Red Dog

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

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Tuesday, December 17, 2013

Detainers: A Brief Primer

In Ortega v. United States Immigration and Customs Enforcement, No. 12-6608 (6th Cir. Dec. 10, 2013) (for publication), the COA gives a short discussion of immigration detainers.  Thought it would be helpful to post.  Panel was Judges Keith, Sutton, and Black (S.D. Ohio).  Judge Keith dissented. 

The COA explained:

Immigration authorities focus on individuals accused of breaking other laws.  Using a database, authorities determine whether an individual convicted of a state or federal offense is in the country illegally.  If the agent determines that the person is here illegally, the agent will issue a detainer to the authority that is then holding the person.  This detainer requests that the latter authority keep the person in custody or let the immigration agency know when the person is about to be released. 

8 C.F.R. 287.7 regulates detainers. 

The COA admonishes that federal detainers do not normally raise constitutional questions:

"If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment."  Likewise, the local prison may notify federal immigration authorities before an inmate's release to allow the authorities to take custody of the inmate to begin removal proceedings. 

As the COA points out, however, things get complicated in less straight-forward cases.  What if an arrest is based solely on the detainer?  What if a state refuses to release someone, because of an immigration detainer, who has posted bail?  What if a state keeps a person in custody, because of a detainer, when the sentence was weekend confinement?  Or the person is on home confinement and gets moved to a prison? 
 
 Once a person is convicted and sentenced, deprivation of liberty is permissible.  Deprivations caused by moving prisoners, and things like that, do not raise due-process concerns.  A shift from home confinement to prison, however, may implicate due-process concerns

Here, the plaintiff sued ICE b/c he was on home confinement, and an American citizen, and a detainer was erroneously issued, which caused authorities to incarcerate him for four days.  For both the due-process and Fourth Amendment claims, however, the COA just found that the law was unsettled and so qualified immunity protected the defendants

Judge Keith dissented.

Judge Keith believes there was a clearly established liberty interest in home confinement.  And officers should have known that removing a person from their home and incarcerating them requires a minimum level of process

"The facts of this case are such that the unlawfulness of Metro Defendants’ conduct is readily apparent, even in the absence of clarifying case law. Metro Defendants seized Ortega, an American-born, United States citizen, from his home and took him to jail for four days, based upon an improper detainer, without a warrant or any semblance of process. In doing so, Metro Defendants did not allow him to produce any documentation that he was an American citizen."

Dissent also sees a problem with the lack of the detainer in the record. Cannot assess the reasonableness of the officer's error without being able to review the detainer.  

"To allow ICE to issue a detainer against an American citizen, with unlimited discretion and without any accountability, sets a dangerous precedent and offends any and all notions of due process."



Thursday, December 5, 2013

More Blewett: Dissenting Opinions

I just posted on the 6th Cir. blog too. . . .  My week to blog there.

Judge Merritt's Blewett dissent:

* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous.  Congress intended to remedy irrationality and disproportion.  Court is thwarting this effort. 
* Cites NACDL and NAACP amicus briefs. 
* "Practically all observers" now recognize the ills of the old system. 

Judge Cole's dissent:

* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles. 
* African-Americans treated more harshly than Caucasian offenders under this regime.  And  88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American. 
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings.  Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair." 

Judge Clay's dissent:

* Majority is furthering prior injustice by holding that the FSA is not retro.  Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause." 
* Not sure of procedural mechanism for relief
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law.  Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans."  This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless.  Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums."  More than 82% of this group is African-American (2005 stat).  The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race."  No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio.  In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums."  Won't cut it. 

Judge Rogers's dissent:

* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well.  In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule. 
* 3582(c)(2) = Congress's "background principle of retroactivity." 
* Illogical to provide GL relief and not statutory relief. 
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break. 
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage.  But assumptions are not law.  Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be.  The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits.  (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute.  The revised statutory minimums are, after all, created by statute.  The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive.  Doing so provided the statutory key to making the statutory minimum changes applicable under 3582.  This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply. 
Judge White's dissent:

* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence.  Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers. 
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act.  It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended.  Congress did not intend this irrationality, and that is why Judge Rogers is correct.  Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the  Equal Protection Clause absent rational justification other than finality."

Wednesday, December 4, 2013

Blewett Decided

I just posted this note to the 6th Cir. blog too. 

Well, the Sixth Circuit en banc released Blewett yesterday.  Get out your hankies.  This one's a tear jerker.

United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013).  The majority opinion is by Judge Sutton.  Judge Moore concurred.  Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented. 

The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect." 

Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot.  The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal. 

*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either. 

Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it.  Not present in FSA, which is "forward looking." 
* Distinguishes Dorsey
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect. 
* 3582(c)(2) does not help: these proceedings are not plenary resentencings. 
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions. 
* Equal-protection and cruel-and-unusual arguments under the Constitution fail.  No racially discriminatory purpose, so disproportionate effect allowed to stand. 
* Gov "has a powerful interest in avoiding the disruption of final sentences." 
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted."  Such a holding might actually discourage lawmakers from lowering sentences. 
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences. 
* Many believe "Congress should think seriously about making the new minimums retroactive."

Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations. 
* Sees issues with jurisdiction (the one defendant is now on supervised release).  No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits).  Nevertheless, she would deny the gov's motion to dismiss.  Term of supervised release could be reduced if appeal determined favorably, so appeal not moot. 
* 1 USC 109 governs: no retroactivity. 
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed.  Crack-powder disparity = racial disparity.  And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now. 

I will explore the dissent tomorrow. 

