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.
Showing posts with label SCOTUS. Show all posts
Showing posts with label SCOTUS. Show all posts
Blewett Dissents
Judge Merritt's Blewett dissent:
* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous. Congress intended to remedy irrationality and disproportion. Court is thwarting this effort.
* Cites NACDL and NAACP amicus briefs.
* "Practically all observers" now recognize the ills of the old system.
Judge Cole's dissent:
* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles.
* African-Americans treated more harshly than Caucasian offenders under this regime. And 88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American.
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings. Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."
Judge Clay's dissent:
* Majority is furthering prior injustice by holding that the FSA is not retro. Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause."
* Not sure of procedural mechanism for relief.
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law. Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans." This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless. Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums." More than 82% of this group is African-American (2005 stat). The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race." No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio. In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums." Won't cut it.
Judge Rogers's dissent:
* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well. In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule.
* 3582(c)(2) = Congress's "background principle of retroactivity."
* Illogical to provide GL relief and not statutory relief.
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break.
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage. But assumptions are not law. Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be. The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits. (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute. The revised statutory minimums are, after all, created by statute. The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive. Doing so provided the statutory key to making the statutory minimum changes applicable under 3582. This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply.
Judge White's dissent:
* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence. Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers.
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act. It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended. Congress did not intend this irrationality, and that is why Judge Rogers is correct. Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the Equal Protection Clause absent rational justification other than finality."
* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous. Congress intended to remedy irrationality and disproportion. Court is thwarting this effort.
* Cites NACDL and NAACP amicus briefs.
* "Practically all observers" now recognize the ills of the old system.
Judge Cole's dissent:
* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles.
* African-Americans treated more harshly than Caucasian offenders under this regime. And 88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American.
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings. Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."
Judge Clay's dissent:
* Majority is furthering prior injustice by holding that the FSA is not retro. Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause."
* Not sure of procedural mechanism for relief.
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law. Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans." This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless. Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums." More than 82% of this group is African-American (2005 stat). The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race." No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio. In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums." Won't cut it.
Judge Rogers's dissent:
* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well. In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule.
* 3582(c)(2) = Congress's "background principle of retroactivity."
* Illogical to provide GL relief and not statutory relief.
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break.
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage. But assumptions are not law. Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be. The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits. (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute. The revised statutory minimums are, after all, created by statute. The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive. Doing so provided the statutory key to making the statutory minimum changes applicable under 3582. This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply.
Judge White's dissent:
* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence. Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers.
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act. It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended. Congress did not intend this irrationality, and that is why Judge Rogers is correct. Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the Equal Protection Clause absent rational justification other than finality."
Well, Blewett Is Out . . . .
Well, the Sixth Circuit en banc released Blewett yesterday. Get out your hankies. This one's a tear jerker.
United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented.
The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."
Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.
*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.
Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."
Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.
I will explore the dissent tomorrow.
United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented.
The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."
Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.
*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.
Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."
Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.
I will explore the dissent tomorrow.
Supreme Court Update -- FSA, Apprendi, & Crawford
Three significant criminal cases from the Supreme Court this week:
Fair Sentencing Act applies to post-Act sentencing of pre-Act offenders in pipeline cases
The 5-4 decision of Dorsey v. United States, holds the FSA's new mandatory minimums apply to pipeline cases involving sentences for crack cocaine imposed after the Act (August 3, 2010) for pre-Act crimes: "That is the Act's 'plain import' or 'fair implication.'"
The full opinion can be found here.
Apprendi applies to criminal fines
The 6-3 decision of Southern Union Co. v. United States, holds Apprendi v. NJ applies to the imposition of criminal fines.
The full opinion can be found here.
Supreme Court takes a bite out of Crawford
In William v. Illinois, a deeply divided 5-4 decision, the Supreme Court muddied the waters of Crawford, with the narrowest ruling setting forth an unclear distinction between which forensic reports are “formal,” i.e. testimonial, or “informal,” i.e. non-testimonial.
For an in-depth analysis, check out the SCOTUSblog here.
The full 98-page opinion can be found here.
