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). 

Career Offenders and Crack Reductions

Just put this one up on the 6th Cir. blog, so you'll see it there too.

United States v. Jackson, 678 F.3d 442 (2012).

Panel of Judges Merritt, Boggs, and Clay. Judge Boggs dissented.

Decided May 8, 2012.

Rehearing en banc denied on July 9, 2012. Mandate issued July 17, 2012.

This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc.

Career offender. Sentencing was delayed to see if Congress would lower the crack penalties. Court finally sentenced the defendant on July 16, 2010. Court did not apply the CO GLs. Instead, gave the D 150 months. This sentence was w/i the crack GLs that would have applied but for the CO enhancement.

While the case was on appeal, the FSA became law. D sought remand for reduction of sentence.

Was the sentence based on the career-offender GL or the crack GL?

While the D qualified for the CO enhancement, the focus was the crack GL actually applied. "To do otherwise is to impose a harsh sentence on defendant when the severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system, as well as by Congress."

Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs.

The crack GLs were "a relevant part" of the sentencing framework.

The procedural posture of this case makes it a little different---direct appeal. But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).

Judge Boggs dissented.

He finds that the applicable GL range was the pre-departure range: the CO range here. That range did not change with the FSA, so no reduction in sentence possible. Also finds that FSA statutory sentencing ranges are not retroactive. Cites Carradine.

New BOP Blog

Interested in BOP issues?  New blog to watch:

http://thebopblog.blogspot.com/

CP Trial: Rape Shield, Double Jeopardy, and More

I just posted this one on the 6th Cir. blog b/c it's my week to post there.  So you may have seen it already....

United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).

Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).

Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl. Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP).

Defendant went to trial. On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men. He said this evidence was critical b/c it showed other men induced the victim to create the CP. The COA rejected the arguments and affirmed.

Issue I: Double Jeopardy.

* We've seen this issue more and more recently. Possession charge + receipt charge = double jeopardy? Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011).
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer. The possession offense sprang from the transfer of the images to a different medium (an external hard drive).
* Different conduct, so possession not a lesser-included offense of receipt.

Issue II: Knowingly Receiving Images.

* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP.
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct.
* And there was ample evidence that D here was practically certain that he would receive CP.

Issue III: Someone Other than D Coaxed Victim to Produce Images.

* Record shows D asked victim to produce images. She produced pics during her "relationship" with D.
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men. Logs not admissible b/c of Rule 412, so not subject to Brady.
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense. Enough other evid that D induced victim to engage in sexual conduct and film it. Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found. And victim here a minor, so even stronger interest.

Issue IV: Restitution.

* D argued that dist ct should have admitted the chat logs at restitution hearing. D was required to pay most of victim's psychotherapy costs.
* But nothing in record that dist ct excluded chat logs at hearing.
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence.

FSA Getting Fleshed Out

United States v. Finley, No. 10-3672 (6th Cir. June 29, 2012) (unpublished).

Panel of Judges McKeague, White, and Barrett (S.D. Ohio).

OK, so we got Dorsey on June 21: the FSA applies to defendants sentenced after the FSA went into effect, even if the offense occurred pre-FSA. 

Well, the Sixth Cir. just concluded that the FSA does not apply to people sentenced pre-FSA, even if their cases were on appeal when the FSA went into effect.  The COA rejected a Dorsey argument. 

Mandatory life on the table in Finley.  Jury found D guilty.  GL range of 151 to 188 months, but statute trumped and D got life in prison.  Mandatory minimum under the FSA would have been ten years (248 grams of crack + prior convictions).

COA looked to 1 U.S.C. 109 and Carradine.  Also looked to other circuits.  Cabined Dorsey to post-FSA sentencings.  COA rejected policy arguments.  Court also rejected argument about the case being on direct review: precedent on this issue applies only to S Ct decisions that come out---not to statutes. 

(The other issue was ineffective assistance of counsel.  While the defendant "raises serious questions about the competence of his defense counsel," ineffective-assistance claim not for direct appeal---needs to be in 2255.) 

COA affirmed.

Enjoy the 4th!

On What Night Would You Host a Bachelor Party? And Does the Choice of Night Give Rise to Reasonable Suspicion?

An interesting question I'm sure we've all pondered: on what night should one host a bachelor party?

United States v. Rodriguez, No. 10-1874 (6th Cir. June 12, 2012) (unpublished). 

Judges McKeague, White, and Barrett (S.D. Ohio).

Per curiam.

Cocaine and heroin case.  Defendant appealed denial of motion to suppress.  COA affirmed.

Michigan State Trooper stopped D on I-94.  The trooper had been sitting in a marked police car and had been watching eastbound traffic.  Trooper saw the D lean back in his seat "in an apparent attempt to hide behind the door post" when the D passed the trooper.  Trooper began following the D.  Stopped D for following a semi-truck too closely.

After stop, no ticket issued.  Trooper told D that D was free to go, but then asked if he could ask the D something.  About four minutes of questions.  D ultimately consented to a search of the van and officers found kilos of heroin and cocaine. 

B/c there was a traffic violation, the stop was legal.  D did not provide testimony to contradict a finding that he was driving too closely behind the truck.

D not unlawfully detained after end of traffic stop b/c a reasonable person would have believed they were free to go after being told they were "good to go."  Police may ask questions after a traffic stop has ended.  No factors to indicate there was a further seizure here.   

The D had been in the back of the police car, so more analysis was required.  But still not a seizure, the COA found, b/c trooper had let D in the car to get out of the cold (D had been standing outside). 

And, COA continued, even if there was a seizure, there was reasonable suspicion to support it.  And here's where the bachelor party comes in. 

Factors COA found established reasonable suspicion:

* D had leaned back in his seat when he passed the patrol car in an apparent attempt to hide his face behind the door post;

* D slowed down when he passed the patrol car; 

* That stretch of I-94 (between Chicago and Detroit) is considered a "pipeline corridor" for drugs; 

* The van smelled strongly of air fresheners (commonly used to mask drug odors);

* The van was not registered to D; 

* D had stated that he was going to his cousin’s bachelor party, but he said he did not know the date of the wedding;

* D said the party was on a Thursday, "an unusual night for a bachelor party."

COA found that these factors, viewed in their totality, were sufficient to establish reasonable suspicion.

Judge White dissented.

She found that the D had been detained without reasonable suspicion after the traffic stop was completed.  A reasonable person would not have felt free to leave.  No reasonable suspicion to justify seizure.  All the factors the majority cited were weak.  "There is nothing inherently suspicious about a bachelor party being held on a Thursday." 

Consent to search was tainted.  Evidence should have been suppressed. 

ACCA Loss

United States v. Cottrell, No. 10-4573 (6th Cir. June 12, 2012) (unpublished).

Panel of Judges Moore, Sutton, and Stranch.

Sixth Circuit cites United States v. Coleman, 655 F.3d 480 (6th Cir. 2011), to decide that the defendant's prior Ohio burglaries count for ACCA purposes.  Coleman is discussed on this blog below (Aug. 25, 2011). 

The interesting catch to the case is that the district court had determined pre-plea that the priors did not count.  For those of you in Lexington at the Sixth Circuit Conference, you may remember the discussion of pre-plea determinations....