Bait and Search

In late 2014 and early 2015, the FBI seized “Playpen,” a website where people viewed, downloaded, and discussed child pornography. It did not shut the website down. Instead, the FBI operated the website for two weeks, meaning the government was complicit in the dissemination of child pornography. The FBI did this, in part, to deploy malware to thousands of unsuspecting visitors the website through Tor, a software that encrypts publicly available IP addresses. The FBI called the use of malware a “Network Investigation Technique.” This malware copied identifying information of those who access the website.

To facilitate the distribution of this malware, the FBI sought and obtained a warrant from a Magistrate Judge in the Eastern District of Virginia (the cases refer to this warrant as the “NIT warrant.” That warrant authorized the collection of the identifying information of anyone anywhere in the world who accessed the website.

There are a couple of problems with that approach. First, the Fourth Amendment requires warrants to state with particularity the place to be searched and the thing to be seized. This warrant did not identify any particular place or thing to be searched. Instead, it authorized searches of yet-to-be-determined IP addresses.

Second, Federal Rule of Criminal Procedure 41 (the version in effect at the time of this investigation; the rule has been amended since) limits a magistrate judge’s authority to issue warrants to search places located in the district where the magistrate judge works. This NIT warrant authorized searches of any IP address anywhere in the world and resulted in the search of thousands of people.

Although some district courts suppressed the evidence, the federal Courts of Appeals have all said either the search was not illegal or that the evidence should not be suppressed because the average FBI agent wouldn’t know that a warrant authorizing a worldwide search of unknown places was unconstitutional and void from the start. In United States v. Bateman, the Sixth Circuit re-emphasized that point.

Bateman offers little new to the discussion of these issues surrounding the NIT warrant. Once again the court held that FBI agents relied in good faith on the NIT warrant to deploy this malware to search for the IP address of anyone who accessed the website. In a footnote, the court clarified that the investigative method used was not a “tracking device,” but instead a “search”—a distinction that has constitutional significance.

The only additional issue discussed was whether Bateman should have received a Franks hearing to determine if the agent provided misleading or false information in the warrant application. The affidavit stated that the website was “a forum dedicated to the advertisement and distribution of child pornography, as well as a forum dedicated to the sexual abuse of children.” He noted the website did not advertise child pornography, and the home page displayed images of child erotica, which is legal, not child pornography, which is illegal. The Sixth Circuit rejected these arguments as merely “splitting hairs” or “technicalities” because many other links or threads on the website were obviously showing or discussing child pornography. The court also faulted Bateman for not demonstrating (without the benefit of a hearing) that the agent knew his statements were false and misleading.

Unless the Supreme Court or the full Sixth Circuit takes an interest in these issues, most of the NIT litigation seems to have come to an end.

“Blatantly inappropriate” prosecutor conduct, but no remedy

The Sixth Circuit criticized prosecutor conduct in two published opinions this week, yet in each case, defendants didn't receive the remedy they wanted.

United States v. Ediberto Aguilar-Calvo

First, in Aguilar-Calvo, the court rebuked a prosecutor for making unfounded accusations about immigrants during a sentencing for illegal reentry by a previously deported felon. In particular, the prosecutor made the following argument in his sentencing memorandum:

Many citizens of the United States have grown impatient with their government’s seeming inability to deter undocumented immigrants, convicted of felonies in the United States and deported back to their home countries, from returning to the United States illegally. Those of us who are relatively more privileged may welcome the contributions of undocumented immigrants. Our neighbors who are less materially secure, however, who must compete more directly with undocumented immigrants for employment opportunities and social services, are not feeling so generous or welcoming. Those neighbors want our borders secured with physical barriers if our justice system does not suffice to enforce our duly enacted immigration policies. Those neighbors are impatient for action to protect their perceived economic interests, as promised by our duly enacted immigration policies.

The court called these arguments “blatantly inappropriate.” The problem wasn’t that the government discussed public opinion, it was that “the government believed it sufficient to argue for a lengthy prison term for Aguilar-Calvo based on its unsubstantiated belief that many people want our borders secured with physical barriers because immigrants are competing with them for employment opportunities and social services.”

The court nonetheless upheld Mr. Aguilar-Calvo’s sentence of 38 in prison consecutive to 8 months for a supervised-release violation because, it explained, the district court “explicitly disclaimed reliance” on the government’s arguments at sentencing.

