Sixth Circuit Blog

White En Banc today

2008-06-04T11:58:00.003-04:00

United States v. White, dealing with the propriety of the use of acquitted conduct at sentencing is being argued en banc this afternoon. White was the two page opinion last October that stated that two of the three members of the panel had voted to reverse the sentence before United States v. Mendez was decided, upholding the use of acquitted conduct. The panel in White specifically requested that the defendant seek this en banc review.

Douglas Berman of Sentencing Law and Policy blog fame has a post on his role arguing for the amici in White.

OUT WITH A WHIMPER ... NOT WITH A BANG

2008-06-02T17:32:00.003-04:00

The ruling in the panel decision in United States v. Vonner seemed pretty straight-forward by post-Booker standards – post-Booker, a district court needs to explain its ruling sufficiently that the appellate court can perform its reasonableness review, and must address any mitigation urged by the defense in favor of a downward variance. Despite Judge Siler’s dissent, it was with some surprise that the Court of Appeals granted the government’s petition for en banc review, particularly in light of the cert grants in Rita and Claiborne.

As has been noted on this blog before, from the very beginning there has been a continuing split within the Sixth Circuit about how the post-Booker process would work. See, Paradigm Shift or Business As Usual? A Brief History of Reasonableness Review in the Sixth Circuit , Feb. 13, 2007, post. This has also included how much or how little a district judge needed to say in imposing sentence in order to comply with Booker. See, e.g., United States v. Richardson, 437 F.3 550 (6th Cir. 4/17/06) (clarifying that in addition to addressing the 3553(a) factors, the district court must also, where a defendant raises a particular argument in seeking a sentence below the Guidelines, address the proffered mitigation and explain its basis for rejecting it.); compare to United States v. Jones, 445 F.3d 865 (6th Cir. 4/17/06) (noting that a sentence within the applicable Guidelines range does not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence; the dissent points out that circuit precedent required that the record reflect both that the district court considered the defendant’s argument and that the judge explained the basis for rejecting it.); United States v. Ray, 2006 U.S. App. LEXIS 18285 (6th Cir. 7/19/06) (unpublished) (reversing a 600 month sentence due to the district court’s failure to adequately explain the 25-year upward departure.); United States v. Harden, No. 05-4079 (6th Cir. 8/16/06) (reversing as procedurally unreasonable an 188-month sentence and noting that a district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination.)

The grant of en banc review in Vonner, then, seemed to signal an intention by the Court of Appeals to clear up the confusion in this area. Given that the panel’s decision, however, found that the district court’s sentencing explanation was inadequate, there would seem to be no reason to grant en banc review in this case unless the en banc court was inclined to agree with Judge Siler’s dissent and find that the district court’s statement was sufficient. But events would work to muddy the waters.

The panel decision in Vonner was released on June 29, 2006, and en banc review was granted on October 12, 2006. The decision in Rita was released on June 21, 2007, and Gall (the successor to Claiborne) and Kimbrough were argued on October 2, 2007, and the opinions released December 10, 2007. The Vonner en banc decision was released February 7, 2008.

Given the guidance that the Supreme Court gave in Rita, Gall and Kimbrough concerning the need for a district court’s explanation of its sentencing decision, the en banc court would be hard-pressed to say that the explanation in Vonner sufficed, given that the defense clearly presented several well-supported grounds in support of its request for a downward variance, none of which were directly addressed by the district court. If the court granted en banc review to affirm the district court, it could hardly do so now, so what to do? Since the Court of Appeals apparently doesn’t have the option of dismissing an en banc grant as "improvidently granted," the resolution was to blame the defense attorney.

Despite all that it could have said about post-Booker sentencing, United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), sidesteps that main issue and, instead, finds that the defendant’s failure to object to the district court’s minimal statement of sentencing reasons was a waiver that resulted in plain error review, which it found the defendant couldn’t meet. (Judge Sutton wrote the opinion which was joined by Chief Judge Boggs and Judges Siler, Batchelder, Gibbons, Rogers, Cook, McKeague, and Griffin. Judges Martin, Cole, Clay, Daughtrey, Moore and Gilman dissented.

As Judge Clay points out in his dissent, Vonner was sentenced only 26 days after the Supreme Court’s decision in Booker, and before the Sixth Circuit had explained the two components – procedural and substantive – of reasonableness review. While this timing is sufficient for the majority in its opinion to excuse the district court from knowing that it had to make a decent explanation for its sentencing decision, it is not enough for the majority to excuse defense counsel’s failure to specifically object on a ground not yet explained by the Court of Appeals. In Judge Clay’s view, such a ruling doesn’t meet standards that are "at least minimally fair."

It is not clear why the majority has such opposition to requiring a district court judge to explain why s/he is choosing a particular sentence and, if applicable, why s/he is rejecting a defendant’s specific request for a lower sentence. This does not appear to be too great a burden, and helps to facilitate review on appeal. Yet they persist in their opposition.

While the majority opinion offers nothing new for criminal defense practitioners in the Sixth Circuit, the different dissenting opinions require close reading by the defense bar. Judge Martin’s discussion of the Supreme Court’s basis for requiring an explanation by the sentencing judge, Judge Clay’s discussion of plain error review in the sentencing context and further discussion of the sentencing judge’s duty, and Judge Moore’s call to reject the presumption of reasonableness are all important reading for anyone doing sentencing hearings in federal court in this circuit. One thing is clear: while Vonner went out with a whimper, not a bang, this will not be the last word on the duty of sentencing judges to address the issues raised and clearly explain their decisions.

Becoming Emboldened

2008-05-22T14:32:00.013-04:00

Busy day in that the Sixth published four criminal cases: two direct appeals and two habeas cases.

The first of the direct appeals was United States v. Bullock, Case No. 07-5632. In Bullock, the defendant "made threatening telephone calls to the offices of several public officials, including United States Congressman Harold 'Hal' Rogers, Pulaski County Circuit Court Judge David Trapp, and Pulaski County Circuit Court Clerk George Flynn," stating that he "was going to 'get rid of' these officials." Police went to the defendant's home where they located a SKS semi-automatic rifle. He was initially charged with intimidating a judicial officer and terroristic threatening in Kentucky state court, but those charges were later dismissed. ATF agents subsequently discovered that at the time of his arrest, Mr. Bullock was subject to a domestic violence order. The defendant was prosecuted for being in possession of a weapon while subject to a domestic violence order under 18 U.S.C. S 922(g)(8). The defendant pled guilty. The PSR calculated Mr. Bullock's Guideline range to be 18 to 24 months after the defendant's base offense level of 14 was enhanced four levels for possessing a firearm in connection with another offense under S 2K2.1(b)(6). The defendant received a three level reduction for acceptance of responsibility. Mr. Bullock appealed the district court's enhancement, arguing that the the test for whether a firearm was possessed in connection with another offense, i.e. Application Note 14 to S 2K2.1 ("if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense respectively"), amounted to double counting because all firearms had the potential for facilitating another felony offense. The Sixth found that the district court enhanced the defendant's sentence "not because of the mere theoretical possibility that the firearm would be used in some unspecified crime in the future, but rather because of the very real likelihood that Bullock's possession of the [firearm] facilitated Bullock's threats to 'get rid of' several public officials, including a United States Congressman." The Sixth stated that they had "never found that the S 2K2.1(b)(6) enhancement can be applied simply because there is a theoretical possibility that the firearm may be used to commit a felony at some unspecified future time."

However, the Sixth's reasoning on how the possession of a firearm "facilitated" the defendant's making threatening telephone calls is weak. The Sixth finds it axiomatic that the possession of the firearm facilitated the threatening phone calls because Mr. Bullock "was undoubtedly emboldened in the commission of this offense by his possession of a semi-automatic rifle, to which he openly admitted ownership when officers arrived at his home." Unless the government is arguing that Mr. Bullock used the barrel of the SKS to dial the telephone, I personally do not see how possessing or not possessing a firearm while one is making threatening phone calls facilitates anything. It may facilitate a subsequent theoretical assault, but not the threatening phone call. Apparently in the Sixth Circuit, if you illegally possess a .45 caliber pistol that emboldens you to the point of committing tax fraud, then S 2K2.1(b)(6) applies. This test for facilitation is a dangerous precedent because any criminal committing any crime can be emboldened through the mere possession of a firearm, even if the firearm has no ability to facilitate the actual commission of the alleged offense. Defense attorneys should try to nip this "emboldenment" test for facilitation of another felony in the bud.