Friday, October 4, 2013

Interesting Habeas Win

There has been more good stuff recently, and I'll try to post more next week, but for today, I put this note up on the Sixth Cir. Blog, as it was my week to post there.

Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).

Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).

Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.

Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.

Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).

This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand

Tuesday, September 3, 2013

Speedy Trial, Border Searches, CP Issues

United States v. Stewart, No. 12--1427 (6th Cir. Sept. 3, 2013) (for publication).

Panel of Judges Gilman, Griffin, and White. 

D convicted of violating 18 U.S.C. 2252A(a)(1). 

Facts:

* D flew into Detroit from Japan.  Randomly approached by customs officer at int'l bag claim.  Sent to secondary inspection area. 

* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter.  While searching a second laptop, the officer found thumbnails of nude children.  Officer held laptops for further examination, but released the D.  ICE agent took computers to ICE office in Detroit. 

* Forensic analyst previewed one laptop and found suspected CP.  Officers got warrant.  Did forensic exam.  Found CP. 

* In '09, grand jury charged D with transporting CP. 

* D moved ct to dismiss case after passage of time based on speedy-trial grounds.  (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.)  Ct dismissed case w/o prejudice. 

* Grand jury brought a second indictment a month later. 

Issues and Conclusions:

* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation."  B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation. 

* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review).  Footnote 1 addresses.

* D was not entitled to dismissal with prejudice.  So subsequent indictment proper.

* The search of the computers in Detroit was not an "extended border search."  The computers never cleared the border.  This search was just a routine border search.  No 4th Am violation. 

* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP. 

Thursday, August 29, 2013

CP Restitution

The issue of restitution in child-pornography cases has been one we've talked about quite a bit here, at CDAM conferences, and elsewhere.  On June 27, 2013, the Supreme Ct. granted cert in Paroline v. United States, No. 12--8561.


Issue:

"What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?"

Briefs were submitted August 19, 2013, but additional briefing is still pending.

Wednesday, August 28, 2013

Gunshot Residue

United States v. Stafford, No. 12-3238 (6th Cir. June 11, 2013) (for publication).  Panel of Judges Boggs, White, and McCalla (W.D. Tenn.).

Not a "new" case now, but worth noting.

Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403.  D asked for Daubert hrg.  Dist ct denied the motion. 

On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First, Stafford states that '[gunshot-residue] testing will not determine whether an individual fired a gun, was present when a gun was fired by someone else, or was merely in an environment in which [gunshot residue] existed.'  Stafford claims that because these three possible outcomes summarize the testimony of the Government's expert Robert Lewis—and because Lewis could not testify whether Stafford actually fired the weapon—Lewis 'could not reasonably make any conclusions as to the actual source of the six [gunshot-residue] particles found,' and therefore Lewis's testimony did not meet the standards of Daubert or Rule 702."  Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him. 

The defendant also argued that gunshot-residue evidence is imprecise.  COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable

The argument that the particles could have been transferred inadvertantly was likewise unavailing.  COA found the evidence sufficiently reliable.  Defense cross-examined the gov expert on the point.  As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability.  The arguments go to the weight of the evidence, not admissibility.  Cross-examination allowed jury to consider the weight of the evidence.    

Evidence not unfairly prejudicial under rule 403

Opinion also addresses ACCA.  Conviction for "aggravated riot" under Ohio law counts for ACCA purposes.  And it touches on 3C1.2, reckless endangerment.  3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub. 


The Crack Plot Thickens

OK, yesterday, United States v. Doe was released.  No case #.  Panel of Judges Keith, Cole, and Rogers.  It's for publication and there's a concurrence by Cole and a dissent by Rogers.  The opinion is good:
 
"For the reasons stated above, we hold that applying the new [FSA crack] minimums in Defendant’s § 1B1.10(b)(1) calculation is the only way to give effect to Congress’s intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants—cooperative and uncooperative—are eligible for sentence reductions."
 
Defense counsel is likely to be able to surmise why the COA redacted. 
 
The crack issues swirl on. . . .

Tuesday, August 27, 2013

Shocking! Medical Procedure Shocks the Conscience and Evidence Must Be Excluded

United States v. Booker, No. 11--6311 (6th Cir. Aug. 26, 2013) (for publication). 

Panel of Judges Gilman, Gibbons, and Rogers.  Judge Gibbons dissented. 

Defendant (D) had hidden crack in his rectum.  Police suspected the D had contraband in his rectum and took him to a doctor.  Without the D's consent, the doctor intubated the D for an hour, rendered him unconscious for 20 to 30 minutes, and paralyzed him for 7 to 8 minutes.  Using a finger, the doctor retrieved the crack and turned it over to the officers.

Even if the doctor was acting entirely for medical reasons, the D was under police control; in these circumstances, the procedure must be seen as attributable to the state for Fourth Amendment purposes.  The procedure, to which the D never consented, "shocks the conscience"; the evidence must be excluded

Case started with traffic stop.  Police knew the D from prior encounters.  Drug dog alerted near the D.  During pat down, officer noticed D allegedly "clenched his buttocks."  Officer found rolls of currency, but no drugs.  Search of passenger seat revealed baggies with marijuana and powder residue.  Police arrested D for possessing marijuana despite a an insufficiency of actual marijuana to justify the arrest under Tennessee law. 

Post-arrest, the D's actions made the officers believe he had something secreted in his buttocks.  Strip search conducted.  Officer claimed to see a string protruding.  After an altercation, the officers took the D to a hospital.  Doc told D that doc had to conduct the "procedure" (manually removing any drugs from the rectum) b/c the rectum can absorb drugs quickly, which could create a life-threatening situation.  Naked and cuffed, the D refused to submit.  The doc said he had a "duty" to remove any dangerous substance.  Police allegedly did not direct the doc to do anything. 