United States v. Ray Foster

Second, in Foster, the Sixth Circuit chided prosecutors for not honoring their obligation to “do justice” during Ray Foster’s drug-conspiracy trial. During trial, prosecutors violated Foster’s Confrontation Clause rights repeatedly, eventually resulting in a mistrial. As the Sixth Circuit summarized: “In all, the prosecution committed over a dozen similar violations on the first day of trial alone. Time and again, the prosecution would solicit from [a police officer] informants’ out-of-court statements about which [he] admittedly had no personal knowledge.”

Foster attempted to get a dismissal with prejudice, arguing that the prosecutor intentionally violated his rights. But the district court and Sixth Circuit disagreed. The Sixth Circuit held that, although "the prosecution fell well short of fulfilling its oath to respect Foster’s constitutional rights,” the prosecution did not intend to cause the mistrial, so “a second trial did not run afoul of the Double Jeopardy Clause.” Foster ultimately received a sentence of 180 months.

Can a conviction involve a non-existent child and still be a crime "involving a minor"?

Can a conviction involve a non-existent child and still be a crime “involving a minor”? It can and does the Sixth Circuit has held in United States v. Fortner, a decision deviating from the court’s recent emphasis on a textualist approach to statutory interpretation.

The defendant, Fortner, attempted to set up some sexual encounters with children by going through who he thought were their parents but were in fact undercover FBI agent. So there were no actual children only fictitious ones involved.

Fortner was charged with two counts: (1) attempting to coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b); and, (2) committing a felony offense involving a minor while required to register as a sex offender in violation of 18 U.S.C. § 2260A. Fortner moved unsuccessfully in the district court to dismiss the second count advancing a textual argument that he did not commit an offense involving a minor, because the children he sought to coerce were not real, actual children.

The Sixth Circuit framed the issue as follows: “Does a sex offender commit an ‘offense involving a minor’ if, in the course of a sting operation, he attempts to commit a sex crime with a pretend child?”

First, the court elected to rely on what it concluded was the intent of the phrase “involve[e] a minor,” concluding first that its import was to differentiate convictions that can only involve a minor from those that may or may not. The court further asserted that the “phrase did not purport to eliminate all attempt crimes, as the reach-extending term ‘involve’ suggests.”

Second, the court observed that § 2422(b) supported the same conclusion, because that “crime always involves a minor, [and] convictions under it always lead to the enhancement if the defendant commits the offense while under a reporting requirement.”

Third, the court stated that Congress intended the phrase “involve a minor” to include a nonexistent, fictional minor, because other statutes, 18 U.S.C.§ 2252A(a)(3)(B)(ii), (c)(2), (e), made specific reference to an “actual minor.” A similar distinction, the court further asserted, was found in 18 U.S.C. § 2256(8), which defines separately “identified minor” and “a minor.”

Finally, the court cited a similar holding by the Eleventh Circuit in United States v. Slaughter, 708 F.3d 1208 (11^th Cir. 2013).

Safety-Valve Application: Sixth Circuit Joins Seven Other Circuits

In United States v. Barron, et al. (18-5222-5515), the Sixth Circuit thoroughly analyzed the second prong and fifth prong of the safety valve guideline. (See U.S.S.G. § 5C1.2). 

Second Criterion of § 5C1.2

The Court found that a defendant is not precluded from meeting the second prong simply because a §2D1.1(b)(1) firearm enhancement was applied.  Also, the Sixth Circuit joined seven other circuits in finding that possession of a firearm by a co-conspirator does not always render a defendant ineligible for relief under the second criterion. (See U.S.S.G. §5C1.2).

The Court held that the  language for the safety valve application (U.S.S.G § 5C1.2(a)(2)) limits consideration to the defendant’s own actions; whereas the firearm enhancement under U.S.S.G. § 2D1.1(b)  omits any reference to the defendant and uses a passive voice – requiring enhancement if the firearm was “possessed.” Allowing a defendant to be charged with possession of another’s gun is contrary to congressional policy for safety valve application, which is “to permit courts to sentence less culpable defendants to sentences under the guidelines, instead of imposing mandatory minimum sentences.”   However, if the defendant induced another co-conspirator to possess a firearm, the application does not apply. (See U.S.S.G. § 5C1.2 cmt. n.4).

