Crime-of-Violence/Violent-Felony Analysis: Ag Assault NOT Categorically a VF! And Use of Plea Transcript. . . .

United States v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (to be published). Panel of Judges Moore, Gibbons, and McKeague. Judge Moore wrote the majority opinion; Judge McKeague dissented.

Felon-in-possession case. Defendant sentenced as an armed career criminal. Conclusion: Tennessee's aggravated-assault statute is not categorically a violent felony. And in this case, the Shepard docs did not establish the nature of the prior conviction.

The Court found that the "use of physical force" clause of the ACCA requires more than reckless conduct. The decision rests on the potential for just reckless conduct falling under the statute. But the Court also notes (in footnote 6) that causing serious bodily injury may not necessarily require the use of physical force. The prior conviction was not a violent felony under the physical-force clause.

In terms of the "otherwise" clause, after Begay, reckless aggravated assault is not a violent felony.

Looking at the Shepard documents, there is no showing that the defendant necessarily had pleaded guilty to an offense qualifying as a violent felony. The government asked the Court to consider the state's proffer of a factual basis during the plea colloquy. While the plea colloquy is a Shepard document, the defendant here had entered an Alford plea (avoid acknowledgment of guilt). In considering this issue, the Court noted it has declined to consider preliminary-exam transcripts because the defendant did not admit the conduct; Shepard requires a judicial record in which the defendant necessarily admitted certain conduct to enter a plea. The state's factual basis does not qualify.

The Court is clear: "We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced 'to feign agnosticism about clearly knowable facts.'" There are Sixth Amendment concerns as well.

Judge McKeague dissented. He finds that United States v. Matthews, 278 F.3d 560 (6th Cir. 2002), answered the question and makes Tennessee's aggravated-assault offense a violent felony. He finds that Begay did not overrule Matthews and he cites United States v. Benton, 639 F.3d 723 (6th Cir. 2011). (The majority found that case's statements to be dicta.) The dissent also disagrees on the issue of considering the state's factual basis at a plea, but he does agree that reading that factual basis (without obtaining the defendant's confirmation of it) was insufficient. He would allow consideration of those facts if other Shepard documents confirmed them.

Marvin Gabrion's Death Sentence Reversed

United States v. Gabrion, Nos. 02-1386/1461/1570 (6th Cir. Aug. 3, 2011) (to be published).

Panel of Chief Judge Batchelder, and Judges Merritt and Moore. Judge Merritt delivered majority opinion; Chief Judge Batchelder concurred in part and dissented in part.

It's a long opinion (74 pages). I have not been through it all yet, but it's a big issue, so I wanted to post right away. The conclusion is:

"Accordingly, the jury verdict at the guilt phase of the trial is affirmed and the verdict of death at the sentencing phase is reversed. The case is remanded to the District Court for a new trial on the sentencing phase of the case pursuant to 18 U.S.C. § 3595."

Chief Judge Batchelder "would affirm the district court in its entirety — both conviction and sentence." She summarizes her position: "I would conclude that the district court was not obliged to admit evidence or argument concerning Michigan’s abolition of the death penalty; nor was it required to instruct the jurors that, in order to impose the death penalty, they must find 'beyond a reasonable doubt' that the aggravating factors outweighed the mitigating factors. Therefore, I respectfully dissent from these two portions of the majority’s decision. I otherwise concur in the majority’s judgment."

I am hoping to review the entire opinion thoroughly and post in more detail ASAP.

Waiving Appellate Rights: Yes, Those Waivers Stick

In a very short opinion, the panel of Judges Griffin, White, and Watson (S.D. Ohio) dismissed the case of United States v. Vandewege, No. 09-1985 (6th Cir. Aug. 3, 2011) (unpublished). The plea included a waiver of the right to appeal:

"a sentence that is within the guideline range as determined by the Court at sentencing and the manner in which the sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or any ground whatever, in exchange for concessions made by the United States Attorney’s office in this plea agreement, except that the Defendant may appeal on grounds preserved at sentencing, that the Court incorrectly determined the guideline range."

The Court concluded: "Vandewege has waived the issue he advances in this appeal: that his sentence is unreasonable because the district court denied his request for a downward variance from the guidelines range. The appellate waiver provision in Vandewege’s plea agreement waives his right to appeal any sentence within his guidelines range, except on grounds, preserved at sentencing, that the district court incorrectly determined the guidelines range."

At the resentencing (this appeal was the defendant's second), there were no objections to the revised advisory guideline range. The defense did make a request for a downward variance. It was the denial of such a variance that the defendant challenged on appeal. The Court found that the "appeal is waived."

The defense had argued "that the government ha[d] forfeited the waiver argument by failing to bring it in a motion to dismiss." The Court said it strongly encourages the government to file promptly any potential motions to dismiss in such cases. But it also pointed out that it has not held "that the failure to file a motion to dismiss would result in forfeiture of the right to rely on an otherwise valid waiver of appeal." The Court declined to so hold here.

CP and Search Warrant: Nexus and Staleness

What are the chances of getting a pic with a computer and something tying into staleness?!

United States v. Gillman, No. 09-6109 (6th Cir. Aug. 2, 2011) (unpublished). Panel of judges Boggs, Siler, and Van Tatenhove (E.D. Ky.). Child-pornography case. Defendant appealed denial of motion to suppress. COA affirmed that denial.

Facts:

Police accessed a peer-to-peer file-sharing network and saw a user with a given IP address sharing CP. The police contacted the internet-service provider and got information on the person to whom the IP addressed was assigned. Five months later, the police obtained a warrant to search the address-user's residence and computer. Police went to the home and the defendant made a statement. Police then executed the warrant (the defendant denied consent to search).

Defendant entered a conditional plea.

Issue:

The defendant argued "that the IP address was not itself a sufficient nexus between the sharing of child pornography and his residence because it was possible he used a wireless internet router—something that would have allowed anyone nearby to access the internet and share child pornography through his IP address.

Conclusions:

* Court rejects this argument, citing United States v. Hinojosa, 606 F.3d 875 (6th Cir. 2010). Under Hinojosa, the IP address established a sufficient nexus to connect the CP and the residence and computer. Potential use of a wireless router "does not negate the fair probability that child pornography emanating from an IP address will be found on a computer at its registered residential address."

* Five months does not make the info stale. CP is not a fleeting offense.

* Defendant was not in custody when he made his statements, so Miranda did not kick in. Eighty minutes of questioning does not necessarily mean custody.

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....