Who Decides? The Sixth Circuit Says, "Not Us."


“Prison is danger in a box.”—Shon Hopwood, Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption 69 (2012)

“It’s unexplainable having a weight like [probation] on your shoulders, knowing you could lose your freedom any given second.”—Meek Mill in Dan Adler, “I’m Still in Shock Right Now”: Meek Mill on His Probation Win and Onerous Legal Odyssey, Vanity Fair (Aug. 2019)

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Life in prison and on supervision is brutal and hopeless. There are few mechanisms for people who are incarcerated or subject to court-ordered supervision to apply for shorter sentences or relief from the conditions of supervision. Here are just a few options available:
  • When the U.S. Sentencing Commission revises the Guidelines, which it is supposed to do “periodically,” 18 U.S.C. § 944(o), a person in federal prison can move for a sentencing reduction, id. § 3582(c)(2). Once that motion is filed, the district court must consider whether a sentence reduction is appropriate after considering the factors in 18 U.S.C. § 3553(a), including the new Guideline range and the Commission’s policy statements and reasons for the reduction. 
  • State prisoners who are “in custody in violation of the Constitution or laws or treaties of the United States” can file a petition for a writ of habeas corpus. 28 U.S.C. § 2254(a).
  • People on federal supervision can move for early termination of supervised release.

But recently, the Sixth Circuit has cut back on the availability of these avenues to relief and a person’s right to seek appellate review of the district court’s decision.
 (Art Credit: Benton Martin)

The first instance was United States v. Turner (full disclosure: my office is representing Mr. Turner). After serving three year of a 15-year sentence, Mr. Turner filed a motion for a sentencing reduction after the Sentencing Commission revised and lowered the controlled-substance Guidelines. Without re-calculating the Guidelines or providing reasons, the district court denied the order. Mr. Turner appealed, but a two-judge majority held that there was no jurisdiction over the appeal because of United States v. Bowers, 615 F.3d 715, 716-17 (6th Cir. 2010). In Bowers, the Sixth Circuit held that the court of appeals does not have jurisdiction to review the reasonableness of the denial of a motion for a sentence reduction. In doing so, the Sixth Circuit became the only circuit court in the country to hold that these denials are sentencing appeals, not “final orders,” and so the limits outlined in 18 U.S.C. § 3742, which governs appeals of sentences, circumscribes appellate jurisdiction. Every other court has held that there is jurisdiction to review the denial of motions for a sentence reduction. Judge Moore forcefully dissented, urging the court not to extend the Bowers rule, which she believed was different than a procedural or legal error.

In United States v. Marshall, the Sixth Circuit took Bowers further. (My office is also representing Mr. Marshall.) Mr. Marshall sought to terminate his period of supervised release early. The district court denied the request, and Mr. Marshall appealed. Relying on the logic of Bowers, but not its holding, the Sixth Circuit held that there is no appellate jurisdiction to review such denials because the term of supervised release is part of the original sentence. Because a motion for early termination of supervised release does not fall within the four categories outlined in § 3742, the court reasoned there is no jurisdiction. As in Bowers, the court held that 1291 is not an available source of jurisdiction.

United States v. Faber offered another take on the general theme of limiting jurisdiction. One condition of Mr. Faber’s supervised release was that he not contact Tylyn Gieszer, who was his spouse in accordance with his Wiccan religious practices. Mr. Faber filed a motion under 18 U.S.C. § 3583(e)(2) to modify his conditions and eliminate this no-contact condition he argued violated his First Amendment right to freely exercise religion. The district court denied the motion, and on appeal, the Sixth Circuit held that the court had no jurisdiction to entertain such a motion in the first place.

The court held that courts may modify conditions of supervised release after a defendant has exhausted or failed to exercise his appeals only if the modification relates to the factors specifically enumerated in § 3583(e)—the § 3553(a) factors (minus retribution). Because the “illegality of the condition” is not listed in the statute, the court held there is no jurisdiction to challenge even an unconstitutional condition after the appellate period has expired. (There is a circuit split on this issue. The Seventh Circuit is the sole circuit court to permit constitutional challenges to supervised release conditions.)

I’ll pause for a moment to outline a practical consequence of this opinion. Trial-level practitioners must object to illegal supervised release conditions at the time of sentencing.

The Sixth Circuit even eliminated a path for people incarcerated in state prisons to get relief in federal court. In Bailey v. Wainwright, the court considered whether 28 U.S.C. § 2254 provides a mechanism for people to vindicate rights violated by the state parole board. People have a Due Process right to a factually accurate parole record. After the board denied Mr. Bailey parole multiple times, he requested access to the records the board reviewed. Once he finally received them, Mr. Bailey noticed that the description of his offense was inflammatory and incorrect. When the parole board did not correct it and he had exhausted his state appeals, Mr. Bailey filed a petition for a writ of habeas corpus in federal court.