Fair Sentencing Act applies to post-Act sentencing of pre-Act offenders in pipeline cases
The 5-4 decision of Dorsey v. United States, holds the FSA's new mandatory minimums apply to pipeline cases involving sentences for crack cocaine imposed after the Act (August 3, 2010) for pre-Act crimes: "That is the Act's 'plain import' or 'fair implication.'"
The full opinion can be found here.
Apprendi applies to criminal fines
The 6-3 decision of Southern Union Co. v. United States, holds Apprendi v. NJ applies to the imposition of criminal fines.
The full opinion can be found here.
Supreme Court takes a bite out of Crawford
In William v. Illinois, a deeply divided 5-4 decision, the Supreme Court muddied the waters of Crawford, with the narrowest ruling setting forth an unclear distinction between which forensic reports are “formal,” i.e. testimonial, or “informal,” i.e. non-testimonial.
For an in-depth analysis, check out the SCOTUSblog here.
The full 98-page opinion can be found here.
Whoo Hoo! Big News: SCOTUS Grants Cert on FSA Pipeline-Cases Issues
The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted.
The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.
Question presented in Dorsey:
"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"
Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week. Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010. The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed." This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).
The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.
Question presented in Dorsey:
"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"
Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week. Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010. The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed." This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).
Sixth Circuit reversed . . . again
On November 7, the Supreme Court reversed the Sixth Circuit's decision in Dixon v. Houck, in which the Court had overturned the conviction and death sentence of the defendant based upon Miranda violations. The Supreme Court dealt unusually harshly with the Sixth Circuit in a per curium opinion, finding, for example, that "according to the Sixth Circuit, the Miranda decision itself clearly established that police could not speak to Dixon on November 9, because on November 4 Dixon had refused to speak to police without his lawyer. That is plainly wrong." (emphasis added) The Supreme Court dismissed each of the grounds for reversal set forth in the Sixth Circuit's opinion in short, order, and seemed to re-affirm the deference given to state court opinions, finding "Because no precedent of this Court required Ohio to do more, the Sixth Circuit was without authority to overturn the reasoned judgment of the State’s highest court."
The Supreme Court's opinion can be found here.
The Supreme Court's opinion can be found here.
Supreme Court Reverses Sixth Circuit: Amended Crack Guideline Relief Is (Probably) Available in (C) Pleas
Yesterday, in a 5-4 decision, the Supreme Court reversed the Sixth Circuit in Freeman v. United States, holding that Petitioner William Freeman could move for a sentence reduction because of retroactive amendments to the crack guidelines.
In United States v. Goins, 355 Fed. App'x 1 (6th Cir. Nov. 20, 2009), the Sixth Circuit (Boggs, Rogers, White) had found that Freeman was not eligible for a sentence reduction because he had plead guilty pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), known colloquially as a "(C) plea." In a (C) plea, the defendant and the prosecutor agree on a sentence and that sentence binds the court if the court accepts the plea.
William Freeman and his prosecutor had agreed in 2005 that Freeman would serve 106 months in prison for possession of crack cocaine and a firearm. The agreement recognized that Freeman's Guidelines range for the crack possession was 46-57 months. The court accepted the (C) plea.
Three years later, the Sentencing Commission issued a retroactive Guidelines amendment to attempt to remedy the crack/powder sentencing disparity. This amendment lowered Freeman's range on the crack count to 37-46 months. Freeman moved to have his sentence reduced under the proper the statutory mechanism. The Sixth Circuit reasoned that a sentence predicated upon a (C) plea was the result of a bargain between prosecution and defense, not the Guidelines. In a strong concurrence, however, Judge White argued that, were she not bound by precedent, she would remand the case with instructions to determine whether the original sentence was based on the Guidelines.
The Supreme Court ultimately vindicated Judge White. Four Justices (Kennedy, Ginsburg, Breyer, and Kagan) found that defendants with (C) pleas can move for sentence reductions. Four Justices (Roberts, Alito, Thomas, and Scalia) held that they cannot. The controlling opinion, however, is Justice Sotomayor's currence. She pragmatically held that a petitioner with a (C) plea could move for a sentence reduction if his plea expressly used the now-amended Sentencing Guidelines range as part of the calculus of his sentence.