Fifth Criterion of § 5C1.2

To meet this fifth prong,  a defendant may have to do more than merely answer all questions posed by the government, because the “provision ‘clearly require[s] an affirmative act by the defendant truthfully disclosing all the information he possesses concerning his offense or related offenses.’”  However, the information does not have to be helpful to the government since “the individuals for whom the safety valve was directed will not have useful testimony to provide because of their relatively low position in the criminal enterprise.”  

The government may challenge whether a defendant has met this criterion by pointing out inconsistencies or implausibility.   Yet, “the government’s lack of confidence in a proffer is insufficient, in and of itself, to justify a denial of access to the safety valve.” Further, a sentencing court may not find a defendant was not truthful ‘solely on speculation, devoid of any factual support.”

This is an excellent opinion to thoroughly read if defense counsel is litigating an issue concerning whether § 5C1.2 applies.  Additionally, the Sixth Circuit briefly discussed the significant risk for jury confusion when a law enforcement officer testifies at trial as a fact witness and expert witness in the same case. 

The Right to Self-Representation Includes Conspiracy Theorists, Even to Their Detriment

In United States v. Tucci-Jarraf, this Sixth Circuit affirmed the convictions of co-defendants Beane and Tucci-Jarraf for defrauding the United States out of $31 million. Beane became immersed in internet conspiracy theory and adopted the "straw man conspiracy theory." The theory essentially held that all American citizens have a right to tap into unlimited funds from the Federal Reserve. To his detriment, Bean then stumbled upon Tucci-Jarraf, a one-time attorney turned conspiracy wonk who posted videos and other information about how to access these funds.The two joined forces to obtain $31 million in government money before being arrested. (The detailed facts are well-worth reading if you have the time). Their actions amounted to wire fraud with both individuals facing serious prison time and an incredible amount of restitution.

Both Beane and Tucci-Jarraf opted for self-representation. They wanted to represent themselves to advance the conspiracy theories they both adopted as defensive arguments. These beliefs were varied but included some of the same features as the "sovereign citizen" arguments that many defense attorneys are familiar with hearing from conspiracy-leaning clients. The district court conducted full Faretta hearings for both defendants, granted their request, and appointed standby counsel. Both defendants were convicted and sentenced to lengthy prison terms.

On appeal, both individuals argued that they should not have been allowed to represent themselves because their unorthodox views rendered them essentially incapable of self-representation or meant that they were incompetent to proceed to trial. But authoring Judge Sutton eloquently explains that the right to represent yourself does not include a paternalistic duty on the part of the court to save you from yourself where actual counsel would be a better choice. There was also no evidence of mental incompetency.

In a particularly stirring paragraph, Judge Sutton explains that while being a citizen does not give unlimited access to government funds, "it does come with a view of the dignity of individuals to make weighty decisions for themselves." The Court noted that the right to self-representation does not come with the same requirements of effectiveness that the Sixth Amendment right to counsel contains. "Exercising these rights sometimes costs individuals more than they ever could stand to gain. But the Constitution lets American citizens learn that lesson the hard way."

The Not So Saving Clause: Court Tightens Relief Available for Second Habeas Petitions

It would be an understatement to say that the saving clause found in § 2255(e) has been heavily litigated. The Sixth Circuit continued that trend in Wright v. Spaulding…with a flourish.

In the pre-Johnson era, William Wright pleaded guilty to being an armed career criminal and received the mandatory minimum fifteen-year sentence. Wright did not dispute his status as an armed career criminal during his sentencing, and he did not pursue an appeal. After the Supreme Court handed down its landmark decision in Johnson, however, Wright filed a § 2255 motion seeking a re-sentencing. The Maryland District Court denied his petition, however.

A year later, after the Supreme Court announced its decision in Mathis, Wright again filed a § 2255 motion and argued that the Court should re-sentence him because one of his prior convictions did not qualify as an ACCA predicate. Since he had previously filed for relief before the district court that sentenced him, Wright filed his second petition in the Northern District of Ohio – the district in which he was imprisoned. He was again unsuccessful, however.

Mincing few words about the current scope of habeas law, the Court affirmed the district court’s denial of Wright’s second habeas motion. Judge Thapar, who wrote for the majority and also authored a separate concurring opinion, criticized the current extension of habeas law, which, in the Court's opinion, had progressed “far beyond the limits set by Congress.” Summarizing the state of habeas law since 1948 and the application of the “saving clause” found in § 2255(e), the Court held that federal prisoners must demonstrate they had no “prior reasonable opportunity” to bring their claims in a previous habeas motion in order to bring a claim of actual innocence in a § 2241 petition.