The Sixth Circuit considered whether his claim—the right to accurate parole records—was cognizable under § 2254. In order to bring a habeas claim, a person must be “in custody.” But the majority held that Mr. Bailey was not in custody because of the inaccurate information in the parole record. In doing so, the majority created a but-for causation requirement. Perhaps acknowledging that the holding left Mr. Bailey without a remedy for the constitutional violation, the majority suggested he could file a civil rights lawsuit under 28 U.S.C. § 1983. But we all know how effective that remedy is.

Judge Stranch dissented, accusing the majority of ignoring binding precedent. In her view, § 2254 provided an avenue to relief because the remedy he sought—the correcting the record—had a chance of changing Mr. Bailey’s custody status.

To review, people cannot appeal the denial of a motion for a sentence reduction even if the district court did not re-calculate the Guidelines or provide reasons. People cannot appeal the denial of a motion for early termination of supervised release even if the district court relied on the outcome of a game of “Rock, Paper, Scissors.” District courts (and therefore the courts of appeals) do not have jurisdiction to review challenges to conditions of supervised release. And state prisoners whose parole file contains inaccurate information in violation of Due Process probably don’t have a remedy in federal court either.

There was one instance where the Sixth Circuit reopened the possibility that an incarcerated person could obtain relief. In Young v. Kenney, the court revived an appeal that could have been dismissed because Mr. Young filed his notice of appeal late. The timing requirement of 28 U.S.C. § 2107 and Federal Rule of Appellate Procedure 4(a)(1)(A) is jurisdictional. But Mr. Young’s notice of appeal included an explanation for why he could not file a timely appeal: he was transferred to a different prison and for a mental health evaluation. While there, he did not have access to his documents. The court acknowledged there is a good-cause exception to the timing requirement and read Mr. Young’s notice of appeal as a motion for extension of time. He now has a chance to prove to the trial court that good cause exists. Whether the Sixth Circuit will ever have jurisdiction to answer his legal question is still TBD.

After Havis, an Offer to Sell is not a “Controlled Substance Offense”

Does the Texas offense of possession with intent to distribute qualify as a “controlled substance offense” under the guidelines? In United States v. Serrano, the Sixth Circuit held that it does not.

Serrano was convicted under a statute that prohibited manufacturing, delivering, or possessing with intent to deliver a controlled substance.  Tex. Health & Safety Code § 481.112 (2004) (amended 2009).  Under Texas case law, these are all means of committing the same crime, so the statute is not divisible.  Texas law also includes offering to sell a controlled substance in its definition of “deliver.” 

Serrano argued that his prior conviction was not categorically a “controlled substance offense” because that term does not include offers to sell.

The Sixth Circuit had previously disagreed.  In United States v. Evans, 699 F.3d 858, 868 (6th Cir. 2012), the Court had held that an offer to sell was an attempt to transfer a controlled substance.  And because the commentary to the guidelines states that “controlled substance offenses” includes attempt crimes, the Court held that offers to sell qualify.

However, Evans predated the Court’s decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc).  In Havis, the Court rejected the commentary’s expanded definition of “controlled substance offense.”  Because the text’s definition of “controlled substance offense” never mentions attempt crimes, the commentary’s inclusion of attempt crimes is an impermissible addition to the guidelines.  So statutes that include attempted deliveries of controlled substances are too broad to categorically qualify as “controlled substance offenses.”

Accordingly, after Havis, a statute that criminalizes offers to sell is not a controlled substance offense.  Rather, because an offer to sell is an attempt, it cannot form the basis for a controlled substance offense under the guidelines.  Therefore, the district court committed plain error when it determined that Serrano’s conviction for possession with intent to distribute under Texas law qualified as a controlled substance offense.

What Constitutes a "Covered Sex Crime" under U.S.S.G. § 4B1.5(b)?



Is a conviction for engaging in a child exploitation enterprise under 18 U.S.C. § 2252A(g) sufficient to merit a five-level increase as a "covered sex crime" under U.S.S.G. § 4B1.5(b)? In United States v. Hollon, the Sixth Circuit said yes. 

Defendant Randall Hollon pleaded guilty to engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g). Prior to his sentencing, the United States Probation Office entered a Presentence Investigative Report that enhanced his sentence by five levels because it concluded his violation of § 2252A(g) was a “covered sex crime” under U.S.S.G. § 4B1.5(b). Hollon subsequently appealed this issue.

In a unanimous opinion, the Court affirmed Hollon's sentence. Hollon asserted the enhancement did not apply to him because the underlying felony violations resulting in his charge for engaging in a child exploitation enterprise were for distributing and receiving child pornography, crimes title 18 chapter 110 explicitly excluded from the definition of a "covered sex crime." Noting that the definition of a "covered sex crime" found in the application notes for U.S.S.G. § 4B1.5 specifically excluded certain crimes but did not specifically exclude "engaging in a child exploitation enterprise," the Court rejected this argument and held it could not "fashion" another exclusion to the definition in contravention of the Sentencing Commission's intent. The Court further noted that the legislative history behind U.S.S.G. § 4B1.5(b) supported its decision.

