OK, I'm sorry for being such a bad blogger, but I'll be better now. Things have calmed down. Blogging more will be a new-year's resolution. ;)
OK, we are seeing restitution claims in child-pornography case now in the WD Mich. We talked a little bit about this issue at CDAM in TC. I just posted re the Fifth Circuit's decision, en banc, in November. Here's the link to my post on the Sixth Circuit blog. The opinions totalled 58 pages and are worth a read if you are into statutory interpretation.
http://circuit6.blogspot.com/2012/12/the-cp-restitution-debate-continues.html
Have a good weekend!
I plan to be back here, and blogging fully here---not just links---next week!
Friday, December 7, 2012
Saturday, September 8, 2012
6th Cir Changes
Sorry, trial has made time scarce, so no blogging.
But FYI: 6th Cir. amended the 6th Cir. Rules on Aug. 16, 2012. New ones are on-line. Check your citations! There are changes!
http://www.ca6.uscourts.gov/internet/rules_and_procedures/pdf/rules2004.pdf
Also, the checklist for briefs in not on-line. It's under review, so I anticipate some changes there too.
But FYI: 6th Cir. amended the 6th Cir. Rules on Aug. 16, 2012. New ones are on-line. Check your citations! There are changes!
http://www.ca6.uscourts.gov/internet/rules_and_procedures/pdf/rules2004.pdf
Also, the checklist for briefs in not on-line. It's under review, so I anticipate some changes there too.
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Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication).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!)
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" amendment. Rule 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).
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" amendment. Rule 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).
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.
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
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.
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.
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