Turning to the merits of Wright’s second motion, the Court held that he failed to demonstrate he had no “prior reasonable opportunity” to bring his ACCA argument in his prior motion. Wright failed to do so, the Court noted, because while Mathis may have clarified the categorical approach and bolstered his ACCA predicate argument, it did not create the categorical approach, and he could have raised that argument during sentencing, on direct appeal, or in his previous habeas motion. The saving clause was thus of no avail to him.

            30-Day Sentence for Assault on Senator Rand Paul was Substantively Unreasonable

            Senator Rand Paul was doing yard work at his home when he was attacked from behind by his next-door neighbor, Rene Boucher. Senator Paul sustained six broken ribs which “caused long-lasting damage to his lung, and led to several bouts of pneumonia.”

            Mr. Boucher pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e) and while he admitted tackling the Senator, he denied that he did so for political reasons. He told the police that the assault stemmed from “a property dispute that finally boiled over.”

            Mr. Boucher’s guidelines range was 21 to 27 months but he was sentenced to 30 days imprisonment. The government appealed and argued that the sentence was substantively unreasonable. In United States v. Boucher, the Sixth Circuit agreed, vacated the sentence and remanded for resentencing.            

            The Sixth Circuit noted that the district court’s rationale for imposing a 30 day sentence “rested primarily on two observations.” The first was that the confrontation was “strictly a dispute between neighbors.” The second was Mr. Boucher’s “excellent background.”

            The Sixth Circuit’s opinion provides a thorough discussion of substantive reasonableness analysis and role that the 18 U.S.C. § 3553(a) factors play in it. The court applied a familiar principle in resolving this case – the more a district court varies above or below the guidelines, the more compelling the justification must be.

            The district court’s analysis was found to be flawed for several reasons. It did not adequately explain why the 30-day sentence was appropriate given the severity of the Senator’s injuries. Although the assault may not have been politically motivated, the Senator’s “status as a national political figure is still relevant to the broader ‘goals of societal deterrence’” because § 351(e)’s objective is to protect elected representatives from harm. But here the district court offered no explanation why that objective did not warrant a within guidelines sentence.           

            The district court described Mr. Boucher as “a 60 year old highly educated medical doctor, Army veteran, father, church member, and good standing community member with no criminal history.” But, as the Sixth Circuit pointed out, those factors (with the exception of military service) are disfavored as reasons for a below guidelines sentence and the district court failed to explain “what unusual circumstances justified relying on them” in this case.

            The last factor to consider was unwarranted disparities. Although the district court did not state that it used Kentucky law as a reference to determine Mr. Boucher’s sentence, the Sixth Circuit reiterated that “it is impermissible for a district court to consider the defendant’s likely state court sentence as a factor in determining his federal sentence.” The only relevant disparities “are those among federal defendants on a national scale” and while cases under § 351(e) were considered, the “more telling comparators are in cases drawn from other federal assault statutes.” The Sentencing Commission’s national sentencing data is also an important factor in avoiding unwarranted sentence disparities. The district court in Mr. Boucher’s case, however, did not address the risk of sentence disparities.

            Because Mr. Boucher’s case was a “mine-run case,” the Sixth Circuit applied “closer review” to the variance from the guidelines and it found “no compelling justification” for his “well-below Guidelines sentence.” The Sixth Circuit acknowledged, however, that Mr. Boucher “may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.”

 

 

 

 

         

2255 Provides No Relief for Defendants Sentenced Under Mis-Advisory Guidelines

“The lodestar,” the “starting point,” the “initial benchmark,” and “central”—these are words the U.S. Supreme Court has used to describe the Sentencing Guidelines. As the Court acknowledged, the U.S. Sentencing Commission’s research confirms, those words accurately describe the anchoring effect of the Sentencing Guidelines. When the Guidelines range increases, then sentences get longer.

More recently, the Supreme court held that “an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than ‘necessary’ to fulfill the purposes of incarceration.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018). Thus, plain Guidelines errors should be corrected even if they are unpreserved because “[t]he risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because of the role the district court plays in calculating the range and the relative ease of correcting the error.” Id. at 1908.

