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!

Good-Fath Exception and Form Affidavits

United States v. Moore, No. 11-5663 (6th Cir. Nov. 22, 2011) (published).

Panel of Judges Moore, Rogers, and Hood (E.D. Ky.).  Judge Moore filed a separate concurrence.

Felon-in-possession case.  Defendant moved to suppress the evidence.  Dist ct denied the motion.  Defendant appealed. 

Government acknowledged at oral argument that the search-warrant affidavit was "imperfect":
* Not detailed,
* CI not named (nor was the CI named to the magistrate),
* No cocaine quantity specified,
* Detective had more information, but did not include it in the affidavit.

Yet the appellate court found that "the warrant contains enough information to support the magistrate's finding of probable cause." 

The warrant/affidavit:
* Included statements from a CI,
* Included information regarding the CI's reliability and basis of knowledge,
* Used recent info (not stale),
* Established a nexus b/t the alleged criminal activity and the place to be searched.

Essentially, officers received info from a CI that an individual was selling cocaine from an apartment.  The warrant was mostly boilerplate.  (The affidavit was essentially a form affidavit widely used in the county.)

"Although a more detailed affidavit would have better served the purposes of the warrant requirement, the warrant in this case was valid." 

The affidavit stated that the CI had given information in the past that had led to two drug seizures, and the CI had seen personally the drugs and been at the residence in question.  This information satisfied the requirement that a CI's allegations "be bolstered by additional information in an affidavit." 

The appellate court does admonish that its "holding does not mean that the magistrate was required to issue the warrant, particularly since the affidavit was minimal in the ways conceded by government counsel."  The warrant requirement, the court continues, "puts primary responsibility on the magistrate to determine probable cause, and if the affiants repeatedly provide the minimum of information, magistrates would be acting within their discretion to demand more."

The appellate court goes on to say that, regardless of any defects in the warrant, the good-faith exception would save the warrant.  "Similar warrants have been upheld in numerous cases." 

Judge Moore's concurrence is interesting.  She would uphold the search only b/c of the good-faith exception.  She admonishes that "the majority's opinion does not constitute an open invitation to continue blind reliance on warrants of this nature."  Recognition of the problems with the warrant here, by the court and by the government, "provides notice that continued reliance on similar warrants, based on form affidavits with little to no particularized detail, may in the future result in inadmissible evidence without the backstop of the good-faith exception." 

Judge Moore continues, "the form affidavit's repeated use---with minimal to no unique detail and no further explanation under oath to the issuing magistrate---has persisted to the point of constitutional concern."  On the subject of unnamed CIs, Judge Moore explains that "when the identity of the informant has not been disclosed in the affidavit or to the magistrate, other indicia of reliability beyond the affiant's personal knowledge or past reliability---such as corroboration or a substantially detailed description of the alleged conduct---have also generally been required." 

Judge Moore points out that the officer did take steps to corroborate the CI's information.  (At the motion hearing in the district court, the detective revealed that he had previously set up two undercover buys b/t the CI and the target of the investigation at the apartment identified in the warrant application, and the detective had conducted surveillance on the apartment to confirm the defendant's identity.)  This additional investigation and its exclusion from the affidavit may suggest a practice of blind reliance on form affidavits in the county.  The concurrence concludes, "The practice of skirting this constitutional requirement in Shelby County is unacceptable and unsustainable.  Should officers wish to continue relying in good faith on issued warrants, they must conform their conduct to the Fourth Amendment's requirements." 

SCOTUS Grants Cert to Resolve FSA Issues

Sorry for the delay in posting. 

The Supreme Court has granted cert in two cases to resolve the circuit split over FSA "pipeline" cases (cases involving pre-FSA conduct and post-FSA sentencing).  I posted to the Sixth Circuit blog earlier; here is the info again:

The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted.

The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.

Question presented in Dorsey:

"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"

Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week. Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010. The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed." This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).

CDAM: Traverse City 2011

Last week's CDAM conference in Traverse City was great.  Thank you, Western District panel attorneys (and others!) who attended the Federal Session on Thursday.  Dick and I hope everyone got something out of the session. 

I will not be posting much this week, but I will be back on-line ASAP! 

Miranda, and a Short Reminder Regarding Corpus Delicti

The picture below shows the derelicti ship that has sailed.  Sorry . . . couldn't resist.  :) 

United States v. Brown, No. 10-6458 (6th Cir. Nov. 1, 2011) (unpublished).  Panel of Judges Sutton, McKeague, and Jonker (W.D. Mich.) (yes, our own Judge Jonker sat by designation). 

Defendant appealed his conviction and sentence for being a felon  in possession of a firearm.  The Court affirmed. 

