Gun and Personal-Use Marijuana

United States v. Shields, No. 10-5004 (6th Cir. Dec. 30, 2011) (published).  Panel of Judges Cole, Rogers, Sargus (S.D. Ohio).

Just out!  Four-level enhancement for possessing gun in connection with another felony under 2K2.1(b)(6). . . .

Defendant received 108-month sentence for being a felon in possession.  Was the 2K2.1(b)(6) enhancement appropriate?

* Defendant possessed gun and small, consumption-level quantity of marijuana (and a little cocaine residue). 
* Drug possession would have been a misdemeanor but for the defendant's prior convictions. 

Government did not sufficiently demonstrate that possession of the gun facilitated/had the potential to facilitate the felony drug possession.  Insufficient nexus between the firearm and the drugs. 

Sentence was procedurally unreasonable.

Noteworthy conclusions of the Court:

* While the fortress theory could be applied to support the enhancement in a case involving only drug possession (no trafficking), the gun in this case did not "embolden" the defendant to possess the drugs.

* United States v. McKenzie, 410 F. App`x 943 (6th Cir. 2011), is "materially indistinguishable" from the facts at hand.  Gun and marijuana in car.  Enhancement did not apply.

* No evidence of drug trafficking.  Very small amount of marijuana.  Not a valuable "stash."  Only worth about $10.

* Gun was allegedly for personal protection; it was not being used to protect "a baggie of pot."

* Commentary to 2K2.1 (note 14(B)) considers drug trafficking.  So while close proximity to drugs may be enough to apply the enhancement when there's trafficking, it is not enough when there is only drug possession.   

* Court rejects reasoning in United States v. Berkey, 406 F. App`x 938 (6th Cir. 2011).  Finds McKenzie more persuasive.  In Berkey, the court found more than mere proximity: defendant used drugs in public with the gun.  Court here, however, rejects the "in public" consideration as important. 

* Quantity of drugs possessed is a more relevant consideration.  A gun may embolden a person to carry a larger, more valuable quantity of drugs. 

* "A repeat possessor of a small amount of drugs would not feel the need to have a gun to protect that amount of drugs any more than a first-time misdemeanor possessor of such a small amount, and the firearm thus was not useful in [this] case." 

Remanded for resentencing.

 

Booker and Ohio Sentencing

Not too much going on this week.  But here's a note on a short, unpublished opinion on post-Booker sentencing in Ohio.

Featherkile v. Jackson, No. 10-3331 (6th Cir. Dec. 27, 2011) (unpublished).  Panel of Judges Cole, McKeague, and Griffin.  Per Curiam.

Petitioner convicted of gross sexual imposition, in Ohio state court, in 1999.  17-year sentence.  Resentenced in '06 under a new, discretionary sentencing regime after the Ohio Supreme Court applied Booker.  Case applying Booker was State v. Foster, 845 N.E.2d 470 (Ohio 2006).

Petitioner received the same 17-year sentence at resentencing.  He exhausted his state-court remedies, and then petitioned for a writ of habeas corpus in federal court.  He argued that the resentencing based on the new, discretionary sentencing regime violated ex-post-facto and due-process principles.  Specifically, he argued that the new sentence imposed a new and retroactive punishment because it was greater than the presumptive minimum sentence applicable pre-Booker and Foster. 

The appellate court considered the same claim last week in Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011).  In that case, the court concluded that resentencings under the discretionary sentencing scheme in Ohio post-Booker and Foster that result in sentences higher than the pre-Foster presumptive minimum sentence do not violate ex-post-facto or due-process principles.

Denial of petition affirmed.

Have a good New Year's celebration!!!! 

 

Happy New Year!

Happy New Year, everyone! 

Here's to a peaceful and joyful 2012!

Fast Track

OK, catching up a little. 

United States v. Sanchez-Duran, No. 10-5744 (6th Cir. Dec. 14, 2011) (unpublished).  Panel of Judges Guy, Kethledge, and White.

Was sentence procedurally unreasonable b/c the sentencing court did not recognize its authority to vary from the guidelines based on a belief that sentencing disparity created by fast-track programs is unwarranted?

The Court cites United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010).  The Camacho-Arellano court rejected the idea that district courts cannot grant variances based on disparities created by fast-track programs in other districts. 

Here, the defendant was sentenced after Kimbrough and Spears, but before Camacho-Arellano came out.  So the defendant argued remand was necessary b/c the district court did not recognize its discretion to consider the fast-track argument.

The Court concludes that it was not clear that the district court recognized its discretion to vary categorically from the guidelines based on fast-track disparities.  The district court's remarks could be read to suggest the court did not believe it had discretion b/c of prior 6th Cir. precedent. 

Camacho-Arellano discredits the argument that fast-track disparity "should not be disturbed because it reflect[s] congressional policy."  And the Court will not turn a blind eye to the context in which a district court's statements are made.  Even if the district court decision was ambiguous, the Court viewed it in light of the government's urging of an impermissible conclusion (that the court could not depart on the basis of fast-track disparity).

The record suggested that the district court did not believe it could vary based on unwarranted disparity created by fast-track sentencing in other districts.  The sentence was procedurally unreasonable and remand necessary. 

Merry Christmas!

Sorry for the lack of posts this week.  Hectic.  But Merry Christmas to all of you!

Escape from Courtroom NOT ACCA Violent Felony

United States v. Oaks, No. 06-6056 (6th Cir. Dec. 15, 2011) (published). Panel of Judges Kennedy, Martin, and Hood (E.D. Ky.). Judge Hood dissented. Judge Martin wrote the majority opinion.