One of the most consequential guidelines in the Sentencing Manual is the Career-Offender Guideline, U.S.S.C. § 4B1.1. Under that provision, defendants who have been convicted of two or more felonies that are “crimes of violence” or “controlled substance offenses” face a dramatic increase in the overall offense level. Their Criminal History Category also changes, as it must be VI—the highest level available. Consequently, the career-offender designation catapults defendants into significantly higher Guidelines ranges.

What should happen if, a few years after a sentence became final, a defendant learns that the court should not have treated him as a career offender in the first place?

At the time Dwight Bullard was sentenced, the Sixth Circuit treated attempted drug trafficking offenses as “controlled substance offenses” based on the commentary to the Career-Offender Guideline. Nothing in the text of the Guideline supported the theory that attempt offenses satisfied the definition of a “controlled substance offense,” and so the Sixth Circuit corrected course this year in United States v. Havis.

Because of Havis, the “starting point” for his sentence changed from 292–365 months to 92–115 months, Mr. Bullard filed a motion under 28 U.S.C. § 2255 to vacate his sentence. Although judge did not sentence him within the advisory Guideline range, his final sentence of 140 months’ incarceration was above the correct sentence.

This week, the Sixth Circuit held that Mr. Bullard cannot get a new sentencing hearing because the incorrect Guideline calculation did not result in “a complete miscarriage of justice.” According to the Court, the advisory nature of the Guidelines makes it too hard to determine of the misapplication of the Guideline renders a sentence fundamentally unfair, and so these claims are not cognizable on collateral review.

Mr. Bullard and his family may not think a sentence 35 months above “the initial benchmark” is fair. But unless the en banc court or the Supreme Court intervene, people like Mr. Bullard, whose time as passed to file a direct appeal, have to serve sentences affected by erroneous Guideline calculations.

§ 2255 waiver does not bar an ACCA challenge

Today's published decision in Vowell v. United States giveth and taketh away. It "giveth" in the form of some very helpful published law disambiguating conflicting precedent regarding whether and when a knowingly-entered § 2255 waiver in a plea agreement bars a § 2255 motion asserting that a defendant was wrongly designated as an armed career criminal. A prior published decision in Slusser v. United States suggested the waiver could bar such a motion. However, the Vowell panel found that Slusser improperly considered even earlier precedent (in Untied States v. Caruthers) to be dicta when in fact it was not. The upshot? An improper ACCA designation falls squarely within the category of cases in which a defendant is challenging an increased sentence above the statutory maximum, and thus the waiver does not bar the motion.

That huge procedural win notwithstanding, the Vowell decision "taketh away" in concluding that Mr. Vowell's Georgia burglary was still an ACCA-predicate. The statute is divisible, and a Shepard analysis revealed that his conviction fell into the portion of the statute that would require entry into a "dwelling house" and thus meet the standard for generic burglary.

A few final notes:

1. Numerous footnotes are doing a lot of heavy lifting in this decision.

2. It is not clear when judges started referring to armed career criminals as having been "sentenced as a career offender under the ACCA," as this decision does 13 times, but this is incredibly confusing for criminal practitioners.

Missouri third-degree assault not an ACCA predicate violent felony

In a per curiam decision in (Derrick) Johnson v. United States today, the Sixth Circuit holds that Missouri third-degree assault does not require the requisite level of force to be considered a violent felony under the Armed Career Criminal Act. The panel (a lucky draw by any standards) noted that under Missouri law, the third-degree statute could be satisfied by merely "[s]neezing at someone with the intent to transmit a minor illness." Accordingly, it did not meet the violent physical force required by the ACCA. Bless you.

No qualified immunity for officers who shot a man trying to kill himself

Officers received a call about a man who was trying to kill himself by slitting his wrist with a knife. When four officers confronted the bleeding man, he held a knife up to his neck as if to kill himself. From a distance of 30 feet away, two of the officers shot the man, killing him.

In today's decision in Studdard v. Shepherd, the Sixth Circuit describes the legal question raised by the officers' unusual mental-health intervention rather dryly: "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others?" The court easily answers in the negative, and thus affirms the district court's denial of qualified immunity. So let this be a lesson to officers everywhere: do not fatally shoot someone to stop him from killing himself.

A Mortgage Company Not Being a Bank the Sixth Circuit Reverses Bank Fraud Convictions

“In this case the government charged the defendants with the wrong crimes,” begins the Sixth Circuit’s opinion in United States v. Banyan, where it reverses the defendants’ bank fraud convictions. The reason: the government didn’t show the defendants got any money from a bank.

