Murder conviction overturned because of Fifth Amendment violations

Today in Hendrix v. Palmer, the Sixth Circuit affirmed the grant of habeas relief to a Michigan prisoner, and added another reason he deserves relief.

Joseph Hendrix received a life sentence after losing at trial on charges of carjacking and felony murder. At Hendrix’s trial, Michigan prosecutors introduced statements he made to police after invoking his right to counsel. Specifically, evidence showed that, two days after Hendrix signed an advice-of-rights form requesting an attorney, officers interrogated him—without an attorney. They presented Hendrix with the fact the victim may die, and he offered no alibi, asked if he’d be charged with murder, said he didn’t want to say more because he didn’t want to get into more trouble, and made comments about where he had been before the carjacking.

At trial, prosecutors heavily relied on Hendrix’s suspicious comments and lack of alibi during the second interview. Trial counsel failed to object. In federal habeas proceedings, the State conceded that it was error to admit these statements but argued their admission was harmless.

The district court granted habeas relief on Hendrix’s claims of violations of both the Fifth Amendment (in regard to admission of the statements), and the Sixth Amendment (in regard to his counsel’s failure to object). The court denied all other claims for relief, and both parties appealed.

The Sixth Circuit affirmed the district court, even under AEDPA’s stringent standard. Interestingly, the court emphasized the power of the prosecutor's use of what Hendrix didn’t say during the second interrogation: “His failure to muster a credible alibi when he knew the gravity of his situation enabled the prosecutor to argue persuasively that Hendrix had no alibi because he was guilty.”

What’s more, the Sixth Circuit offered an additional ground for habeas relief. The court concluded that prosecutors erred under Doyle v.Ohio by commenting at all on what Hendrix didn’t say in his interrogations. Doyle bars the use of silence after Miranda warnings. The court emphasized that Doyle does not go “out the window as soon as a defendant makes any post-Miranda statement.” Rather, Doyle “continues to apply to subject matters on which the defendant has remained silent.”

Rare harmless error on Guidelines miscalculation

Recent Supreme Court precedents have suggested that an error in calculating the advisory Guidelines range will rarely be harmless error, even under a plain error standard of review. See MolinaMartinez
v. United States, --- U.S. ---, 136 S. Ct. 1338, 1346 (2016).  The Sixth Circuit found such a rare occasion in United States v. Susany, found here.

In Susany, the district court committed error by not reducing by three levels the base offense level under U.S.S.G. § 2X1.1.  The Court found that the district court should have given the reduction, as although the defendant was involved in a conspiracy to break into jewelry stores, the defendant and his co-conspirators had not yet taken many of the steps necessary in order to actually commit the offense.  "A reduction pursuant to § 2X1.1 may be denied only if all crucial steps for committing the  substantive offense either have already been completed or the co-conspirators would have been capable of the commission of the substantive offense within a negligible intervening time."

But the Court found such error to be harmless - the Court noted "Susany’s case thus falls within a very unusual circumstance—the district court’s error resulted in a lower advisory sentencing range than would have resulted under the correct Guidelines calculation. We are also persuaded that the district court indicated that it provided Susany a downward variance based on the nature and circumstances of the offense, giving him “what [he] asked for; in a different way.” In this rare situation, the error did not cause Susany to receive a more severe sentence than he would have received without the error."

Tennessee third degree burglary is not a violent felony under ACCA;

 

United States v. Caruthers is no longer controlling authority

 

          In Cradler v. United States, the defendant was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced as an armed career criminal (ACCA) to 222 months imprisonment. He contended in a motion to vacate his sentence under 28 U.S.C. §2255 that two of his prior convictions were no longer violent felonies under the ACCA. The Sixth Circuit held that Mr. Cradler’s Tennessee conviction for third degree burglary conviction was not a violent felony under the ACCA.

          The Sixth Circuit first rejected the government’s arguments that the §2255 motion was untimely and was procedurally defaulted. Since those defenses were not raised in the district court they were deemed forfeited when they were raised for the first time on appeal.

          Turning to the merits, the Sixth Circuit noted that courts must use a categorical approach to determine if the burglary was the same type of “burglary” that is enumerated in the ACCA’s definition of a “violent felony.” (18 U.S.C. §924(e)(2)(B)(ii)). The categorical approach is an “elements-only” analysis in which the court compares the elements of Tennessee’s third degree burglary statute to the elements of the generic definition of burglary.

          The Tennessee statute (Tennessee Code Annotated §39-904) is titled “Burglary in third degree – Safe cracking – Penalty.” The Sixth Circuit found that the statute’s first paragraph “contains a set of elements and a penalty scheme that are distinct from the set of elements and penalty scheme in the second paragraph.” Consequently, the statute is “divisible” which allows the court to use a modified approach and review certain documents connected to the case to determine the basis for the offender’s conviction. The indictment here alleged conduct that was contained in the first paragraph of the statute so the next step in the analysis was to compare that set of elements to the generic definition of burglary.

          To determine whether Tennessee’s third degree burglary statute criminalizes more conduct than the generic definition of burglary, the court must determine “the full range of conduct that is encompassed by each statutory element.” The words of the statute alone are not enough to make that determination. Courts must consider case law from the state’s highest court.

          A review of Tennessee case law and a comparison of  the elements of third degree burglary to the generic definition of burglary led the Sixth Circuit to conclude that the first paragraph of Tennessee’s third degree burglary statute criminalizes more conduct than generic burglary. Thus, it does not qualify as the enumerated offense of “burglary” in 18 U.S.C. §924(e)(2)(B)(ii)) and is not a violent felony under the ACCA.

