Crack Reductions: Darn It!

(This picture is just so random!)
United States v. McKinney, No. 11-1439 (6th Cir. Feb. 23, 2012) (unpublished).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. 

Good Reminder re Notices of Appeal

Sorry for the long break in posts.  Trial. . . .

Today, the Circuit gives us a good reminder to stay on top of those notices of appeal (NOA).  Jackson v. Chandler, No. 10-6060 (6th Cir. Feb. 21, 2012) (unpublished).  (It's still listed on "today's opinions.")

Judges Merritt, Cook, and Cox (E.D. Mich.).  Per curiam. 

Habeas action from state court.  Petitioner filed his 2254 in 2008, challenging his 2002 murder conviction.  The district court dismissed the petition as untimely.  Also found that counsel's error in calculating the timeliness of the petition did not call for equitable tolling.  The district court entered its judgment on March 26, 2010.  Deadline to file notice of appeal was April 26, 2010.  Not filed till April 29, 2010.  Court of appeals dismissed as untimely.  While the appeal was pending, the petitioner moved the district court for an extension of time in which to file the appeal. 

Counsel claimed she forgot to tell her assistant to overnight the NOA.  So it allegedly got to the court a day late.  In reality, however, the NOA was three days late.  Federal Rule of Appellate Procedure 26(c) does not give the three extra days for NOAs.  Court cites Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 416 (6th Cir. 2010).

The district court denied the motion, finding that counsel's oversight did not constitute excusable neglect.  The petitioner appealed. 

Under 28 U.S.C. 2107(c), district courts have only limited authority to extend the time limits for filing an NOA.  A district court may extend for excusable neglect or good cause if the motion is filed within thirty days of the expiration of the prescribed time.  Federal Rule of Appellate Procedure 4(a)(5) governs.  Findings of excusable neglect are "extraordinary."  And clients are held accountable for their attorneys' actions/omissions.  Attorney inadvertence usually does not meet the standard for excusable neglect.  Being busy is not excusable neglect.     

The court of appeals affirmed.

Remember, Sixth Circuit Rule 101(a) says trial counsel in criminal cases must continue to represent a client on appeal until the Circuit explicitly relieves the attorney.  We're on the case till we're off!  And the Court reminds us here that there's no excuse for filing NOAs late!

More Double Jeopardy and CP

Lots of action this week in the Circuit.  It's been really busy, so I can't post on everything, but there are good posts on the Sixth Circuit blog:

www.circuit6.blogspot.com.

And here's more on the child-pornography double-jeopardy issue that follows up on Dudeck (September 14 post).  The sentencing discussion also follows up a little on Bistline (January 14 post).  United States v. Hutchinson, No. 10-4603 (6th Cir. Feb. 1, 2012) (unpublished).  Panel of Judges Moore, Clay, and McKeague. 

Background:
* 188-month sentence for CP receipt/possession/distribution.
* D had been trading CP on-line.
* 10,405 images + 61 videos. 
* Guilty plea.
* Total OL 37.  Crim hist category II.  Range of 235 to 293 months.
* 240-month stat max. 
* Sentencing ct found that reduced range of 151 to 188 was sufficient. 

Issues:
* D took issue with application of number-of-images enhancement.
* D claimed his sentence violated double-jeopardy principles.

Court agreed on the double-jeopardy issue and vacated in part and remanded. 

Discussion:
* D objected to the number-of-images enhancement. 
* Even discounting the duplicate images, there were 9,382 images.  That number was well over the 600 needed for the enhancement. 
* The number-of-images enhancement does not violate separation of powers.
* Congress had a "uniquely active role" in crafting the CP GLs.  Intent to deter and punish.  Citation of Commission's History of the Child Pornography Guidelines from October 2009.  Congress retained ultimate authority over fed sentencing despite delegation to Commission.  This authority from earlier case law was binding on this panel. 
* Double-jeopardy claims reviewed for plain error. 
* Double-jeopardy violation b/c allegations in indictment supported by same conduct.  The defendant "possessed only those materials he had already received via online trading."  And "[t]he fact that he went on to distribute duplicates of some of those images does not mitigate the fact that the possession charge was a lesser-included offense of receipt."  Separate and distinct conduct did not form the basis for each offense.  There was plain error. 
* The error was plain even though the district court decided the case before the definitive Sixth Circuit case was published.  There was sufficiently analogous Supreme Court precedent at the time to make the error plain. 
* While the sentences were to run concurrently, so the only practical difference based on the double jeopardy violation was the amount of the special assessment, the special assessment was enough to affect the D's substantial rights. 
* Conviction for lesser included offense should be vacated. 
* Also there could be a violation if 2252(a)(2) and 2252A(a)(2) convictions not based on different images.  Remand for further fact-finding. 


