Way to go, Mr. Geoff Upshaw! Mr. Upshaw is a member of our WD Mich CJA Panel and got this great victory!
United States v. Covington, 738 F.3d 759 (6th Cir. 2014).
Panel of Judges Rogers, Stranch, and Donald.
Is prison escape under MCL 750.193 a crime of violence? No.
The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.
Court applied Descamps.
Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes. Modified categorical approach applies.
Offense here was a breaking-and-escaping offense.
COA reminds us that the powder-keg theory is no longer persuasive.
Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture. The COA says this factor is not one to consider post-Anglin. Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison." And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door. The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."
Not a crime of violent.
Judge Stranch concurred:
In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis. The judge now feels that this placement led "to a somewhat redundant analysis." The proper order for the "analysis after Descamps is to put the 'divisibility' question first." If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted. From that point, the court should apply the same categorical test used for indivisible statutes.
Thursday, February 13, 2014
GPS Tracking, Warrants, and Good Faith
OK, life has been moving along post-Jones.
Things were good in the Third Circuit.
"The police acted in the face of unsettled law at a time when courts were becoming more attuned to the argument that warrantless GPS surveillance violated the Fourth Amendment. Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations. We therefore conclude that the police actions taken here do not qualify under the good faith exception and hold that the exclusionary rule should apply in this case."
United States v. Katzin, 732 F.3d 187, 214 (3d Cir. 2013).
So no good-faith exception to the warrant requirement. . . .
BUT
On December 12, 2013, the Third Circuit granted rehearing en banc. Set for May 28, 2014. I guess we'll just stay tuned.
Things were good in the Third Circuit.
"The police acted in the face of unsettled law at a time when courts were becoming more attuned to the argument that warrantless GPS surveillance violated the Fourth Amendment. Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations. We therefore conclude that the police actions taken here do not qualify under the good faith exception and hold that the exclusionary rule should apply in this case."
United States v. Katzin, 732 F.3d 187, 214 (3d Cir. 2013).
So no good-faith exception to the warrant requirement. . . .
BUT
On December 12, 2013, the Third Circuit granted rehearing en banc. Set for May 28, 2014. I guess we'll just stay tuned.
Tuesday, December 17, 2013
Detainers: A Brief Primer
In Ortega v. United States Immigration and Customs Enforcement, No. 12-6608 (6th Cir. Dec. 10, 2013) (for publication), the COA gives a short discussion of immigration detainers. Thought it would be helpful to post. Panel was Judges Keith, Sutton, and Black (S.D. Ohio). Judge Keith dissented.
The COA explained:
Immigration authorities focus on individuals accused of breaking other laws. Using a database, authorities determine whether an individual convicted of a state or federal offense is in the country illegally. If the agent determines that the person is here illegally, the agent will issue a detainer to the authority that is then holding the person. This detainer requests that the latter authority keep the person in custody or let the immigration agency know when the person is about to be released.
8 C.F.R. 287.7 regulates detainers.
The COA admonishes that federal detainers do not normally raise constitutional questions:
"If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment." Likewise, the local prison may notify federal immigration authorities before an inmate's release to allow the authorities to take custody of the inmate to begin removal proceedings.
As the COA points out, however, things get complicated in less straight-forward cases. What if an arrest is based solely on the detainer? What if a state refuses to release someone, because of an immigration detainer, who has posted bail? What if a state keeps a person in custody, because of a detainer, when the sentence was weekend confinement? Or the person is on home confinement and gets moved to a prison?
Once a person is convicted and sentenced, deprivation of liberty is permissible. Deprivations caused by moving prisoners, and things like that, do not raise due-process concerns. A shift from home confinement to prison, however, may implicate due-process concerns.
Here, the plaintiff sued ICE b/c he was on home confinement, and an American citizen, and a detainer was erroneously issued, which caused authorities to incarcerate him for four days. For both the due-process and Fourth Amendment claims, however, the COA just found that the law was unsettled and so qualified immunity protected the defendants.
Judge Keith dissented.
Judge Keith believes there was a clearly established liberty interest in home confinement. And officers should have known that removing a person from their home and incarcerating them requires a minimum level of process.
Dissent also sees a problem with the lack of the detainer in the record. Cannot assess the reasonableness of the officer's error without being able to review the detainer.
