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.
Showing posts with label ACCA. Show all posts
Showing posts with label ACCA. Show all posts
Wednesday, August 28, 2013
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.
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.
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.
Thursday, August 23, 2012
ACCA and Shepard Documents
Sorry it's been so long without posts!
Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication). Panel of Judges Boggs, Gilman, and Donald.
Issue:
Can dist ct consider probable-cause affidavit incorporated by reference during a prior sentencing?
Conclusion:
Yes, b/c defendant stipulated to the facts in the affidavit.
Procedural History:
* Felon-in-possession case.
* There were a number of prior offenses. PSR scored defendant under ACCA.
* Defendant objected. He argued that two of his prior convictions should not be counted as separate offenses. He argued the dist ct could not conclude that that the priors had occurred on occasions different from one another, as required by the ACCA. The dist ct had to turn to the probable-cause affidavit the state sentencing ct had used as the factual basis for the prior no-contest plea.
* Dist ct concluded the D did not qualify for ACCA treatment.
* Gov appealed.
* COA reversed the dist ct and remanded for resentencing.
COA Opinion:
* The D had stipulated to the facts in the probable-cause affidavit.
* The state judge who sentenced the D on the prior stated he was using the affidavit as the factual basis for the plea.
* If a defendant stipulates to the accuracy of a document describing the facts of an offense, and that stipulation falls into a Shepard source (eg the defendant stipulates during the plea colloquy), then that document the defendant stipulated to is acceptable under Shepard.
Additional Points of Interest:
* Footnote 4: SCOTUS and 6th Cir have left open the issue of whether Shepard even applies in the context of determining whether prior offenses occurred on separate occasions. Does Shepard just apply to determine whether a prior qualifies as a violent felony? COA does not decide here b/c probable-cause affidavit here "became a Shepard-approved document when incorporated by reference in the plea colloquy."
* It appears from the discussion in Amos that a defense attorney's stipulation is enough---the defendant need not actually stipulate on the record. But this issue may be one to challenge. There's room for argument.
There's been a lot of interesting case law recently! I'm trying to keep up! I'll try to post more soon!
(Just b/c it's pretty!)
Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication). Panel of Judges Boggs, Gilman, and Donald.
Issue:
Can dist ct consider probable-cause affidavit incorporated by reference during a prior sentencing?
Conclusion:
Yes, b/c defendant stipulated to the facts in the affidavit.
Procedural History:
* Felon-in-possession case.
* There were a number of prior offenses. PSR scored defendant under ACCA.
* Defendant objected. He argued that two of his prior convictions should not be counted as separate offenses. He argued the dist ct could not conclude that that the priors had occurred on occasions different from one another, as required by the ACCA. The dist ct had to turn to the probable-cause affidavit the state sentencing ct had used as the factual basis for the prior no-contest plea.
* Dist ct concluded the D did not qualify for ACCA treatment.
* Gov appealed.
* COA reversed the dist ct and remanded for resentencing.
COA Opinion:
* The D had stipulated to the facts in the probable-cause affidavit.
* The state judge who sentenced the D on the prior stated he was using the affidavit as the factual basis for the plea.
* If a defendant stipulates to the accuracy of a document describing the facts of an offense, and that stipulation falls into a Shepard source (eg the defendant stipulates during the plea colloquy), then that document the defendant stipulated to is acceptable under Shepard.
Additional Points of Interest:
* Footnote 4: SCOTUS and 6th Cir have left open the issue of whether Shepard even applies in the context of determining whether prior offenses occurred on separate occasions. Does Shepard just apply to determine whether a prior qualifies as a violent felony? COA does not decide here b/c probable-cause affidavit here "became a Shepard-approved document when incorporated by reference in the plea colloquy."
* It appears from the discussion in Amos that a defense attorney's stipulation is enough---the defendant need not actually stipulate on the record. But this issue may be one to challenge. There's room for argument.
There's been a lot of interesting case law recently! I'm trying to keep up! I'll try to post more soon!
