Seventh Circuit on GPS

Following up on the post below, I think it is worth noting that the Seventh Circuit remains undecided on the GPS good-faith issue.  United States v. Brown, No. 11-1565, 2014 U.S. App. LEXIS 4076, at *7 (7th Cir. Mar. 4, 2014).

United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), the once helpful Third Circuit case, is up for rehearing en banc on May 28, 2014. 

I think we can expect to hear of cert petitions going up. . . .  We just have to stay tuned.   

The CP Restitution Debate Continues

In re Amy Unknown, Nos. 09—41238, 09—41254, 09—31215 (5^th Cir. Nov. 19, 2012).

OK, sorry I missed my blogging week and have taken so long to make it up.  During my blogging week, the Fifth Circuit decided, en banc, the issue of restitution in CP cases.  I think it’s worth discussing.
 

Quick recap:

·         18 USC 2259 governs restitution in child-pornography cases. 

·         There was a circuit split over proximate cause.  Most circuits, including the Sixth, require proximate cause for a victim to receive restitution.  Couple theories on why that is so, but what matters is that they require it.  A panel of the Fifth Circuit, however, read 2259 to require proximate cause only for miscellaneous “other” losses, as detailed in 2259(b)(3)(F).  The ct took the issue up for rehearing en banc, and has now confirmed that proximate cause is only required for such “other” losses. 

·         Maybe this issue will make it to SCOTUS. 

 

Why do we care in the Sixth Circuit?

·         It’s generally an interesting issue.

·         The Fifth Circuit’s Amy Unknown decision provides some interesting background on statutory interpretation, proximate cause, joint and several liability, and the Eighth Amendment.  Interesting read.

·         The opinion also provides interesting background on mandamus and victim rights. 

Issue:

Whether 2259 requires district courts “to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a ‘proximate result’ requirement in § 2259(b)(3)(F).” 

Ct acknowledges that “All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts.” 

Basic holding:

Section “2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E).”

The district court awarded Amy nothing.  This failure to make an award was “clear[] and indisputabl[e]” error.  “No matter what discretion the district court possessed and no matter how confounding the district court found § 2259, it was not free to leave Amy with nothing.”

On remand, the district court must enter a restitution order that reflects the full amount of Amy’s losses.

 

Interesting points:

·       Government reported that restitution for Amy has been awarded in at least 174 CP cases.  Amounts range from $100 to $3,543,471.

·         Crime Victims’ Rights Act gives victims a right to mandamus relief, but not to appeal.  And this mandamus review is the traditional review; it does not involve the standard of review of a traditional appeal. 

·         Lots of statutory–interpretation discussion. 

·         The structure of 2259(b)(3) indicates that each category of loss is separate.

·         No 8^th Amendment issue b/c restitution is not punishment.  In the Sixth Cir., restitution is punishment!  United States v. Sosebee, 419 F.3d 451, 461(6^th Cir. 2005).     

·         When 2259 applies, there’s a two-step inquiry: 1) is the person seeking restitution a “victim”; and 2) what is the full amount of the victim’s losses.  Courts should focus on section 3664 to craft a restitution order; they should focus on the joint-and-several-liability mechanisms. 

·         There is a lot in the 58 pages of the opinions.  If you are a restitution and/or statutory-interpretation person, you should take a gander at it. 

 

Judge Dennis concurred.

He “would simply direct the district courts to proceed to issue and enforce the restitution orders in accordance with 18 U.S.C. § 3664 and 3663A, as required by § 2259(b)(2).”  He believes it best to permit district courts to craft procedural and substantive means for ordering restitution that take into account the “mandatory nature of full restitution” for victims under 2259 and the “mechanical difficulties of crafting orders given the possibility of multiplicitous liability among hundreds of defendants under circumstances that may change over time.”

He would leave the decision as to how to proceed under these statutes to the district courts.

Judges Davis, King, Smith, and Graves concurred in part and dissented in part.

They concluded that the proximate-cause proof required by the restitution statutes could be satisfied in the cases at issue, but they disagreed with the majority that the statute authorized restitution without any proof that the violation proximately caused the victim’s losses.