In the other direct appeal this morning, United States v. Smith, Case No. 07-1375, the Sixth Circuit unsurprisingly found that prisoners released from prison to a "community residential home" did not have a reasonable expectation of privacy in their home. In analogizing the community residential home situation to that of probationers, parolees, and prisoners, the Sixth found that the defendant was "treated as a 'prisoner' living in a 'community residential home'," because he was subject to continuous monitoring and had to ask permission to leave the home. Relying upon the Supreme Court's opinion in Samson v. California, 547 U.S. 843 (2006), the Sixth found that officer's warrantless search of the defendant's home did not violate the Fourth Amendment because "Smith had little, if indeed any, reasonable expectation of privacy in being free from a suspicionless search of his residence."

Because I rarely practice habeas law, I often skip over habeas cases because of the inevitable lengthy procedural details that are contained in the opinion. I know it is a bad habit, but I only have so much time. But Harris v. Haeberlin, Case No. 05-5591, is interesting enough for me to comment on. In Harris the defendant had been tried in Kentucky state courts for kidnapping, robbery, and being a persistent felony offender. In jury selection, the defendant challenged the state's use of its peremptory challenges as being motivated by race under Batson v. Kentucky, but the trial court found that the state had race-neutral reasons for the challenges. After his conviction in trial, but before his appeal to the Kentucky Supreme Court, the defendant discovered that an in-court video recorder had turned on during a recess and recorded the prosecutor's discussion of their use of peremptory challenges. After pursuing his state court appellate and post-conviction procedures, the defendant raised whether or not the trial court should conduct another Batson hearing based upon the newly discovered evidence at the district court, which was subsequently denied. The Sixth Circuit found that it was necessary to remand the case for the trial court to "reassess prosecutorial credibility in light of the videotaped evidence." This case appears to rest upon the unusual occurrence of the defendant actually having hard evidence, versus circumstantial evidence, of a prosecutor's use of race in his decision-making on peremptory challenges.

In a ruling that finds the improper admission of 404(b) evidence harmless, Cristini v. McKee, the other habeas case today, the Sixth Circuit reversed a district court's grant of habeas relief to a petitioner based upon "the prosecutor's introduction of evidence of prior convictions in the state's case-in-chief and the prosecutor's arguments that the Petitioner's prior convictions showed a propensity for violence." The Sixth Circuit reversed the district court's finding that the prosecutor's use of prior bad acts evidence to argue that the defendant had a propensity towards violence was error, but also finding that the Michigan Court of Appeals was correct in finding the error harmless in light of "the admissible evidence that established the Defendant's guilt." The defendant also argued that the prosecutions calling defense witensses liars in closing was misconduct. However, the Sixth Circuit found that it was not misconduct because "the prosecution's argument was coupled with a detailed analysis of the record. Each time the prosecutor said some witness had lied, he explained why the jury should come to that conclusion. While his repeatedly calling these witensses 'liars' was hardly praiseworthy, these comments, viewed in context, were not improper."

Good Decision on Bad Traffic Stop

2008-05-02T17:05:00.008-04:00

Today at the Sixth Circuit, a panel consisting of Daughtrey, Gilman, and District Court Judge for the E.D. Mich., Edmunds, reversed the Eastern District of Tennessee's denial of a motion to suppress and vacated a defendant's sentence on a firearms offense in United States v. Blair, Case No. 06-6036. Kudos to Jonathan Moffatt of the Federal Defender Services for the Eastern District of Tennessee for winning a tough suppression issue on appeal, I'm sure it made the wait from when he argued on October 31, 2007 until May 2, 2008 worthwhile. Although, I'm sure his client might disagree.

On the night of March 25, 2004, around 10:35 p.m. Mr. Marcus Blair stopped at a "known drug house in a high-crime drug-trafficking area" in Knoxville, Tennessee. An undercover officer witnessed Blair's car stop at the house and also claimed to have witnessed him engage in a hand-to-hand drug transaction. When Blair's car left the house, the undercover officer radioed to a colleague that a car was leaving the house, but failed to communicate which car or any information regarding the hand-to-hand drug transaction. An officer around the corner, who did not see the defendant's car stop at the suspected drug house nor the hand-to-hand transaction, stopped his car for a pretextual. . . sorry. . . purported "tag-light" violation. The nice thing about this traffic stop was that the police car was equipped with a video-recording device, so that not just the district court, but also the Sixth Circuit could witness the exact timing of what occurred during the traffic stop.

The officer testified that after he received Blair's license he returned to his car and observed that Blair was fidgety and "reaching underneath the seats of his vehicle." The officer conducting the stop testified that he was then informed that the undercover officer had witnessed Blair engage in a hand-to-hand drug transaction. However, the video-tape indicated that the arresting officer did not receive this information for four minutes after he had run the warrant check on Blair's license. At one point in time, Blair tried to exit his car to examine his "tag-light" but was told to remain in the car by the officer. Two minutes after the warrant check had returned negative, the arresting officer asked for permission to search the car. Surprisingly, Blair actually denied permission. The officer then threatened to call a canine unit to the scene if Blair didn't consent. Blair stood his ground, and the canine unit was called, once again approximately four minutes after the warrant check had returned negative. The arresting officer also testified that during the time following the call for back-up and the canine unit, Blair appeared to be nervous.

The Sixth Circuit noted that the video shows that Blair's tag-light was operating, but the arresting officer testified that he still could not read the tag from a distance of ten-feet. Seventeen minutes after the officer ran Blair's license for the purported tag-light violation, the canine unit arrived on the scene. At that time, Blair was told to exit the car so the dog could examine the car, was patted down, and a bag of crack cocaine fell from his pants.

The defendant was indicted on an unrelated federal firearms charge on June 15, 2004. On September 8, 2004, he entered into a plea agreement on that charge that stated that his plea "constitute[d] the full disposition of the known non-tax federal charges within the Eastern District of Tennessee." The PSR was completed on October 28, 2004, and indicated that Blair had been charged in state court on the drugs found on March 25, 2004. On December 6, 2004, Blair was to be sentenced on the gun charge, but that day he was informed that the U.S. would be seeking a federal indictment for the March 25, 2004 arrest. It was then that the defendant filed his Motion to Suppress and a Motion to Dismiss the indictment since it violated the plea agreement to the gun charge.

In reversing the district court's denial of the Motion to Suppress, the Sixth Circuit first noted that it "entertains serious doubt as to Officer Holmes's justification for the stop, primarily because the video evidence shows that the tag-light was fully-0perational." But the Sixth Circuit then found that "even if Officer Holmes had probable cause to stop Blair, the evidence seized as a result of the stop must be suppressed." The Sixth Circuit then dismissed of the district court's finding that the arresting officer had reasonable suspicion to believe that Blair possessed narcotics.

The Sixth Circuit rejected the government's contention that presence in a high-crime neighborhood at 10:30 p.m led to reasonable suspicion. The Sixth Circuit stated "That a given locale is well known for criminal activity will not by itself justify a Terry stop, although it may be taken into account with other factors." The lateness of the stop was another factor relied upon by the district court, but the Sixth Circuit found that 10:30 p.m. is "an hour not late enough to arouse suspicion of criminal activity." The Sixth Circuit also found that the arresting officer did not know of the hand to hand transaction at the time of the stop, and as such, it could not justify a Terry stop of the car.

This Sixth Circuit also rejected the government's contention that the stop was justified based upon the officer's collective knowledge. The Court found that "the officers did not make a collective decision to stop Blair, and thus Officer Munday's knowledge of the hand-to-hand transaction cannot be imputed to Officer Holmes."