In United States v. Goins, 355 Fed. App'x 1 (6th Cir. Nov. 20, 2009), the Sixth Circuit (Boggs, Rogers, White) had found that Freeman was not eligible for a sentence reduction because he had plead guilty pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), known colloquially as a "(C) plea." In a (C) plea, the defendant and the prosecutor agree on a sentence and that sentence binds the court if the court accepts the plea.
William Freeman and his prosecutor had agreed in 2005 that Freeman would serve 106 months in prison for possession of crack cocaine and a firearm. The agreement recognized that Freeman's Guidelines range for the crack possession was 46-57 months. The court accepted the (C) plea.
Three years later, the Sentencing Commission issued a retroactive Guidelines amendment to attempt to remedy the crack/powder sentencing disparity. This amendment lowered Freeman's range on the crack count to 37-46 months. Freeman moved to have his sentence reduced under the proper the statutory mechanism. The Sixth Circuit reasoned that a sentence predicated upon a (C) plea was the result of a bargain between prosecution and defense, not the Guidelines. In a strong concurrence, however, Judge White argued that, were she not bound by precedent, she would remand the case with instructions to determine whether the original sentence was based on the Guidelines.
The Supreme Court ultimately vindicated Judge White. Four Justices (Kennedy, Ginsburg, Breyer, and Kagan) found that defendants with (C) pleas can move for sentence reductions. Four Justices (Roberts, Alito, Thomas, and Scalia) held that they cannot. The controlling opinion, however, is Justice Sotomayor's currence. She pragmatically held that a petitioner with a (C) plea could move for a sentence reduction if his plea expressly used the now-amended Sentencing Guidelines range as part of the calculus of his sentence.
SCOTUS and Searches
Searches, lack of a warrant, exigent circumstances. . . . I've only caught the highlights and have not read the opinion, but here's a link to the opinion in Kentucky v. King.
http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
Police followed a suspected drug dealer to an apartment complex. Officers smelled marijuana outside an apartment door. They knocked loudly, announcing their presence. As soon as the officers began knocking, they heard noises inside the apartment. The officers thought the noises indicated that evidence was being destroyed. The officers announced they would enter the apartment. They then kicked in the door.
http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
Police followed a suspected drug dealer to an apartment complex. Officers smelled marijuana outside an apartment door. They knocked loudly, announcing their presence. As soon as the officers began knocking, they heard noises inside the apartment. The officers thought the noises indicated that evidence was being destroyed. The officers announced they would enter the apartment. They then kicked in the door.
The Court found that the exigent-circumstances rule applies when officers do not create the exigency by engaging in conduct that violates the Fourth Amendment. Assuming exigency existed here, there was no evidence that the police violated the Fourth Amendment or threatened to do so.
8-to-1 opinion with Justice Ginsburg dissenting.
Carradine---Seeking Cert
FYI on Carradine v. United States, No. 10-8937 (Feb. 10, 2011).
Filed for cert. Gov. has waived right to respond. Distributed for conference on March 18.
See Oct. 1 entry for more info on this case. (6th Cir. said FSA not retroactive.)
Filed for cert. Gov. has waived right to respond. Distributed for conference on March 18.
See Oct. 1 entry for more info on this case. (6th Cir. said FSA not retroactive.)
Pepper Decided!!!!! Good News!
You have probably already heard about the Supreme Court's recent decision in Pepper v. United States, No. 09–6822 (Mar. 2, 2011). But it's a great case and deserves noting here.
The Court decided that when a sentence has been set aside on appeal and a case remanded a district court may consider evidence of a defendant’s post-sentencing rehabilitation and such evidence may support a downward variance.
Court discussed the role of 18 U.S.C. § 3742(g)(2), noting that § 3742(g)(2) restricts the discretion of a district court on remand by barring imposition of a sentence outside the guideline range except upon a ground of departure that was expressly used in the prior sentencing and upheld on appeal. Amicus contended that § 3742(g)(2) forecloses a resentencing court from considering evidence of a defendant’s postsentencing rehabilitation for purposes of imposing a non-guideline sentence, as such evidence did not exist at the time of the prior sentencing. But the Court found that "§ 3742(g)(2) is invalid after Booker."