The COA explained:
Immigration authorities focus on individuals accused of breaking other laws. Using a database, authorities determine whether an individual convicted of a state or federal offense is in the country illegally. If the agent determines that the person is here illegally, the agent will issue a detainer to the authority that is then holding the person. This detainer requests that the latter authority keep the person in custody or let the immigration agency know when the person is about to be released.
8 C.F.R. 287.7 regulates detainers.
The COA admonishes that federal detainers do not normally raise constitutional questions:
"If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment." Likewise, the local prison may notify federal immigration authorities before an inmate's release to allow the authorities to take custody of the inmate to begin removal proceedings.
As the COA points out, however, things get complicated in less straight-forward cases. What if an arrest is based solely on the detainer? What if a state refuses to release someone, because of an immigration detainer, who has posted bail? What if a state keeps a person in custody, because of a detainer, when the sentence was weekend confinement? Or the person is on home confinement and gets moved to a prison?
Once a person is convicted and sentenced, deprivation of liberty is permissible. Deprivations caused by moving prisoners, and things like that, do not raise due-process concerns. A shift from home confinement to prison, however, may implicate due-process concerns.
Here, the plaintiff sued ICE b/c he was on home confinement, and an American citizen, and a detainer was erroneously issued, which caused authorities to incarcerate him for four days. For both the due-process and Fourth Amendment claims, however, the COA just found that the law was unsettled and so qualified immunity protected the defendants.
Judge Keith dissented.
Judge Keith believes there was a clearly established liberty interest in home confinement. And officers should have known that removing a person from their home and incarcerating them requires a minimum level of process.
"The facts of this case are such that the unlawfulness of Metro Defendants’ conduct is readily apparent, even in the absence of clarifying case law. Metro Defendants seized Ortega, an American-born, United States citizen, from his home and took him to jail for four days, based upon an improper detainer, without a warrant or any semblance of process. In doing so, Metro Defendants did not allow him to produce any documentation that he was an American citizen."
Dissent also sees a problem with the lack of the detainer in the record. Cannot assess the reasonableness of the officer's error without being able to review the detainer.
"To allow ICE to issue a detainer against an American citizen, with unlimited discretion and without any accountability, sets a dangerous precedent and offends any and all notions of due process."
Thursday, December 5, 2013
More Blewett: Dissenting Opinions
I just posted on the 6th Cir. blog too. . . . My week to blog there.
Judge Merritt's Blewett dissent:
* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous. Congress intended to remedy irrationality and disproportion. Court is thwarting this effort.
* Cites NACDL and NAACP amicus briefs.
* "Practically all observers" now recognize the ills of the old system.
Judge Cole's dissent:
* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles.
* African-Americans treated more harshly than Caucasian offenders under this regime. And 88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American.
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings. Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."
Judge Clay's dissent:
* Majority is furthering prior injustice by holding that the FSA is not retro. Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause."
* Not sure of procedural mechanism for relief.
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law. Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans." This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless. Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums." More than 82% of this group is African-American (2005 stat). The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race." No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio. In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums." Won't cut it.
Judge Rogers's dissent:
* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well. In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule.
* 3582(c)(2) = Congress's "background principle of retroactivity."
* Illogical to provide GL relief and not statutory relief.
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break.
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage. But assumptions are not law. Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be. The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits. (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute. The revised statutory minimums are, after all, created by statute. The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive. Doing so provided the statutory key to making the statutory minimum changes applicable under 3582. This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply.
Judge White's dissent:
* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence. Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers.
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act. It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended. Congress did not intend this irrationality, and that is why Judge Rogers is correct. Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the Equal Protection Clause absent rational justification other than finality."
Judge Merritt's Blewett dissent:
* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous. Congress intended to remedy irrationality and disproportion. Court is thwarting this effort.
* Cites NACDL and NAACP amicus briefs.
* "Practically all observers" now recognize the ills of the old system.
Judge Cole's dissent:
* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles.
* African-Americans treated more harshly than Caucasian offenders under this regime. And 88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American.
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings. Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."
Judge Clay's dissent:
* Majority is furthering prior injustice by holding that the FSA is not retro. Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause."
* Not sure of procedural mechanism for relief.