(Just b/c it's pretty!)
Wednesday, April 11, 2012
Another ACCA Disappointment
There must be some disturbance in the force causing bad things, or a cloaked Klingon Bird of Prey taking pot shots at us. :(
United States v. Johnson, Nos. 10-5691/5778 (6th Cir. Apr. 11, 2012) (for publication).
Panel of Judges Keith, Griffin, and Stranch.
Gov cross-appealed when dist ct did not sentence D under ACCA (18 USC 924(e)). COA agreed with gov, vacated the sentence, and remanded for resentencing.
Prior at issue: Missouri third-degree assault. Can involve reckless conduct---not just intentional. Normally a misdemeanor, but there was a recidivist enhancement here.
The D was not charged with reckless conduct; the criminal information clarified that the D was charged with intentionally attempting to cause physical injury.
COA clarified that the residual clause is not meant to be a "catch-all provision." Also stated that "we must consider whether the prior offense 'conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.'"
COA classifies Begay's similar-in-kind test as "of secondary importance under Sykes." It did, however, still address the test. The Court also found that the assault offense is exactly the type of conduct that makes it more likely that the offender would use a gun to harm someone. It shows a capacity for violence.
While the gov raised the issue, the COA did not address the force clause and the question of whether the assault offense could qualify under that clause.
The fact that this prior offense involved an attempt was inconsequantial. Attempts can qualify as violent felonies.
The D had also appealed, arguing the dist ct, without proper reasoning, ordered his fed and state sentences to be consecutive. The issue became moot given the ACCA ruling, but the COA did note in footnote one that the dist ct "should expressly consider" the 3553(a) factors and USSG 5G1.3(c) and the relevant commentary in imposing a consecutive sentence.
United States v. Johnson, Nos. 10-5691/5778 (6th Cir. Apr. 11, 2012) (for publication).
Panel of Judges Keith, Griffin, and Stranch.
Gov cross-appealed when dist ct did not sentence D under ACCA (18 USC 924(e)). COA agreed with gov, vacated the sentence, and remanded for resentencing.
Prior at issue: Missouri third-degree assault. Can involve reckless conduct---not just intentional. Normally a misdemeanor, but there was a recidivist enhancement here.
The D was not charged with reckless conduct; the criminal information clarified that the D was charged with intentionally attempting to cause physical injury.
COA clarified that the residual clause is not meant to be a "catch-all provision." Also stated that "we must consider whether the prior offense 'conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.'"
COA classifies Begay's similar-in-kind test as "of secondary importance under Sykes." It did, however, still address the test. The Court also found that the assault offense is exactly the type of conduct that makes it more likely that the offender would use a gun to harm someone. It shows a capacity for violence.
While the gov raised the issue, the COA did not address the force clause and the question of whether the assault offense could qualify under that clause.
The fact that this prior offense involved an attempt was inconsequantial. Attempts can qualify as violent felonies.
The D had also appealed, arguing the dist ct, without proper reasoning, ordered his fed and state sentences to be consecutive. The issue became moot given the ACCA ruling, but the COA did note in footnote one that the dist ct "should expressly consider" the 3553(a) factors and USSG 5G1.3(c) and the relevant commentary in imposing a consecutive sentence.
Thursday, April 5, 2012
ACCA Disappointment: DVs Qualify
United States v. Kearney, No. 10-1532 (6th Cir. Apr. 5, 2012) (published).
Panel of Judges Merritt, Clay, and Sutton. J. Merritt dissented.
ACCA issue.
Priors were for domestic violence: 93-day misdemeanors under Mich law. But the max penalty increased for D b/c of a recidivism enhancement. Statute is the familiar MCL 750.81(2). Assault or assault and battery.
COA recognized that touching was enough to sustain a conviction under Mich law.
PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton. The D did not dispute these allegations.
Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct. COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).
Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes? Yes. COA cites United States v. Rodriquez, 553 U.S. 377 (2008).
The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010). But it does so in the context of considering recidivism enhancements. Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause.
