court subsequently sentenced him to a whopping 738 months in prison.

On appeal, Mr. Henry challenged the sufficiency of the evidence supporting his convictions and argued that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(A) was void for vagueness under Johnson.  Additionally, he appealed his sentence in light of the United States Supreme Court’s 2017 decision in Dean v. United States, which held that sentencing courts are not prohibited from considering the mandatory minimum imposed by § 924(c) when calculating the appropriate sentence for the predicate offense.

Although the Court quickly rejected Mr. Henry’s arguments challenging his conviction, it remanded his case for resentencing in light of Dean.  Thanks to Dean, Mr. Henry will have another chance to address his sentence in light of the § 924(c)(1) mandatory minimums.

6th Circuit issues new jury instructions for sex offenses stressing what prosecutors "need not" prove

The Sixth Circuit this morning issued three newly amended jury instructions (and additional updated commentary and title changes). Two of the changed instructions deal with sex offenses, and both were changed to highlight what prosecutors "need not" prove. Interestingly, much of the changes come from unpublished case law.  

The court provided an official summary (shown below), which isn't all that helpful:

Looking at the new instructions themselves, as to § 2251(a), the instruction now states the following:

"it is not necessary that the government prove that the defendant took the pictures," or "that the defendant knew of the interstate or foreign nature of the materials used to produce the visual depictions that the defendant knew of the interstate or foreign nature of the materials used to produce the visual depictions." 

The commentary cites the 2017 decision in United States v. Lively, for the proposition that the "government need not prove that the defendant knew of the interstate or foreign nature of the materials used to establish the jurisdictional hook."

The commentary also cites a 2017 unpublished opinion, United States v. Sibley, which "approved an instruction stating that the government need not prove that the defendant intended to share the visual depiction with others."

As to § 1591(a)(1), paragraph (1)(B)(ii) now states: 

"If you find that the defendant had a reasonable opportunity to observe [insert name of person as identified in the indictment], the government need not prove that the defendant knew or recklessly disregarded the fact that [insert name of person as identified in the indictment] was under the age of 18.]"

As support, the commentary cites the 2017 unpublished decisions in United States v. Jackson and United States v. Davis. The commentary gives this description of Jackson: "the panel concluded that the evidence was sufficient that defendant recklessly disregarded the victims' age; that defendant's initial belief that victims were of age did not warrant reversal when they later encountered reasons to doubt that belief; and that the standard of reckless disregard entitled juries to consider many different types of facts, including 'the victim's appearance or behavior, information from the victim, or others, and circumstances of which a defendant was aware, such as the victim's grade level in school, or activities in which the victim engaged.'"

Court refuses to revisit death sentence despite deciding attorney’s failure to retain mental-health expert was inexcusable

Over a vigorous dissent by Judge White, the Sixth Circuit, in Miller v. Mays, affirmed the denial of habeas relief under Rule 60(b)(6) for Tennessee death-row inmate David Miller.

Notably, all three judges agreed that Miller’s trial counsel had no excuse for failing to retain a mental-health expert to help present sentencing mitigation evidence.

But the majority and dissent disagreed on two issues:

1. Whether trial counsel’s error prejudiced Miller.
2. Whether Miller exercised proper diligence in pursuing his Rule 60(b) motion.

The second issue is likely more-consequential for future habeas actions, but much more complicated, so let me start with prejudice.

Prejudice

In terms of prejudice, the majority reasoned that mitigation evidence from lay witnesses who told of Miller’s troubled childhood was of the same strength and subject matter as new declarations Miller presented from three mental-health experts. Judge White argued in dissent, however, that the expert declarations were substantially different because they explained how Miller’s childhood affected him mentally – a topic the lay witnesses were not qualified to address.

Diligence

The second point of disagreement—whether Miller diligently pursued his Rule 60(b) motion—gets complicated fast.

Rule 60(b)(6) is a "break glass in case of emergency" provision. It allows relief after final judgment in "exceptional or extraordinary circumstances where principles of equity mandate relief." In other words, if some sort of gross injustice has occurred, the court can revisit the case. The motion must be made "within a reasonable time."

Last year's decision in Buck v. Davis gave Rule 60(b)(6) newfound weight. Specifically, Buck decided the rule provided a potential path to revisit a death sentence in the wake of Martinez and Trevino, two decisions that removed potential procedural barriers to habeas claims.

Miller tried the same move, arguing that Martinez and Trevino allowed him to pursue relief under Rule 60(b)(6). The problem, as the majority saw it, was that Miller took too long to file his claim.