The defendants were a homebuilder and a mortgage broker. The builder fell into financial distress, and the two submitted a number of fraudulent mortgage applications to two different mortgage companies, which were wholly-owned subsidiaries of two different banks, Sun Trust and Fifth Third. After things fell apart, the defendants were charged with bank fraud in violation of 18 U.S.C. § 1344 and conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. A jury found them guilty; the government did prove the defendants got money by way of fraud.

The problem with the government’s case was that neither of the mortgage companies had deposits that were federally insured, and, therefore, neither was a “financial institution,” which is the type of entity to which sections 1344 and 1349 apply. The court labeled as “nearly frivolous” the government’s argument that the mortgage companies should be considered banks “because each of them is a wholly owned subsidiary of a bank” for two reasons. One being “a basic tenet of American corporate law” that a corporation (the mortgage companies) and their shareholders (the banks) are “distinct entities.” The second reason was Congress' pains to define “precisely” the term “financial institutions” as “institutions that hold federally insured deposits – which the defrauded mortgage companies undisputedly did not.”

The court found no evidence supporting a peek beyond or behind the corporate structure distinguishing the parent banks and their subsidiary mortgage companies. First, “the government offered no evidence that the banks here in fact had ‘some duty’ or power or authority to ‘guide or manage’ the mortgage companies’ funds.” Second, the court rejected the argument that the loss would be ultimately the parent banks, as an “economic” argument inconsistent with statutory text. Third, there was no evidence either of the banks funded any of the loans or that any agent or employee of either considered the fraudulent mortgage applications.

The Sixth Circuit Once More Analyzes Whether Ohio State Law Convictions are “Crimes of Violence” Under the Guidelines

The Sixth Circuit waded once more into the question of whether state convictions qualified as crimes of violence under U.S.S.G. § 2K2.1(a)(2) in United States v. Johnson. At issue were convictions under Ohio law for robbery and for complicity to commit aggravated robbery.

The defendant, Lawrence Johnson, was convicted of one count of being a felon in possession of a firearm. He had at least four prior felony convictions in Ohio, in 1982 for attempted robbery, for robbery in 1983 and in 1997, and in 2005 for complicity to commit aggravated robbery. A prior appeal had successfully vacated a district court finding that Johnson was subject to the Armed Career Criminal Act and a statutory minimum sentence of 15 years. United States v. Johnson, 708 Fed.Appx. 245 (6th Cir. 2017). On remand, however, the district court determined that the 1997 robbery conviction, which was under a different statutory subsection than the 1983 robbery conviction, and the 2005 conviction for complicity to commit aggravated robbery did constitute “crimes of violence” under the guidelines, a finding that increased his base offense level. A sentence of 71 months, one at the top end of guidelines range, was imposed and appealed.   

The Sixth Circuit held that the 1997 robbery conviction qualified as a “crime of violence” because the relevant statute, ORC § 2911.02(A)(2), “requires violent force, that is, force capable of inflicting pain or injury.” This requirement was drawn from Johnson v United States, 559 U.S. 133, 141-42 (2010), where the Supreme Court defined “physical force” under the ACCA to mean “force capable of causing physical pain or injury to another person” and the incorporation of that definition for guidelines analysis by the Sixth Circuit in United States v. Evans, 699 F.3d 858, 863 (6^th Cir. 2012), abrogated on other grounds by United States v. Havis, 927 F.3d 382 (6^th Cir. 2019)(en banc)(per curiam). Furthermore, the court noted that a conviction driven by a reckless use of force could still qualify as a crime of violence.

The Sixth Circuit also held that the 2005 conviction for complicity to commit aggravated robbery qualified as a crime of violence. First, the court noted a prior decision, United States v Patterson, 853 F.3d 298 (6^th Cir. 2017) holding that an Ohio conviction for aggravated robbery under the relevant statutory subsection qualified as a crime of violence under the ACCA and, therefore, also under the guidelines. The real question was whether the conviction “of complicity to commit aggravated robbery makes a difference.”

This Sixth Circuit noted that Ohio law equated complicity with aiding or abetting another in committing the offense and that the underlying substantive offense “must have been either attempted or completed for a complicity conviction to stand.” Since the underlying offense, aggravated robbery, included the element of “use, attempted use, or threatened use of physical force” a conviction for complicity likewise included that element.