So those avenues remain open.
(Hey, it's hard to find free pics. But take it as a pirate exhortation to keep raising these issues!)
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates.
He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."
He also cites the rule of lenity.
Panel of Judges Merritt, Clay, and Sutton. J. Merritt dissented.
ACCA issue.
Priors were for domestic violence: 93-day misdemeanors under Mich law. But the max penalty increased for D b/c of a recidivism enhancement. Statute is the familiar MCL 750.81(2). Assault or assault and battery.
COA recognized that touching was enough to sustain a conviction under Mich law.
PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton. The D did not dispute these allegations.
Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct. COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).
Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes? Yes. COA cites United States v. Rodriquez, 553 U.S. 377 (2008).
The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010). But it does so in the context of considering recidivism enhancements. Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause.
So those avenues remain open.
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates.
He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."
He also cites the rule of lenity.
Thursday, January 19, 2012
Mand Mins and Substantial Assistance
United States v. Hawn, No. 10–2098 (6th Cir. Jan. 11, 2012) (not for publication).
Panel of Judges Daughtrey, Cole, and Rogers.
United States v. Traxler, No. 10-1792 (6th Cir. Jan. 18, 2012) (not for publication).
Panel of Judges Kennedy, Martin, and Stranch.
Government appealed in both cases. Both defendants qualified for the ACCA 15-year mand min. Gov had released both defendants’ mand mins b/c of substantial assistance under 18 USC 3553(e).
Hawn got a year and a day. Traxler got five years.
The district court in Hawn disagreed with the government’s contention that any downward departure had to be based only on substantial assistance. The district court found it could vary based on the 3553(a) factors.
The Hawn Court found that:
* The district court should have started its analysis of a potential downward departure from the mand min, not the otherwise applicable GL range (here, the applicable range was less than the mand min, so the mand min should have become the range).
* The district court should not have departed based on the 3553(a) factors " without mentioning whether or how these factors related to or gave context to [the] substantial assistance."
* The district court had "the limited authority to impose a sentence below the minimum to reflect [the defendant’s] substantial assistance." The Court cited United States v. Bullard, 390 F.3d 413 (6th Cir. 2004), and United States v. Grant, 636 F.3d 803 (6th Cir. 2011). The Court found that Grant applies in the 3553(e) context as well.
The Court vacated the sentence.
The Court also made some notes for resentencing:
* The district court has only the authority to impose a sentence below the mandatory minimum based on the defendant’s substantial assistance.
* BUT the district court has "broad discretion" to consider a number of "contextual factors" to evaluate the value of the defendant’s assistance, the extent of the downward departure.
* The district court is not bound by the government’s recommendation of a two-level downward departure. Can give a greater or lesser departure. But the value of the assistance is the "governing principle." Any reduction should not exceed the value of the assistance.
The Traxler Court found that:
* The gov had not objected at sentencing, so plain-error review applied.
* Bullard applied.
* Interplay between the government’s downward-departure motion and the defense’s motion for a variance was confusing and the district court did not address how it reached its sentence, so remand was justified.
As in Hawn, the Court vacated the sentence.
Judge Stranch dissented:
* Found the sentence resulted from two separate motions: the gov’s motion for a downward departure and the defense’s motion for a downward variance.
* The district court adequately explained the sentence and the sentence should stand.
Panel of Judges Daughtrey, Cole, and Rogers.
United States v. Traxler, No. 10-1792 (6th Cir. Jan. 18, 2012) (not for publication).
Panel of Judges Kennedy, Martin, and Stranch.
Government appealed in both cases. Both defendants qualified for the ACCA 15-year mand min. Gov had released both defendants’ mand mins b/c of substantial assistance under 18 USC 3553(e).
Hawn got a year and a day. Traxler got five years.
The district court in Hawn disagreed with the government’s contention that any downward departure had to be based only on substantial assistance. The district court found it could vary based on the 3553(a) factors.