They agreed with the majority that the district court must enter a restitution award against every offender convicted of possession of the victim’s pornographic image, but disagreed on the issue of apportioning the liability.  In cases such as the ones at issue, where the offenses of multiple violators contributed to the victim’s damages, the district court need not enter an award against each offender for the full amount of the victim’s losses.

These judges noted that no other circuit had adopted “a one size fits all rule for the restitution feature of the sentence of an offender.”  They cited United States v. Evers, 669 F.3d 645, 658-59 (6th Cir. 2012), our Sixth Circuit decision. 

They “would grant mandamus and vacate the judgment in In re Amy and remand that case to the district court to enter an award consistent with the principles outlined above.”  And they give factors to consider when crafting a restitution award.

Judge Southwick dissented.

He agreed with the majority, relying on the last-antecedent rule, that the phrase "as a proximate result of the offense" in 2259(b)(3)(F) only modifies the category of loss described in subsection (F).

But he found persuasive the reasoning of the Second, Fourth, and D.C. Circuits on causation: it "is a deeply rooted principle in both tort and criminal law that Congress did not abrogate when it drafted § 2259."Top of Form

He would find that proximate cause must be shown and the principle of aggregate causation is the method for proving its existence.  District courts could award all damages to each defendant, but could also make lesser awards if properly explained.  He agreed that additional proceedings would be required in the cases at issue, but disagreed that each district court should be required to impose a restitution award of the full amount of the alleged damages.

Proffer Info in PSRs

It's not my blogging week, so I'm sorry if I'm barging in on my co-bloggers. But this issue has been popping up a lot lately, so I felt an irresistible impulse to post. Forgive me, please, if this post is rude!

United States v. Jackson, No. 09–1630 (6^th Cir. Mar. 24, 2011) (recommended for publication). Panel of Judges Siler, Clay, and Gibbons.

D pleaded to bank robbery. Proffered. Had proffer agreement with gov: statements would not be used against him. Presentence report (PSR), however, included several statements from D’s proffer. These statements were initially used in calculating the guideline range, and dist court relied on them in determining the sentence.

D objected to this increase in his GL range based on the statements. "He argued the conclusion [co-D’s] conduct was a ‘reasonably foreseeable act[] . . . in furtherance of the jointly undertaken criminal activity,’ USSG § 1B1.3(a)(1)(B), was impermissibly based on his proffer-protected statements." Gov agreed and used an FBI agent to establish an independent source for the GL range increase. Dist court overruled D’s objection, finding the information regarding the increase was obtained by law enforcement before the proffer. Appellate court notes that D "did not object to any of the information relied on by the court in determining his sentence."

D argued "his proffer-protected statements were impermissibly used to increase his guideline sentence range." Court looked at GL section 1B1.8, which provides that proffer "information shall not be used in determining the applicable guideline range, except to the extent provided in the [proffer] agreement."

Appellate court concludes that "Had this information provided the basis for the enhancement that determined [D’s] ultimate guideline range, a violation of USSG § 1B1.8 would have occurred." But court found that the range could "be sustained without the use of the impermissible proffer-protected information." FBI agent provided independent source for info.

D also argued the increase was impermissible because, without the improper information in the PSR, he would not have received a higher advisory range—the increase would never have been an issue. And the FBI agent’s testimony was improper, as it never would have been presented, but for the objection to use of the proffer information. Appellate court notes that D "cites no case holding a later, valid guideline enhancement improper because of an earlier, improper enhancement" and rejects the contention.

D argued he had insufficient notice of the agent’s testimony. The agent’s info was not included in the PSR. Argued it was a violation of Rule 32 to allow presentation of the evidence for the first time at the sentencing hearing. But, court notes, D did not object to agent’s testimony. Nor did D seek a continuance. And Rule 32 was not violated. No requirement that all bases for determining offense level be included in PSR. And no prohibition against gov presenting additional evidence at hearing.

D argued "that not only does USSG § 1B1.8 preclude the use of proffer-protected information in determining the guideline sentence range, but that it also categorically precludes the use of proffer information in the PSR." But, court says, no objection in dist court, so plain-error review applies. Court looks at commentary to 1B1.8 and finds that gov cannot withhold info from a sentencing court.