Facts and Procedural History:
Robbery of home.  Police read the defendant his Miranda rights and secured a signed waiver.  The defendant confessed he had taken the missing gun.  After a grand jury indicted the defendant for being a felon in possession of a firearm, the police questioned the defendant again (first reading the defendant his Miranda rights and again securing a waiver).  The defendant's story changed, but at the end of it, he still admitted possessing the missing gun.

Before trial, the defendant sought to suppress the statements.  Jury convicted the defendant.  But the district court granted the defendant's post-verdict motion for acquittal, finding that the only pieces of evidence linking the defendant to the crime were the defendant's statements: his uncorroborated confessions. 

The government appealed, and the Sixth Circuit reversed, finding that sufficient independent evidence corroborated the defendant's statements.  On remand, the district court found that the defendant's prior convictions made him an armed career criminal under the ACCA.  The district court imposed a below-guidelines sentence of 15 years, the mandatory minimum.  The defendant appealed.

Conclusions:
* Corroboration: defendant sought to relitigate the issue of whether sufficient evidence corroborated the confessions.  The appellate court, however, found that "that ship has sailed."  The Court had decided the issue in the previous appeal; the defendant never sought rehearing; there was no change in controlling authority.  The previous decision remains binding.

* Suppression of statements: the defendant's alleged cognitive infirmities and/or possible drug use at the time did not render his waiver of Miranda invalid.  Nothing in the record suggested that the defendant did not understand his rights.  No coercive police behavior. 

* ACCA: defendant qualified as an armed career criminal.  The defendant had three prior convictions for aggravated burglary from Tennessee.  Application of the ACCA did not offend the Fifth Amendment (due process and equal protection) or the Eighth Amendment (cruel and unusual punishment).  The Court was clear: "We have seen this movie before, and each time it ends badly for the defendant." 
  

GPS Before the S Ct in Nov!

OK, here's an exciting issue slated for oral argument in the S Ct on Nov 8.

United States v. Jones, No. 10-1259.

Questions Presented:

Does the warrantless use of a tracking device on a vehicle to monitor the vehicle's movements on public streets violate the Fourth Amendment?

Does the government violate a person's Fourth Amendment rights by installing a GPS tracking device on that person's vehicle without a valid warrant and without the person's consent?

We have seen more and more GPS cases in the district, so this issue is one to bear in mind!  Preserve it!

Format

The blogger program is changing its interface and blog formatting is not turning out well!  Sorry.  Hopefully, it will be smoothed out soon!

There's a Rhino in Central Park! Is It Loose or in the Zoo?!

United States v. Beauchamp, No. 10-5102 (6th Cir. Oct. 25, 2011) (to be published). Panel of Judges Moore, Kethledge, and Marbley (S.D. Ohio).

Fourth Amendment issues.

Facts:

Cops were patrolling a housing project because "they were receiving a 'ton' of narcotics complaints." One officer noticed an African-American man with another individual. This man walked away when he saw the police, not making eye contact with the authorities. One officer told the other to stop the "suspicious" subject. No reasoning for the stop was given. The man was simply out at 2:30 a.m.

An officer followed the man in the patrol car, parked near the man, and got out and instructed the man to stop. The man stopped. The officer claimed later that the man appeared very nervous and was shaking. The officer asked the man where he was coming from and the man answered vaguely: "down there."

An officer frisked the man for weapons. No weapons found. The officers sought consent to search and the man consented. An officer found $1,300 cash and a cell phone. Sticking out from the man's boxers was a plastic bag the officers assumed contained drugs.

During or after the search, another officer who recognized the man arrived at the scene. The officers pulled back the boxers and found something. The man tried to run, but the officers restrained him. The plastic package contained 18 rocks of crack.

Procedural History:

The man was charged with controlled-substance offenses. He moved to suppress the evidence. The defendant pleaded guilty, but preserved his right to appeal the district court's denial of his motion to suppress. Defendant received a within-guidelines sentence of 84 months.

Analysis:

A reasonable person would not have felt free to leave in these circumstances. The defendant had walked away from the officers twice and the officers then targeted him by driving up to him, telling him to stop, and instructing him to turn around and walk to the officers. It was reasonable to assume that the two encounters with different officers were connected.

A reasonable person would have perceived the officer's instructions as compelling him to obey. One would not feel free to disregard the instructions. The defendant had indicated, by walking away, that he did not want to talk to the officers. But a reasonable person would not have felt free to disregard the instructions.

The defendant was seized when he complied with the officer's orders. A "high-drug-complaint" location and late/very early hour do not give rise to reasonable suspicion. Nor do talking with someone else and walking away from the police. Nothing here transformed "a permissible walk away from a police officer into a suspicious act."

Interesting note: "An inquiry into reasonable suspicion looks for the exact opposite of ambiguity: objective and particularized indicia of criminal activity."

Other factors only became known after the seizure. So these factors cannot justify the seizure.

