Drug GLs and Prior "Similar Offense"

United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).

Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).

GL section 2D1.1(a)(1) for distribution of drugs resulting in death.

Defendant argued that prior conviction for delivery of heroin was not a "similar offense."

Ct of Appeals rejected this position and affirmed.

Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin).  This prior conviction did NOT involve death or serious bodily injury.  So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43.  Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.

* The GLs do not define "similar offense" in this context.

* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses.  The COA said Chapter 4 is completely different from Chapter 2. 

* Amendment 123 of the GLs (from 1989), the COA said, provides guidance.  Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b).  Amendment 123 removed this definition, and replaced it with the current language.  The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C).  Latter section uses the term "felony drug offense." 

* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects."  The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute."  The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'" 

* The fact the prior was of a lesser magnitude did not sway the COA.  Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.

* Disproportionate-result argument did not win favor either.  No 8th Am violation.   

First Amendment, Social Media, Sex Offenders

Interesting case on sex offenders and social media. . . .

Doe v. Prosecutor, No. 12—2512 (7^th Cir. Jan. 23, 2013) (for publication).

Indiana statute prohibited sex offenders from using social media sites, instant messaging, and on-line chats.  John Doe challenged this statute on First Amendment grounds.  The Seventh Circuit found the law unconstitutional.  While it was content neutral, it was not narrowly tailored to serve the state’s interests.  It broadly prohibited substantial protected speech instead of targeting improper communications to minors. 

Indiana Code section 35-42-4-12 prohibited certain sex offenders from knowingly using social-networking sites or instant-messaging or chat-room programs that the offender knows allow minors access or use. The statute did not differentiate sex offenders based on the age of the victim, the manner in which the crime was committed, or the time since the prior offense.  There was an exemption for people convicted of “Romeo and Juliet relationships,” those in which victim and perpetrator were close in age and had a consensual relationship.  The statute did not cover e-mail.

After a bench trial, the district court upheld the law, finding it narrowly tailored to serve a significant state interest.  There were other means of communication available. 

The Seventh Circuit found that the statute clearly implicated First Amendment rights: it precluded expression through social media, and it limited the right to receive information and ideas.  The law was content neutral---its restrictions did not turn on the content of the expression.  The state could “impose reasonable ‘time, place, or manner restrictions.’” 

To impose such restrictions, the law would have to meet “a variant of intermediate scrutiny.”  It had to be narrowly tailored to serve a significant government interest, and it had to leave open “ample alternative channels” allowing communication of the information.

The court found that the statute was not narrowly tailored, so it did not reach the alternative-channel inquiry. 

The statute targeted substantially more activity than the evil it sought to redress.  The district court had acknowledged this breadth, finding that the law captured conduct that had nothing to do with minors.  Indiana has other means to combat inappropriate communication between minors and sex offenders.

The court of appeals did not want to impose “too high a standard” on the state.  But in the end, “the Constitution tolerates some over-inclusiveness if it furthers the state's ability to administer the regulation and combat an evil,” but not as much as was presented here.   

There were other laws to address these concerns.  Indiana had statutes prohibiting solicitation.  The court of appeals observed that “[b]y breaking two laws, the sex offender will face increased sentences; however, the state can avoid First Amendment pitfalls by just increasing the sentences for solicitation—indeed, those laws already have enhanced penalties if the defendant uses a computer network.”

For our purposes, it is important to note that the court said, “this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release.”  It noted that “in assessing the need for incapacitation, see § 3553(a)(2)(C), a court could conceivably limit a defendant’s Internet access if full access posed too high a risk of recidivism.”  A total ban on the Internet could, however, be too broad.

Career-Offender Discussion: Misdemeanors and Shepard Documents

Not a big week for decisions in the 6^th Cir.

But here’s a little career-offender discussion. . . .

United States v. Apodaca, Nos. 11—4342 & 11—4378 (6^th Cir. Jan. 23, 2013) (unpublished).

The first defendant challenged the district court’s finding that he was a career offender. He argued that his California conviction for assault with a deadly weapon other than a firearm was not a felony.

The sole question on appeal for this defendant was whether the California conviction for assault with a deadly weapon other than a firearm was a prior felony conviction for career-offender purposes.

The Court of Appeals concluded it was such a conviction.

The California conviction fell under California Penal Code section 245(a)(1): “[a]ny person who commits an assault upon the person of another with a deadly weapon other than a firearm . . . shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.”

