Ex Post Facto and GLs

United States v. Welch, No. 10-4025 (6th Cir. Aug. 2, 2012) (to be published).  Panel of Judges Merritt, Cook, and Cox (E.D. Mich.).

Counterfeiting case.

Two issues:

* Did dist ct violate Ex Post Facto Clause by calculating GLs with an amendment to 2B5.1 that went into effect b/t time of offense and sentencing, so defendant received a harsher sentence than would have applied at time of offense?

* Did dist ct err by not ordering fed sentence to run concurrently with undischarged state sentence (in contravention of 5G1.3(b))?

Conclusion:

* Remand necessary b/c Ex Post Facto Clause had been violated. 

Reasoning:

* COA considered whether the dist ct erred in using 2B5.1 instead of 2B1.1 to calculate offense level.  Usually, GLs in effect at time of sentencing apply.  2B1.1 had been standard.  2B5.1 had commentary excluding the D's offense.  But COA noted that 2B1.1 was not clearly applicable.  There was ambiguity, but most cts had been using 2B1.1. 

* In response to the confusion, Sentencing Commission had issued an amendment (731) that amended 2B5.1 to include explicitly the D's offense.  The amendment became effective Nov. 1, 2009.

* The D argued that using the amended version of 2B5.1, which took effect b/t the time of the offense and sentencing, violated the Ex Post Facto Clause. 

* If a revision to the GLs changes the legal consequences of an offense that occurred before the revision took effect---to the detriment of the D---the GLs in effect at the time of the offense must apply. 

* Here, 2B1.1 provided an offense level 5 levels lower than that under 2B5.1.  So there was an ex post facto violation. 

* The gov conceded the ambiguity of which GL section would apply, but argued that the amendment simply clarified what was always intended.  COA rejected this argument.  2B1.1 was the GL cts had been using.  And Commission did not label the amendment a "clarifying" amendment.  Rule of lenity had required using 2B1.1. 

* On the issue of concurrent or consecutive time, the COA used plain-error review b/c D had failed to object in dist ct.  5G1.3(b) did not apply b/c state conviction did not increase federal GLs.  Federal conduct was separate from the conduct that led to the state conviction (though both were counterfeiting offenses).  Dist ct properly exercised its discretion under 5G1.3(c). 

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. 

Concurrent vs. Consecutive Sentences for SRVs

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

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

COA remanded for resentencing.

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

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

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

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