It was my week to post on the 6th Cir. blog, so here's a link to my discussion of United States v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (for publication).
Congressional involvement in the GLs and political (rather than empirical) motivation for GLs not valid reasons to reject GLs.
www.circuit6.blogspot.com.
Saturday, January 14, 2012
Thursday, January 5, 2012
More Crime-of-Violence News
United States v. Meeks, No. 10-5336 (6th Cir. Jan. 5, 2012) (to be published).
Panel of Judges Rogers, Cook, and McKeague.
Defendant sentenced as career offender based, in part, on prior conviction for Kentucky first-degree wanton endangerment.
Defendant went to trial. Convicted of being a felon in possession and of possessing, with the intent to distribute, oxycodone. Two prior convictions for first-degree wanton endangerment; one prior for first-degree complicity to traffic in a controlled substance. Sentenced as a career offender.
Is first-degree wanton endangerment a crime of violence?
Under Kentucky law, a person is guilty of this offense when he or she, under circumstances manifesting an extreme indifference to human life, wantonly engages in conduct creating a substantial danger of death/serious physical injury to another. One acts wantonly when one is aware of and yet consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist. The risk must be such that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation. A person creating such a risk who is unaware of it solely b/c of voluntary intoxication also acts wantonly. (The statute at issue was Kentucky Revised Statute 501.020(3).)
* Court notes the offense does not include force as an element.
* It is not an enumerated offense.
* Wanton endangerment involves conduct that creates a serious substantial risk of violence akin to the risk associated with the enumerated offenses.
* Not based on strict liability, negligence, or recklessness. Wantonness involves criminal intent. So Sykes suggests that the Court need not "engage in Begay's 'purposeful, violent, and aggressive conduct' inquiry."
Discussion of Sykes that does not break new ground, but cites the case and its treatment of Begay. Begay's "purposeful, violent, and aggressive" test may be limited to strict-liability, negligent, and reckless offenses b/c this inquiry is not based on statutory language and may be redundant. Level of risk may divide the offenses that qualify as crimes of violence and those that do not.
Wanton endangerment is categorically a crime of violence.
The offense was so classified pre-Begay and the Court stands by that conclusion.
Even if the Court were to use the Begay purposeful/violent/aggressive inquiry, the offense would still qualify. Such an inquiry would require use of the modified-categorical approach (Shepard documents). Charging docs revealed defendant was charged with operating a motor vehicle under the influence of alcohol, causing a collision.
The conviction necessarily involved an admission that the defendant was aware of and consciously disregarded the substantial risk that his conduct created a substantial danger of death.
Sentence affirmed.
Panel of Judges Rogers, Cook, and McKeague.
Defendant sentenced as career offender based, in part, on prior conviction for Kentucky first-degree wanton endangerment.
Defendant went to trial. Convicted of being a felon in possession and of possessing, with the intent to distribute, oxycodone. Two prior convictions for first-degree wanton endangerment; one prior for first-degree complicity to traffic in a controlled substance. Sentenced as a career offender.
Is first-degree wanton endangerment a crime of violence?
Under Kentucky law, a person is guilty of this offense when he or she, under circumstances manifesting an extreme indifference to human life, wantonly engages in conduct creating a substantial danger of death/serious physical injury to another. One acts wantonly when one is aware of and yet consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist. The risk must be such that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation. A person creating such a risk who is unaware of it solely b/c of voluntary intoxication also acts wantonly. (The statute at issue was Kentucky Revised Statute 501.020(3).)
* Court notes the offense does not include force as an element.
* It is not an enumerated offense.
* Wanton endangerment involves conduct that creates a serious substantial risk of violence akin to the risk associated with the enumerated offenses.
* Not based on strict liability, negligence, or recklessness. Wantonness involves criminal intent. So Sykes suggests that the Court need not "engage in Begay's 'purposeful, violent, and aggressive conduct' inquiry."