D contracted his muscles to preclude the doc's "examination."  Doc ordered injection of a muscle relaxant.  Encounter escalated.  Nurse administered a sedative and paralytic agent intravenously.  D intubated to control breathing.  During the paralysis, the doc removed the rock of crack (> 5grams).  Officer took the rock as evidence. 

Indictment followed.  D argued the officer lacked probable cause to arrest him for marijuana possession and that post-arrest treatment was unreasonable under 4th Am: invasion of privacy, dignity, and "liberty to refuse medical treatment."  Dist ct denied motion.  Jury convicted D.

Conclusions:


D’s "Fourth Amendment rights were violated. The officers brought [D] to [the doctor] and stood by while [the doctor] performed a highly intrusive and dehumanizing procedure on [D] without his consent. On the facts of this case, [the doctor's] actions are attributable to the state government and were so unreasonable as to shock the conscience. Because this conduct is sufficiently deliberate and culpable, suppression of the evidence was a proper remedy."
 
* Sufficient nexus to attribute doc's actions to police
 
* No solid evidence D consented to "procedure."  At most there could have been consent to an undrugged digital rectal examination, so D could avoid paralysis.  Doc admitted the D did not consent to paralysis
 
* No reasonable officer "could believe that, without direction from the police, and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure. Even if [this doctor] was motivated by benevolent medical ideals, his actions in paralyzing and intubating [the defendant] and performing a rectal examination without his express or implied consent constitute medical battery."
 
* Police used doc as tool to search D's person. 
 
* "Procedure" here unreasonable.  From a legal standpoint, "investigative conduct that would shock
the conscience for purposes of the Due Process Clause is 'unreasonable' for purposes of the Fourth Amendment."
 
* Factors to consider regarding constitutionality of forced surgery: 1) extent of procedure's threat to safety/health of individual; 2) extent of intrusion upon individual's dignitary interests in privacy and bodily integrity; 3) community's interest in fairly and accurately determining guilt or innocence.  "In addition, when there was time to obtain a court order and the police declined to seek one, the suspect’s privacy interests should be given particular solicitude."  These factors, analyzed in the circumstances presented, compelled the conclusion that the 4th Am was violated. 
 
* Exclusion necessary.  No good-faith exception to save evidence from exclusion: "Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful."
 
Judge Gibbons dissented.
 
She did not believe the doctor was a state actor.
 
She found that "[t]he district court reasonably found that the officers took [the D] to the emergency room because they believed he had a serious health problem.  There is no evidence that the officers had met [the doctor] prior to this incident, knew he would be at the emergency room they took [the D] to at that particular time of day, or knew that he had previously worked with the Sheriff’s Department.  In the absence of a record establishing these facts, the premise that [the doctor] was a mere 'tool' of the officers is unsupportable."
 
 

Monday, August 26, 2013

OK, These Cases Are Just Getting Confusing

OK, X (below) was good, but same day, United States v. Joiner, No. 12--4508 (6th Cir. Aug. 20, 2013) (for publication), comes out.  Judges Boggs, McKeague, and Beckwith (S.D. Ohio).  This latter opinion comes to the opposite conclusion from that expressed in X: the new FSA mand mins do not apply. 

Also on the same day, the COA filed an opinion-correction letter in X, a letter not available to the public.  So the X opinion has been "corrected," but not publically.  And the COA has allowed an extension of time for the gov to seek rehearing in X

So we wait. . . .

Tuesday, August 20, 2013

Lightening Strikes Twice: Blewett Revived!

OK, oral argument in Blewett set for Oct. 9.  In the meantime, we have United States v. X, No. X (6th Cir. Aug. 20, 2013) (for publication).  Panel of Judges Keith, Cole, and Rogers.  Judge Keith penned the lead opinion.  Judge Cole concurred.  And Judge Rogers dissented. 


 

Essentially, the defendant argued that the statutory mandatory minimums promulgated by the FSA applied to him, making him eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).  Court found that the defendant satisfied the first sentence-reduction eligibility requirement because his sentence had been based on the Guidelines.  The plea agreement had said that the parties agreed to recommend that the district court impose a sentence within the guideline range.  During the sentencing hearing, the district court had said that “[t]he parties agree to recommend that the Court impose a sentence within the range determined pursuant to the advisory sentencing guidelines” and that “the appropriate sentencing range under the guidelines according to the sentencing table is 130 to 162 months.”  The district court started with the drug-quantity table in 2D1.1.  The court then relied on 3E1.1 and 5K1.1, cited in the plea agreement, to calculate the defendant’s advisory range as 130 to 162 months; the district court sentenced the defendant to 130 months.  This imposition of sentence pursuant to the plea agreement and derived from an advisory range under the Guidelines means the sentence was based on an advisory range.
 
COA then looked to 5G1.1 to consider impact of mandatory minimum.  The COA found that the section was silent as to which mandatory minimums to apply, and that the Supreme Court has not spoken on the issue.  
 
The court noted that under the gov's interpretation, defendants whose original advisory ranges were slightly above the old statutory floor, but who did not receive substantial-assistance downward departures, would be eligible for sentence reductions under § 3582(c)(2).  But defendants whose original ranges were at the statutory floor, who rendered substantial assistance, would not be eligible for reductions.  "Such perverse results are clearly inconcsistent with other Guidelines provisions."  Here, plugging the new mandatory minimums  and amended guidelines into the defendant's calculations would yield a sentence of 70 months instead of 130.  The court found that applying the new minimums "is the only way to give effect to Congress's intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants---cooperative and uncooperative---are eligible for sentence reductions." 