Next questions are: 1) was the consent to search voluntary, and 2) did that consent dissipate the taint of the seizure? Court finds that police coercion vitiated any consent given here. Consent was not voluntary. And even if the consent had been voluntary, it was tainted by the illegal stop. The evidence was discovered before the defendant struggled to flee, so the struggle is not an intervening circumstance.

The Court notes that "the purpose and flagrancy of the officer's conduct do not tend to dissipate the taint." The officers' conduct was investigatory. The officers did not stop until they found contraband on the defendant. This conduct is exactly the type of conduct the law seeks to deter.

Conclusion:

The Court reversed the district court's denial of the motion to suppress, and remanded.

J. Kethledge's Dissent:

Focused on standard of review. The dissent concludes that the majority is not deferring to the district court's findings as it should. The dissent also finds that the consent was voluntary, that a police frisk does not render consent involuntary. The dissent suggests that the majority is creating a circuit split "by holding . . . that a police officer's protective frisk renders coercive the rest of his encounter with the person who was frisked."

Footnote 3 of the majority opinion discusses the dissent's position, appellate factfinding, and de novo review. It's worth a read. The Court explains that it is not weird to see a rhinoceros in Central Park if there is a zoo there. . . .

Cop Gets 225 Years for Setting Up Drug Deals for $

United States v. Sease, No. 09-5790 (6th Cir. Oct. 21, 2011) (to be published). Panel of Judges Cole, Rogers, and Griffin.

Former Memphis police officer appealed convictions stemming from a conspiracy to set up drug buys for the purpose of seizing drugs and money for personal profit. Jury convicted him on 44 counts, including charges of conspiring to deprive another of civil rights under color of law, and robbery and extortion under color of official right. Ct sentenced defendant to 225 years.

Defendant challenged the sufficiency of the evidence. Argued he did not violate the rights of the drug-buy participants b/c there was probable cause to arrest the drug dealers and seize the drugs and money. COA affirmed the convictions.

There was a question regarding whether the defendant was challenging the sufficiency of the evidence or just a jury instruction. Ct found it was the former.

Defendant looked to Whren v. United States, 517 U.S. 806 (1996), to argue his position. (Whren is the pretextual-traffic-stops-are-OK case.) Ct rejected the defendant's reasoning, finding that "it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context." The defendant's "actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren."

Whren’s holding that an officer's intentions are irrelevant in the Fourth Amendment analysis "comes out of a concern that courts are poorly positioned to engage in post hoc analysis of officer motivations, particularly in light of the snap decisions that law enforcement officers must make in stressful situations." This defendant, however, "was not faced with a complex set of assessments when he made his stops—the stops were pre-planned and staged to accomplish his criminal purpose."

The punitive purpose of 18 U.S.C. 242 "would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule." While the subjective intent of officers is irrelevant for purposes of the exclusionary rule, in the § 242 context, courts may inquire whether an officer acted with a corrupt, personal, and pecuniary purpose.

Unlike in the exclusionary rule context, a court must inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242, so there is no additional evidentiary burden to justify ignoring an officer's subjective intent. And while there are "few reported cases that deal with this level of officer misconduct, those that do exist all agree that purely illegal activities by law enforcement constitute a constitutional violation."

The Court cites United States v. Parker, 165 F. Supp. 2d 431, 441 (W.D.N.Y. 2001), in which "three Buffalo police officers, along with a DEA agent, entered into an agreement with a 'known drug trafficker' to arrange a meeting with a more prominent 'Jamaican drug dealer.' The plan was for the officers to rob the drug dealer’s safe house and divide the proceeds from the robbery between themselves, as well as detain the drug dealer and take cash and drugs off his person. In truth, the 'Jamaican drug dealer' was an FBI undercover agent and the officers’ contact was an FBI confidential informant." The officers in that case had also cited Whren in advancing arguments similar to those in Sease's case. The appellate court rejected the arguments, finding that willful conduct by officers, done with the specific intent to violate people's rights, supports conviction under § 242. The appellate case is United States v. Ferby, 108 F. App’x 676 (2d Cir. 2004).

Court here found "where, as here, there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized." The defendant "deprived those that he targeted of their constitutional rights, and thus his convictions under 18 U.S.C. §§ 241 and 242 are supported by sufficient evidence."

Concurrent vs. Consecutive Sentences for SRVs

United States v. Stevenson, No. 10-6510 (6th Cir. Oct. 13, 2011) (unpublished). Panel of Judges Moore, Griffin, and White.

Defendant appealed 24-month consecutive sentence for supervised-release violation. Argued sentence was procedurally unreasonable b/c ct failed to appreciate that it had the discretion to impose a concurrent sentence.

COA remanded for resentencing.

GL range for violations was 21 to 27 months. Sentencing ct imposed a 24-month sentence to be served consecutively to any state term defendant was serving.

