Red Dog

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

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Friday, July 20, 2012

Career Offenders and Crack Reductions

Just put this one up on the 6th Cir. blog, so you'll see it there too.

United States v. Jackson, 678 F.3d 442 (2012).

Panel of Judges Merritt, Boggs, and Clay. Judge Boggs dissented.

Decided May 8, 2012.

Rehearing en banc denied on July 9, 2012. Mandate issued July 17, 2012.

This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc.

Career offender. Sentencing was delayed to see if Congress would lower the crack penalties. Court finally sentenced the defendant on July 16, 2010. Court did not apply the CO GLs. Instead, gave the D 150 months. This sentence was w/i the crack GLs that would have applied but for the CO enhancement.

While the case was on appeal, the FSA became law. D sought remand for reduction of sentence.

Was the sentence based on the career-offender GL or the crack GL?

While the D qualified for the CO enhancement, the focus was the crack GL actually applied. "To do otherwise is to impose a harsh sentence on defendant when the severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system, as well as by Congress."

Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs.

The crack GLs were "a relevant part" of the sentencing framework.

The procedural posture of this case makes it a little different---direct appeal. But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).

Judge Boggs dissented.

He finds that the applicable GL range was the pre-departure range: the CO range here. That range did not change with the FSA, so no reduction in sentence possible. Also finds that FSA statutory sentencing ranges are not retroactive. Cites Carradine.

Tuesday, July 17, 2012

New BOP Blog

Interested in BOP issues?  New blog to watch:

http://thebopblog.blogspot.com/



CP Trial: Rape Shield, Double Jeopardy, and More

I just posted this one on the 6th Cir. blog b/c it's my week to post there.  So you may have seen it already....

United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).

Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).

Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl. Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP).

Defendant went to trial. On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men. He said this evidence was critical b/c it showed other men induced the victim to create the CP. The COA rejected the arguments and affirmed.

Issue I: Double Jeopardy.

* We've seen this issue more and more recently. Possession charge + receipt charge = double jeopardy? Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011).
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer. The possession offense sprang from the transfer of the images to a different medium (an external hard drive).
* Different conduct, so possession not a lesser-included offense of receipt.

Issue II: Knowingly Receiving Images.

* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP.
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct.
* And there was ample evidence that D here was practically certain that he would receive CP.

Issue III: Someone Other than D Coaxed Victim to Produce Images.

* Record shows D asked victim to produce images. She produced pics during her "relationship" with D.
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men. Logs not admissible b/c of Rule 412, so not subject to Brady.
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense. Enough other evid that D induced victim to engage in sexual conduct and film it. Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found. And victim here a minor, so even stronger interest.

Issue IV: Restitution.

* D argued that dist ct should have admitted the chat logs at restitution hearing. D was required to pay most of victim's psychotherapy costs.
* But nothing in record that dist ct excluded chat logs at hearing.
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence.

Tuesday, July 3, 2012

FSA Getting Fleshed Out

United States v. Finley, No. 10-3672 (6th Cir. June 29, 2012) (unpublished).

Panel of Judges McKeague, White, and Barrett (S.D. Ohio).

OK, so we got Dorsey on June 21: the FSA applies to defendants sentenced after the FSA went into effect, even if the offense occurred pre-FSA

Well, the Sixth Cir. just concluded that the FSA does not apply to people sentenced pre-FSA, even if their cases were on appeal when the FSA went into effect.  The COA rejected a Dorsey argument

Mandatory life on the table in Finley.  Jury found D guilty.  GL range of 151 to 188 months, but statute trumped and D got life in prison.  Mandatory minimum under the FSA would have been ten years (248 grams of crack + prior convictions).

COA looked to 1 U.S.C. 109 and Carradine.  Also looked to other circuits.  Cabined Dorsey to post-FSA sentencings.  COA rejected policy arguments.  Court also rejected argument about the case being on direct review: precedent on this issue applies only to S Ct decisions that come out---not to statutes. 

(The other issue was ineffective assistance of counsel.  While the defendant "raises serious questions about the competence of his defense counsel," ineffective-assistance claim not for direct appeal---needs to be in 2255.) 

COA affirmed.

Enjoy the 4th!