As a final point, the Sixth Circuit rejected Johnson’s argument “that the guidelines commentary is what brings [his] aiding and abetting offense” in as a “crime of violence” under § 4B1.2(a) of the guidelines. Indeed, the commentary does advise that a crime of violence “includes ‘the offenses of aiding and abetting.’” U.S.S.G. § 4B1.2, Application Note 1 (2015). But this, as the court noted, was of no matter and the en banc court’s caution in United States v. Havis about over-reliance on guidelines commentary immaterial because the “express text” of § 4B1.2(a) compelled the result.

A Bridge Too Far: Court Limits Scope of First Step Act in Felon-in-Possession Case

Early one morning, Joey Wiseman woke to the sound of someone attempting to break into his apartment.  Using his video surveillance system, Wiseman discovered that the individual was armed with a handgun  Wiseman, who was armed himself, encountered the assailant, knocked the gun out of his hand, and then shot him.  With his would-be robber bleeding on his living room floor, Wiseman, who was a convicted felon, faced a difficult choice: should he first call 9-1-1 or hide both the gun and the multiple grams of cocaine that were in his apartment?  He chose the later.  After hiding the cocaine and gun in a safe in his car, Wiseman called 9-1-1.  In a subsequent interview, however, Wiseman admitted to the police that he hid the handgun and cocaine in his car, and the police subsequently seized both items after obtaining a search warrant.

A federal grand jury subsequently indicted Wiseman for two counts of possession with intent to distribute cocaine and one count of being a felon in possession of a firearm and ammunition.  In addition, the Government filed an 851 notice that Wiseman had prior felony drug convictions it would rely upon in enhancing his maximum sentence from twenty to thirty years pursuant to 21 U.S.C. §§ 841(b)(1)(C).

A jury subsequently convicted Wiseman of all three counts.  The District Court, after finding that he was a career offender, sentenced Wiseman to 262 months imprisonment.

On appeal, Wiseman turned to the First Step Act as a basis for many of his arguments. First he challenged the enhancement of his sentence, arguing that he was not eligible for the sentencing enhancement under 21 U.S.C. §§ 841(b)(1)(C) and 851(a) because he had not committed any "serious drug felonies" as defined under the First Step Act.  He also argued that the District Court erred in denying his request for a justification instruction and in overruling his objection to testimony during his trial from a special agent that he had received "a call from Adult Parole Authority."  Finally,  citing the First Step Act, Wiseman argued the District Court erred in finding he was a career offender under the Guidelines because he had served less than a year imprisonment on each of his supposedly qualifying charges.

In its decision in United States v. Wiseman, the Court rejected all of Wiseman's arguments and affirmed both his conviction and sentence.  First, the Court held that the First Step Act, which became effective after his conviction, was not retroactive, and, even if it was, it did not alter the language for qualifying convictions under 21 U.S.C. § 841(b)(1)(C).

The Court also concluded that the District Court properly rejected Wiseman's request for a justification instruction.  Wiseman, the Court noted, failed to show that he was justified in possessing the firearm because he possessed it long before he saw the would-be robber enter his home.  In addition, the Court noted that Wiseman continued possessing the gun after the danger had passed by placing the weapon in a safe before the police arrived.

The Court similarly rejected Wiseman's challenge to the admission of the special agent's testimony implying that he was on parole status.  The jury, the Court concluded, was already well aware that Wiseman had a prior felony conviction because he had been charged under 18 U.S.C. § 922(g)(1) and because he had stipulated prior to trial that he had felony convictions.  The Court thus held that any error was harmless.

 Finally, in challenging the District Court's finding that he was a career offender, Wiseman argued that the District Court should have considered the definition of a "serious drug felony" under the First Step Act in its analysis.  The Court disagreed and noted that the Act did not alter the definition of offenses that qualify for career offender status under the Guidelines.

Less than a year into its implementation, courts are still addressing the scope of the First Step Act. We will no doubt continue to see cases like this one addressing creative arguments under the Act.

  

United States v. Bailey: Court Holds Guidelines Cross-Reference Provision Covers Attempts to Obstruct

After a jury convicted her then-boyfriend, Michael Clayton, of sexually exploiting a minor, Davi Bailey used Facebook Messenger to send threatening messages to one of the testifying witnesses and her sister.  Bailey subsequently pleaded guilty to one count of witness retaliation in violation of 18 U.S.C. § 1513(b)(1), (c) and 18 U.S.C. § 1591(a)(1), (b)(2) for threatening the witness's sister after the trial.  She subsequently appealed the 78-month sentence imposed by the District Court.