          The Cradler panel recognized that it was previously held in United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) that the first paragraph of Tennessee’s third degree burglary statute was a violent felony under the ACCA because it qualified as the enumerated offense of “burglary.” However, in light of Mathis v. United States, 136 S.Ct. 2243 (2016), the court in Cradler determined that Caruthers misapplied the modified approach by looking at the facts in the indictment and then comparing them to the elements of generic burglary instead of using the facts to determine which paragraph of Tennessee’s third degree burglary statute was at issue in the case. Therefore, Caruthers is no longer controlling authority in the Sixth Circuit.  

          In a concurring opinion, Judge Kethledge noted that use of the categorical approach was problematic here because the elements of the Tennessee statute seemed to describe only generic burglary but Tennessee case law, which bound the Sixth Circuit, construed the statute to encompass more than generic burglary. So at least in this case, the categorical approach did not lend itself to “accuracy and judicial efficiency.”  

 

           

  

 

Rejection of C Plea Agreement held to be an abuse of discretion;

Case remanded for resentencing by different judge

 

          In United States v. Cota-Luna, the parties agreed that the defendants (Mr. Cota-Luna and Mr. Navarro-Gaytan) played a small role in a drug conspiracy involving around 92 kilograms of cocaine. Under a Rule 11(c)(1)(C) plea  agreement, the defendants agreed to plead guilty to a conspiracy charge involving that amount of drugs.

          The base offense level was 34 but under the C plea agreement a variety of guideline adjustments were applied including the “Safety Valve” guideline (U.S.S.G §5C1.2). The result was a final offense level of 20 for each defendant. Mr. Cota-Luna would be sentenced to 36 months imprisonment and Mr. Navarro-Gaytan would be sentenced to 33 months imprisonment.

          At the change of plea hearing, the district court rejected the plea agreement. In response to the parties’ question whether the court objected to the guideline calculations, the court indicated that the guidelines were advisory and “just the starting point.” The court noted that “90 plus kilograms of cocaine” were involved and there was “other relevant conduct that’s going to be part and parcel of the case.” The court said, “So the guideline computation may be accurate or may not, but my hands are not going to be tied when I look at all the various factors that I am required to consider.” The court made it clear that it would not accept a C plea agreement.

          The parties then negotiated a Rule 11(c)(1)(B) plea agreement that  contained the same guideline calculations as in the original plea agreement and was “nearly identical” to that agreement. The district court accepted the B plea agreement at a subsequent change of plea hearing.

          With the exception of a single 2 level reduction, “the PSR’s offense-level calculations mirrored those in the plea agreements.” At sentencing, the district court expressed its view that the defendants probably did not satisfy the Safety Valve guideline because §5C1.2(a)(5) required them to discuss the offense at an in-person meeting with government officers and here they relied on their lawyers to convey information to the government. The sentencing was continued to enable the defendants to personally meet with government officers to discuss the offense.     

          The district court entered a presentencing order confirming its view that the defendants did not satisfy the requirements of the Safety Valve guideline because they did not personally meet with government officers before the first sentencing hearing. The order further indicated that the court rejected other adjustments that the parties agreed upon to reduce the base offense level. 

          At the second sentencing hearing, the district court followed the views expressed in its presentencing order. Since the defendants were deemed ineligible for the Safety Valve, their guideline range was 120 months (the mandatory minimum) to 135 months. Each defendant was sentenced to 120 months.

          The Sixth Circuit vacated the convictions and sentences and remanded the case for the district court to reconsider whether to accept the original C plea agreement.

          The majority opinion observed that a district court may defer acceptance of a C plea agreement until it has reviewed the PSR and that is the preferred practice. Here, the plea agreement was rejected before the PSRs were prepared and the district court was required to explain its rejection of the agreement.   

          The opinion noted that the district court had two concerns with the C plea agreement. One concern was that the proposed sentences were too lenient given the amount of drugs involved. The appellate court rejected that reason because the base offense level was predicated on the quantity of drugs. Consequently, that factor should have worked in the defendants’ favor in light of the small role they played in the crime. The defendants’ minor role was also a reason to reject the district court’s second concern - maintaining its sentencing discretion by considering relevant conduct connected to the case. Since the district court’s two concerns with the C plea agreement were not “sound reasons” for rejecting it, it was an abuse of discretion to reject the agreement.

          The majority opinion also ordered that the case be reassigned to a different district court judge. Several factors warranted reassignment. First, by rejecting the C plea agreement before the PSRs were prepared and rejecting “on dubious grounds” nearly every guideline reduction specified in the plea agreement, the court appeared to be predisposed to impose a harsh sentence on the defendants.

          Second, reassignment would “preserve the appearance of justice.” Among the reasons given in support of this factor, the majority opinion referred to the district court’s apparent predisposition to impose a harsh sentence on the defendants and its reliance on “legally erroneous interpretations of the guidelines.”

          Lastly, reassignment would not waste judicial resources because the new judge would only have to review the C plea agreement, the PSRs, “and a few other documents.”

          Judge Kethledge concurred in the judgment. He noted that the parties’ agreement on a particular sentence does not obligate a district court to provide reasons why that sentence is unreasonable. He also pointed out that when a district court rejects a C plea agreement Rule 11(c)(5) does not require an explanation of why the agreement was rejected. Nevertheless, the record must provide the appellate court with an adequate basis to determine if rejection of the plea agreement is an abuse of discretion. 

          Judge Kethledge concluded that the district court’s belief that the defendants were ineligible for safety valve relief was “legally mistaken” and thus rejection of the plea agreement was an abuse of discretion.