Discussion of Sykes that does not break new ground, but cites the case and its treatment of Begay. Begay's "purposeful, violent, and aggressive" test may be limited to strict-liability, negligent, and reckless offenses b/c this inquiry is not based on statutory language and may be redundant. Level of risk may divide the offenses that qualify as crimes of violence and those that do not.
Wanton endangerment is categorically a crime of violence.
The offense was so classified pre-Begay and the Court stands by that conclusion.
Even if the Court were to use the Begay purposeful/violent/aggressive inquiry, the offense would still qualify. Such an inquiry would require use of the modified-categorical approach (Shepard documents). Charging docs revealed defendant was charged with operating a motor vehicle under the influence of alcohol, causing a collision.
The conviction necessarily involved an admission that the defendant was aware of and consciously disregarded the substantial risk that his conduct created a substantial danger of death.
Sentence affirmed.
Friday, December 30, 2011
Gun and Personal-Use Marijuana
United States v. Shields, No. 10-5004 (6th Cir. Dec. 30, 2011) (published). Panel of Judges Cole, Rogers, Sargus (S.D. Ohio).
Just out! Four-level enhancement for possessing gun in connection with another felony under 2K2.1(b)(6). . . .
Defendant received 108-month sentence for being a felon in possession. Was the 2K2.1(b)(6) enhancement appropriate?
* Defendant possessed gun and small, consumption-level quantity of marijuana (and a little cocaine residue).
* Drug possession would have been a misdemeanor but for the defendant's prior convictions.
Government did not sufficiently demonstrate that possession of the gun facilitated/had the potential to facilitate the felony drug possession. Insufficient nexus between the firearm and the drugs.
Sentence was procedurally unreasonable.
Noteworthy conclusions of the Court:
* While the fortress theory could be applied to support the enhancement in a case involving only drug possession (no trafficking), the gun in this case did not "embolden" the defendant to possess the drugs.
* United States v. McKenzie, 410 F. App`x 943 (6th Cir. 2011), is "materially indistinguishable" from the facts at hand. Gun and marijuana in car. Enhancement did not apply.
* No evidence of drug trafficking. Very small amount of marijuana. Not a valuable "stash." Only worth about $10.
* Gun was allegedly for personal protection; it was not being used to protect "a baggie of pot."
* Commentary to 2K2.1 (note 14(B)) considers drug trafficking. So while close proximity to drugs may be enough to apply the enhancement when there's trafficking, it is not enough when there is only drug possession.
* Court rejects reasoning in United States v. Berkey, 406 F. App`x 938 (6th Cir. 2011). Finds McKenzie more persuasive. In Berkey, the court found more than mere proximity: defendant used drugs in public with the gun. Court here, however, rejects the "in public" consideration as important.
* Quantity of drugs possessed is a more relevant consideration. A gun may embolden a person to carry a larger, more valuable quantity of drugs.
* "A repeat possessor of a small amount of drugs would not feel the need to have a gun to protect that amount of drugs any more than a first-time misdemeanor possessor of such a small amount, and the firearm thus was not useful in [this] case."
Remanded for resentencing.
Booker and Ohio Sentencing
Not too much going on this week. But here's a note on a short, unpublished opinion on post-Booker sentencing in Ohio.
Featherkile v. Jackson, No. 10-3331 (6th Cir. Dec. 27, 2011) (unpublished). Panel of Judges Cole, McKeague, and Griffin. Per Curiam.
Petitioner convicted of gross sexual imposition, in Ohio state court, in 1999. 17-year sentence. Resentenced in '06 under a new, discretionary sentencing regime after the Ohio Supreme Court applied Booker. Case applying Booker was State v. Foster, 845 N.E.2d 470 (Ohio 2006).