 

Huge GPS Win! Must Have Warrant to Track with GPS!

United States v. Jones, No. 10-1259 (Jan. 23, 2012).  Justice Scalia wrote the opinion.  Chief Justice Roberts joined him, as did Justices Kennedy, Thomas, and Sotomayor.  Justice Sotomayor also filed a concurring opinion.  Justice Alito filed a separate opinion concurring in the judgment, and was joined by Justices Ginsburg, Breyer, and Kagan.

The Supreme Court has concluded that tracking a vehicle by attaching a GPS device to it is a search. 

I know we've been seeing more and more of these cases in the district, especially in the Northern Division.

Authorities actually got a warrant to track the vehicle, but they installed the device after expiration of the warrant and outside of the authorized jurisdiction.  Over the course of four weeks, the tracker relayed more than 2,000 pages of data. 

Ultimately, gov charged defendant with cocaine offenses.  Defense filed motion to suppress based on use of the GPS.  Dist ct suppressed data obtained while the car was parked in the defendant's garage.  Ct admitted rest of data b/c from public thoroughfares.  A jury convicted the defendant and he received a sentence of life imprisonment. 

The Court of Appeals for the District of Columbia Circuit reversed, finding that warrantless use of the GPS violated the Fourth Amendment. 

Supreme Court held "that the Government's installation of a GPS devise on a target's vehicle, and its use of that devise to monitor the vehicle's movements, constitutes a 'search.'"  The government here "physically occupied private property for the purpose of obtaining information." 

The Court goes back to eighteenth- and nineteenth-century cases to discuss the original understanding of the Fourth Amendment.  Fourth Amendment jurisprudence was tied to common-law trespass, at least until the later part of the last century.  More recent cases have deviated from the exclusively property-based approach.  Court cited Katz v. United States, 389 U.S. 347 (1967). 

The Court concluded that "Fourth Amendment rights do not rise or fall with the Katz formulation" (the reasonable-expectation-of-privacy formulation).  Rather, the Court must assure preservation of the degree of privacy that existed when the Fourth Amendment was adopted.  For most of the country's history, the Fourth Amendment was understood to be concerned with government trespass upon the enumerated areas: persons, houses, papers, effects. 

The Court discussed the "beeper cases," the cases that had posed problems in the GPS context b/c they had rejected Fourth Amendment challenges to using a beeper to track items: Knotts and Karo.  The Court distinguished Knotts and Karo b/c the beeper was placed in the container with the consent of the owner at the time and prior to the container coming into the defendant's possession.  Here, the defendant possessed the vehicle at the time the authorities installed the GPS. 

Justice Sotomayor concurred:
* Found a search occurred.
* The reasonable-expectation-of-privacy test "augmented, but did not displace or diminish, the common-law trespassory test." 
* Found that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.  The reaffirmation of that principle suffices to decide this case." 
 * Considered the issue of tracking that does not require trespass (e.g., factory-installed GPS devices tracked by the government).
* Cited Chief Judge Kozinski's (Ninth Cir.) opinion in Pineda-Moreno and acknowledged that "Awareness that the Government may be watching chills associational and expressive freedoms."  The justice would take these factors into account when considering the existence of a reasonable societal expectation of privacy in one's movements. 

Justice Alito also filed a separate concurrence:
* Believes the majority opinion "strains the language of the Fourth Amendment," is not supported by case law, and "is highly artificial." 
* Would use the reasonable-expectation-of-privacy test. 
* Finds that the majority disregards the potential impact of the GPS and potential use of the information, and attaches too much importance to the placement of the unit on the car.  Explores some of the issues with property rights. 
* Concedes there are problems with the reasonable-expectation-of-privacy test. 
* Finds that short-term monitoring on public streets might be OK, but long-term monitoring would not be. 
* Legislation, rather than case law, may be the best means for addressing the issues. 

Tapia and Supervised Release

Supreme Court granted cert, vacated, and remanded to the Fifth Circuit in Breland v. United States, No. 11-6912 (Jan. 17, 2012). 

Gov conceded that Tapia applies in supervised-release context.  Can't lengthen prison time for purposes of rehab.

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.

Restricted-Access Filing

New Local Rule 32 takes effect Tuesday.  Restricted-access electronic filing for PSRs and objections. 

Check out:

http://www.miwd.uscourts.gov/RULES%20OPINIONS/Admin%20Order%2011-123.pdf