COA found that the dist ct had attempted to address all of the defendant's arguments, so the sentence was not procedurally unreasonable b/c of a failure to consider the arguments.

Defendant argued that the dist ct wrongly concluded that the Bureau of Prisons would not honor a recommendation that the SR sentence and the undischarged state sentence be concurrent. Defendant argued that the dist ct did not mention or consider 5G1.3(c) (addressing concurrent and consecutive sentences and factors to consider).

COA considered 5G1.3(c) and 7B1.3(f) (which provides for consecutive sentences in the SRV context). Citing its recent decision in United States v. Johnson, 640 F.3d 195 (6th Cir. 2011), the appellate court reiterated that 7B1.3(f) does not strip a district court of the discretion to impose a concurrent sentence for a supervised-release violation. In this case, the Sixth Circuit found that "Unlike in Johnson, it is not clear from the district court's remarks whether it understood it had discretion to impose a concurrent sentence." So COA remanded.

More SCOTUS

Another case to watch is from the 6th Cir. with argument set for Halloween.

Lafler v. Cooper, No. 10-209.

Decision for 6th Cir. is 376 F. App`x 563.

Defendant charged with assault with intent to commit murder. Counsel advised him to reject plea offer b/c of a misunderstanding of Michigan law. Defendant rejected the offer. He was convicted as charged. (No trial error asserted.)

On habeas review, the 6th Cir. found that there was a reasonable probability that the defendant would have accepted the plea offer had he been properly advised. So his Sixth Amendment rights were violated. The writ was conditioned on the state once again offering the plea deal.

Questions presented are:

Whether a state habeas petitioner is entitled to relief when counsel deficiently advised him to reject a favorable plea deal, and defendant is later convicted after a fair trial.

What remedy, if any, should be provided for ineffective assistance of counsel during plea negotiations if a defendant is later convicted under constitutionally adequate procedures?

SCOTUS and Strip Searches

Sixth Circuit opinions are all immigration decisions this morning, so we're back in the S. Ct.

The Court heard argument yesterday in Florence v. Board of Chosen Freeholders, No. 10-945. Issue is whether the Fourth Amendment allows jails to conduct suspicionless strip searches of all arrestees, even those arrested for only minor offenses, regardless of the circumstances.

The petition for a writ of cert was granted April 4, 2011. The Solicitor General moved the Court for leave to participate in argument, and the Court granted the motion.

Cert Granted re Double Jeopardy

Double rainbow, double jeopardy. . . .

No 6th Cir opinions today. But the S Ct granted cert in Blueford v. Arkansas, No. 10-1320. The Ct's going to consider whether, if a jury is deadlocked on a lesser-included offense, double jeopardy bars reprosecution for a greater offense after a jury has announced that it has voted against guilt on that offense.

Stay tuned!

Habeas

Sorry for the delay in posting. It's been hectic. (The picture, like this case, demonstrates long delays and congestion.)

Published habeas decision today: United States v. Van Hook, No. 03–4207 (6^th Cir. Oct. 4, 2011). Panel of Judges Merritt, Martin, and Moore.

Procedural History:

Long procedural history (pre-AEDPA case). Petitioner filed for federal habeas relief in 1995. Ohio courts had upheld petitioner’s death sentence. Ohio courts denied post-conviction relief. Initially, the federal district court denied the petition and the appellate panel reversed, finding that the petitioner’s confession was unconstitutionally obtained. The Sixth Circuit, sitting en banc, vacated that ruling. On remand, the panel again granted habeas relief, finding that trial counsel had been ineffective. Again, the Sixth Circuit sitting en banc vacated the decision. The panel found ineffective assistance on the next remand, but narrowed the scope of its holding. The Supreme Court granted cert and reversed. The case came back to the panel, and this decision is the next in the series.

Petitioner made three claims. He asserted a Brady claim that the the trial court and prosecution wrongfully withheld two pieces of exculpatory evidence from him at trial. He argued that his trial counsel was constitutionally ineffective because counsel failed to request an independent mental-health expert and requested a presentence report for the penalty phase. And he argued that his appellate counsel for his direct appeal was constitutionally ineffective for failing to raise two grounds for relief.

Brady:

Panel found that the State of Ohio had affirmatively waived the exhaustion of state remedies on the Brady issue. But the Brady evidence would not have added anything of note to the proof. If the three trial judges had not been persuaded by expert testimony to mitigate the punishment, the court found it was highly implausible that the two pieces of Brady evidence (which similarly suggested that the petitioner may have killed the victim because of a "homophobic panic") would have altered the judges’ conclusion. The evidence was weaker and less persuasive than the actual testimony and shined no new light on the issues.

The panel found that there was overwhelming expert testimony at the trial that the petitioner neither met the Ohio standard for insanity nor suffered from a mental disease. No expert testified that the petitioner met the standard for insanity, nor did any expert testify that the murder was the result of a mental disease. Neither of the two Brady documents stated that the petitioner met the standard for insanity or suffered from a mental disease or defect. So this evidence did not undermine confidence that the Ohio courts would have reached the same determinations regarding the petitioner’s mental condition.