The Hawn Court found that:
* The district court should have started its analysis of a potential downward departure from the mand min, not the otherwise applicable GL range (here, the applicable range was less than the mand min, so the mand min should have become the range).
* The district court should not have departed based on the 3553(a) factors " without mentioning whether or how these factors related to or gave context to [the] substantial assistance."
* The district court had "the limited authority to impose a sentence below the minimum to reflect [the defendant’s] substantial assistance." The Court cited United States v. Bullard, 390 F.3d 413 (6th Cir. 2004), and United States v. Grant, 636 F.3d 803 (6th Cir. 2011). The Court found that Grant applies in the 3553(e) context as well.
The Court vacated the sentence.
The Court also made some notes for resentencing:
* The district court has only the authority to impose a sentence below the mandatory minimum based on the defendant’s substantial assistance.
* BUT the district court has "broad discretion" to consider a number of "contextual factors" to evaluate the value of the defendant’s assistance, the extent of the downward departure.
* The district court is not bound by the government’s recommendation of a two-level downward departure. Can give a greater or lesser departure. But the value of the assistance is the "governing principle." Any reduction should not exceed the value of the assistance.
The Traxler Court found that:
* The gov had not objected at sentencing, so plain-error review applied.
* Bullard applied.
* Interplay between the government’s downward-departure motion and the defense’s motion for a variance was confusing and the district court did not address how it reached its sentence, so remand was justified.
As in Hawn, the Court vacated the sentence.
Judge Stranch dissented:
* Found the sentence resulted from two separate motions: the gov’s motion for a downward departure and the defense’s motion for a downward variance.
* The district court adequately explained the sentence and the sentence should stand.
Friday, December 16, 2011
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.
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.
Wednesday, November 2, 2011
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."
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."
Thursday, August 25, 2011
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.
Thursday, August 4, 2011
Crime-of-Violence/Violent-Felony Analysis: Ag Assault NOT Categorically a VF! And Use of Plea Transcript. . . .
United States v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (to be published). Panel of Judges Moore, Gibbons, and McKeague. Judge Moore wrote the majority opinion; Judge McKeague dissented.
Felon-in-possession case. Defendant sentenced as an armed career criminal. Conclusion: Tennessee's aggravated-assault statute is not categorically a violent felony. And in this case, the Shepard docs did not establish the nature of the prior conviction.
The Court found that the "use of physical force" clause of the ACCA requires more than reckless conduct. The decision rests on the potential for just reckless conduct falling under the statute. But the Court also notes (in footnote 6) that causing serious bodily injury may not necessarily require the use of physical force. The prior conviction was not a violent felony under the physical-force clause.
In terms of the "otherwise" clause, after Begay, reckless aggravated assault is not a violent felony.
Looking at the Shepard documents, there is no showing that the defendant necessarily had pleaded guilty to an offense qualifying as a violent felony. The government asked the Court to consider the state's proffer of a factual basis during the plea colloquy. While the plea colloquy is a Shepard document, the defendant here had entered an Alford plea (avoid acknowledgment of guilt). In considering this issue, the Court noted it has declined to consider preliminary-exam transcripts because the defendant did not admit the conduct; Shepard requires a judicial record in which the defendant necessarily admitted certain conduct to enter a plea. The state's factual basis does not qualify.
The Court is clear: "We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced 'to feign agnosticism about clearly knowable facts.'" There are Sixth Amendment concerns as well.
Judge McKeague dissented. He finds that United States v. Matthews, 278 F.3d 560 (6th Cir. 2002), answered the question and makes Tennessee's aggravated-assault offense a violent felony. He finds that Begay did not overrule Matthews and he cites United States v. Benton, 639 F.3d 723 (6th Cir. 2011). (The majority found that case's statements to be dicta.) The dissent also disagrees on the issue of considering the state's factual basis at a plea, but he does agree that reading that factual basis (without obtaining the defendant's confirmation of it) was insufficient. He would allow consideration of those facts if other Shepard documents confirmed them.
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