I just posted this note to the 6th Cir. blog. It dovetails nicely with our panel training yesterday.
United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).
But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence. The COA rejected the argument.
Crack case. Defendant was a career offender. GLs 151 to 188. D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer). Dist ct granted downward variance and sentenced D to 130 months of imprisonment.
COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"
COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement. Confers no rights. Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender). Also said that he was not a candidate for the policy b/c of his lengthy criminal history.
Sentence affirmed.
Showing posts with label Sentencing Discretion. Show all posts
Showing posts with label Sentencing Discretion. Show all posts
Friday, March 21, 2014
Friday, February 21, 2014
Clemency . . . .
Yes, I just used the C word.
It seems we may be looking at some sentence commutation. And a group of organizations, including the Defender organization, NACDL, FAMM, and more, have formed Clemency Project 2014.
BOP is going to be sending notice to inmates outlining the criteria for which the president is looking and telling inmates how to get assistance from the Clemency Project.
If YOU would like to take a case, please contact Norman Reimer at clemencyproject@nacdl.org.
The criteria IN BRIEF(!):
* Drugs (any kind).
* Would sentence be lower if imposed today?
* Long sentence, clean record in custody, not a public-safety threat, and more. . . .
Also, if you have represented someone that you think might be a candidate and want to explore the criteria and/or want to recommend them for review in this process, you can call the office at 616-742-7420 and I can send you more info.
It seems we may be looking at some sentence commutation. And a group of organizations, including the Defender organization, NACDL, FAMM, and more, have formed Clemency Project 2014.
BOP is going to be sending notice to inmates outlining the criteria for which the president is looking and telling inmates how to get assistance from the Clemency Project.
If YOU would like to take a case, please contact Norman Reimer at clemencyproject@nacdl.org.
The criteria IN BRIEF(!):
* Drugs (any kind).
* Would sentence be lower if imposed today?
* Long sentence, clean record in custody, not a public-safety threat, and more. . . .
Also, if you have represented someone that you think might be a candidate and want to explore the criteria and/or want to recommend them for review in this process, you can call the office at 616-742-7420 and I can send you more info.
Wednesday, February 27, 2013
More on the CP Restitution Front
We've discussed CP restitution in the past (see Dec. 7, 2012 post). Sixth Cir. continues on its trajectory of requiring causation.
In United States v. Gamble, Nos. 11-5394/5544 (6th Cir. Feb. 27, 2013) (published) (panel of Judges Rogers, Kethledge, and Marbley (S.D. Ohio)), the Court confirmed that "[i]n order for restitution to be granted under 18 U.S.C. § 2259, the Government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is supported both by our precedent and by an independent reading of the statute."
COA looked at 18 USC 2259, which governs mandatory restitution in child sex cases. COA also looked back at United States v. Evers, 669 F.3d 645 (6th Cir. 2012), in which the Court held that all restitution awards under 2259(b)(3) require the gov to show proximate cause.
The 6th Cir. concluded:
"Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers."
Defense counsel had objected in the dist ct, arguing that many of the alleged damages to "Vicky" occurred before the pictures were found in the defendant's possession. Argued causation could not be shown. Also argued that including "future costs" was speculative.
The district court found that the evidence showed a total loss amount for Vicky of $1,002,766.85, and ordered restitution in that amount, an amount that was to be reduced as other money was collected.
The COA, however, affirmed that "[t]he proximate cause requirement recognized in Evers consists of (1) a cause-infact requirement—i.e., a showing that the defendant’s conduct actually caused the victim’s losses—and (2) a requirement that the cause be proximate."
The COA gave strong, concise support for its reading of 2259(b)(3)(F): that section "states that the victim’s losses include costs incurred for 'any other losses suffered by the victim as a proximate result of the offense.' The plain meaning of this phrase in context indicates that it is equally applicable to the previous five subsections listing specific costs like medical services and lost income. The 'any other losses' catchall is meant to close loopholes. There is no reason that the catchall would be limited by a proximate cause requirement while the specified categories of losses would not."
Also, "[i]n the definition of 'victim,' to whom restitution is owed, the statute states that the victim must be “harmed as a result of a commission of a crime under this chapter.' . . . As other circuits have pointed out, 'this language implies that the government must establish a causal connection between the defendant’s offense and the harm to the victim.'"
Cause-in-fact and proximate cause required. Proximate cause requires reasonable foreseeability.
On the issue of joint-and-several liability, the COA saw a link with proximate causation: "The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action."
Apportioning restitution, the COA concluded, makes more sense: "liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement."
Interesting note: "Vicky" seems to have "collected almost half of the $1.2 million in losses that she has claimed to date."
The COA explained that a defendant generally cannot cause harm prior to his or her offense date.
The gov proposed a system for apportionment. The COA saw this system as a possible solution; the Court did not mandate its adoption, but found it consistent with the statute. The Court left the issue to the dist ct on remand. Remand was to allow for consideration of new evidence and argument. One defendant argued his prison sentence was substantively unreasonable. The Court rejected this argument. He got 82 months, which was within the GLs.