Overwhelming evidence at trial showed that the petitioner satisfied the statutory aggravating factor of aggravated robbery. Even if the petitioner was motivated partially, or even entirely, at the precise time of the murder by a "homophobic panic," such a factor would not change the fact that the petitioner also stole some of the victim’s personal property by the use of serious physical harm, and thus committed robbery. The Brady evidence does not undermine confidence in the trial court’s determination regarding this aggravating factor. The court denied the petitioner’s Brady claim on the merits.

IAC for Trial Counsel:

The petitioner argued that his trial counsel was constitutionally ineffective because trial counsel failed to request an independent mental-health expert and requested preparation of a presentence report for the trial court during the penalty phase. The panel found that the Sixth Circuit, sitting en banc, had already rejected these arguments.

IAC for Appellate Counsel:

Petitioner argued his appellate counsel was constitutionally ineffective for failing to raise, among the assignments of error presented on direct appeal to the Ohio Supreme Court, two specific grounds for relief: 1) The trial court should not have admitted into evidence the victim-impact statements in which the victim’s mother and an arresting police officer urged the imposition of the death penalty; and 2) the prosecution committed misconduct by referring to the petitioner’s criminal history or capacity for future dangerousness during the penalty phase.

The petitioner, however, failed to follow the Ohio state procedural rules for timely filing claims of ineffective assistance of appellate counsel. And the petitioner’s delay was not one of days, but rather of years, so it did not matter whether the rule in effect at the time presumed timeliness if within ten days or ninety days. What mattered, under either rule, was whether the petitioner showed good cause for the six-year delay. The state appellate court reasonably found that he did not make the necessary showing.

The court found that the Ohio procedural rules constituted an adequate and independent state ground to foreclose review of the federal claim.

The panel found that the district court properly concluded that the petitioner’s claim of ineffective assistance of appellate counsel was procedurally defaulted. The petitioner presented no argument that his default should have been excused due to cause and prejudice. The panel held that the petitioner’s procedural default barred habeas relief on the claim.

The panel affirmed the judgment of the district court denying the writ of habeas corpus.

Federal Defender Entry in ArtPrize!!!

Are you ArtPrizing this weekend? Don't miss "Whodunit," a thought-provoking piece that questions bias and prejudice. Created and entered by the Office of the Federal Public Defender for the Western District of Michigan, it's in the GRCC Spectrum Theater, on Fountain b/t Barclay and Ransom. (Just down Fountain from the GR Public Library.)

Vote for 50631!

www.artprize.org.

A Little Mich Habeas Action to Start the Week

Crump v. Lafler, No. 09-1073 (6th Cir. September 20, 2011) (to be published). Panel of Judges Cole, Gibbons, and Cleland (E.D. Mich.). Judge Cole dissented.

Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.

Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.

Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.

Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.

The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.

But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."

Conclusions:
Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."

Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."

Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.

More Double Jeopardy and CP: Amended Opinion

On July 28, 2011, the Sixth Circuit decided United States v. Dudeck, No. 09-3231 (see older post on this blog). On September 14, 2011, the Court issued an amended opinion (to be published). Panel of Judges Keith, McKeague, and Kethledge. Mr. Dudeck proceeded pro se.

The defendant had asserted that double jeopardy precluded conviction on all three CP counts. Court concluded that possession of CP (18 U.S.C. 2252A(a)(5)(B)) is a lesser-included offense of receipt (18 U.S.C. 2252A(a)(2)(A)). Because it was unclear whether the two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images, the Court remanded. Issue for remand is whether separate acts underlie the convictions.

Double-jeopardy analysis conducted under plain-error standard. The Court considered the issue of whether conviction under both 18 U.S.C. 2252A(a)(2)(A) and 2252(A)(a)(5)(B) (this citation in the opinion appears to be a typographical error) for the same material is permissible in United States v. Ehle. The Ehle court concluded that possession under 2252(A)(a)(5)(b) (again, this citation appears to be an error) is a lesser-included offense of receipt under 2252A(a)(2)(A). Conviction under both sections is acceptable if based on separate conduct.

Whether there was separate conduct in this case was unclear, so remand was necessary.

Next argument was that convictions for receiving CP under 2252(a)(2) and receiving CP under 2252A(a)(2) violated double jeopardy. One section deals with pictures of real minors; the other section deals with pictures of real minors or "virtual" minors. Remand necessary to determine whether the defendant received different kinds of images.

The 120-month, within GLs sentence was reasonable (if all the convictions are affirmed on remand).