Finally, the district court found that the purpose of the "tag-light" stop should have been completed around the time that the officer ran the defendant's license and found no outstanding warrants. The court found that the stop was unnecessarily extended at the time that the officer first asked for consent to search the car because "Officer Holmes had not developed reasonable, articulable suspicion of criminal activity by that point, we [therefore] hold that the remainder of the stop violated the Fourth Amendment." The Sixth Circuit also rejected the officer's fear that Blair might attempt to flee, the unsupported claim that he knew of the hand-to-hand transaction, and Blair's nervousness as justification for the extended stop. And in what to me is a SURPRISING AND VERY USEFUL HOLDING the Sixth stated that "while evasive behavior is a pertinent factor in determining reasonable suspicion, Wardlow, 528 U.S. at 124, Blair's act of reaching under the seats, without more, does not justify a Terry stop." The court found that Blair's prolonged detention violated the Fourth Amendment.

The Sixth then punted on the plea agreement issue finding that its decision on the Motion to Suppress resolved it. Finally, the defendant's guideline range was reduced from concurrent sentences of 120 and 121 months, as driven by the crack charges, to 30 to 37 months on the gun alone.

POST SCRIPT, 6/4/08: On May 23, 2008, the Sixth Circuit granted a motion by the government to extend the time to file a Petition for Rehearing until June 16, 2008.

Last week at the 6th, all about the 5th, and a great quote for acquitted conduct

2008-04-15T12:26:00.006-04:00

Amendment that is. Last week, the Sixth Circuit published two cases involving whether or not a potential defense witness' invocation of his Fifth Amendment rights prejudiced the defendant's right to present his case at trial. In both cases, the Sixth found that no prejudice occurred.

The Sixth started last Monday, April 7th, with its opinion in United States v. Highgate, No. 06-1447. Mr. Highgate was convicted in the Eastern District of Michigan for various drug and firearms charges, resulting in the district court sentencing him to 360 months imprisonment. Apparently back in 2004, the police were executing a search warrant on a home in Detroit, when Mr. Highgate was seen hiding a firearm and several packages of cocaine and heroin in the backyard. Also upon entry to the home, the police discovered a Mr. LaFrederick Jones inside, "who dropped bags of drugs to the floor upon seeing the officer". At trial, one police officer testified to arresting the defendant in the backyard. In his case in chief, the defendant sought to introduce the testimony of Mr. Jones to the effect that the officer who testified that he arrested Mr. Highgate was not the one who arrested him, but instead that it was a female officer. Mr. Jones had already been convicted and sentenced for his actions on that day. Mr. Highgate called Mr. Jones, but before he could ask any questions, the court stated that it was his understanding that Mr. Jones intended on taking the 5th Amendment. When Mr. Jones stated that was true, the court excused him.

On appeal, Mr. Highgate challenged the district court's dismissal of Mr. Jones without an inquiry into whether Mr. Jones's invocation of his 5th Amendment rights was legitimate. The Sixth Circuit agreed that it was error for a district court to accept a blanket assertion of the 5th Amendment without inquiring into the legitimacy of the witness' fear of prosecution. However, the 6th Circuit found that the district court's error was harmless in this case because they could not conclude that the error affected the outcome of the trial.

Mr. Highgate also raised an issue relating to his 360 month sentence. The district court, upon imposing sentence stated that he felt the Guideline range was too high for Mr. Highgate, but that he felt as if he was required to impose that sentence. The Sixth Circuit was reviewing this sentence under plain error grounds BECAUSE DEFENSE COUNSEL FAILED TO OBJECT TO THE SENTENCE IMPOSED AT THE END OF THE SENTENCING COLLOQUY. However, the Sixth Circuit found that Mr. Highgate could meet the prejudice requirement of plain error because of the district court's plain disgust with the Guideline sentence. The Sixth Circuit stated that "[a]t this stage of the game, sentencing courts frustrate effective appellate review by walking mechanically through the now-advisory Guidelines, lodging their regret all the way." They found that this equalled procedural unreasonableness because the district court treated the Guidelines as mandatory. The Sixth remanded Mr. Highgate for resentencing.

The second interesting opinion on the Fifth Amendment from last week was the case of United States v. Hunt, No. 06-6300/6301. Hunt involved Medicare fraud scheme involving several doctors. Dr. Hunt maintained his innocence and proceeded to trial. At trial, he attempted to introduce an affidavit prepared by a Mr. Noble that was made during the investigation which stated that he believed Dr. Hunt did nothing wrong. He also attempted to call Noble and a Dr. Bartee to testify. Both men refused to testify on 5th Amendment grounds. Apparently the district court in this case did what the district court in Mr. Highgate's case failed to do and inquired into why they were invoking their Fifth Amendment right. Dr. Bartee "refused to testify because of concerns about how his testimony might affect his diversion agreement, which had not been finalized by the time of trial, and Noble refused to testify because of his exposure to potential prosecution in other districts." After the trial and guilty verdict, the district court sentenced the defendant to 5 years probation, even though his Guideline range was 27 to 33 months.

Hunt challenged the dismissal of Noble and Dr. Bartee on the grounds that the government effectively made the witnesses unavailable. The district court found that the government did not make them unavailable because, "the Government did nothing to discourage or inhibit them from testifying."

Hunt also challenged the district court's exclusion of the statements from Noble's affidavit. The Sixth found that the statements were not admissible. They ruled that the statements amounted to hearsay, and that the exception found in Rule 804(b)(1) for the unavailable witness did not apply. They also ruled that the affidavit was not given at another hearing or different proceeding. Finally they stated that the catch-all rule, 807, which allows for the admission of hearsay statements not otherwise covered by the rules if they are trustworthy did not apply because the district court found the affidavit to be untrustworthy. The Sixth also found that the statements were not admissible for impeachment.

Finally, in Hunt, the Sixth Circuit thumbed its nose at Gall's abuse of discretion review, and reversed Hunt's sentence as substantively unreasonable. The Sixth Circuit found that the district court's statement that it had doubts regarding Hunt's intent to engage in criminal acts was improper. In an interesting quote that could be useful for the defense attorney challenging the use of acquitted conduct at sentencing, the Sixth stated that it was error "if the district court did so rely [on its doubts about Hunt's intent], then it is necessary for us to remand under the abuse-of-discretion scope of review. This is because it would be improper for the judge in the sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt. Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court abuses its discretion when it relies on clearly erroneous facts." The Sixth then remanded for resentencing. While I'm confident that the difference in being convicted beyond a reasonable doubt and being acquitted and then having the sentencing court find the facts by a preponderance will end up nullifying the effectiveness of this quote, I feel that is an excellent quote from the Sixth that can be used by defense counsel for any case where acquitted conduct is at issue.

Hi

2008-04-15T12:16:00.003-04:00

My name is Richard Strong, the rws in the Memphis Federal Defender's office. At a CJA conference our office a few months back, I talked with Sumter Camp about helping out on this blog, and I thought it would be a lot of fun. So of course I forgot completely about it for a couple of months until Sumter helped kick start the process of getting me on board with the blog. Anyway, to make a long story short, I'm looking forward to trying to help reinvigorate this blog.

I wanted to start last week with several interesting decisions from the 6th, but because of a nice public corruption appeal that I was working on, I couldn't find the time. But without further ado....

Unbuckled seatbelts and prior gun case do not justify "officer safety" patdown

2007-11-09T16:40:00.000-05:00

Drugs found in "officer safety" pat-down were properly suppressed. No reason to believe that driver and passenger (defendant Wilson) were armed or dangerous, and therefore no reason to pat down defendant Wilson, when they are pulled over for seatbelt violations, even though the driver was rambling to police and admitted that he previously served federal time on a gun charge. The opinion also notes that the "officer safety" concern in traffic stops arises not solely from the person in the stopped car, but also from accidental injury from passing traffic. US v. Wilson, No. 06-6339 (6th Cir. 10/29/07)

Now is the Time to Challenge Acquitted Conduct

2007-10-05T10:27:00.000-04:00

Today in US v. White, No. 05-6596, a Sixth Circuit panel (Merritt, Daughtrey and Griffin) reluctantly upheld a sentence which included a 14 year enhancement based on conduct for which the jury had acquitted the defendant. Despite upholding the sentence, all three judges expressly agreed that such use of acquitted conduct is an issue that needs to be considered via en banc review. So if this comes up in any of your cases, be sure to raise it at sentencing and on appeal.