Court finds that "No Sixth Circuit case has reached a contrary result, while out-of-circuit opinion on this issue is split." Looks at "United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir. 1996) (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR)," and "United States v. Rourke, 74 F.3d 802, 809 n.6 (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court)." Also finds Rule 32(d)(3)(B)’s reference to confidential information unavailing.

The issue remains open: "We only review this issue for plain error, since [D] failed to object at the district court. While we reserve ruling on the question of whether proffer-protected information can be used in determining a defendant’s specific sentence, any error by the district court in this case is certainly not plain."

Sentence affirmed.

Appellate Waivers and IAC

Zvonko Sarlog v. United States, No. 09--3033 (6th Cir. Jan. 7, 2011) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).

2255 case.

District court denied the 2255. Claim was IAC: failure to file notice of appeal. Petitioner claimed he'd requested an appeal. Petitioner also claimed IAC for counsel's failure to argue properly against certain guideline enhancements.

Court of Appeals remanded for evidentiary hearing.

Petitioner's plea agreement had broad appellate waiver. But when the court explained the provisions during the plea hearing, the court misspoke. The court told the petitioner he would be able to challenge certain potential GL enhancements on appeal if the sentencing court applied them. Neither party objected to the explanation of these appellate rights.

The sentencing court applied the enhancements, but granted a downward variance. No direct appeal filed. Petitioner filed pro se 2255. District ct denied the motion without an evidentiary hearing.

Rule re Hearings: Petitioners are entitled to prompt hearings unless unless record is clear that the petitioner is not entitled to relief. Burden for establishing entitlement is relatively light.

Rule on IAC and Appeals: Duty to file if client requests. Counsel may have duty to consult, even if client has not requested an appeal.

Issue 1: Petitioner argued that it's IAC to fail to file a notice of appeal and/or consult re an appeal even if there's an appellate waiver. Circuit split on issue. Court decides not to weigh in b/c the Court rules in the petitioner's favor on Issue 2.

Issue 2: Petitioner did not knowingly and voluntarily waive his right to appeal. While statements by a court cannot supercede the terms of a plea agreement, the plea-taking court here misstated the terms of the waiver before the plea was accepted. When a defendant misunderstands the terms of a plea agreement based on statements by the court, the waiver is not knowing and voluntary. The court said that the petitioner retained the right to appeal, so his waiver of this right was not knowing and voluntary.

Because petitioner retained his right to appeal, he had a right to have his attorney file the notice of appeal.

District court should have conducted an evidentiary hearing on the issue of whether the petitioner instructed his attorney to appeal. If the petitioner instructed his attorney to file a notice of appeal and the attorney failed to do so, the attorney was per se ineffective and petitioner would be entitled to a delayed appeal.

No Title to Capture Truly Deplorable and Heinous Facts

Trying to catch up with our AFPDs' summaries. This case is truly horrible. Defendants were guards at a detention center. Interesting discussion of plain error, Apprendi, and other issues.

WESLEY LANHAM (08-6504; 09-5094);

SHAWN FREEMAN (08-6506; 09-5095),

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0261p-06.pdf

Defendant were convicted of violating an inmate’s civil rights in violation of 18 U.S.C. §§ 241 and 242, and of making a false entry in violation of 18 U.S.C. § 1519. They were prison jailers when an inmate (J.S.) was raped in jail. Defendants and their supervisor decided to "scare" J.S. after the latter was arrested for a traffic violation. They placed him in a general population jail cell and incited atrocities. Defendants appealed their convictions and sentences, arguing that there was insufficient evidence to support their convictions, and Defendant Freeman claimed that he was entitled to a downward sentencing departure. The government appealed the district court’s application of the 2006 Sentencing Guidelines to the defendants’ sentences and the court's refusal to apply a sentencing enhancement to Defendant Lanham.

The Court of Appeals affirmed.

The Court sets of the facts of the offense in painful detail in the first 7 pages of the opinion. The conduct of these defendants was egregious.

