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.
Showing posts with label Firearms. Show all posts
Showing posts with label Firearms. Show all posts
Friday, October 4, 2013
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.
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.
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!)
Friday, December 30, 2011
Gun and Personal-Use Marijuana
United States v. Shields, No. 10-5004 (6th Cir. Dec. 30, 2011) (published). Panel of Judges Cole, Rogers, Sargus (S.D. Ohio).
Just out! Four-level enhancement for possessing gun in connection with another felony under 2K2.1(b)(6). . . .
Defendant received 108-month sentence for being a felon in possession. Was the 2K2.1(b)(6) enhancement appropriate?
* Defendant possessed gun and small, consumption-level quantity of marijuana (and a little cocaine residue).
* Drug possession would have been a misdemeanor but for the defendant's prior convictions.
Government did not sufficiently demonstrate that possession of the gun facilitated/had the potential to facilitate the felony drug possession. Insufficient nexus between the firearm and the drugs.
Sentence was procedurally unreasonable.
Noteworthy conclusions of the Court:
* While the fortress theory could be applied to support the enhancement in a case involving only drug possession (no trafficking), the gun in this case did not "embolden" the defendant to possess the drugs.
* United States v. McKenzie, 410 F. App`x 943 (6th Cir. 2011), is "materially indistinguishable" from the facts at hand. Gun and marijuana in car. Enhancement did not apply.
* No evidence of drug trafficking. Very small amount of marijuana. Not a valuable "stash." Only worth about $10.
* Gun was allegedly for personal protection; it was not being used to protect "a baggie of pot."
* Commentary to 2K2.1 (note 14(B)) considers drug trafficking. So while close proximity to drugs may be enough to apply the enhancement when there's trafficking, it is not enough when there is only drug possession.
* Court rejects reasoning in United States v. Berkey, 406 F. App`x 938 (6th Cir. 2011). Finds McKenzie more persuasive. In Berkey, the court found more than mere proximity: defendant used drugs in public with the gun. Court here, however, rejects the "in public" consideration as important.
* Quantity of drugs possessed is a more relevant consideration. A gun may embolden a person to carry a larger, more valuable quantity of drugs.
* "A repeat possessor of a small amount of drugs would not feel the need to have a gun to protect that amount of drugs any more than a first-time misdemeanor possessor of such a small amount, and the firearm thus was not useful in [this] case."
Remanded for resentencing.
Wednesday, December 14, 2011
Abbott means what it says. . . .
United States v. Thomas, No. 09-3827 (6th Cir. Dec. 13, 2011) (unpublished). Panel of Judges Merritt, Moore, and Mays (W.D. Tenn.).
Conviction for possession of more than 1,000 kilograms of marijuana with intent to distribute, and for possessing a firearm in furtherance of a drug-trafficking offense. Sentence of 151 months on the drugs + 60 months consecutive for the gun.
Defendant argued it was error to impose the 60-month consecutive sentence given the 10-year minimum sentence for the drug count. Defendant cited United States v. Williams, 558 F.3d 166 (2d Cir. 2009), in which the court concluded that the 924(c) sentence did not apply when the defendant was subject to a higher mandatory minimum for the predicate drug offense. That was the old United States v. Almany, 598 F.3d 901 (6th Cir. 2010), argument. Now, however, the S. Ct. has made it clear that the 924(c) sentence applies and is consecutive regardless of the mandatory minimum for the predicate offense. Abbott v. United States, 131 S. Ct. 18 (2010). Sentence affirmed.
Conviction for possession of more than 1,000 kilograms of marijuana with intent to distribute, and for possessing a firearm in furtherance of a drug-trafficking offense. Sentence of 151 months on the drugs + 60 months consecutive for the gun.
Defendant argued it was error to impose the 60-month consecutive sentence given the 10-year minimum sentence for the drug count. Defendant cited United States v. Williams, 558 F.3d 166 (2d Cir. 2009), in which the court concluded that the 924(c) sentence did not apply when the defendant was subject to a higher mandatory minimum for the predicate drug offense. That was the old United States v. Almany, 598 F.3d 901 (6th Cir. 2010), argument. Now, however, the S. Ct. has made it clear that the 924(c) sentence applies and is consecutive regardless of the mandatory minimum for the predicate offense. Abbott v. United States, 131 S. Ct. 18 (2010). Sentence affirmed.
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