Court pointed out that it abrogated 18 U.S.C. §§ 3553(b)(1) and 3742(e) in Booker, and that its reasoning there applied to § 3742(g)(2) as well. Court found that "we see no general congressional policy reflected in § 3742(g)(2) to preclude resentencing courts from considering postsentencing information, that provision has no bearing on our analysis of whether § 3553(a) permits consideration of evidence of postsentencing rehabilitation."
Other things to consider:
Section 3742(g)(2) is akin to § 3742(g)(1), which says that the old GLs will apply at a resentencing. Pepper provides ammo to argue that the old GLs are not the GLs that should apply if the new ones are more favorable. (If they are less favorable, we have an ex post facto issue, but that's an issue to discuss at another time; courts have gone different ways on that issue.) The dissent makes this point very clear: "I agree with the Court that the decision below cannot be affirmed on the basis of 18 U.S.C. § 3742(g) . . . . This provision was designed to function as part of the mandatory Guideline scheme . . . ." (Alito, J., dissenting). He just says (g)---no further subsection.
Now, for the Grant issue. (See the Jan. 18 entry on Grant.)
Does the Supreme Court implicitly sanction sentences below the mandatory minimum based on the defendant’s substantial assistance and post-sentencing rehabilitation? In Pepper, "safety valve" (18 U.S.C. § 3553(f) and guideline section 5C1.2) applied, which can be used to distinguish the case from a pure Grant situation. But Pepper still provides a sanction from the Supreme Court to use information beyond substantial assistance to sentence below a mandatory minimum.
Assisting the gov. is an aspect of obtaining "safety valve" relief from a mandatory minimum sentence. And the Court clarifies in Pepper that "‘It has been uniform and constant in the federal judicial tradition for the resentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.’"
Punishment should fit the defendant "and not merely the crime." Congress and the Sentencing Commission have "expressly preserved the traditional discretion of sentencing courts to ‘conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.’" While there are some constraints on sentencing courts’ discretion, once a mandatory minimum is released, a sentencing court should be able to consider a wide array of factors. . . .
Almany on Remand: A Must Read
So, Mr. Almany got his extra five years back in light of Abbott. United States v. Almany, No. 08--6027 (6th Cir. Dec. 16, 2010) (to be published). Panel of Judges Merritt, Martin, and Cole.
"The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after the Supreme Court vacated our judgment and remanded it to us in light of the Abbott case."
http://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdf
Judges Merritt and Martin provide a must-read concurrence. It's brief.
"The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v. United States, 131 S. Ct. 18 (Nov. 15, 2010), after the Supreme Court vacated our judgment and remanded it to us in light of the Abbott case."
http://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdfhttp://www.ca6.uscourts.gov/opinions.pdf/10a0382p-06.pdf
Judges Merritt and Martin provide a must-read concurrence. It's brief.
* "The Supreme Court reversed our decision. We were wrong because in these kinds of statutes, Congress normally intends to make sentences longer, not shorter, more severe, not less."
* "[A]pparently the rule of lenity based on ambiguous language does not operate when the court resorts to the 'Equity of the Statute' to give it a construction opposite to the meaning the words ordinarily signify because the Court knows that what the legislature intended was not what it wrote. Nothing is mentioned about an ex post facto
problem when a statute is interpreted contrary to its words. The Supreme Court is 'final but not infallible' and we must follow their interpretation of statutes. The 'Equity of the Statute' doctrine is alive and well — although unmentioned by the Supreme Court — more than seven centuries after its origin at common law."Pepper in the Pot and Double Jeopardy
While this fellow to the right appears to be making pancakes, the COA was using Pepper in its cooking.