Possession of Sawed-off Shotgun Not A Violent Felony

2007-08-18T11:20:00.000-04:00

In United States v. Amos, the Sixth Circuit became the first circuit court to rule that a conviction for the possession of a sawed-off shotgun does not constitute a violent felony under the Armed Career Criminal Act. Six circuits had previously ruled to the contrary, on the idea that, since a sawed-off shotgun generally lacks any legitimate purpose, its possession must present a serious potential risk of injury. The Amos panel rejected that idea, relying on the plain language of the statute and then-Chief Judge Breyer's seminal decision in United States v. Doe that a felon--in-possession conviction does not constitute an ACCA violent felony. The basic rationale of the court was that the ACCA definition aims to embrace offenses of an active, rather than passive, nature, and that not all instances of possession of a sawed-off shotgun carry a serious potential risk of injury. Amos is the latest in a series of post-Leocal circuit decisions where the courts have taken a closer look at the violent felony or "crime of violence" definition, and recognized that the statuory language simply does not embark essentially passive offenses which do not, by the terms of their definition alone, create a dangerous situation. Great work by attorneys Michael Holley and Doug Thoresen at FPD in M.D. Tenn.

Rita Fallout

2007-08-08T14:05:00.000-04:00

In U.S. v. McGee, No. 06-1554 (6th Cir. 7/11/07) Judge McKeague writes, "Finally, Appellant argues that the presumption of reasonableness applicable to a sentence within the Guidelines range 'is not necessarily the appropriate way to review sentences,' and he asks us 'to reconsider its standard of review and to better define what a criminal defendant must do to rebut the presumption of reasonableness.' ... As we are bound by the Supreme Court's decision in Rita, we must deny the first part of Appellant's request." (Emphasis added) This overstates the holding in Rita.

The Supreme Court defined in issue in Rita as “whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Rita v. United States, No. 06-5754 (2007) (Slip Op. 7) (emphasis added) He later explained that “we permit courts of appeals to adopt a presumption of reasonableness.” Id., slip op. 15. In answering that a court of appeals could apply such a presumption, the Supreme Court did not mandate that every court of appeals must apply such a presumption, only that one could if it chose to do so.

Justice Breyer wrote for the Chief Justice and Justices Alito and Kennedy. In order to get a majority of the Court to sign off on this proposition, Justices Stevens and Ginsburg signed on, but wrote a separate concurring opinion. In that concurring opinion, Justice Stevens notes that he did not agree with the remedial part of the Booker decision, but is now bound to it by stare decisis. He notes that reasonableness review is simply the former abuse-of-discretion standard. As such, “[w]hile reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge’s individualized sentencing determination.” Id., at slip op. 5 of the concurring opinion. (emphasis added)

The Court’s decision in Rita affirms the expanded role that the district court must now play in sentencing, including its duty to reject the Guidelines if it finds them to be in conflict with the 3553(a) factors in a given case or that they would result in a sentence greater than necessary to effect the sentencing goals. In doing so, it attempts to give meaning to Booker’s command that the Guidelines are now “advisory.” As Justice Stevens notes, “I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.” Id., at slip op. 7 of the concurring opinion.

To be “bound” by the Supreme Court’s decision in Rita, therefore, is to recognize in the first place that the appellate presumption is not mandatory and, in the second, that “the rebuttability of the presumption is real.” (Id.) This McGee does not do.

No More Tolling

2007-06-21T15:06:00.001-04:00

In a unanimous, en banc decision issued today, the Sixth Circuit held that district courts may not order tolling of a term of supervised release. See United States v. Ossa-Gallegos, Case No. 05-5824. This issue frequently arose in cases involving non-citizen defendants expected to be deported after completing their terms of imprisonment. Many times the district court would include a special condition of supervised release, providing that supervision would not commence until the defendant lawfully returned to the United States (and not many defendants could ever expect to return legally). As a result, defendants who did find their way back to the US often were subject to both a new illegal reentry charge AND a violation of supervised release, even if the defendant did not return until years later. Kudos to attorneys Ron Small and Jennifer Coffin, both attorneys at the FPD in Nashville, who argued and briefed the case.

Lip Service to the Sixth Amendment

2007-05-09T13:36:00.000-04:00

This morning the state of Tennessee killed Philip Workman for the shooting death of police lieutenant Ronald Oliver. It did so despite serious questions about whether or not it was Mr. Workman’s gun that fired the fatal shot, or was a round of friendly fire by another police officer. This factual dispute would have affected both whether Mr. Workman was guilty of a capital murder (which, at the time, required that the shot be fired by the defendant or his associate) and, even if so, whether he should receive a death sentence. This factual dispute was never resolved by a jury.

This is particularly ironic given the recent attention that the Sixth Amendment right to a jury trial has been given in the U.S. Supreme Court in Blakely v. Washington and United States v. Booker. This right was found to be so important that the entire federal sentencing scheme was declared unconstitutional because of its failure to honor that right. But not for Philip Workman.

In 1998 a three-judge panel of the Sixth Circuit Court of Appeals affirmed the denial of Mr. Workman’s habeas petition because, in part, it found that fragmentation of the bullet could have explained why the exit wound was not larger (and, therefore, why it could still have come from Mr. Workman’s gun). Workman v. Bell, 160 F.3d 276 (1998). The opinion, written by Judge Siler, quotes a medical paper not part of the record as support for this argument as well as a note in the autopsy about a gunshot wound to a rib. What the opinion doesn’t cite is factual support from the record of the fragmentation of the bullet. The opinion notes, "Dr. Bell did not recover any bullet segment, to be sure, but no x-ray was taken and the small piece of metal could simply have been overlooked." 160 F.3d at 284. (emphasis added). Based on this supposition of what happened, the Court of Appeals affirmed the death sentence. After the issuance of this opinion, however, the x-rays of Lieutenant Oliver – for which the defense team had been asking for years - all of a sudden turned up. They show no fragmentation of the bullet remaining in the body.

Returning to the Court of Appeals, Mr. Workman’s lawyers pointed out to the en banc Court that the proof now showed that the supposition on which the Court had earlier based its denial of relief was not supported by the record. Seven of the then-sitting Judges agreed with Mr. Workman. Unfortunately seven others did not. With the death penalty, unlike baseball, a tie does not go to the runner (or the person who would be called "out"). A tie means you lose and your death sentence stands. The dissenting opinion was written by Judge Siler. Rather than conceding that his original supposition was wrong, Judge Siler spends several pages attacking the defense expert and his conclusion that the bullet that killed Lieutenant Oliver had not come from Philip Workman’s gun. (The other part of the opinion refers to this as "talk[ing] out of the other side of our mouths" (slip op. at 13).)

In all of this discussion of what the facts might or might not have been, one fact becomes clear: the jury never got to decide for itself and for or against Philip Workman. It didn’t get to decide because the local Medical Examiner’s Office never turned over this evidence either before or during the trial of the case. It didn’t get to decide because the District Attorney’s Office apparently never pushed for production of the evidence. It didn’t get to decide because the police officers involved all swore that none of them had ever fired their weapons (which other evidence later established was also not true). And it didn’t get to decide for itself because some appellate judges decided to make factual decisions despite a lack of evidence in the record. (The "majority" of the en banc Court noted, "We emphasize that we are not a trial court, and we have not been given the opportunity to actually review and weigh the evidence which our hypothetical reasonable jury would have reviewed." (Slip op. at 13)

In any other case in the system we hold up to the world as being the most just, such a result might be lamentable. When a man is killed because of such failures, however, such a tragedy must force us to ask whether the rights which our Constitution purports to guarantee to all men have any meaning or are just nice ideas which we can take out and parade around on the Fourth of July, but which we can ignore when hard decisions have to be made. Death penalty cases are, by definition, the worst of the worst. But if our rights do not apply in even (or especially) those cases, then they are not rights worth having, and no one can call the results just.