The COA distinguishes Carradine and Dorsey.  These two cases "stand for the proposition that defendants who were sentenced after August 3, 2010, [the FSA's effective date] were entitled to be sentenced under the new FSA minimums at their original sentencing hearings."  The COA here admonishes that 3582(c)(2) hearings are not plenary proceedings like the latter original sentencing hearings.  Carradine and Dorsey did not address the application of mandatory minimums in the 3582(c)(2) context. 

A reduction here would be consistent with Guidelines policy statements.  The applicable guideline range here "automatically incorporates the statutory minimums in the cocaine base sentencing statutes . . . via 1B1.1(a)(8), which interlocks with 5G1.1---the section of the Guidelines that incorporates the statutory minimums."  As the new minimums are the applicable minimums in the 1B1.10(b)(1) calculation, Amendment 750 lowers the applicable guideline range.  So a sentence reduction is consistent with the Sentencing Commission's policy statement in 1B1.10(a)(2)(B).  The statements in application note 1(a)(A) to 1B1.10 do not change this reasoning. 

The COA notes that "[e]ach time the Supreme Court has heard cases involving the FSA, it has expanded the class of defendants who are entitled to or eligible for the benefits of lowered penalties under the FSA." 

Judge Cole concurred:

He would resolve the case on narrower grounds.  The sentence here was based on a subsequently lowered guideline range, rather than a mandatory minimum.  But Judge Cole would hang his hat on the substantial assistance.  The 5K "effectively 'waived' the mandatory minimum and permitted the district court to impose a sentence based on [the] otherwise-applicable guideline range."  This approach "obviates the need to delve any further into the controversy surrounding the retroactive application of the Fair Sentencing Act."  Judge Cole would wait for the en banc Blewett proceedings before saying more. . . . 

Judge Rodgers dissented:

Notes that Blewett could be resolved with this opinion if the en banc court were to accept it.  Believes that at this time the panel is bound by Hammond.  Does not see substantial assistance as getting around this block. 






Thursday, August 15, 2013

Strange Bedfellows

OK, I apologize for the long break in posts.  But I know a lot of you are following the mandatory-minimum discussions rumbling around now.  Here is a press release on the American Correctional Association's support of reform.  Wow.  These are correctional officers! 

Says a lot. 

http://www.famm.org/newsandinformation/PressReleases/ACAEndorsesMandatoryMinimumSentencingReform.aspx

Wednesday, April 17, 2013

Wow. New-trial motion granted; decision affirmed.

United States v. Lewis, No. 12-3262 (6th Cir. April 16, 2013) (not for publication).

Panel of Judges Suhrheinrich, Moore, and Gibbons.

Fire killed a number of children and injured other people.  Defendant charged with arson resulting in death, a violation of 18 U.S.C. 844(i).  Jury convicted defendant.  Defendant moved dist ct for new trial on grounds the verdict was against the manifest weight of the evidence.  Dist ct granted motion and issued 95-page opinion.  Gov appealed.  COA affirmed. 

* Dist ct found a key witness's testimony internally inconsistent, unreliable, and lacking corroboration.  This witness had a 30-year criminal history, mental-health problems, only a sixth-grade education, and a long history of incarceration and time in state hospitals.  No phone records connecting this person, allegedly close to the defendant, with the defendant.  Witness had received benefits from ATF, so had reasons to lie. 

* Dist ct mistrusted the inmate informants.  Discounted the testimony of other witnesses for a variety of reasons. 

* COA sees dist ct as a sort of "thirteenth juror." 

* "The district court properly evaluated the weight and credibility of all of the evidence adduced at trial and its determination that the verdict was against the manifest weight of the evidence was not an abuse of discretion. Sitting as the thirteenth juror, the district court did not abuse its discretion in concluding that many government witnesses, including Jackson, the inmate informants, and community witnesses testifying to Lewis’s involvement and possible motive, were incredible."
 
* "Although we make no statement as to whether such proof could sustain a guilty verdict, we hold that the district court did not abuse its discretion in determining that the guilty verdict in this case was against the manifest weight of the evidence.  In light of our deferential review of orders granting motions for a new trial, the district court’s thorough and thoughtful review of the evidence, and its superior position to evaluate the credibility of witnesses, we affirm the judgment of the district court.

Monday, April 15, 2013

Speedy-Trial Case Worth a Look

Another one from last week about which I just blogged on 6th Cir. blog.

US v. Heshelman, Nos. 10-1049/1223 (6th Cir. April 12, 2013) (not for publication).

Panel of Judges Clay, Gibbons, and White.

Dist ct said that an approximately three-year delay b/t indictment and trial not a speedy-trial violation. COA reversed.

Money laundering and fraud.

Indictment filed in 2006 (shortly before S of L expired) and was sealed, so gov could continue investigating. But gov didn't do much---just kept a journal of the defendant's contacts with the alleged victims.

Defendant one in Switzerland. Issue with potential extradition. Defendant got in touch with FBI agent b/c knew of investigation, which was hampering his business. Agent did not inform defendant of indictment, which had been filed at that point. Gov finally requested extradition from Switzerland in 2009. Trial commenced about four months later. Jury convicted on all counts.

A second defendant was told by FBI of warrant for his arrest in '08; defendant said he wanted to cooperate. Pleaded guilty about six months later.