The Court next addressed Hollon's claim that the enhancement did not apply because it was his first offense, and that the Sentencing Commission intended it to apply only to repeat offenders. Examining the commentary to § 4B1.5(b), the Court held that district courts may impose the enhancement regardless of whether the prior acts resulted in convictions. The focus of the enhancement, the Court concluded, was the defendant's "pattern of prohibited sexual conduct," not his or her "past criminal history."




United States v. Tolliver: Sixth Circuit Reaffirms Payment for Drugs Constitutes "Promotional Money Laundering."



A grand jury indicted Reshon Tolliver of conspiring to distribute marijuana from California to Memphis and of laundering the proceeds of that operation. At the conclusion of a four-day trial, a jury acquitted Tolliver of the marijuana charge but convicted him of money laundering. He subsequently appealed.

The Court affirmed Tolliver's conviction in a per curiam opinion. Although it appears Tolliver never moved to dismiss the indictment, either orally or in writing, for violating the Speedy Trial Act, he raised that issue on appeal. After finding that certain pretrial motions constituted excludable time under the Act, the Court held that Tolliver moved to dismiss too early since the Speedy Trial clock had not yet expired.

Turning to Tolliver's remaining arguments, the Court held that the Government produced sufficient evidence to convict him of money laundering. First, the Court noted its own precedent holding Tolliver could, in fact, launder payments he received for drugs by buying more drugs. Comparing it to reinvesting a stock dividend, the Court concluded that Tolliver promoted the drug conspiracy by using the proceeds he received to buy additional drugs. After reaching this conclusion, the Court found that the Government had introduced sufficient evidence to convict him of money laundering.

On appeal, Tolliver also challenged the District Court's decision to include some of his gambling winnings. Although it noted Tolliver was a "long-time gambler" the District Court found that the amount he gambled "skyrocketed" once he joined the conspiracy. Noting that Tolliver offered no evidence suggesting a source of income other than from his drug operation, the Court found that the Government produced sufficient evidence connecting his gambling winnings to the laundered money, and that the District Court properly forfeited the same.

In his concurring opinion, Judge Thapar honed in on Tolliver's Speedy Trial Act argument. In his opinion, Tolliver could not appeal any alleged Speedy Trial Act violation because he never actually moved the Court for a dismissal under the Act. In addition to complaining that the Court's opinion ignored the Act's text, Judge Thapar opined about instances in which a defendant might not want to request a dismissal under the Act, noting that, with a dismissal without prejudice, the Government would simply obtain another indictment.



Richardson Revisited...Again.


In June 2013, a jury convicted Frank Richardson of five counts of aiding and betting Hobbs Act robbery, five counts of aiding and abetting the use of a firearm during and relation to a crime of violence under § 924(c), and one count of being a felon in possession of a firearm. His first § 924(c) conviction carried a mandatory seven year sentence that ran consecutively to his other sentences, and each subsequent § 924(c) conviction carried a mandatory 25 year sentence to run consecutively to his other sentences. In all, the district court sentenced Richardson to 1,494 months (over 124 years) in prison.

The United Supreme Court ultimately remanded Richardson's first appeal to the Sixth Circuit to consider whether its decision in Johnson v. United States affected his § 924(c) convictions. On remand, the Court again affirmed his conviction and sentence, holding that Richardson's convictions for aiding and abetting Hobbs Act robbery satisfied § 924(c)'s elements clause.

While Richardson's petition for certiorari from this decision was pending, the First Step Act of 2018 became law. Recognizing this fact, Richardson filed a supplemental brief in support of his certiorari petition. The Supreme Court, in turn, vacated the Court's judgment and remanded the case with instructions to consider whether the Act affected Richardson.

Richardson's third appearance before the Court did not change the outcome. In a lengthy opinion, the Court first reissued its earlier decision affirming Richardson's conviction and holding, again, that aiding and abetting a Hobbs Act robbery satisfied § 924(c)'s elements clause. In addition, it rejected certain additional arguments Richardson tried to raise in his third appeal, arguing that its previous remand to the district court was limited to considering the impact of Johnson on his sentence and that he had forfeited those arguments by not raising them in his initial appeal.

In the second part of its opinion, the Court rejected Richardson's argument that the district should resentence him in light of the enactment of the First Step Act of 2018. Critically, the Act made a significant change to what constituted a prior conviction under § 924(c), which, in Richardson's case, would have meant that he would have received a seven year mandatory consecutive sentence for each § 924(c) conviction -- instead of 25 years -- because each conviction would not have been "final" under the Act. The Court rejected this argument, holding that defendants, such as Richardson, who had been sentenced prior to December 21, 2018, could not take advantage of its provisions. In reaching this conclusion, the Court found that the Act created new law rather than clarified existing law, as Richardson had argued. Finally, the Court rejected Richardson's argument that the Act should apply to him because he had not exhausted his direct appeals, holding that a sentence is "imposed" when the trial court announces the same.

Although they were ultimately unsuccessful, this case highlights excellent advocacy by Richardson's counsel. It also demonstrates that there are plenty of creative arguments to make on behalf of defendants in the post-Johnson and First Step Act world.