[Disclaimer: the author works in the office that represented Philip Workman]

Post-Sentencing Assault = +15 Years

2007-04-12T13:29:00.000-04:00

Reginald Ragland was sentenced in his possession of over 5 grams of crack cocaine case to 300 months as a career offender. His record included two separate aggravated assaults, two separate kidnappings, and an attempted rape. His Guidelines sentencing range was 265 - 327 months. He appealed this sentence and, when Booker was decided during the pendency of his appeal, had his case remanded for re-sentencing.

While his case was on appeal, however, Ragland got into an argument with his appointed counsel and assaulted him, causing counsel to move to be relieved. This might have just passed as one of those things that appointed counsel have to go through, except that the U.S. Attorney urged the district court at the sentencing hearing to use this assault as the basis for an upward variance to the statutory maximum of 40 years. New appointed counsel for Ragland objected that the government had provided no notice of its intent to seek an upward variance. The district court overruled this objection and sentenced Ragland to 480 months, citing his assault on his attorney as evidence of the public’s need to be protected from him. Ragland appealed anew.

The Court of Appeals in United States v. Ragland, No. 05-6732 (6th Cir. 4/2/07) (unpublished), with Judge Norris writing for Judges Cole and Clay, dispenses with the notice issue in two pages and the 15-year upward variance in a page, affirming both the notice and the sentence.

The government argued that Ragland had notice "because he was well aware of his own conduct." (Slip op. 5) Amazingly, the Court finds this position to equal "reasonable notice," noting that Ragland "had some prior notice that the incident would be discussed at the hearing." (Id.) Knowing that something will "be discussed" and knowing that a party will use that "something" to ask for a sentence 60% greater than the sentence originally imposed are two different things. Indeed, Ragland’s prior aggravated assaults had been used to find him a career offender and increase his sentence into the 265 - 327 month range. Who could imagine that another assault would then be used to increase his sentence by another 180 months?

In affirming the 480-month sentence, the Court notes that the district court "provided a reasoned explanation for variance and concluded that Ragland was likely to commit violent crimes in the future and that the public needed protection from him." In United States v. (William) Davis, 458 F.3d 491 (6th Cir. 2006), in which the Court reversed as substantively unreasonable a downward variance of 30 months, the Court ruled that "when the district court independently chooses to deviate from the advisory guidelines range (whether above or below it), we apply a form of proportionality review: ‘the farther the judge’s sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’ must be." 458 at 496. An extraordinary variance must be based on extraordinary factors. Id.

Although the upward variance in Ragland is 6 times the number of months varied downward in Davis, there is no discussion in Ragland of proportionality. This is all the more remarkable since the only intervening factor between imposition of the mid-range sentence of 300 months originally imposed by the district court and the 480-month sentence on remand is the assault on his attorney. Without diminishing the extent of that conduct, the court's approach raises a number of questions that go unanswered. Why does this conduct deserve a sentence 60% greater than that originally imposed by the district court? Why is the statutory maximum "sufficient, but not greater than necessary" to achieve the goals of sentencing? Why was a mid-range sentence appropriate at the first sentencing, but an above-range, statutory maximum sentence appropriate at re-sentencing based on the assault? While the district court may be right that such behavior indicates the defendant is a violent person, why does that justify a 15 year increase in his sentence, especially when the district court already knew he was a violent person (based on his record) to begin with? Why is this also true when Ragland is being sentenced for a drug conviction, not a crime of violence?

Another disturbing aspect of this case is the willingness of the Court to use post-sentencing negative conduct to enhance a sentence when it has expressly forbidden the use of post-sentencing positive conduct to lessen a sentence. See, e.g., United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006) ("Post-sentencing event or conduct [such as rehabilitative efforts] simply are not relevant to th[e] inquiry [of whether the district court would have imposed a different sentence in the absence of mandatory guidelines]."); United States v. Adams, No. 06-1185, 2006 WL 3791317, at *5 (6th Cir. 12/26/06) (district court properly declined to consider post-sentencing rehabilitative efforts); United States v. Feazell, No. 06-1147 (6th Cir. 3/7/07) (same); United States v. Smith, No. 05-4644, 2006 WL 3717660 (6th Cir. 12/18/06) (reversing lower sentence by district court based on post-sentencing rehabilitative conduct).

This case continues a recent trend in this Circuit in which sentences get longer and explanations get shorter. Having "a reason" has become synonymous with being "reasonable." Blacks Law Dictionary (5th Ed.) defines "reasonable" as "fair, proper, just, moderate, suitable under the circumstances . . . not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." So, is a 15-year increase in a sentence to the statutory maximum based on post-sentencing conduct that, under the Guidelines, would've provided for an incremental increase in criminal history "not immoderate or excessive, honest, equitable, fair, suitable, moderate or tolerable"? Maybe so, but the record in this case would not indicate it.

[UPDATE: The original of this post described the assault as a misdemeanor simple assault based on the description in the Court's opinion. AFPD Randy Alden e-mailed me to explain that the injuries suffered by AFPD Pat Brown in this case were more serious than described in the opinion. He also explained that Pat was called to testify about the assault and the extent of his injuries at the sentencing hearing. Based on that information I have changed this post to reflect that this was not a misdemeanor. I don't think it changes the legal issues and problems with this case, but I do not want anyone to think that we are belittling what happened to Pat. I know Pat Brown to be a strong advocate for his clients and was sorry to hear the extent of his injuries in this case. - SLC]

www.outsidetherecord

2007-04-03T18:03:00.000-04:00

In United States v. Husein, 478 F.3d 318 (6th Cir. 3/2/07), the government attempted to supplement the record with facts it cited as coming from "westlaw.com," but providing no other citation. The Court of Appeals held that a party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal. While F.R.App.P. 10(e)(2) allows the correction of misstatements in the record, it does not allow the introduction of new evidence in the court of appeals. Nor did the circumstances of this case allow the application of judicial notice under F.R.Evid. 201(b) which requires that "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Referring to the generality of the government cite, the Court stated, "Although the relevant information might well be available in one of Westlaw's many online databases, that fact alone, without any guidance from the government as to where in Westlaw one might locate the information, hardly fulfills the mandate of Rule 201(d)."

Despite this position, in several cases recently the appellate record appears to have been supplemented with information from the Internet – by the Court. In United States v. Whited, No. 05-5959 (6th Cir. 1/9/07), a methamphetamine case, the issue was whether the 6-level Guidelines enhancement for "substantial risk of harm" applied. In deciding that it did, the Court of Appeals, noting that defendant had been arrested in a motel with a meth lab present in the room, states, "According to travel web sites, the motel is an 81-unit complex. ... Whited's methamphetamine laboratory was in a densely populated area. As noted, the motel room where Whited operated the laboratory was one of 81 units -- more than 10 times the number of units in Layne." (slip op. at 4). There is no cite to which websites were consulted to get this figure. That "fact" was used to affirm application of the enhancement.

The citation to the Internet in Whited suggests that the information concerning the size of the motel was not available in the record. Without a citation to the specific websites from which the information came, it is also not possible to determine whether the sources are those whose accuracy cannot reasonably be questioned.

In United States v. Martin, No. 04-6428 (6th Cir. 2/21/06), the appellant/defendant was attacking the meth conversion ratio in the Guidelines as not being in compliance with the Congressional directive creating it. As a part of its holding, the Court of Appeals notes, "The DEA report on which the Commission based its conversion ratio is no longer available on the DEA website and is not part of the record in the present case. A document that appears to be the report, however, remains available through another publically accessible website. See Gene Haislip, Methamphetamine Precursor Chemical Control in the 1990's (1996), http://www.erowid.org/archive/rhodium/chemistry/dojmeth3.txt (stating that '[a]ctual yield in clandestine labs is typically in the range of 50 to 75 percent') (last visited Feb. 14, 2006)."