First defendant complained of speedy-trial violation b/c of three-year delay in arrest and trial. Second defendant complained b/c gov knew of his whereabouts, but decided not to proceed with his trial until first defendant arrested.

Factors:

* Length of delay and defendant's assertion of rights. Trial delay of a year or more generally presumed prejudicial and triggers consideration of other factors. Gov conceded this presumption and that appellant asserted speedy-trial rights in timely manner.

* Reason for delay. Gov conceded it followed a "wait-and-see" course and sought to arrest the first defendant when the latter returned to the US to see family. Extradition difficult and gov wanted complete control of prosecution. But gov obligated to act diligently, even when a defendant is in a foreign country. Here, actively seeking extradition would not have been futile: there was an extradition treaty with Switzerland. Gov just didn't pursue extradition b/c didn't want Switzerland to place conditions on the extradition. But gov made only one attempt to see what conditions might be. Switzerland had been responsive. But gov just waited for the defendant's return to the US. Can't wait indefinitely. Defendant didn't flee the jurisdiction to avoid the charges; he had lived in Switzerland before the alleged scheme began.

* Prejudice. Presumption here, and gov didn't rebut.

First defendant's speedy-trial rights were violated.

As to second defendant:

* Gov could have arrested him at any time. Gov conceded presumptive prejudice. Also conceded timely assertion of rights.

* Once indictment unsealed and warrant for arrest issued, defendant two turned himself in.

* Gov also admitted that it delayed b/c if defendant two were tried alone he might prevail by just blaming defendant one. Gov interest in trying alleged co-conspirators together does not automatically justify delay. And gov did not delay while diligently searching for defendant one, as already discussed. Gov was just delaying extradition of defendant one.

Second defendant's speedy-trial rights violated.

Reversed and remanded with instructions to dismiss indictment with prejudice.

Concurrence by Judge Clay:

Agrees that speedy-trial rights violated. Looks more closely at reason for delay. What is standard of review? Considerable deference, according to SCOTUS. . . . Like clear-error review.

Sell Victory

Just posted to the 6th Cir. blog.  Big victory on involuntary medication!

US v. Grigsby, No. 11-3736 (6th Cir. April 11, 2013) (for publication).

Panel of Judges Merritt, McKeague, and Stranch.

Dist ct entered order allowing gov to involuntarily medicate a defendant who had been diagnosed as paranoid schizophrenic to restore competency. Given the circumstances, the COA reversed the order and found that the defendant’s liberty interest in avoiding involuntary medication outweighed the government’s interest in prosecution.

Defendant had been charged with three counts of unarmed bank robbery.

Defendant was middle aged, homeless, and diagnosed with paranoid schizophrenia. Incompetent to stand trial. Refused oral medicines for schizophrenia. Not gravely disabled or a danger to himself or others or to the safe functioning of the facility, so no involuntary medication under Washington v. Harper, 494 U.S. 210 (1990). So gov sought involuntary medication under Sell. Got order. Interlocutory appeal by defendant followed.

Key points:

· There was an important gov interest in bringing defendant to trial. Bank robbery is serious.

· But the inquiry is “fact intensive.”

· Potential for lengthy civil commitment tempers gov’s interest in trial. Two potential courses for commitment and both should be considered: under 18 USC 4243 (not guilty b/c insane) and 4246 (hospitalization after time for release).

· Defendant might be found not guilty by reason of insanity, even if competence is restored. Undermines gov’s interest in prosecution.

· If involuntarily medicated, the defendant would still be in custody for about the same period as the advisory guideline range. Lessens gov interest in prosecution.

· Involuntary medication should be rare.

· Side effects of meds could affect fairness of trial. Defendant might have to stand trial and be subject to involuntary movements, the inability to stay still, a loss of dignified carriage in front of the jury, and difficulties assisting counsel, all caused by the meds. Side effects can be irreversible.

COA reviews several cases and compares and distinguishes them.

COA points out that “victory” for either party may be a double-edged sword. . . .

Case remanded with anticipation of civil-commitment proceedings.

Judge McKeague dissented. Disagrees with the special-circumstances analysis. Civil commitment is speculative. Defendant unlikely to prevail on insanity defense. Disagrees with majority’s discussion of potential sentence and potential side effects.

Friday, March 29, 2013

Stalking = Violent Felony for ACCA

Just posted on 6th Cir. blog. . . .

This case came out about a month ago, but I think it's worth noting.

United States v. Johnson, No. 11-5769 (6th Cir. Feb. 20, 2013) (for publication). Panel of Judges Boggs, White, and Black (S.D. Ohio).

Denial of suppression motion affirmed (traffic stop).

Use of Kentucky stalking conviction as violent felony for ACCA purposes affirmed.

I'm a little pressed for time, so I won't go into the suppression issue. Nothing earth shattering.

Prior Conviction:
* Kentucky first-degree stalking (Chapter 508 of Kentucky Penal Code, Ky. Rev. Stat. 508.104).
* Stalking---new issue for Sixth Cir., but COA looks to other circuits for guidance here.
* This statute does not necessarily require threatened use of violent force, so doesn't count for ACCA under force provision.
* But counts under serious-potential-risk provision. Potential for confrontation that could result in bodily injury. COA compares stalking to extortion.

Thursday, February 28, 2013

Wednesday, February 27, 2013

More on the CP Restitution Front


We've discussed CP restitution in the past (see Dec. 7, 2012 post).  Sixth Cir. continues on its trajectory of requiring causation
 
In United States v. Gamble, Nos. 11-5394/5544 (6th Cir. Feb. 27, 2013) (published) (panel of Judges Rogers, Kethledge, and Marbley (S.D. Ohio)), the Court confirmed that "[i]n order for restitution to be granted under 18 U.S.C. § 2259, the Government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is supported both by our precedent and by an independent reading of the statute."
 
