Red Dog

Federal criminal defense, blitzes and otherwise, in the Sixth Circuit and beyond.

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Thursday, August 23, 2012

ACCA and Shepard Documents

Sorry it's been so long without posts!

Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication).  Panel of Judges Boggs, Gilman, and Donald. 

Issue:

Can dist ct consider probable-cause affidavit incorporated by reference during a prior sentencing?

Conclusion:

Yes, b/c defendant stipulated to the facts in the affidavit.

Procedural History:

* Felon-in-possession case. 
* There were a number of prior offenses.  PSR scored defendant under ACCA. 
* Defendant objected.  He argued that two of his prior convictions should not be counted as separate offenses.  He argued the dist ct could not conclude that that the priors had occurred on occasions different from one another, as required by the ACCA.  The dist ct had to turn to the probable-cause affidavit the state sentencing ct had used as the factual basis for the prior no-contest plea.
* Dist ct concluded the D did not qualify for ACCA treatment.
* Gov appealed.
* COA reversed the dist ct and remanded for resentencing.

COA Opinion:
* The D had stipulated to the facts in the probable-cause affidavit.
* The state judge who sentenced the D on the prior stated he was using the affidavit as the factual basis for the plea. 
* If a defendant stipulates to the accuracy of a document describing the facts of an offense, and that stipulation falls into a Shepard source (eg the defendant stipulates during the plea colloquy), then that document the defendant stipulated to is acceptable under Shepard

Additional Points of Interest:

* Footnote 4: SCOTUS and 6th Cir have left open the issue of whether Shepard even applies in the context of determining whether prior offenses occurred on separate occasions.  Does Shepard just apply to determine whether a prior qualifies as a violent felony?  COA does not decide here b/c probable-cause affidavit here "became a Shepard-approved document when incorporated by reference in the plea colloquy." 
* It appears from the discussion in Amos that a defense attorney's stipulation is enough---the defendant need not actually stipulate on the record.  But this issue may be one to challenge.  There's room for argument

There's been a lot of interesting case law recently!  I'm trying to keep up!  I'll try to post more soon!

(Just b/c it's pretty!)



Friday, August 3, 2012

Ex Post Facto and GLs

United States v. Welch, No. 10-4025 (6th Cir. Aug. 2, 2012) (to be published).  Panel of Judges Merritt, Cook, and Cox (E.D. Mich.).

Counterfeiting case.

Two issues:

* Did dist ct violate Ex Post Facto Clause by calculating GLs with an amendment to 2B5.1 that went into effect b/t time of offense and sentencing, so defendant received a harsher sentence than would have applied at time of offense?

* Did dist ct err by not ordering fed sentence to run concurrently with undischarged state sentence (in contravention of 5G1.3(b))?

Conclusion:

* Remand necessary b/c Ex Post Facto Clause had been violated

Reasoning:

* COA considered whether the dist ct erred in using 2B5.1 instead of 2B1.1 to calculate offense level.  Usually, GLs in effect at time of sentencing apply.  2B1.1 had been standard.  2B5.1 had commentary excluding the D's offense.  But COA noted that 2B1.1 was not clearly applicable.  There was ambiguity, but most cts had been using 2B1.1

* In response to the confusion, Sentencing Commission had issued an amendment (731) that amended 2B5.1 to include explicitly the D's offense.  The amendment became effective Nov. 1, 2009.

* The D argued that using the amended version of 2B5.1, which took effect b/t the time of the offense and sentencing, violated the Ex Post Facto Clause. 

* If a revision to the GLs changes the legal consequences of an offense that occurred before the revision took effect---to the detriment of the D---the GLs in effect at the time of the offense must apply. 

* Here, 2B1.1 provided an offense level 5 levels lower than that under 2B5.1.  So there was an ex post facto violation. 

* The gov conceded the ambiguity of which GL section would apply, but argued that the amendment simply clarified what was always intended.  COA rejected this argument.  2B1.1 was the GL cts had been using.  And Commission did not label the amendment a "clarifying" amendmentRule of lenity had required using 2B1.1. 

* On the issue of concurrent or consecutive time, the COA used plain-error review b/c D had failed to object in dist ct.  5G1.3(b) did not apply b/c state conviction did not increase federal GLs.  Federal conduct was separate from the conduct that led to the state conviction (though both were counterfeiting offenses).  Dist ct properly exercised its discretion under 5G1.3(c)