At least in this case the Court notes the source of the information and the date on which it was viewed. Even so, the appellate court can't find a document in the record so it searches it out on the Internet, finds what might be the document (unchanged at least as of the last time the Court visited the website) and then cites it in a published opinion. In both Whited and Martin the Court has filled in the blanks for the prosecution when its proof was lacking.

In Scipio v. Sony Music Entertainment, Inc., 173 Fed.Appx. 385 (6th Cir. 2006) (unpublished), a music copyright contest, the court refers to different websites where one can listen to the songs alleged by the plaintiff to have been sampled. "fn 2: To hear 'Dove,' go to http://www.cymande.co.uk/music/music.htm (click on 'Cymande 1972,' and then song six, 'Dove'). fn 4: For an excerpt, go to http://www.artistdirect.com/nad/store/artist/album/0,,226252,00.html (scroll down to song nine)." Now, maybe these songs are in the record, but if so, there is no corresponding record cite. While the issue in the appeal was whether or not one of the parties should be bound by an agreed settlement, would the legitimacy of the claim affect the appellate court's decision? That is, if the Court of Appeals listened to the songs and decided for themselves that the song had been sampled, would that affect the way they viewed the potential settlement? Should they have the ability to go outside the record? If they already have that ability (which this case makes clear they do), should they exercise it?

Does this use of the Internet raise any issue about the integrity of the appellate record? For what information can the Court of Appeals look on the Internet? For what information can it not look? What says so? What about the reliability of the information that it searches? (the Wikipedia factor) What if the report that it found in Martin had been changed after being used by the DEA? How would one know (since the original was never put into the court record in the first place)? What if the Court bases its decision on information not in the record but retrieved from the Internet, as in Whited? If the Court can cite to information outside the record, but garnered from the Internet, can the parties do the same? What are the limits of such citation? Just what is the source of the information that is being cited? That is, who’s on the other end and what is their motive or angle for posting the information in the first place?

What is to stop the Department of Justice from directing other executive branch law enforcement agencies to post on their websites on the Internet information to which DOJ wants to cite in their briefs (but which is not in the record developed in the district court)? In civil cases, where companies often have very active websites, what is to stop them from posting information that could be helpful to their appeal?

The Internet is full of information, some accurate, some not. If it is going to be cited to just like the dictionary, there should be some discussion about when such is appropriate and what rules must be in place to protect the integrity of the fact-finding function of the courts and the parties. In Husein, the Court discusses some aspects of this question when the citation is being done by a party. To date, however, no discussion appears to have taken place when the citing is being done by the Court.

Compound Interest on the Nickle-and-Dimed

2007-03-27T10:56:00.000-04:00

In its Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, the United States Sentencing Commission, discussing the career offender provisions of the Guidelines, noted that the career offender provision was a sentencing rule "that [has] a disproportionate impact on a particular offender group [namely, African-Americans] but that serve[s] no clear sentencing purpose . . . The recidivism rate for career offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules in Chapter Four of the Guidelines Manual. The career offender guideline thus makes the criminal history category a less perfect measure of recidivism than it would be without the inclusion of offenders qualifying only because of prior drug offenses." At 134 (emphasis in original). "[C]riminologists and law enforcement officials testifying before the [Sentencing] Commission have noted that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else." Id.

Jimmy Gene Brumley was a nickle-and-dime street dealer who appears to have sold drugs mainly to support his own habit. He was caught by police in Memphis, Tennessee, with such a small amount of Dilaudid and Vicodin tablets that his offense level based on the quantity of drugs was an 8. [While federal court has, in most districts, been reserved for large quantity drug cases, the U.S. Attorney for the Western District of Tennessee has for years prosecuted what would anywhere else be small quantity state drug cases, using the hammer of the crack cocaine sentences and the career offender provisions to the benefit of the Bureau of Prisons and the stockholders of Correctional Corporation of America.] When the calculation of Jimmy Gene's criminal history was factored in, his Guidelines range was 12 - 18 months. Coupled with some intensive drug treatment, a high-end of the range sentence might have helped Jimmy Gene break the cycle of drug use and imprisonment at a total cost to taxpayers of about $37,000.

In addition to other things, however, Jimmy Gene was also a career offender under the Guidelines. This pushed his offense level from 8 to level 32 and pushed his criminal history to the highest category, VI, with a concomitant range of 151 - 188 months. At the sentencing hearing, Jimmy Gene's defense attorney pointed out that this was a twelve-fold increase for the conduct to which he had pleaded guilty, pointed out the role that his drug addiction had played in his life (and its impact on his criminal history) and urged the court to impose a lower sentence. Although acknowledging the impact of his drug usage and his "urgent need for drug counseling," the district court imposed a sentence of 144 months.

On appeal, Brumley argued that the district court had failed to analyze how the 144 months would further the objectives of § 3553(a) more than the lower sentence he proposed, and had failed to explain its rationale for the imposition of the 144 months. United States v. Brumley, No. 05-6747 (slip op. 5) (6th Cir. Jan. 9, 2007) (unpublished). Writing for Judges Moore and Clay, District Judge Bell notes the presumption accorded to sentences within the Guidelines range. Id. at 3. Brumley's sentence, of course, was actually just below the Guidelines range. "However, because it was below the guideline range, and because we are considering a challenge to the sentence by Brumley rather than by the government, his sentence is entitled to the presumption of reasonableness." One searches in vain for the legal support for this newly-crafted proposition. There is none. One searches, also in vain, for the dissent from Judge Moore, who originally refused in U.S. v. Webb to find a within-range sentence to be per se reasonable.

One continues this same Grail quest for some sign of objection from Judge Clay, who once wrote, "While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. ... Nothing in the text of the § 3553(a) elevates the now-advisory Guidelines sentence above other factors or permits the district court to 'presume' that the advisory sentence would be reasonable for an individual defendant." United States v. Cage, 458 F.3d 537 (6th Cir. 2006) (Clay, J., dissenting). In a footnote in Cage, Judge Clay noted, "I also question whether the rebuttable presumption language in Williams should be considered to be binding on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the Guidelines range is per se reasonable." Id. at n2.

What happened to the objections of these two reasoned jurists to the march back to mandatory Guidelines that they saw as contrary to the Supreme Court's holding in Booker? Have they changed their positions? Have they been overwhelmed by the press of sentencing appeals? That is not clear. The only thing that is clear is that they go along with Judge Bell's expansion of the presumption of reasonableness where, apparently, no one has gone before. But I digress ...

What of Jimmy Gene's arguments against the reasonableness of his sentence? Addressing the district court's alleged failure to explain the sentence it chose, Judge Bell writes, "A defendant's 'mere allegation that the sentence imposed is greater than necessary to achieve the goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness,' and the fact that the district court did not give a defendant the more lenient sentence he requested does not jusitfy setting his sentence aside." Citing U.S. v. Dexta, 2006 WL 3589790 (6th Cir. 2006). This, of course, does not answer the question of whether the district court complied with the procedural requirement that it explain its sentence. Judge Bell finds that because the district court addressed the § 3553(a) factors the sentence was both procedurally and substantively reasonable.

No one ever explains why a twelve-fold sentence for a drug addict, that will cost the taxpayers around $300,000, is "sufficient, but not greater than necessary" to accomplish the aims of sentencing as opposed to the lower sentence requested. Given the acknowledgement by the Sentencing Commission itself in its Fifteen Year report that the career offender provisions are a poor measure of recidivism, the blind faith adherence to the Guidelines (and worse, given the expansion of the presumption) shown by both the district court and the Court of Appeals in this case raises questions about the continued vitality of Booker.