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law. Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans." This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless. Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums." More than 82% of this group is African-American (2005 stat). The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race." No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio. In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums." Won't cut it.
Judge Rogers's dissent:
* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well. In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule.
* 3582(c)(2) = Congress's "background principle of retroactivity."
* Illogical to provide GL relief and not statutory relief.
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break.
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage. But assumptions are not law. Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be. The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits. (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute. The revised statutory minimums are, after all, created by statute. The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive. Doing so provided the statutory key to making the statutory minimum changes applicable under 3582. This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply.
Judge White's dissent:
* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence. Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers.
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act. It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended. Congress did not intend this irrationality, and that is why Judge Rogers is correct. Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the Equal Protection Clause absent rational justification other than finality."
Wednesday, December 4, 2013
Blewett Decided
I just posted this note to the 6th Cir. blog too.
Well, the Sixth Circuit en banc released Blewett yesterday. Get out your hankies. This one's a tear jerker.
United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented.
The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."
Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.
*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.
Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."
Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.
I will explore the dissent tomorrow.
Well, the Sixth Circuit en banc released Blewett yesterday. Get out your hankies. This one's a tear jerker.
United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented.
The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect."
Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.
As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal.
*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either.
Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking."
* Distinguishes Dorsey.
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect.
* 3582(c)(2) does not help: these proceedings are not plenary resentencings.
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions.
* Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand.
* Gov "has a powerful interest in avoiding the disruption of final sentences."
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences.
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences.
* Many believe "Congress should think seriously about making the new minimums retroactive."
Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations.
* Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot.
* 1 USC 109 governs: no retroactivity.
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now.
I will explore the dissent tomorrow.
Friday, October 4, 2013
Interesting Habeas Win
There has been more good stuff recently, and I'll try to post more next week, but for today, I put this note up on the Sixth Cir. Blog, as it was my week to post there.
Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).
Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).
Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.
Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.
Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).
This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand.
Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).
Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).
Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.
Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.
Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).
This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand.
Tuesday, September 3, 2013
Speedy Trial, Border Searches, CP Issues
United States v. Stewart, No. 12--1427 (6th Cir. Sept. 3, 2013) (for publication).
Panel of Judges Gilman, Griffin, and White.
D convicted of violating 18 U.S.C. 2252A(a)(1).
Facts:
* D flew into Detroit from Japan. Randomly approached by customs officer at int'l bag claim. Sent to secondary inspection area.
* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter. While searching a second laptop, the officer found thumbnails of nude children. Officer held laptops for further examination, but released the D. ICE agent took computers to ICE office in Detroit.
* Forensic analyst previewed one laptop and found suspected CP. Officers got warrant. Did forensic exam. Found CP.
* In '09, grand jury charged D with transporting CP.
* D moved ct to dismiss case after passage of time based on speedy-trial grounds. (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.) Ct dismissed case w/o prejudice.
* Grand jury brought a second indictment a month later.
Issues and Conclusions:
* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation." B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation.
* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review). Footnote 1 addresses.
* D was not entitled to dismissal with prejudice. So subsequent indictment proper.
* The search of the computers in Detroit was not an "extended border search." The computers never cleared the border. This search was just a routine border search. No 4th Am violation.
* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP.
Panel of Judges Gilman, Griffin, and White.
D convicted of violating 18 U.S.C. 2252A(a)(1).
Facts:
* D flew into Detroit from Japan. Randomly approached by customs officer at int'l bag claim. Sent to secondary inspection area.
* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter. While searching a second laptop, the officer found thumbnails of nude children. Officer held laptops for further examination, but released the D. ICE agent took computers to ICE office in Detroit.
* Forensic analyst previewed one laptop and found suspected CP. Officers got warrant. Did forensic exam. Found CP.
* In '09, grand jury charged D with transporting CP.
* D moved ct to dismiss case after passage of time based on speedy-trial grounds. (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.) Ct dismissed case w/o prejudice.
* Grand jury brought a second indictment a month later.
Issues and Conclusions:
* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation." B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation.
* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review). Footnote 1 addresses.
* D was not entitled to dismissal with prejudice. So subsequent indictment proper.
* The search of the computers in Detroit was not an "extended border search." The computers never cleared the border. This search was just a routine border search. No 4th Am violation.
* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP.
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