Why the amended opinion? On August 23, the government filed for rehearing. On September 14, the Court denied this petition, and filed the amended opinion. The petition for rehearing cited confusion as to which counts would be vacated should the district court conclude that there was a violation of double jeopardy. The government argued that the count with the lower punishment should be vacated and the one with the higher punishment should stand. The amended opinion seems to clear up the confusion.

Stop! Or I'll tase you! (+FSA)

I just wanted to blog this case b/c the police are quoted as saying: "Stop! Police! Or I'll tase you!" There's just charm to such cries! (Plus, I was a big Tom Swift fan growing up, and I read somewhere that TASER is a random acronym. The guy who came up with the taser didn't know what to call it, so he decided on Tom A. Swift's Electric Rifle, or TASER. You really needed to know that. . . .)

So, Court of Appeals upholds denial of a motion to suppress in United States v. Ruff, No. 08-4428 (6th Cir. Sept. 9, 2011) (unpublished). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Defendant argued that the officer's initial approach to the defendant, during which the officer identified himself as a police officer, was an arrest requiring probable cause. Defendant argued the officer lacked PC for an arrest, and even reasonable suspicion for a Terry stop. Court finds the encounter was neither an arrest nor a Terry stop. The defendant was not seized. The officers had approached some men drinking beer in a high-crime area on a stoop with no-trespassing signs around it (after they had received a tip re drugs and a gun from a reliable informant). The officers identified themselves as police officers. The defendant immediately fled.

Court goes on to say that even if there was a seizure, it was, at most, a Terry stop. The officers had received a tip (from a reliable informant) that a person matching the defendant's description had drugs and a gun. Such a tip can establish reasonable suspicion to support a stop. So there was reasonable suspicion to support a stop here.

The defendant next argued that he was arrested when the officer deployed the taser and there was no PC for an arrest then b/c the defendant threw the gun away at the same time the officer deployed the taser. The Court rejected the argument. The officer did not deploy the taser until he saw the gun, so he had PC. The tip, the flight, the disposal of the gun all gave the officer PC for an arrest.

Defendant next argued that the FSA should have applied to him. The offense occurred on November 21, 2007. The Court cites Carradine, saying the FSA is not retroactive. This case is a Carradine case: sentencing and appellate briefing occurred prior to enactment of the FSA on Aug. 3, 2010.

Jury Finding on Drug Quantity

United States v. Jones, No. 08-5009 (6th Cir. Sept. 6, 2011) (unpublished). Panel of Judges Gibbons, Rogers, and Cook.

Defendant appealed mandatory life sentence for possession with intent to distribute 108 grams of meth. Jury made no findings of fact regarding quantity. Also argued that the dist ct erred in making findings regarding prior convictions necessary for the mandatory life sentence under 21 U.S.C. 841(b)(1)(A). The government conceded the error regarding the jury's lack of a quantity finding. The Court found that the argument on the prior convictions was foreclosed by S Ct precedent.

The Court vacated the sentence and remanded.

The only evidence presented at trial on the issue of quantity was the testimony of the government's drug-chemistry expert. This expert testified that she had calculated the weight of the meth as 99 grams. She calculated the purity as 73%: so the "pure" meth quantity was 72 grams.

The dist ct instructed the jury that while the indictment alleged certain quantities the evidence need not establish those quantities. The instruction was that the evidence only needed to establish that a measurable amount of meth was the subject of the acts charged. The jury was not asked to make a quantity determination.

At sentencing, the government presented testimony to prove the defendant's prior convictions for purposes of the mandatory life sentence. The dist ct found that there were valid prior convictions and sentenced the defendant to life.

The Court of Appeals found that the dist ct plainly erred in applying 841(b)(1)(A) w/o a jury finding of quantity. Gov conceded the plain error. Jury must find beyond a reasonable doubt any fact that increases the statutory maximum sentence (other than a prior conviction). Section 841(b)(1)(A) provides for mandatory life when a defendant has two prior, qualifying convictions, and the amount of meth was 50 grams or more or the the mixture containing a detectable amount of meth exceeded 500 grams. W/o this quantity determination, the max sentence is 30 years. The life sentence was clear error.

The Court did affirm the dist ct's findings re the priors. Following Apprendi, the Court found that prior convictions need not be found by a jury. Sentencing judges may find prior convictions based on a preponderance of the evidence.

Objecting to a Search When Co-Residents Consent. . . .

United States v. Johnson, No. 09-6461 (6th Cir. Aug. 29, 2011) (to be published). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Possessing counterfeit securities and fraudulent ID docs. 45-month sentence.

Defendant appealed dist ct's denial of motion to suppress. COA reversed.

Facts:

Police conducted "knock and talk" after they got an anonymous call that residents at target address possessed marijuana and a firearm. Extended family lived in the home, and defendant had stayed there intermittently for several months (his somewhat estranged wife lived there). Another resident opened the door to police.