COA looked at 18 USC 2259, which governs mandatory restitution in child sex cases.  COA also looked back at United States v. Evers, 669 F.3d 645 (6th Cir. 2012), in which the Court held that all restitution awards under 2259(b)(3) require the gov to show proximate cause.
 
The 6th Cir. concluded:
 
"Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers."
 
Defense counsel had objected in the dist ct, arguing that many of the alleged damages to "Vicky" occurred before the pictures were found in the defendant's possession.  Argued causation could not be shown.  Also argued that including "future costs" was speculative. 
 
The district court found that the evidence showed a total loss amount for Vicky of $1,002,766.85, and ordered restitution in that amount, an amount that was to be reduced as other money was collected.
 
The COA, however, affirmed that "[t]he proximate cause requirement recognized in Evers consists of (1) a cause-infact requirement—i.e., a showing that the defendant’s conduct actually caused the victim’s losses—and (2) a requirement that the cause be proximate."
 
The COA gave strong, concise support for its reading of 2259(b)(3)(F): that section "states that the victim’s losses include costs incurred for 'any other losses suffered by the victim as a proximate result of the offense.' The plain meaning of this phrase in context indicates that it is equally applicable to the previous five subsections listing specific costs like medical services and lost income. The 'any other losses' catchall is meant to close loopholes. There is no reason that the catchall would be limited by a proximate cause requirement while the specified categories of losses would not."
 
Also, "[i]n the definition of 'victim,' to whom restitution is owed, the statute states that the victim must be “harmed as a result of a commission of a crime under this chapter.' . . .  As other circuits have pointed out, 'this language implies that the government must establish a causal connection between the defendant’s offense and the harm to the victim.'"
 
Cause-in-fact and proximate cause required.  Proximate cause requires reasonable foreseeability. 
 
On the issue of joint-and-several liability, the COA saw a link with proximate causation: "The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action."
 
At this point, the COA discussed limiting the losses attributable to Old Lady Leary's cow and the lantern in the shed that led to the Chicago fire.
 
Apportioning restitution, the COA concluded, makes more sense: "liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement."
 
Interesting note: "Vicky" seems to have "collected almost half of the $1.2 million in losses that she has claimed to date."   
 
The COA explained that a defendant generally cannot cause harm prior to his or her offense date


The gov proposed a system for apportionment.  The COA saw this system as a possible solution; the Court did not mandate its adoption, but found it consistent with the statute.  The Court left the issue to the dist ct on remand.  Remand was to allow for consideration of new evidence and argument. 

One defendant argued his prison sentence was substantively unreasonable.  The Court rejected this argument.  He got 82 months, which was within the GLs. 

Judge Kethledge concurred in part and in the judgment:

* He believes in "a more flexible and open-ended determination of each defendant's share" of the alleged losses.

* To him, "an inquiry into whether a particular defendant actually caused a victim’s generalized losses—by which I mean losses resulting from the actions of many violators of the child pornography laws—is an inquiry into the unknowable."
 
* He admonished that "[c]asting legal questions in such terms is only a hindrance to clear thinking; and thus the choice before us is either to abandon enforcement of the statute in these cases, or to adopt a different rule of actual causation for this context. I would take the latter approach and adopt the First Circuit’s rule of aggregate causation (though only for purposes of determining actual cause)."
 
* He cautioned that "nothing in the statute appears to support multiple full recoveries for the victim. And multiple recoveries would be compelled under an approach where multiple defendants are each found to cause all of the victim’s losses.
 
* Agreeing that joint-and-several liability is impractical, he approved of apportioning losses, but recognized the problems with such a task.  His approach would be flexible.  He "would case the issue in terms of the defendant's comparative moral fault."  Various factors to consider

Friday, February 15, 2013

Great CP Result: Sentence Substantively Unreasonable

United States v. Melchor, No. 12--1300 (6th Cir. Feb. 14, 2013) (not for publication).

Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).

360-month sentence.  GLs were 210 to 262. 

Receiving CP.

COA vacated and remanded: sentence was substantively unreasonable.

The defendant was 36 years old.  Met a 12-year-old girl on-line and became Facebook friends.  They had on-line contact that was sexual in nature (sexual discussions and such).  Defendant was a registered sex offender.  The mother of the girl discovered the relationship and contacted police.  Police executed a warrant and discovered CP.  The defendant confessed an interest in young girls.  The defendant pleaded guilty to receiving CP.  The gov agreed not to charge him with the conduct related to the 12-year-old girl. 

Total offense level 35.  Enhancement b/c of "pattern of activity": prior exploitation of a minor.  PSR recommended sentence of 480 months.  Gov recommended GL sentence.  Defendant argued for a sentence below the GLs, or at least within them.  Dist ct gave 360-month sentence.  Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.

Points:
* Potential for recidivism may provide grounds for variance.  Defendant here did not appear amendable to rehab.  Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance. 
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement).  This conduct was covered---even if other conduct also supported the enhancement.  So this conduct was not a justification for the upward variance.   
* Defendant's conduct was not outside of what is generally covered by the GLs. 
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary. 

J. Griffin dissented.

Dissent:
* Given totality of circumstances, the sentence was substantively reasonable. 
* GLs provide for upward departure for under-represented criminal history. 
* Defendant presented a high risk of recidivism---more so than "the average sex offender." 