Judge Kethledge concurred in part and in the judgment:
* He believes in "a more flexible and open-ended determination of each defendant's share" of the alleged losses.
* To him, "an inquiry into whether a particular defendant actually caused a victim’s generalized losses—by which I mean losses resulting from the actions of many violators of the child pornography laws—is an inquiry into the unknowable."
* He admonished that "[c]asting legal questions in such terms is only a hindrance to clear thinking; and thus the choice before us is either to abandon enforcement of the statute in these cases, or to adopt a different rule of actual causation for this context. I would take the latter approach and adopt the First Circuit’s rule of aggregate causation (though only for purposes of determining actual cause)."
* He cautioned that "nothing in the statute appears to support multiple full recoveries for the victim. And multiple recoveries would be compelled under an approach where multiple defendants are each found to cause all of the victim’s losses.
* Agreeing that joint-and-several liability is impractical, he approved of apportioning losses, but recognized the problems with such a task. His approach would be flexible. He "would case the issue in terms of the defendant's comparative moral fault." Various factors to consider.
Friday, February 15, 2013
Great CP Result: Sentence Substantively Unreasonable
United States v. Melchor, No. 12--1300 (6th Cir. Feb. 14, 2013) (not for publication).
Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).
360-month sentence. GLs were 210 to 262.
Receiving CP.
COA vacated and remanded: sentence was substantively unreasonable.
The defendant was 36 years old. Met a 12-year-old girl on-line and became Facebook friends. They had on-line contact that was sexual in nature (sexual discussions and such). Defendant was a registered sex offender. The mother of the girl discovered the relationship and contacted police. Police executed a warrant and discovered CP. The defendant confessed an interest in young girls. The defendant pleaded guilty to receiving CP. The gov agreed not to charge him with the conduct related to the 12-year-old girl.
Total offense level 35. Enhancement b/c of "pattern of activity": prior exploitation of a minor. PSR recommended sentence of 480 months. Gov recommended GL sentence. Defendant argued for a sentence below the GLs, or at least within them. Dist ct gave 360-month sentence. Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.
Points:
* Potential for recidivism may provide grounds for variance. Defendant here did not appear amendable to rehab. Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance.
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement). This conduct was covered---even if other conduct also supported the enhancement. So this conduct was not a justification for the upward variance.
* Defendant's conduct was not outside of what is generally covered by the GLs.
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary.
J. Griffin dissented.
Dissent:
* Given totality of circumstances, the sentence was substantively reasonable.
* GLs provide for upward departure for under-represented criminal history.
* Defendant presented a high risk of recidivism---more so than "the average sex offender."
Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).
360-month sentence. GLs were 210 to 262.
Receiving CP.
COA vacated and remanded: sentence was substantively unreasonable.
The defendant was 36 years old. Met a 12-year-old girl on-line and became Facebook friends. They had on-line contact that was sexual in nature (sexual discussions and such). Defendant was a registered sex offender. The mother of the girl discovered the relationship and contacted police. Police executed a warrant and discovered CP. The defendant confessed an interest in young girls. The defendant pleaded guilty to receiving CP. The gov agreed not to charge him with the conduct related to the 12-year-old girl.
Total offense level 35. Enhancement b/c of "pattern of activity": prior exploitation of a minor. PSR recommended sentence of 480 months. Gov recommended GL sentence. Defendant argued for a sentence below the GLs, or at least within them. Dist ct gave 360-month sentence. Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.
Points:
* Potential for recidivism may provide grounds for variance. Defendant here did not appear amendable to rehab. Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance.
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement). This conduct was covered---even if other conduct also supported the enhancement. So this conduct was not a justification for the upward variance.
* Defendant's conduct was not outside of what is generally covered by the GLs.
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary.
J. Griffin dissented.
Dissent:
* Given totality of circumstances, the sentence was substantively reasonable.
* GLs provide for upward departure for under-represented criminal history.
* Defendant presented a high risk of recidivism---more so than "the average sex offender."
Friday, August 3, 2012
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).
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).
Friday, May 18, 2012
Busy Week!!!! CP Sentencing, Habeas Rape Shield
Lots from the Circuit this week. It was my week to blog for the Sixth Cir. blog, so I'll just point you in that direction this week. Especially b/c it's been quite busy. Check out the good decision on a CP sentence: it was substantively unreasonable (kudos to a WD Mich panel attorney for that one!).
Gagne v. Booker decided by en banc Court. Addresses rape-shield, habeas, confrontation, and Sixth Am issues. (Thanks to another blogger for covering that big opinion!)
All at www.circuit6.blogspot.com!
Gagne v. Booker decided by en banc Court. Addresses rape-shield, habeas, confrontation, and Sixth Am issues. (Thanks to another blogger for covering that big opinion!)
All at www.circuit6.blogspot.com!
Wednesday, March 28, 2012
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.
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.