When a sentencing court sentences a defendant in accordance with the last option, the offense is treated as a misdemeanor under California law. Such convictions are termed “wobbler” offenses because sentencing judges have the option of making the offense a felony or a misdemeanor, depending on the sentence imposed.

The defendant argued that his conviction was only a misdemeanor because the court chose to impose a sentence of 365 days in county jail, which made the conviction a misdemeanor “for all purposes.” But the Court of Appeals found otherwise.

Under the Guidelines, a “prior felony conviction” is a prior adult conviction for an offense punishable by a term greater than one year, regardless of whether the offense is specifically designated as a felony and regardless of the actual sentence imposed. The Court of Appeals looked to guideline section 4B1.2’s application note 1. So the designation of the offense under California law and the actual sentence imposed were irrelevant. The sole question was whether the California offense was punishable by a term exceeding one year.

The defendant tried arguing that the California statute effectively encompassed two offenses: one that was punishable by a longer term in state prison and one punishable by county jail for a term “not exceeding one year.” But the Court of Appeals found that the statute encompassed a single offense: “assault with a deadly weapon . . . other than a firearm.” And that single offense “shall be punished by imprisonment . . . for two, three or four years or in a county jail for not exceeding one year.”The statute provided for multiple punishment options—not multiple offense options. The single offense was punishable by a term exceeding one year, so it counts for career-offender purposes.

Even if the Court were to look more closely at the intent of California law, the prior offense would not be considered a misdemeanor. The Court found that the defendant was not sentenced to a misdemeanor sentence; he was sentenced to 365 days in county jail, suspended, credit for 144 days, and five years of probation. Under California law, when a court suspends a sentence and orders probation, there is a conviction, but no judgment has been rendered. The offense here would be regarded as a felony until judgment is entered.

The defendant did not argue that a judgment was actually rendered, so the prior conviction would not be considered a misdemeanor even in California. The district court did not err in finding that the defendant was a career offender.

For the second defendant, the issue was one of Shepardsources and the categorical approach. The government acknowledged that the sources it produced regarding the prior drug offense were not Shepard sources, but it argued that it did not have to provide Sheparddocuments because the defendant did not challenge the fact of the prior conviction and the statutory definition was adequate to determine the nature of the offense.

This prior conviction was for a violation of a statute that provided that “every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished” in a “county jail for 16 months, or two or three years,”under the California Health and Safety Code sections 11359 and 1170(h).

There was no other way to violate the statute. A conviction under that provision is a controlled-substance offense under section 4B1.1, as it is an offense“punishable by imprisonment for a term exceeding one year” that prohibits “the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Such a conviction for possession of marijuana for sale fits this definition.

The defendant did not challenge the fact of the offense or the specific convicting statute. He argued only that the government did not prove its case. The government presented a case summary from California, case “minutes” from California, a criminal history report from Los Angeles County, and an indictment to prove the nature of the prior conviction. These were the only documents regarding the offense and they showed that the defendant was charged with and pleaded nolo contendre to a violation of California HSC 11359. The Court of Appeals concluded that the district court did not err in relying on these documents to show the fact of the prior conviction.

As to the last challenge that the district court did not understand its sentencing discretion, the defendant waived his appellate rights.

CP Restitution

OK, I'm sorry for being such a bad blogger, but I'll be better now.  Things have calmed down.  Blogging more will be a new-year's resolution.  ;)

OK, we are seeing restitution claims in child-pornography case now in the WD Mich.  We talked a little bit about this issue at CDAM in TC.  I just posted re the Fifth Circuit's decision, en banc, in November.  Here's the link to my post on the Sixth Circuit blog.  The opinions totalled 58 pages and are worth a read if you are into statutory interpretation. 

http://circuit6.blogspot.com/2012/12/the-cp-restitution-debate-continues.html

Have a good weekend!

I plan to be back here, and blogging fully here---not just links---next week!

6th Cir Changes

Sorry, trial has made time scarce, so no blogging.

But FYI: 6th Cir. amended the 6th Cir. Rules on Aug. 16, 2012.  New ones are on-line.  Check your citations!  There are changes! 

http://www.ca6.uscourts.gov/internet/rules_and_procedures/pdf/rules2004.pdf

Also, the checklist for briefs in not on-line.  It's under review, so I anticipate some changes there too.

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!)

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).