Monday, February 11, 2013

Terry Stops: 6th Cir. Provides New Guidance

Another snow picture!



United States v. Young, No. 11--2296 (6th Cir. Dec. 20, 2012) (designated for publication on Feb. 7, 2013).

Panel of Judges Siler, Cook, and Steeh (E.D. Mich).

Felon-in-possession case.

Procedural wrinkle:
* Defendant moved the district court to suppress evidence in 2007 during his original case.  He appealed that court's denial of the motion.  The COA affirmed b/c the defendant had not preserved the issue properly. 
* The defendant then filed a 2255 based on counsel's failure to preserve the issue.
* The district court vacated the original plea and accepted an amended conditional plea that preserved the issue.
* This appeal then followed.

Facts:
* On December 15, 2006, at 1:15 a.m., the defendant was sitting in the passenger seat of a car, in a reclined position, in a city-owned parking lot outside Julian's Bar and Restaurant in Grand Rapids, MI.  It was a lot regularly used by Julian's patrons. 
* Area had a recent history of violent crime, including shootings and assaults.
* Police officers testified that those waiting outside Julian's are more likely to be armed, as Julian's conducts pat-downs.
* Officers also testified that they look for those loitering, as loitering leads to "problems." 
* Under the city's loitering and trespassing ordinances, it was a crime to be in the lot without business at the adjacent establishments.
* Officers pulled into the lot.  They parked behind the defendant.  They observed the defendant for about a minute and a half.
* The officers approached the car in which the defendant was sitting.  They looked through the windows with flashlights.  One officer hit the passenger window with a flashlight.  After a fifteen-second pause, the defendant rolled down the window.  The officer requested ID.  When asked if he was "chillin'," the defendant replied that he'd fallen asleep while his companion ran into Julian's to see if they could get a table, or if they should just get take out. 
* The friend returned to the vehicle at that point.
* Officers sent the friend back into Julian's and told the defendant to "sit tight."
* The officers collected the defendant's ID and ran a warrant check.
* The defendant allegedly began making gestures around his pocket, as though he had contraband.  An officer asked the defendant to step out of the car.  The defendant then disclosed that he had a gun.  The defendant was cuffed, an officer reported an outstanding warrant, and the entire incident lasted about four minutes.

Conclusions and reasoning:
* The defendant was subject to a Terry stop when the police car parked behind the vehicle in which he sat.
* COA cited United States v. See, 574 F.3d 309 (6th Cir. 2009), and United States v. Gross, 662 F.3d 393 (6th Cir. 2011).  Even though the stop here occurred before these cases were decided, this case was pending on direct review after those decisions
* At the time the police cruiser parked behind the defendant, the police had reasonable suspicion to stop the defendant: it was a high-crime area, Julian's pats its patrons down, and the defendant was reclined in the car
* The high-crime area and pat-downs are contextual factors entitled to little weight, but they are still relevant.  The COA recognized that the crime in the area was violent crime, as opposed to the trespassing the police suspected the defendant was engaged in, but officers testified that trespassing and guns "are inter-related."  The pat-downs at Julian's meant ppl with guns were more likely to wait outside.   
* The COA gave reclining in a car at 1:15 a.m. more weight.  Officers believed the defendant was trespassing. 
* The COA rejected the defendant's "novel argument that suspicion of a mere trespassing violation is not sufficient to support a Terry stop under a 'reasonableness' inquiry because such offenses do not pose a danger to the public." 
* The warrant check and initial questioning were permissible under Terry.  While the permissibility of the warrant check was undecided prior to this case, the COA concluded that the check was permissible.  Other circuits had so held. 
* The warrant check would have produced the outstanding warrant regardless, so the officers could have arrested the defendant, and would have discovered the gun
* The stop, the COA noted, lasted only four minutes.  It was reasonable to tell the defendant to "sit tight." 
* COA recognized the potential for Terry-stop abuse, but decided that police must be able to investigate actual crimes, even if the crime is just trespassing. 
 

 
 

Friday, February 8, 2013

Drug GLs and Prior "Similar Offense"



United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).

Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).

GL section 2D1.1(a)(1) for distribution of drugs resulting in death.

Defendant argued that prior conviction for delivery of heroin was not a "similar offense."

Ct of Appeals rejected this position and affirmed.

Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin).  This prior conviction did NOT involve death or serious bodily injury.  So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43.  Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.

* The GLs do not define "similar offense" in this context.

* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses.  The COA said Chapter 4 is completely different from Chapter 2. 

* Amendment 123 of the GLs (from 1989), the COA said, provides guidance.  Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b).  Amendment 123 removed this definition, and replaced it with the current language.  The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C).  Latter section uses the term "felony drug offense." 

* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects."  The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute."  The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'" 

* The fact the prior was of a lesser magnitude did not sway the COA.  Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.

* Disproportionate-result argument did not win favor either.  No 8th Am violation.   

Friday, February 1, 2013

First Amendment, Social Media, Sex Offenders


Interesting case on sex offenders and social media. . . .

Doe v. Prosecutor, No. 12—2512 (7th Cir. Jan. 23, 2013) (for publication).

Indiana statute prohibited sex offenders from using social media sites, instant messaging, and on-line chats.  John Doe challenged this statute on First Amendment grounds.  The Seventh Circuit found the law unconstitutional.  While it was content neutral, it was not narrowly tailored to serve the state’s interests.  It broadly prohibited substantial protected speech instead of targeting improper communications to minors. 