Felon in possession.

Prior conviction for escape qualified as a prior conviction for ACCA purposes. Defendant appealed. Sixth Circuit affirmed. Supreme Court granted application for writ of certiorari and vacated. Remanded for reconsideration in light of Chambers v. United States, 555 U.S. 122 (2009).

Sixth Circuit then remanded to the district court for a determination of the type of facility and level of security at issue in the prior escape: custody of a county sheriff's department. The district court found that the defendant was in the county jail on felony charges (evading arrest, reckless endangerment, attempted agg. robbery, theft, agg. burglary), but had been taken to court for an appearance. He ran from the courtroom. The district court found that while the jail was a secure facility the courtroom was not.

So, appellate court found that the escape was from non-secure custody.

The question was whether the offense makes the defendant"significantly more likely than others to attack, or physically to resist, an apprenhender" such that there was a serious potential risk of physical injury. The appellate court looked to the U.S. Sentencing Commission report from Chambers to find statistics. The court found that escape from nonsecure custody is seldom violent.

The court held "that escape from 'nonsecure custody' is not a violent felony for sentencing purposes." The court does note that there may be situations in which a courtroom is a secure facility. . . . But the courtroom here was not a secure facility.

Remanded for resentencing.

Judge Hood (E.D. Ky.) dissented. He concluded that the defendant was in law-enforcement custody, so he was more likely to attack or physically resist, producing a serious potential risk of physical injury. He would have found that the offense was a violent felony.

Abbott means what it says. . . .

United States v. Thomas, No. 09-3827 (6th Cir. Dec. 13, 2011) (unpublished).  Panel of Judges Merritt, Moore, and Mays (W.D. Tenn.).

Conviction for possession of more than 1,000 kilograms of marijuana with intent to distribute, and for possessing a firearm in furtherance of a drug-trafficking offense.  Sentence of 151 months on the drugs + 60 months consecutive for the gun. 

Defendant argued it was error to impose the 60-month consecutive sentence given the 10-year minimum sentence for the drug count.  Defendant cited United States v. Williams, 558 F.3d 166 (2d Cir. 2009), in which the court concluded that the 924(c) sentence did not apply when the defendant was subject to a higher mandatory minimum for the predicate drug offense.  That was the old United States v. Almany, 598 F.3d 901 (6th Cir. 2010), argument.  Now, however, the S. Ct. has made it clear that the 924(c) sentence applies and is consecutive regardless of the mandatory minimum for the predicate offense.  Abbott v. United States, 131 S. Ct. 18 (2010).  Sentence affirmed.    

Fingerprint Evidence and Plain-Error Review of Sentence

United States v. Watkins, No. 09-3688 (6th Cir. Dec. 12, 2011) (unpublished).  Panel of Judges Gilman, Rogers, and Stranch.

Armed robbery of a credit union.  Conviction affirmed, but sentence vacated.

Procedural Highlights:

* Orally pronounced sentence on one count exceed the statutory maximum sentence and then conflicted with the minute order and the written judgment.

* Before the end of the sentencing hearing, the defendant asked the district court to direct the clerk's office to file a notice of appeal for him.  The notice, however, was never filed.  The defendant filed a pro se notice months later.  The district court then ordered the clerk's office to file a notice of appeal nunc pro tunc to the date of sentencing.

* The appellate court found that the district court lacked the authority to enter the nunc pro tunc order and dismissed the appeal for lack jurisdiction.

* The defendant filed a pro se 2255, which the gov supported, as the gov recognized that the defendant was not at fault for the untimeliness of the notice of appeal.  Sentencing discrepancy not addressed.

* To remedy the notice-of-appeal issue, the district court vacated its judgment and reentered a judgment, which matched the earlier written judgment. 

Conclusions of Court of Appeals:

* Usually, an oral pronouncement of judgment controls.  Oral sentence, however, constituted technical error b/c it exceeded the statutory maximum sentence.  Written judgment that would have corrected this error was issued two days after the Rule 35(a) deadline, however.  Because the defendant did not raise the issue on appeal and because the COA vacated the sentence, the court did not decide whether or not relief based on the discrepancy was in order.

* Admission of fingerprint evidence was not an abuse of discretion.  At CDAM and at local panel trainings, we've talked a little about forensic evidence.  In this case, the Sixth Circuit discussed the National Research Council's Strengthening Forensic Science in the United States: A Path Forward of 2009. 

* At the Daubert hearing, the gov fingerprint examiner testified that when the ACE-V method of identifying latent fingerprints is properly used by a competent examiner the error rate for identification is zero.  The defendant challenged this assertion.

* The COA found two problems with the challenge.  First, the National Research Council's report from 2009 was not before the district court in 2005.  Second, error rate is only one factor to consider.  Even if the gov examiner was wrong about it, that mistake would not negate the scientific validity of the ACE-V method given the other factors the district court had to consider, and which the defendant did not challenge on appeal. 

* Plain-error standard applied to procedural sentencing claim.  COA found that the sentencing "court's failure to explain [the defendant's] sentence constituted plain error."  No reasoning given for the sentence.  The sentencing court did not address the defendant's argument that the sentence was disproportionate to another bank robber's sentence.

* The COA distinguished United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), as in that case the court had offered "at least some" explanation for the sentence imposed.  There was no explanation in the case at hand. 

FBA SCOTUS Review Next Week

The WD Mich FBA is hosting their annual S Ct brown bag on Wednesday, Dec. 14, at noon in the jury assembly room (2nd floor of the fed cthouse).

http://www.westmichiganfederalbar.org/Federal_Bar_Calendar.php

See you there!