On appeal, Bailey challenged both the procedural and substantive reasonableness of her sentence.  In particular, she argued that the District Court erred in applying the cross-reference pursuant to USSG § 2J1.2(c)(1) because it does not apply to attempted obstruction and Clayton was ultimately convicted.

The Court disagreed.  Citing language from the obstruction of justice provision, USSG § 2J1.2, dicta in its prior decision in United States v. Roche, and case law from other circuits, the Court held that cross-reference provision covers attempted obstruction.  It also did not matter, the Court concluded, that Bailey made her threats after Clayton had been convicted since the prosecution did not end until he had been sentenced.

You can find the Court's opinion here.

Voisine and Verwiebe Strike Again: Court Denies Rehearing but Notes Circuit Split

James Walker, a convicted felon, found employment managing a rooming house.  One day, he discovered thirteen bullets on the property and removed them for safekeeping.  This resulted in his subsequent indictment by a federal grand jury and his ultimate conviction in 2010 for being a felon in possession of ammunition.  During his sentencing, the District Court held he was subject to the fifteen-year mandatory minimum (180-month) sentence under the ACCA.

After the Supreme Court issued its opinion in Johnson v. United States in 2015, Mr. Walker sought habeas relief by arguing he was not an armed career criminal because several of his prior convictions no longer qualified as "violent" felonies.  The District Court agreed and resentenced him to 88 months imprisonment.  The Government appealed.

On appeal, Mr. Walker argued that his 1982 Texas robbery conviction did not constitute a "crime of violence" because it also included reckless conduct.  In an unpublished opinion, the Court, citing its decisions in Verwiebe and Davis, held that the conviction qualified as  a "violent" felony under the ACCA -- even though it included reckless conduct -- and remanded the case for resentencing.  Judge Stranch issued a concurring opinion criticizing the Court's decision in Verwiebe for improperly expanding upon the Supreme Court's decision in Voisine but holding that the Court was nevertheless bound to existing precedent.

In a recent order, the Court denied Mr. Walker's petition for rehearing en banc, and, unlike its original opinion, agreed to publish its decision. Judges Kethledge, Moore, Stranch, and White would have granted rehearing, however, and Judges Kethledge and Stranch entered separate dissenting opinions.  In their dissents, both judges acknowledged that, prior to Voisine, courts uniformly held that crimes including the reckless use of force did not qualify as violent felonies under the ACCA.  They also agreed that some circuits, including the Sixth Circuit, have incorrectly expanded Voisine's reach, resulting in a circuit split.  Judge Kethledge noted that Voisine construed a different provision -- a "misdemeanor crime of domestic violence" -- and that the Court has incorrectly applied the same construction to the definition of a "violent felony" under 18 U.S.C. § 924(e)(2)(B)(i).

Judge Stranch wrote separately to state that the Supreme Court in Voisine left open the possibility for "divergent" readings of the use of force requirement.  This, she explained, gave the Court an avenue to rehear Mr. Walker's case.

Sadly, Mr. Walker, who is now 65-years old, must return to prison to serve the remainder of his fifteen-year mandatory minimum sentence under the ACCA for possessing thirteen bullets.  His case reminds us that there are divergent opinions about the application of Voisine to the reckless use of force and that defense counsel should continue litigating such issues.

You can find the Court's order here.

Carpenter on Remand: Good Faith Exception Applies

On remand from the Supreme Court, the Sixth Circuit considered United States v. Carpenter, the subject of the Supreme Court’s groundbreaking decision on the use of cell-site location data.  In light of the Supreme Court’s holding that such data requires a warrant, the Sixth Circuit considered whether the data should be suppressed.  Unfortunately for Mr. Carpenter, the court held that the good faith exception applied. 

The Sixth Circuit held that the FBI agents relied in good faith on the Stored Communications Act when they obtained the defendant’s cell-site data. The court reasoned that there is little logical difference between an agent relying in good faith on a faulty warrant and an agent relying in good faith on a faulty law.

Going forward, the government must obtain a warrant to compel a wireless carrier to provide cell-site location data, but data obtained under the SCA prior to Carpenter falls under the good faith exception. 

Opinion available here.