Makes You Think

2007-03-22T16:23:00.000-04:00

In Booker the Supreme Court told us that the Guidelines were but one factor to be considered in deciding the sentence. The Court of Appeals has since confirmed that the Guidelines do not have any more weight than any other factor at sentencing. Review of a sentence in the Court of Appeals is for the reasonableness of the sentence. A Guidelines sentence is accorded a presumption of reasonableness. [But Webb at fn9?] A sentence must be procedurally and substantively reasonable.

Surely, the first measure of what is reasonable would be to examine the Guidelines in the context of the statutory range? Surely, too, the statutory range would set the limit of what could possibly be reasonable? Maybe in some world where everyone agreed about what the post-Booker structure of sentencing would be, but not here.

In United States v. Merrell, No. 05-6577 (6th Cir. 2007), the Guidelines range in this methamphetamine case was 360 months - life, but the statute carried a maximum of 20 years (240 months). Judge Katz (district judge, NDOhio), writing for Judges Clay and Rogers, finds the maximum sentence of 240 months to be substantively reasonable noting that the 240 months was "a figure one-third less than the low end of the Guidelines range." (Slip Op. at 12)

Some might think that a Guidelines range that exceeded the statutory maximum by 50% (and more) would itself be per se unreasonable. Some might think that such a Guidelines calculation would demonstrate the very Sixth Amendment problem in Blakely and Booker where uncharged conduct is used to increase a potential sentece above the statutory maximum. Some might take this to be evidence that the Guidelines are, in fact, deeply flawed and out of true with the very statutes to which they purport to pertain. Some might think that the statutory maximum would be reserved for the worst of the worst who had no mitigation, instead of a case involving meth manufacture by a meth addict where even the sentencing court noted that the defendant's criminal history was all related to his drug addiction. Some might think so, but not this court.

Departure Affirmed

2007-03-16T11:47:00.000-04:00

Just as there is much backsliding toward a scheme that would effectively re-institute mandatory Guidelines, the Sixth Circuit's decision in United States v. Husein, No. 05-2548 (6th Cir. 3/2/07) (Gilman, Martin & Cole, JJ.), shows clearly how advisory guidelines can work post-Booker.

Fadya Husein pleaded guilty to her role in two sales of a total of 763 ecstasy pills. (She helped arrange the meetings and was physically present, but was neither the buyer nor seller.) Her Guideline sentencing range was found to be 37 - 46 months in prison. As mitigation at sentencing, she offered that her father was a stroke victim who required around-the-clock attention which she and her mother provided, and that she was the only one in the household with a driver's license, critical for those occasions when her father needed to be taken to the doctor or the hospital. (Interestingly, after reading this information in defendant's sentencing memorandum, the district judge sent the probation officer to the house to report on the extent of the father's problems, which he did.) After hearing proof about Ms. Husein's necessary part in the household, the district court granted a downward departure and sentenced her to 1 day of imprisonment and 3 years supervised release with 270 days of home confinement as a condition thereof.

In affirming the district court sentence, the Court of Appeals confirms certain principles that would seem to naturally flow from a finding that the Guidelines are advisory and are but one factor to be considered. The panel first notes that the circumstances of Ms. Husein's situation meet the definition in §5H1.6 for exceptional family circumstances. Beyond that, however, the court points out that "'[p]ost-Booker caselaw confirms Husein's understanding that family circumstances can form the basis of either a Guidelines-authorized departure or a non-Guidelines, § 3553(a)-based departure, also known as a variance." (Slip op. at 8) Adopting language from the Ninth Circuit, the court notes that "[i]n the broader appraisal[ ] available to district courts after Booker, courts can justify consideration of family responsibilities, an aspect of the defendant's history and characteristics, 18 U.S.C. § 3553(a)(1), for reasons extending beyond the Guidelines; district courts now have the discretion to weigh a multitude of mitigating and aggravating factors that existed at the time of mandatory Guidelines sentencing, but were deemed not ordinarily relevant, such as age, education and vocational skills, mental and emotional conditions, employment record, and family ties and responsibilities.'" (Slip op. at 9) (citing U.S. v. Menyweather, 431 F.3d 692 (9th Cir. 2005).

In finding the sentence to be substantively reasonable, the court noted that there was no mandatory minimum sentence applicable to Ms. Husein. The significance of this fact may resonate beyond the facts of this case: "Congress thus not only envisioned, but accepted, the possibility that some defendants found guilty of that subsection of the statute would receive no jail time at all. This is especially significant in the area of drug-related crimes, where mandatory minimum sentences ... are most common. ... Accordingly, if a mandatory minimum denies discretionary authority to a sentencing judge, then that authority is a fortiori restored where, as here, no mandatory minimum exists." (Slip op. at 11)

The Court also notes that, as to departures from the Guidelines (and not variances under § 3553), the pre-PROTECT Act standard of abuse-of-discretion review was the appropriate standard of review.

The sentence in this case was affirmed because of the work of defense counsel in presenting the district court with all of the facts that it needed to make this decision, and by the careful and thoughtful way that the district court approached this sentencing and explained its decisions. The result here is consistent with the Sixth Circuit's rulings in cases like United States v. (Lonnie) Davis, 458 F.3d 505 (6th Cir. 2006), in which the Court upheld a district court's within-Guidelines sentence based on the district court's careful review of the facts and its thorough explanation of the reasons for its sentence. Its recognition of the broader landscape in which judges can work post-Booker also appears to be more consistent with the intent of Booker than those decisions that would take us back to mandatory guidelines (de facto if not de jure).

Dicta About Dicta

2007-03-16T10:49:00.000-04:00

It is axiomatic that one panel of a Court of Appeals cannot overrule a decision of another panel. See, Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985). This apparently, however, does not prevent attempting to limit to nothingness the holding of the other panel's decision.

In discussing what the Court of Appeals requires of district judges in order to conduct its own reasonableness review, the Sixth Circuit has held, "We emphasize the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence. Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable." United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

In United States v. (Dontay) Tyler, No. 05-2252 (6th Cir. 3/2/07) (unpublished) (Per Curiam: Merritt, Daughtrey & Griffin, JJ.), the defendant/appellant argued that the district court had failed to address the mitigation presented at the sentencing hearing, citing Richardson. The per curiam court states, "We conclude that the defendant has read too much into our opinion in Richardson. ... And, in dicta, we further suggested that '[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it.'" (Slip op. at 4)

While this "holding" would seem to limit the holding above in Richardson out of existence, it should be noted that the statement in Tyler appears to be dicta itself. It is certainly not critical for the ruling because the court finds that the district court complied with "both the holding and the dicta in Richardson." Such a holding is not, therefore, necessary and would seem to be dicta in and of itself. So if dicta is not persuasive authority, what is the impact of dicta about dicta?

Even as dicta, however, this appears to signal a retreat from that arm of the court that has been trying to give teeth to the changes wrought by Booker. (See, Paradigm Shift or Business as Usual?, below) Given the questions asked by the Court during the arguments in Rita and Claiborne, it is unclear how much of the post-Booker mess the Supreme Court will clean up. There may yet be much to be done in Vonner. More to come.

How Much Is Enough?

2007-03-01T19:30:00.000-05:00

How much does a district court have to say when imposing a sentence in order to protect that sentence on appellate review? "A district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination. Absent from the district court’s statement of reasoning is any application or explanation of the various § 3553(a) factors..." United States v. Harden, 195 Fed.Appx. 382, 386 (6th Cir. 2006) (unpublished) "Although we have held that it is not necessary for a district court to engage in a ‘ritualistic incantation’ of the Section 3553(a) factors, we have also not held that the mere recitation of the magic words ‘Section 3553(a)’ is itself sufficient to immunize a district court’s sentencing decision from reversal. To so hold would send a false message to district courts that all they need to do at sentencing is list the Section 3553(a) factors, impose a Guideline sentencing, and conclude by stating that the sentence provides ‘just punishment and affords adequate deterrence.’ Magic words are not necessary, but nor are they alone sufficient." United States v. Vonner, 452 F.3d 560, 568 n4 (6th Cir. 2006), rehearing en banc granted, judgment vacated (Oct 12, 2006) (emphasis in original).