Defendant came out and objected to a search. (These facts were in dispute.) Other residents consented to a search. Defendant's wife voluntarily turned over some marijuana. Police began searching the bedroom she shared with the defendant; they found a gun, counterfeit money, marijuana, digital scales, and computer equipment.

District Court's Conclusion:

The dist ct found that the defendant did object to a search before the police searched the bedroom. The dist ct, however, found that this objection was invalid b/c the defendant was not a full-time resident of the home. He had, the ct found, a possessory interest "inferior" to the interests of the residents who did consent to a search.

Appellate Court's Conclusions:

Under Georgia v. Randolph, 547 U.S. 103 (2006), a physically present resident's express refusal of consent is dispositive as to him or her, regardless of the consent of fellow occupants. The appellate court here noted that had the S. Ct. been concerned with "relative degrees of possessory interest among residential co-occupants" it could have drawn a distinction in Randolph. But the S. Ct. did not do so. Absent a recognized hierarchy (like parent and child, or like military rank in barracks housing), there is no social understanding of inferior and superior.

The defendant had a reasonable expectation of privacy in the bedroom. He was present when the police arrived. He expressly objected to a search. So the search of the bedroom was unreasonable.

Bench--Bar Conference at Shanty Creek

Don't miss the FBA's Bench--Bar Conference at Shanty Creek Resort in Bellaire! September 30 to October 2. The criminal-law session will focus on discovery and cooperation issues. Come with questions and points to discuss!

www.westmichiganfederalbar.org

Panel Training Next Week!

Don't miss the FPD's panel training next week! It's on Wednesday, the 31st. About 1:30 p.m. to 5:00 p.m. (ish). We'll be in the jury-assembly room. Judge Maloney will address the panel, so bring your questions!

ACCA Decision on Burglary

United States v. Coleman, No. 10-3205 (6th Cir. Aug. 24, 2011) (to be published). Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).

Defendant sentenced under the ACCA. Had three prior third-degree burglary convictions out of Ohio (one was an attempt).

Court found that "Because the burglary or attempted burglary of an 'occupied structure' creates a risk of physical injury that is similar to the risk posed by generic burglary, the offense is categorically violent under the residual 'otherwise' clause of § 924(e)(2)(B)(ii)." This decision is disappointing for a number of reasons.

1) The Court even says the sentence was "harsh on the facts of this case." After the defendant was arrested b/c of a domestic dispute, police found an unloaded, dilapidated firearm frame in the defendant's pocket. There was no trigger assembly and the frame could not be made readily operable. Unfortunately, it was still a firearm under 921(a)(3)(B).

2) The Ohio statute proscribes non-generic burglary. And the Shepard documents did not shed light on the nature of the burglaries at issue. But the Court found that these prior convictions fit under the "otherwise clause" of the ACCA. The Court looked to a Tenth Circuit case considering the same statute: United States v. Scoville, 561 F.3d 1174, 1180-81 (10th Cir. 2009). (Begay was 2008.)

3) The Court looked to pre-Begay cases to support its conclusions, including United States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990), and United States v. Fish, 928 F.2d 185, 188 (6th Cir. 1991). I once had entertained the naive hope that these cases could be reconsidered after Begay. But the Court closed that door here. (The door has been closing for a while. See United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009).)

4) The Court conducted the Begay similar-in-kind-and-degree-of-risk analysis and found the requirements met.

5) The Court also rejected the idea that attempted burglary should not qualify, citing James.

6) The Court cited Sykes to find that purposeful, violent and aggressive conduct need not be a statutory element of the offense in question for the latter to qualify as an ACCA predicate conviction.

7) The Court also reiterated that defendants cannot collaterally attack state convictions at their federal sentencings.

More Death-Penalty Sentencing

United States v. Galan, No. 08-4552 (6th Cir. Aug. 19, 2011) (unpublished). Panel of Judges Guy, Cook, and Stranch.

Defendant appealed his drug-conspiracy conviction and his life sentences for murder with a firearm in the course of a drug conspiracy. Court affirmed the drug-conspiracy conviction, but vacated the life sentences. Remanded for resentencing.

The defendant's first argument was that the district court erred in not instructing the jury concerning the effect of the five-year statute of limitations applicable to the drug conspiracy charge. Plain-error review b/c argument not raised in district court. Five-year statute of limitations under 18 U.S.C. 3282(a). Conspiracy here was a "chain conspiracy." Evidence supported jury's decision to convict the defendant for the charged conspiracy.

Bigger issue was the alleged sentencing error. Defendant argued that district court erred in instructing the jury to choose b/t death or life imprisonment. Defendant argued that the court should have instructed the jury on imprisonment for any term of years as well. Plain-error review here too. Government conceded and appellate court agreed that plain error occurred. Under 18 U.S.C. 924(j)(1), the murder was punishable by death "or by imprisonment for any term of years or for life." Section 924(j) incorporates only the definition of murder found in 18 U.S.C. 1111(a). It does not incorporate 1111(b)'s penalty provisions. Failing to give the jury the option of permitting the judge to sentence a defendant to a term of years is plain error. Resentencing necessary.

