CP and Double Jeopardy

In United States v. Dudeck, No. 09--3231 (6th Cir. July 28, 2011) (to be published), the panel of Judges Keith, McKeague, and Kethledge remanded a child-pornography case. The defendant argued that double jeopardy precluded conviction for all three of the counts against him. He also appealed his sentence (120 months).

Court found that

possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)) is a lesser-included offense of receipt of child pornography (18 U.S.C. § 2252A(a)(2)(A)), and that it was unclear whether the defendant’s two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images. Because it was possible that separate conduct or images were involved in each of the convictions, the Court remanded for a determination of whether separate acts or conduct were involved in the convictions for receipt and possession as to each of the three convictions.

Plain-error review applied to the double-jeopardy claims.

Court explained that "If the legislative history does not clearly reveal whether the legislature intended that multiple punishments be imposed for the same conduct, the court applies the presumption that multiple convictions contravene legislative intent." So, "when two statutes criminalize the same offense, absent a clear indication that multiple punishments were contemplated by Congress, the Constitution’s Double Jeopardy Clause shields a defendant from conviction and sentencing under both provisions." The Court reiterated the Blockburger v. United States, 284 U.S. 299 (1932), test: whether each statutory provision requires proof of a fact the other provision does not require.

The defendant asserted that he could not receive child pornography without also possessing it, so he was subjected to double jeopardy for being punished for receipt and possession of the same child pornography under his view that possession is a lesser-included offense of receipt. The Court recognized and accepted this argument: "if the Government has proven that a person 'knowingly receives' child pornography in violation of § 2252A(a)(2)(A), it also follows that the Government has necessarily proven that the person 'knowingly possesses' child pornography in violation of § 2252A(a)(5)(B)." Court cited United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), in which it had held that possession under 2252A(a)(5)(B) is a lesser-included offense of receipt under 2252A(a)(2)(A).

Yet while the indictment and plea agreement failed to allege explicitly separate acts for each count, separate dates for these actions, or separate illicit items as the basis for each count, the presentence report contained information revealing the possibility that there was more than one act and that identifiably separate conduct could potentially serve as the basis for each receipt conviction. Court could not tell from the record whether the possession and receipt convictions had separate factual bases. Remand was necessary for more fact finding.

On remand, the district court is to determine whether the receipt and possession occurred on different dates, whether after the receipt the possession was undertaken by transfer to a different medium, and/or whether separate images underlay each charge.

In terms of the 120-month, within-guidelines sentence, it was reasonable (if the district court affirms the convictions on remand).

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

Spears’s holding is that a district court can take the 100:1 ratio out of play, up front, before even determining whether the ratio yields an overlong sentence in a particular case. Here, the district court expressly stated that the ratio was in play—and then the court moved on to other issues. To say, on this record, that the court silently recognized its later-announced authority in Spears, but chose not to exercise that authority, would be mere fiction."

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."

More Crack Action

So, in a number of circuits, the AUSAs are agreeing to appellate dismissals or motions to remand. That's happening now.

In the Sixth Circuit:

The gov filed a letter in U.S. v. McCray, No. 11-3249 (6th Cir. July 20, 2011), saying:

"In its brief, the United States argued that the district court had not erred. Upon further consideration of the proper interpretation of the Fair Sentencing Act, however, the United States is now of the view that the Act’s revised penalties apply to any defendant sentenced on or after the enactment date, August 3, 2010—including McCray."

Gov acknowledges Carradine, but says it is distinguishable.

In the Seventh Circuit (where they face the adverse Fisher decision), there's a tiny rumor that the gov may seek review en banc on the issue (the rumor is based on a filing in another case) or seek S Ct review.

Nothing really definite on 2255s. Not yet....

Search of Car Pre-Gant---Old Law Applied

In United States v. Peoples, No. 09--2507 (6th Cir. July 20, 2011) (unpublished), a CJA panel attorney in this district had a great suppression win in the dist ct. Unfortunately, the gov appealed and the Sixth Circuit reversed. Great while it lasted, though.

Panel of Judges Gibbons, White, and Oliver (N.D. Ohio).

Sole question for the Court was "whether an officer’s objectively reasonable reliance upon binding appellate-court precedent constitutes an exception to the exclusionary rule under the Fourth Amendment." Court found that it does.

In Gant, the Supreme Court held that an automobile search incident to arrest is constitutional only if the arrestee can reach the vehicle or if the officers have reason to believe the vehicle contains evidence relevant to the crime of arrest.

In Davis, the Supreme Court resolved the dispute among the circuits as to whether the exclusionary rule, as clarified in Gant, should apply in cases in which the arrest occurred before the Gant decision. Supreme Court held that the exclusionary did not apply in such circumstances: “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”

Finding itself bound by this precedent, the Sixth Circuit concluded that the firearm that was seized incident to the defendant's arrest should not have been suppressed. While the search would no longer be permissible under Gant (the defendant was not within reaching distance of the vehicle when the officers searched the vehicle, and the officers had no reason to believe the vehicle contained evidence related to a suspended license), the search was permitted under the law as it stood when the search occurred.

The Court closed, "The officers committed no misconduct in relying upon th[e] settled precedent, and suppression of the firearm is not warranted."

Way to fight, though!

Crack: More Info re AG Holder's Memo

If you have a client sentenced AFTER Aug. 3 who was sentenced under the OLD mand mins, try to get that client some relief: If they are currently on direct appeal as appellee, see if the AUSA will move to dismiss the appeal; if they are appellant, try to get the AUSA, and then the Court, to agree to remand for resentencing.

Remember, career offenders are affected too! B/c CO offense level tied to statutory sentencing range.

If the 14 days for filing an appeal are up, seek an extension to file under Fed. R. App. P. 4(b)(4).

2255s MAY be a last resort, but this potential avenue is pretty ambiguous right now.

Courts can still reject the parties' undisputed position that the FSA applies, but let's give it all we've got.

More on Crack: DOJ Memo

On July 15, 2011, Attorney General Eric Holder issued a memo saying he concludes "that the law requires the application of the [Fair Sentencing] Act's new mandatory minimum sentencing provisions to all sentencings that occur after August 3, 2010, regardless of when the offense conduct took place." He directs prosecutors "to act consistently with these legal principles."

Professor Berman has blogged the issue and provides a link to the memo at:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/07/only-a-year-late-ag-holder-sees-light-and-reverses-course-on-fsa-pipeline-sentencing-issue.html

Retro Crack Changes

I've gotten several calls from panel attorneys asking about the June 30, 2011 decision by the Sentencing Commission to make the FSA crack guidelines retroactive. At this time, there's no way to know exactly how the issues will be handled. What we do know is that the changes do not go into effect until November 1, 2011.

The changes will not help people who were sentenced to mandatory minimum sentences (those mand mins are not affected by the GL changes). Career offenders are not likely to be eligible for relief.

Stay tuned at:

http://www.famm.org/

www.fd.org/odstb_CrackCocaine.htm

for information as things unfold.