According to the opinion in United States v. Snowden, No. 05-6778 (6th Cir. 2/26/07), the district court’s explanation for the imposition of a 240-month sentence for 15.7 grams of crack cocaine and a gun in possession of a felon was, "[T]he guideline range affords the Court more than enough discretion in imposing an appropriate sentence [in this case]. Such a sentence will reward the defendant for the substantial assistance that he’s rendered the government; it will also serve to reflect the seriousness of the offense, provide just punishment for the offense, to afford adequate deterrence for this type of criminal conduct, and also protect the public from future crime that Mr. Snowden might be inclined to commit." The Court of Appeals found that "These considerations directly comply with those laid out in § 3553. ... Hence, the sentence is procedurally reasonable." (Slip Op. at 7-8)

But is it? Why is this perfunctory statement of enumeration of the factors sufficient? Because it is certainly true about the statement in Snowden that absent from it is any "application or explanation of" the factors. Harden. What does the statement in Snowden tell us about why the district court imposed a sentence of 20 calendar years on a young man who had never served more than 1 year before? About why 20 years is "sufficient, but not greater than necessary" to achieve the aims of sentencing in this case? While the district court certainly recites the factors, missing is any true application of the factors to the facts in Snowden, or any explanation of why the factors mandate a two-decade sentence.

What this case does tell us about is the ideological distinctions within the Sixth Circuit over the development of post-Booker reasonableness review. Clearly one part of the fight is over the extent to which a district court should have to "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). There are those judges of the Sixth Circuit who, as in Harden and Vonner, insist that the explanation be meaningful and sufficient for the appellate court to understand why the particular sentence was chosen. There are those judges who would find it sufficient for the district court to simply state that it had considered the factors without requiring any further explanation. While the questions accepted for review in United States v. Rita could resolve this issue, they by no means have to. It may very well be that this issue takes the fore in the Vonner en banc. In the meantime, the result in sentencing cases in the Sixth Circuit continues to depend on who’s on the panel.

Forward We March Into the Past

2007-02-23T17:20:00.000-05:00

Two recent Sixth Circuit cases dealing with reasonableness review showcase the continuing problem of how to make both the constitutional and remedial parts of Booker work in practice.

The district court in United States v. (Conrad) Smith, No. 05-4425 (6th Cir. 1/26/07) (Kennedy, J., & Aldrich, D.J. (NDOhio); Gibbons, J., concurring), departed upward from the Guidelines range of 30-37 months to 57 months under §4A1.3 based on the inadequacy of the defendant's criminal history calculation. In reviewing the sentence for reasonableness, the Court of Appeals decides to apply the pre-Booker 3-step approach of U.S. v. Joan, 883 F.2d 491 (6th Cir. 1989). In doing so, the court notes the "obvious conclusion" that "review of a district court's upward departure to a higher offense level should mirror our analysis of its variance from the guidelines range." While this purports to be a discussion about departures, exactly the opposite is happening -- review of a post-Booker variance is being put in the straightjacket of Guidelines departure review. The two are not co-equal. The first step in Joan is "whether the circumstances of the case are sufficiently unusual to justify departure." Post- Booker, however, the review of a variance is not limited to the strictures of departure. See, e.g., U.S. v. McBride, 434 F.3d 470, 476 (6th Cir. 2006) ("Furthermore, many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court – with greater latitude – under section 3553(a).") (emphasis added). Recognizing that, in fact, review post-Booker is not the same as review under the Guidelines, the Court in Smith notes that its ultimate job is to determine whether the sentence is reasonable and so imports reasonableness review, but only into the 3rd step of Joan (where it already existed).

While a step backward from the guidelines-are-advisory direction of Booker, this case should not be expanded beyond what it actually is -- review of a departure (not a variance). The higher sentence here was given pursuant to §4A1.3 and not as a consideration of the § 3553(a) factors. As such, it should not be used in any case involving the discussion of a post-Booker variance, even based on criminal history factors.

Judge Gibbons' concurrence would accord a presumption of reasonableness to the range to which the district court departs (in this case 46-57 months) because the §4A1.3 departure occurs within the structure of the Guidelines, as opposed (she notes) to a §5K2.0 et seq. departure. Such an extension, however, would accord such upward departures even greater protection than they had under the mandatory Guidelines.

In United States v. Funk, No. 05-3708 (6th Cir. 2/22/07) (Batchelder, J., Boggs, C.J., & Bell, C.D.J. (WDMich.)), the Court confronts the opposite situation of Smith – the district court in this post-Booker re-sentencing remand found that the career offender provision overstated the defendant's criminal history and applied the Guidelines without reference to the career offender provision, sentencing the defendant to 150 months, instead of within the 262 - 327 month range career offender would have required. The district court gave a lengthy explanation at the re-sentencing hearing and supplemented its decision further in the judgment and commitment order. In reversing the district court, the Court accords no presumption to the sentence since it is outside the Guidelines range. (Implicitly rejecting, without discussing, Judge Gibbons’ suggestion in Smith that a §4A1.3 departure should be accorded such a presumption because it is a "within the Guidelines" change. It is also not clear from the opinion whether this is a departure or a variance, though the opinion treats it as a variance.)

What the Court of Appeals takes biggest issue with is the district court’s finding that a sentence of 150 months would be sufficient in this particular case. "Sufficient, but not greater than necessary" is, of course, the standard imposed on district court’s by Congress in § 3553(a). The Court finds that the district court’s sentence reflected "a disagreement with Congress about what an appropriate sentence for a repeat offender meeting the criteria of U.S.S.G. §4B1.1 would be." The Court therefore holds that "a district court making sentencing determinations may not implicitly reject Congress’s policy decision to prescribe harsher penalties for career offenders by ignoring or outright rejecting a defendant’s status as a career criminal offender."

How then to reconcile the district court’s Congressional mandate to impose a sentence "sufficient, but not greater than necessary" with the Congressional (and Supreme Court’s Booker) dictate that the Guidelines are one of the factors the district court must consider in setting the sentence? To do as the Court has done in Funk is to once again accord the Guidelines status as a mandatory body of law, something that Booker forbids. If the Guidelines are truly "advisory only," then they must always be subservient to higher dictates of law, such as the parsimony provision of § 3553(a). What the Court has done in Funk is to say that one of the factors of § 3553(a) trumps the over-riding dictate of § 3553(a) to impose a sentence sufficient but not greater than necessary to achieve the aims of sentencing. If the Guidelines are truly advisory, a district court must always be free to say, "for the following reasons, I find that the Guideline range, and the basis for getting there, does not meet the aims of § 3553(a)."

The problem with even describing a sentence outside the Guidelines as "a variance" is that by definition it accords the Guidelines preeminence and status as the default starting point. If Booker and its progeny are correct, and the Guidelines are but one of the factors that are to be considered under § 3553(a), then the Guidelines cannot be the starting point and a sentence that is not within the Guidelines is not "a variance," but is simple the sentence that is "sufficient, but not greater than necessary" to accomplish the aims of § 3553(a).

While this might suggest a system that is as uncontrolled as the pre-Sentencing Reform Act days, the check on runaway district court judges is an appellate requirement that the district court give a meaningful explanation for its sentence that focuses on the 3553(a) factors and the parsimony provision of 3553(a). This is, of course, one of the issues pending in Vonner.

Both Smith and Funk give scant attention to the view of the Guidelines as but one part of the district court’s consideration and continue the recent trend forward to the past of binding Guidelines sentencing by importing the stricture of departure standards into post-Booker discussions and by according the Guidelines stature that is inconsistent with the decision in Booker. The idea that the further one "varies" a sentence, cited in both Smith and Funk, the greater must be the explanation in support of it was met with skepticism by Justice Breyer during the argument in Claiborne. ("And if he has a good reason, well, why doesn't it justify a lot just as much as it might justify a little?") Given that Justice Breyer was the author of the remedial part of the decision in Booker, this may only highlight the confusion caused by the Supreme Court’s failure in Booker to explain how such an advisory-only system would work. Hopefully we will get that explanation in Rita/Claiborne.