The majority dove into the weeds on the timing of Miller raising his claim, ultimately finding an inexcusable 16-month gap. The majority's math is mindbendingly complicated (think Speedy Trial Act calculations). I'm putting my attempt to explain it in italics, in case you want to skip right to the dissent's view: 

Martinez came out while Miller's initial habeas case was in the Sixth Circuit, and he didn't raise it in the Sixth or in his cert petition. In fact, it wasn't until 18 months after Martinez that he moved for Rule 60(b)(6) relief. Although the Sixth Circuit held a year later (in a case named Hodges) that Martinez didn't apply to cases like Miller's, the Sixth Circuit reasoned that Miller had a full year (12 months) to raise a Martinez-related claim. Moreover, Trevino (which called Hodges into question) came out 4 months before Miller filed his claim. The majority added the 12 months (between Martinez and Hodges) and the 4 months (after Trevino) to arrive at 16 months.

The dissent wasn't having it. In Judge White's view, the proper starting point was simple: Trevino made it clear that Miller could seek relief, and Miller filed his motion 4 months after Trevino. By acting within four months, Judge White said, Miller was appropriately diligent.

I suppose this is a cautionary tale. Follow Supreme Court cases closely and raise potential new claims even if you think they might be barred under current Sixth Circuit precedent.

Sixth Circuit quickly granting oral argument

The Sixth Circuit is sending notices of oral argument much faster than it used to. I just received notice for one less than a week after submitting my reply brief (with argument scheduled during the March sitting). You may do well to check the Court's oral argument calendar and submit any dates you are not available the same day you submit your brief.

Harsh result for drug offender who missed FSA reduction in mandatory minimum by a single day

The Sixth Circuit today rejected a drug offender's attempt to get relief under the Fair Sentencing Act's reduction in mandatory minimums.

On August 2, 2010, Eugene Downs had a sentencing hearing at which the district judge announced a 10-year sentence, the mandatory minimum for distributing more than 50 grams of crack cocaine. The very next day, President Obama signed the Fair Sentencing Act, halving this mandatory minimum to just 5 years, effective August 3. The district court entered its judgment on the docket 13 days later.

All of Downs's codefendants received the benefit of the Act because their sentencings happened later.

Downs moved to vacate his sentence, arguing that he wasn't "sentenced" until entry of the judgment. Unfortunately, however, federal law essentially uniformly recognizes that a district judge’s announcement of a sentence in open court is the official "date of sentencing." So, says the Sixth Circuit, Downs is out of luck – stuck with a 10 year sentence.

Downs tried to argue that his lawyer was ineffective for not seeking a continuance or seeking reconsideration. But the court reasoned that counsel couldn't be deemed ineffective for failing to foresee that the Act would apply retroactively to crimes committed before its effective date. And, the court reasoned, a motion to reconsider would've been futile.

As William Gaddis wrote: "Justice? You get justice in the next world. In this one you have the law."

Read the opinion here.

Court rebuffs a Second Amendment challenge to 18 U.S.C. § 922(g)(9)

Mr. Stimmel went to Walmart to buy a firearm.  But Wally World put on the brakes - Stimmel had an Ohio misdemeanor conviction for domestic violence, which prevented him by federal law from owning a firearm.  Stimmel then filed suit, arguing that 18 U.S.C. 922(g)(9) violated his Second Amendment right to bear arms.

"The gravamen of Stimmel’s appeal to this court is a question of first impression in our circuit: whether the firearm restriction, 18 U.S.C. § 922(g)(9), unconstitutionally burdens his Second Amendment rights. We hold that it does not."  The Court held that the Government had failed to prove that historically, those that committed domestic violence were prohibited from the possession of firearms.  However, the Court found that " it is reasonable to conclude that domestic abusers have high recidivism rates, pose a continued risk to their families, as well as law enforcement, are more likely to kill their victims when armed, and should therefore be disarmed. In accord with the unanimous view of those circuits that have addressed the question, we conclude the fit here is, at least, reasonable. Section § 922(g)(9) survives intermediate scrutiny."

Judge Boggs dissented, finding that the Government had failed to meet its burden of proof as to the continued risk of persons such as Stimmel so as to justify a lifetime ban.  " Because the government has offered, at best, minimal evidence that a non-recidivist domestic violence

misdemeanant presents a heightened risk of reoffending decades after his or her conviction, it has yet to justify what is, effectively, a lifetime ban on a fundamental constitutional right."

The opinion can be found here.