In United States v. Vicol, No. 08--2547 (6th Cir. Nov. 19, 2010) (unpublished), the panel of Judges Martin, McKeague, and Ludington (E.D. Mich.), did not resolve for the 6th Cir. the Pepper v. United States issue currently pending in the Supreme Court (cert. granted June 28, 2010): whether post-sentencing rehab is fair game at a resentencing.
Procedural History:
*Nasty facts. D convicted at trial of kidnapping.
* Dist ct applied wrong (pre-offense) GLs, which called for base offense level of 24 rather than 32. D sentenced to 188 months (max under outdated GLs).
* Day after sentencing, gov moved to "correct" the sentence under Rule 35.
* Dist ct held hearing. Imposed new sentence of 360 months.
* On ORIGINAL appeal, COA said dist ct had lost jurisdiction by not acting within 7 days per Rule 35.
* Original COA remanded for imposition of 188-month sentence. Told both parties they could appeal after that sentence reimposed.
* 188-month sentence entered. Gov. appealed.
* COA once again heard the appeal. Found 188-month sentence was in error. Based on erroneous GL application. Another remand.
Second Remand:
* Case reassigned to new dist ct judge.
* D presented info on his rehab in prison. Asked for downward departure.
* Dist ct. said it had looked at Worley and Keller and decided it could not consider post-sentencing rehab. (These cases deal with post-Booker remands.)
* Dist ct said that even if it COULD consider post-sentencing rehab it would impose the same sentence of 360 months of imprisonment.
* D appealed.
Conclusions of COA:
* COA concluded that even if the dist ct erred regarding its decision not to consider post-sentencing rehab the error was harmless b/c dist ct was clear the sentence would not change.
* D also argued that Double Jeopardy Clause and gov's failure to cross-appeal (original 188-month sentence) should bar imposition of sentence greater than 188 months. But failed to make this argument in dist ct, so plain-error review applied.
* COA found that gov did not fail to appeal original sentence. No judgment was ever entered for original sentence. First judgment was entered for 360 months when dist ct originally "fixed" its sentence (beyond its jurisdiction). Judgment for 188 months was not entered until after first remand, and gov appealed at that time. Sentence not final, so increase in sentence upon remand did not implicate Double Jeopardy.
Crack and SCOTUS
Hopefully, everyone's heard that Congress passed the Fair Sentencing Act of 2010, reducing the crack--powder disparity. The bill is not retroactive. It raises the minimum quantity of crack that triggers the 5-year mandatory minimum from 5 grams to 28 grams; and for the 10-year mandatory minimum, it raises the quantity from 50 grams to 280 grams. The amount of powder cocaine required to trigger the 5- and 10-year mandatory minimums has not changed (500 grams and 5 kilos). The bill also eliminates the mandatory minimum for simple possession of crack. The crack--powder disparity has shifted from 100:1 to 18:1.
SCOTUS: granted cert in Pepper v. United States, No. 09-6822 (June 28, 2010).
Issues:
* Whether district courts can consider a defendant’s post-sentencing rehabilitation as a factor supporting a downward variance under 18 U.S.C. § 3553(a).
* Whether, as a sentencing factor under 18 U.S.C. § 3553(a), post-sentencing rehabilitation should be treated the same way as post-offense rehabilitation.
* Whether, when the original district judge does not resentence a defendant after remand, and a new judge is assigned, the new judge is obligated under the doctrine of the “law of the case” to follow the sentencing findings of the original judge (those that were affirmed on appeal).
Disappointment in Dillon
Court concludes that, by its terms, § 3582(c)(2) does not authorize a sentencing/resentencing proceeding. The section provides for the modification of a term of imprisonment---it gives courts the power to reduce an otherwise final sentence in the circumstances the Commission specified.
Majority does not respond to the dissent's separation-of-powers discussion because that issue was not encompassed in the questions presented and was not briefed.
Section 3582(c)(2) proceedings do not implicate the Sixth Amendment right to a jury finding of essential facts. Rejects Hicks reasoning.
Because 3582(c)(2) does not permit resentencing, correcting other sentencing errors is beyond the scope of such a proceeding.
Justice Stevens closes his dissent: "I had thought Booker
dismantled the mandatory Guidelines regime. The Court ought to finish the job."
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