The Circuit Court ruled that, although the trial court had abused its discretion in failing to exclude two jurors for cause, the error was harmless, as the jurors were struck peremptorily. The government’s striking of a third juror for cause was correctly allowed by the trial court. The panel was constitutionally acceptable.

The trial court’s limitation on the scope of cross-examination was reviewed for plain error where there was no preserved objection. Since there is no 6^th Circuit case on point, the Court of Appeals looked to other circuits and found a split of authority. In that case, plain error cannot be found.

"Where there are conflicting authorities, the district court could not have committed plain error." Court found that, at a minimum, a court of appeals cannot correct an error unless that error is clear under current law. Because the law on the issue was not clear, the district court did not commit plain error.

There was sufficient evidence as to each defendant to convict each of violating the inmate’s civil rights. As to filing false reports, the wilful omission of facts is sufficient falsification to be a crime.

The enhancement under the statute was properly submitted to the jury. The defendants were charged under 18 U.S.C. § 241 for conspiring to violate J.S.’s civil rights. The indictment charged that the acts in furtherance of the conspiracy included aggravated sexual abuse; the statute establishes a ten year maximum sentence for those convicted under the statute. But it includes an increased penalty of "any term of years or for life" if the conspiracy included an act of aggravated sexual abuse.

Because the question of whether an act of sexual abuse occurred is a factual issue that increases the penalty for a violation of § 241 beyond the otherwise prescribed statutory maximum, the question had to be submitted to a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The district court properly submitted the question of whether aggravated sexual abuse occurred to the jury, and adopted the definition of aggravated sexual abuse found in 18 U.S.C. § 2241 (Court cites 1998 version).

The sentence reduction for minimal was properly denied to Defendant Freeman.

The trial court’s use of the guidelines in effect at the time of the crimes was appropriate in the face of appeal by the government. Ex Post Facto concerns would have been implicated by use of a later version of the advisory guidelines and the trial court correctly recognized those concerns.

The trial court’s decision not to apply a leadership role to Defendant Lanham’s guideline scoring was appropriate and supported by the record.

The court sentenced Lanham to 180 months and Freeman to 168 months in prison.

6th Cir Weighs in on 3582(c)(2) Circuit Split

Last Friday, the Sixth Circuit weighed in on an interesting circuit split over what constitutes the "applicable guideline range" in the crack-resentencing context.

In United States v. Pembrook, No. 08--6452 (6th Cir. June 11, 2010) (to be published) (panel of Judges Boggs, Suhrheinrich, and Rogers), the Sixth Circuit joined the Eighth and Tenth Circuits in finding that the applicable guideline range at the original sentencing was the initial range, not the range determined after downward departures to the crack-guideline level. This conclusion conflicts with decisions in the Fourth and Second Circuits.

Basic issue: defendant was a career offender, but district court (at original sentencing) departed to the crack-guideline range because the CO range overstated the defendant's criminal history. Should such a defendant be able to get a reduction in sentence under 3582(c)(2) based on the crack-guideline amendments?

Conclusion: the CO guideline range was the applicable range, so no reduction allowed.

The Second and Fourth Circuits allow a reduction in such circumstances: United States v. Munn, 595 F.3d 183 (4th Cir. 2010); United States v. McGee, 553 F.3d 225 (2d Cir. 2009). Sixth Cir., however, followed the Eighth and Tenth. See United States v. Darton, 595 F.3d 1191 (10th Cir. 2010); United States v. Blackmon, 584 F.3d 1115 (8th Cir. 2009); United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009).

Interesting considerations: the panel relies on Sections 1B1.10 (policy statement on resentencings) and 1B1.1 (application instructions for guidelines). Seems that the weight of such authority could be impacted by Dillon, depending on what the SCOTUS decides.

Judge Rogers provides a strong dissent. Sees two different "applicable guideline ranges" that apply at different stages of the guideline-calculation process. The crack amendments lowered the guidelines that actually, in the end, applied to the defendant. Dissent looks to other guideline contexts and case law in which the "applicable guideline range" is the range after departures. Also looks to the rule of lenity.