Indiana Code section 35-42-4-12 prohibited certain sex offenders from knowingly using social-networking sites or instant-messaging or chat-room programs that the offender knows allow minors access or use. The statute did not differentiate sex offenders based on the age of the victim, the manner in which the crime was committed, or the time since the prior offense.  There was an exemption for people convicted of “Romeo and Juliet relationships,” those in which victim and perpetrator were close in age and had a consensual relationship.  The statute did not cover e-mail.

After a bench trial, the district court upheld the law, finding it narrowly tailored to serve a significant state interest.  There were other means of communication available. 

The Seventh Circuit found that the statute clearly implicated First Amendment rights: it precluded expression through social media, and it limited the right to receive information and ideas.  The law was content neutral---its restrictions did not turn on the content of the expression.  The state could “impose reasonable ‘time, place, or manner restrictions.’” 

To impose such restrictions, the law would have to meet “a variant of intermediate scrutiny.”  It had to be narrowly tailored to serve a significant government interest, and it had to leave open “ample alternative channels” allowing communication of the information.

The court found that the statute was not narrowly tailored, so it did not reach the alternative-channel inquiry. 

The statute targeted substantially more activity than the evil it sought to redress.  The district court had acknowledged this breadth, finding that the law captured conduct that had nothing to do with minors.  Indiana has other means to combat inappropriate communication between minors and sex offenders.

The court of appeals did not want to impose “too high a standard” on the state.  But in the end, “the Constitution tolerates some over-inclusiveness if it furthers the state's ability to administer the regulation and combat an evil,” but not as much as was presented here.   

There were other laws to address these concerns.  Indiana had statutes prohibiting solicitation.  The court of appeals observed that “[b]y breaking two laws, the sex offender will face increased sentences; however, the state can avoid First Amendment pitfalls by just increasing the sentences for solicitation—indeed, those laws already have enhanced penalties if the defendant uses a computer network.”

For our purposes, it is important to note that the court said, “this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release.”  It noted that “in assessing the need for incapacitation, see § 3553(a)(2)(C), a court could conceivably limit a defendant’s Internet access if full access posed too high a risk of recidivism.”  A total ban on the Internet could, however, be too broad.

Friday, January 25, 2013

Career-Offender Discussion: Misdemeanors and Shepard Documents

Not a big week for decisions in the 6th Cir.

But here’s a little career-offender discussion. . . .

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6th Cir. Jan. 23, 2013) (unpublished).

The first defendant challenged the district court’s finding that he was a career offender. He argued that his California conviction for assault with a deadly weapon other than a firearm was not a felony.

The sole question on appeal for this defendant was whether the California conviction for assault with a deadly weapon other than a firearm was a prior felony conviction for career-offender purposes.

The Court of Appeals concluded it was such a conviction.
The California conviction fell under California Penal Code section 245(a)(1): “[a]ny person who commits an assault upon the person of another with a deadly weapon other than a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.”

When a sentencing court sentences a defendant in accordance with the last option, the offense is treated as a misdemeanor under California law. Such convictions are termed “wobbler” offenses because sentencing judges have the option of making the offense a felony or a misdemeanor, depending on the sentence imposed.

The defendant argued that his conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in county jail, which made the conviction a misdemeanor “for all purposes.” But the Court of Appeals found otherwise.

Under the Guidelines, a “prior felony conviction” is a prior adult conviction for an offense punishable by a term greater than one year, regardless of whether the offense is specifically designated as a felony and regardless of the actual sentence imposed. The Court of Appeals looked to guideline section 4B1.2’s application note 1. So the designation of the offense under California law and the actual sentence imposed were irrelevant. The sole question was whether the California offense was punishable by a term exceeding one year.

The defendant tried arguing that the California statute effectively encompassed two offenses: one that was punishable by a longer term in state prison and one punishable by county jail for a term “not exceeding one year.” But the Court of Appeals found that the statute encompassed a single offense: “assault with a deadly weapon . . . other than a firearm.” And that single offense “shall be punished by imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.”The statute provided for multiple punishment options—not multiple offense options. The single offense was punishable by a term exceeding one year, so it counts for career-offender purposes.

Even if the Court were to look more closely at the intent of California law, the prior offense would not be considered a misdemeanor. The Court found that the defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365 days in county jail, suspended, credit for 144 days, and five years of probation. Under California law, when a court suspends a sentence and orders probation, there is a conviction, but no judgment has been rendered. The offense here would be regarded as a felony until judgment is entered.

The defendant did not argue that a judgment was actually rendered, so the prior conviction would not be considered a misdemeanor even in California. The district court did not err in finding that the defendant was a career offender.

For the second defendant, the issue was one of Shepardsources and the categorical approach. The government acknowledged that the sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to provide Sheparddocuments because the defendant did not challenge the fact of the prior conviction and the statutory definition was adequate to determine the nature of the offense.
This prior conviction was for a violation of a statute that provided that “every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or two or three years,”under the California Health and Safety Code sections 11359 and 1170(h).

There was no other way to violate the statute. A conviction under that provision is a controlled-substance offense under section 4B1.1, as it is an offense“punishable by imprisonment for a term exceeding one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Such a conviction for possession of marijuana for sale fits this definition.

The defendant did not challenge the fact of the offense or the specific convicting statute. He argued only that the government did not prove its case. The government presented a case summary from California, case “minutes” from California, a criminal history report from Los Angeles County, and an indictment to prove the nature of the prior conviction. These were the only documents regarding the offense and they showed that the defendant was charged with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals concluded that the district court did not err in relying on these documents to show the fact of the prior conviction.

As to the last challenge that the district court did not understand its sentencing discretion, the defendant waived his appellate rights.