Proffers and Info in PSRs

United States v. Merlo, No. 10-2003 (6th Cir. Mar. 23, 2012) (unpublished).

Panel of Judges Merritt, Boggs, and Clay.

Just a quick note on this unpublished case that addresses the use of proffer info at sentencing.

Tax-fraud case.  Defendant argued on appeal that the government violated the plea agreement by using information he provided while cooperating against him at sentencing and for calculating restitution.  The COA affirmed. 

Plain-error review. 

The information the dist ct considered at sentencing was not new information the D had provided.  It was info the D had had to provide in answer to a grand-jury subpoena.  So dist ct did not err in considering it.  Also, it was not clear that the info was used to determine the GL range, the D's sentence within the range, or the extent of the the departure.

Regardless of the info at issue, there was ample evidence against the D.     

Mand Mins and Substantial Assistance

United States v. Hawn, No. 10–2098 (6^th Cir. Jan. 11, 2012) (not for publication).

Panel of Judges Daughtrey, Cole, and Rogers.

United States v. Traxler, No. 10-1792 (6^th Cir. Jan. 18, 2012) (not for publication).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 (6^th Cir. 2004), and United States v. Grant, 636 F.3d 803 (6^th 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.

Fingerprint Evidence and Plain-Error Review of Sentence

United States v. Watkins, No. 09-3688 (6th Cir. Dec. 12, 2011) (unpublished).  Panel of Judges Gilman, Rogers, and Stranch.

Armed robbery of a credit union.  Conviction affirmed, but sentence vacated.

Procedural Highlights:

* Orally pronounced sentence on one count exceed the statutory maximum sentence and then conflicted with the minute order and the written judgment.

* Before the end of the sentencing hearing, the defendant asked the district court to direct the clerk's office to file a notice of appeal for him.  The notice, however, was never filed.  The defendant filed a pro se notice months later.  The district court then ordered the clerk's office to file a notice of appeal nunc pro tunc to the date of sentencing.

* The appellate court found that the district court lacked the authority to enter the nunc pro tunc order and dismissed the appeal for lack jurisdiction.

* The defendant filed a pro se 2255, which the gov supported, as the gov recognized that the defendant was not at fault for the untimeliness of the notice of appeal.  Sentencing discrepancy not addressed.

* To remedy the notice-of-appeal issue, the district court vacated its judgment and reentered a judgment, which matched the earlier written judgment. 

Conclusions of Court of Appeals:

* Usually, an oral pronouncement of judgment controls.  Oral sentence, however, constituted technical error b/c it exceeded the statutory maximum sentence.  Written judgment that would have corrected this error was issued two days after the Rule 35(a) deadline, however.  Because the defendant did not raise the issue on appeal and because the COA vacated the sentence, the court did not decide whether or not relief based on the discrepancy was in order.

* Admission of fingerprint evidence was not an abuse of discretion.  At CDAM and at local panel trainings, we've talked a little about forensic evidence.  In this case, the Sixth Circuit discussed the National Research Council's Strengthening Forensic Science in the United States: A Path Forward of 2009. 

* At the Daubert hearing, the gov fingerprint examiner testified that when the ACE-V method of identifying latent fingerprints is properly used by a competent examiner the error rate for identification is zero.  The defendant challenged this assertion.

* The COA found two problems with the challenge.  First, the National Research Council's report from 2009 was not before the district court in 2005.  Second, error rate is only one factor to consider.  Even if the gov examiner was wrong about it, that mistake would not negate the scientific validity of the ACE-V method given the other factors the district court had to consider, and which the defendant did not challenge on appeal. 

* Plain-error standard applied to procedural sentencing claim.  COA found that the sentencing "court's failure to explain [the defendant's] sentence constituted plain error."  No reasoning given for the sentence.  The sentencing court did not address the defendant's argument that the sentence was disproportionate to another bank robber's sentence.

* The COA distinguished United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), as in that case the court had offered "at least some" explanation for the sentence imposed.  There was no explanation in the case at hand.