FSA Remand

United States v. A. . ., No. 11-XXXX (6th Cir. Aug. 16, 2011) (sealed case). Judges Suhrheinrich, Siler, McKeague. (Call the Defender's Office at 616-742-7420 and ask for Clare Freeman if you want the details on the case.)

Defendant appealed his crack conviction. He was sentenced to the 60-month mandatory minimum (pre-FSA). Gov had argued at sentencing that the FSA did not apply.

Court's order reads: "The government has now changed its position on this issue and maintains that the FSA applies to all sentencings that occur after August 3, 2010." The defendant and the government jointly moved for remand. Court granted, but expressed "no opinion as to whether the FSA is applicable."

Format

Sorry about the formatting for some of these posts. This blog often has a mind of its own and I can't get it to behave. :)

Interesting Death-Penalty Dissent

Abdur 'Rahman v. Colson, No. 09-5307 (6th Cir. Aug. 17, 2011) (to be published). Majority of Chief Judge Batchelder and Judge Siler. Judge Cole in dissent.

Death-penalty case out of Tennessee. Long appellate process. This opinion arises from 2254 claims. The petitioner argued that the prosecution had withheld Brady evidence: pre-trial statements by an accomplice that a sort of gang had influenced the crime and coerced the petitioner into committing it; and a detective's account of the petitioner's self-destructive behavior while in custody (showing serious mental-health issues). Petitioner argued that this evidence may have allowed one or more jurors to conclude that life in custody rather than death was appropriate.

The majority rejected the petitioner's cumulative-error argument on procedural grounds.

The majority found that the petitioner knew of the exculpatory information in the accomplice's statements. The majority also concluded that the petitioner may have known the essential facts of the detective's report on the head banging. Or the petitioner's counsel should have discovered the facts through investigation. And suppression of the report (by the prosecution) did not undermine confidence in the sentence. The majority found that the evidence "would have done little to establish Abdur 'Rahman's mental illness." Or it could have been viewed, according to the majority, as evidence of culpability. The majority affirmed, finding no Brady violations.

Judge Cole dissented. His dissent is worth reading and brings to the forefront issues of justice, the role of counsel (for both the government and the defense), and the challenges defense counsel face.

He writes, "To be sure, the majority has put forth support for its positions, as I have for mine; but viewed at a distance a pattern emerges, and it reveals that the majority’s animating concern—even in this

pre

-AEDPA case—has not been to ensure that a conviction was had without constitutional error, but to efface in the name of federalism, finality, and comity any errors that were present."

He continues, "Getting there is easier than you think. It merely requires a ceaseless commitment to privilege formalism over every other legal value; nowhere is that simpler to do than in the thicket of the Great Writ. If we chop claims into enough pieces and deal with each in a way that is perfectly abstracted from the reality of the death-penalty courtroom, all the errors vanish. The spell does break eventually, when someone looks hard enough to see past the sleight of hand. Whether the revelation will come to a person with the authority to spare Abdur’Rahman, and in time, I do not know."

He finds that "At least one juror could reasonably be predicted to see the case in a different light and vote for life after considering all the withheld evidence in mitigation and the detrimental effect that evidence would have had on the prosecution’s case for death."

His conclusion is haunting: "A parting thought. Whatever your take on the merits of Abdur’Rahman’s claims, one thing about this case is undeniable: the prosecutor desecrated his noble role. He failed grossly in his duty to act as 'the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88 (1935). Abdur’Rahman may face the ultimate penalty as a result; Justice will bear a scar."

More Good Tapia News! Rehab Not Grounds for Going Above GLs!

United States v. Walker, No. 09-6498 (6th Cir. Aug. 11, 2011) (to be published).

Panel of Judges Keith, Clay, and Cook.

Defendant appealed the substantive reasonableness of his thirty-six-month sentence for escape.

Court found that the sentencing court impermissibly lengthened the defendant's sentence to promote his rehabilitation. Court vacated the sentence and remanded for resentencing.

Defendant had a history of drug abuse and mental illness. His conviction in this case was for escaping from supervised release (a Salvation Army halfway house). Issues with his medication contributed to the offense. Guideline sentencing range was 15 to 21 months. Defendant moved for a downward departure or variance, citing diminished mental capacity and cooperation. The district court imposed an above-guidelines sentence of 36 months, so the defendant could "'benefit from all the government can offer' in terms of treatment."

Citing Tapia, the Court noted that "The Supreme Court recently resolved any potential conflict between these provisions, holding that 'a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise promote rehabilitation.'" In this case, the sentencing court "did precisely what Tapia forbids."