Monday, February 27, 2012
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.
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.
Thursday, February 23, 2012
Crack Reductions: Darn It!
United States v. McKinney, No. 11-1439 (6th Cir. Feb. 23, 2012) (unpublished).
Chief Judge Batchelder, and Judges Norris and Stranch.
District court denied a crack reduction under 18 U.S.C. 3582(c)(2). Court of appeals affirmed this denial.
2004 conviction for guns and drugs. As part of the plea deal, the government agreed to dismiss a count that would have carried a consecutive thirty-year mandatory sentence (for having a destructive device). In '04, highest base offense level was 38 (more than 1.5 kilos of crack). That's what this defendant got. Ended up with a total offense level of 37, criminal history category IV, and range of 292 to 365 months.
Defendant did not object to the original PSR. District court sentenced defendant to 292 months + 120 months (concurrent) on gun count. Sentence fell to 235 months after a Rule 35.
After the first round of crack amendments, the defendant sought a reduction in sentence. Probation did not recommend a reduction, finding that the PSR established the defendant was responsible for more than 4.5 kilos of crack, the new threshold for level 38. The district court (who was not the original sentencing judge) found that the only original determination was that the defendant was responsible for at least 1.5 kilos. That quantity would put the defendant at base offense level 36 under the first set of amendments.
The district court requested supplemental briefing regarding how the court should exercise its discretion. The government moved for a second Rule 35 reduction. The case was reassigned and returned to the original sentencing judge.
The original sentencing judge ruled against a reduction under 3582(c)(2). Looked to the original sentencing record and the PSR, to which the defendant had not objected. Court found that the defendant was responsible for more than 4.5 kilos. Court found that this conclusion was not inconsistent with the original findings b/c 4.5 kilos is in excess of 1.5 kilos, the only original determination. The court did grant the Rule 35 and reduced the sentence to 214 months.
The court of appeals concluded that:
* The defendant had accepted all of the facts in the PSR b/c he did not object to them.
* The PSR confirmed that the defendant was responsible for at least 6 kilos of crack.
* United States v. Moore, 582 F.3d 641 (6th Cir. 2009), said that a new factual finding of a higher quantity is not inconsistent with an original finding of "at least" 1.5 kilos.
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.
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.
Monday, December 12, 2011
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.
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.
Thursday, August 11, 2011
More Good Tapia News! Rehab Not Grounds for Going Above GLs!
United States v. Walker, No. 09-6498 (6th Cir. Aug. 11, 2011) (to be published).
Panel of Judges Keith, Clay, and Cook.
Defendant appealed the substantive reasonableness of his thirty-six-month sentence for escape.
Court found that the sentencing court impermissibly lengthened the defendant's sentence to promote his rehabilitation. Court vacated the sentence and remanded for resentencing.
Defendant had a history of drug abuse and mental illness. His conviction in this case was for escaping from supervised release (a Salvation Army halfway house). Issues with his medication contributed to the offense. Guideline sentencing range was 15 to 21 months. Defendant moved for a downward departure or variance, citing diminished mental capacity and cooperation. The district court imposed an above-guidelines sentence of 36 months, so the defendant could "'benefit from all the government can offer' in terms of treatment."
Citing Tapia, the Court noted that "The Supreme Court recently resolved any potential conflict between these provisions, holding that 'a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise promote rehabilitation.'" In this case, the sentencing court "did precisely what Tapia forbids."
Friday, July 22, 2011
Rejecting a GL on Policy Grounds . . . More Spears
In United States v. Priester, No. 08--2391 (6th Cir. July 22, 2011) (published), the panel of Judges Boggs, Moore, and Kethledge considered the Spears issue again. Judge Boggs dissented. The majority opinion starts out: "In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case." The defendant was sentenced pre-Spears. After parsing "the sentencing transcript, [the Court] agree[d] with [the appellant] that the district court appeared unaware of the authority that the Supreme Court expressly announced months later," that the court could vary from the guidelines based on policy reasons.
The Court found that the sentencing court's "comments go beyond mere silence as to whether the district court knew that it had the authority to reject the 100:1 ratio outright. Instead, they reflect an assumption that the court did not have that authority." The panel emphasizes that "The essence of
The panel distinguishes prior cases: "In both United States v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Curb, 625 F.3d 968 (6th Cir. 2010), the district courts had been silent as to whether they had the authority later expressly granted to them in Spears. We remanded for resentencing in light of Spears. In United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), we affirmed the defendant’s sentence on plain-error review. There, the defendant did not make a Spears-type argument in the district court, and the district court itself said nothing about the issue. Neither of those circumstances is present here."
Judge Boggs's Dissent:
Judge Boggs concluded that "in the context of our earlier cases, [the appellant's] claim should fail. As even the majority must concede, the crack-cocaine disparity was before the judge and he recognized that the guidelines are only a starting point. The record, read fairly, is bereft of any expression as to the judge’s authority to reject categorically a particular judgment or reasoning in the guidelines."
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