Unfiltered: Court Upholds Obstruction Enhancement Imposed for Defendant's Facebook Post

Facebook often provides a goldmine of information in litigants in civil and criminal actions. For Harry French, it led to an obstruction of justice enhancement and a lengthier sentence.

Prior to his sentencing for carjacking and possession of a firearm in furtherance of a crime of violence but prior to his sentencing, French, apparently using a contraband cell phone while in custody, posted a message on his Facebook page referring to one of the co-defendants who testified against him during his trial, Dequan Blackmon, as a "rat." His co-defendant also had a Facebook account, so French tagged him in the post, meaning that Blackmon's friends also saw the post.

This post led the probation officer to recommend a two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1.  The district court subsequently agreed and imposed the enhancement over French's objection.

On appeal, French challenged the sufficiency of the evidence supporting his convictions, claimed his convictions violated the Double Jeopardy Clause of the United States Constitution, and that the Court erred in imposing the obstruction of justice enhancement. The Court disagreed. In its opinion, the Court quickly dispensed with French's sufficiency of the evidence and double jeopardy arguments and affirmed French's sentence. It rejected French's argument that he could not have intended to obstruct justice unless he thought Blackmon would testify at his sentencing, holding that since others besides Blackmon could view his Facebook post, his threat could have influenced potential witnesses, including the victims in his case. Thus, the Court concluded the District Court reasonably inferred French was attempting to influence witnesses who might testify during his sentencing and that the enhancement was proper.

For good or ill, social media provides a forum where millions of people can express their opinions and air their grievances. For Harry French, this decision led to an obstruction of justice enhancement.

Havis Strikes Again: Ohio Convictions for Offering to Sell Drugs are not Career Offender Predicates

 

The District Court enhanced Pierre Alston's sentence as a career offender pursuant to USSG § 4B1.1 based on his prior convictions under Ohio Revised Code § 2925.03(A)(1), which criminalizes offers to sell drugs. It did so, however, without addressing whether such convictions qualified as predicate offenses after United States v. Havis and United States v. Cavazos.

Although the parties did not discuss Havis during sentencing, the Government conceded that, under Havis and Cavazos, the Ohio convictions did not qualify as predicate offenses. In a brief published opinion, the Sixth Circuit agreed and remanded Mr. Alston's case for a resentencing.

Perhaps more interesting than the Court's brief analysis was its note that, while the Government conceded Cavazos prevented the enhancement, it argued Havis and Cavazos were wrongly decided and that the  Government had preserved the issue for en banc review. If anything, this statement signifies the Government's continuing efforts to have the Court chip away at Havis.

 

Court defines parameters of filing an out of time 2255 petition

Simmons v. United States 

Defendant Simmons plead guilty to federal charges, and was sentenced on September 8, 2016.  He did not file a notice of appeal, but two years later, filed a petition pursuant to 28 U.S.C. 2255, and a motion to allow an out of time filing.  Simmons alleged that for twelve months after his sentencing, he was housed in state prison, without access to federal materials, and this affected his ability to timely file.

The Sixth Circuit held that  "to to invoke Section 2255(f)(2), it is the prisoner’s responsibility to allege (1) the existence of an impediment to his making a motion, (2) governmental action in violation of the Constitution or laws of the United States that created the impediment, and (3) that the impediment prevented the prisoner from filing his motion."  Under this standard, the Court determined that Simmons had failed to allege, with sufficient particularity, that he was prevented from filing his motion while at the state prison.   "He did not allege any facts connecting the facilities’ alleged lack of resources and his failure to file his motion within the normal one-year limitation period. He only provided the bare conclusory statement that the lack of access 'prevented him' from filing earlier. But did Simmons try to go to the state library and get materials even once?"

One bright spot in this opinion: the Court seemed to recognize that lack of access to federal legal materials, combined with a lack of legal assistance, can in some circumstances provide an excuse for the late filing of a 2255 petition.