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. 
 

 
 

Career-Offender Discussion: Misdemeanors and Shepard Documents

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

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

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6^th 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.

Two CP Decisions. . . .

United States v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Kennedy, Gibbons, and Kethledge.

CP case.  D appealed the special conditions of his supervised release.  Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal). 

D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time).  Police told of possible CP (contacted by another police department).  Police went to the residence and arrested the D for trespassing.  Searched home (to ensure no other trespassers present).  Seized D's property; said home scheduled for demolition and evidence could be destroyed.  Detective got a warrant and examined the electronic media.  Found CP. 

The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it.  Home was scheduled for demolition. 

D pleaded guilty.  Appellate waiver in plea agreement.  Agreement detailed several conditions the government would seek for supervised release.   

District court imposed a sentence of 30 months and 10 years of supervised release.  Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval. 

Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255.  Record not developed on direct appeal.  Unconditional plea means no review of the denial of the motion to suppress here.  As to the conditions of supervised release, the D waived his right to appeal them.  Even a lack of notice of one of the conditions did not jump the waiver hurdle.  A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions. 

*****

Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio). 

CP case.  GLs of 78 to 97 months.  District court gave the D one day in custody and 5 years of SR.  Sentence vacated as substantively unreasonable. 

Psych report indicated that the D was a low risk for recidivism (and other positive factors).  D was cooperative, lacked criminal history, went to counseling, and had a painful back condition. 

The government appealed the one-day sentence.  The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance.  The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases. 

The sentence was procedurally reasonable, but failed substantively.  Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation.  D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs.  Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'"  The other 3553(a) factors received too little attention from the district court.

The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012.  The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission."  Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography."  But this D collected his images over an extended period of time and paid to do so. 

The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review. 

"[E]xtraordinary circumstances may justify extraordinary variances or departures."  This finding seems to follow up on some of the problematic issues in Bistline. 

Waiving Appellate Rights: Yes, Those Waivers Stick

In a very short opinion, the panel of Judges Griffin, White, and Watson (S.D. Ohio) dismissed the case of United States v. Vandewege, No. 09-1985 (6th Cir. Aug. 3, 2011) (unpublished). The plea included a waiver of the right to appeal:

"a sentence that is within the guideline range as determined by the Court at sentencing and the manner in which the sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or any ground whatever, in exchange for concessions made by the United States Attorney’s office in this plea agreement, except that the Defendant may appeal on grounds preserved at sentencing, that the Court incorrectly determined the guideline range."

The Court concluded: "Vandewege has waived the issue he advances in this appeal: that his sentence is unreasonable because the district court denied his request for a downward variance from the guidelines range. The appellate waiver provision in Vandewege’s plea agreement waives his right to appeal any sentence within his guidelines range, except on grounds, preserved at sentencing, that the district court incorrectly determined the guidelines range."

At the resentencing (this appeal was the defendant's second), there were no objections to the revised advisory guideline range. The defense did make a request for a downward variance. It was the denial of such a variance that the defendant challenged on appeal. The Court found that the "appeal is waived."

The defense had argued "that the government ha[d] forfeited the waiver argument by failing to bring it in a motion to dismiss." The Court said it strongly encourages the government to file promptly any potential motions to dismiss in such cases. But it also pointed out that it has not held "that the failure to file a motion to dismiss would result in forfeiture of the right to rely on an otherwise valid waiver of appeal." The Court declined to so hold here.