Petitioner received the same 17-year sentence at resentencing. He exhausted his state-court remedies, and then petitioned for a writ of habeas corpus in federal court. He argued that the resentencing based on the new, discretionary sentencing regime violated ex-post-facto and due-process principles. Specifically, he argued that the new sentence imposed a new and retroactive punishment because it was greater than the presumptive minimum sentence applicable pre-Booker and Foster.
The appellate court considered the same claim last week in Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011). In that case, the court concluded that resentencings under the discretionary sentencing scheme in Ohio post-Booker and Foster that result in sentences higher than the pre-Foster presumptive minimum sentence do not violate ex-post-facto or due-process principles.
Denial of petition affirmed.
Have a good New Year's celebration!!!!
Featherkile v. Jackson, No. 10-3331 (6th Cir. Dec. 27, 2011) (unpublished). Panel of Judges Cole, McKeague, and Griffin. Per Curiam.
Petitioner convicted of gross sexual imposition, in Ohio state court, in 1999. 17-year sentence. Resentenced in '06 under a new, discretionary sentencing regime after the Ohio Supreme Court applied Booker. Case applying Booker was State v. Foster, 845 N.E.2d 470 (Ohio 2006).
Petitioner received the same 17-year sentence at resentencing. He exhausted his state-court remedies, and then petitioned for a writ of habeas corpus in federal court. He argued that the resentencing based on the new, discretionary sentencing regime violated ex-post-facto and due-process principles. Specifically, he argued that the new sentence imposed a new and retroactive punishment because it was greater than the presumptive minimum sentence applicable pre-Booker and Foster.
The appellate court considered the same claim last week in Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011). In that case, the court concluded that resentencings under the discretionary sentencing scheme in Ohio post-Booker and Foster that result in sentences higher than the pre-Foster presumptive minimum sentence do not violate ex-post-facto or due-process principles.
Denial of petition affirmed.
Have a good New Year's celebration!!!!
Wednesday, December 28, 2011
Fast Track
OK, catching up a little.
United States v. Sanchez-Duran, No. 10-5744 (6th Cir. Dec. 14, 2011) (unpublished). Panel of Judges Guy, Kethledge, and White.
Was sentence procedurally unreasonable b/c the sentencing court did not recognize its authority to vary from the guidelines based on a belief that sentencing disparity created by fast-track programs is unwarranted?
The Court cites United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010). The Camacho-Arellano court rejected the idea that district courts cannot grant variances based on disparities created by fast-track programs in other districts.
Here, the defendant was sentenced after Kimbrough and Spears, but before Camacho-Arellano came out. So the defendant argued remand was necessary b/c the district court did not recognize its discretion to consider the fast-track argument.
The Court concludes that it was not clear that the district court recognized its discretion to vary categorically from the guidelines based on fast-track disparities. The district court's remarks could be read to suggest the court did not believe it had discretion b/c of prior 6th Cir. precedent.
Camacho-Arellano discredits the argument that fast-track disparity "should not be disturbed because it reflect[s] congressional policy." And the Court will not turn a blind eye to the context in which a district court's statements are made. Even if the district court decision was ambiguous, the Court viewed it in light of the government's urging of an impermissible conclusion (that the court could not depart on the basis of fast-track disparity).
The record suggested that the district court did not believe it could vary based on unwarranted disparity created by fast-track sentencing in other districts. The sentence was procedurally unreasonable and remand necessary.
United States v. Sanchez-Duran, No. 10-5744 (6th Cir. Dec. 14, 2011) (unpublished). Panel of Judges Guy, Kethledge, and White.
Was sentence procedurally unreasonable b/c the sentencing court did not recognize its authority to vary from the guidelines based on a belief that sentencing disparity created by fast-track programs is unwarranted?
The Court cites United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010). The Camacho-Arellano court rejected the idea that district courts cannot grant variances based on disparities created by fast-track programs in other districts.
Here, the defendant was sentenced after Kimbrough and Spears, but before Camacho-Arellano came out. So the defendant argued remand was necessary b/c the district court did not recognize its discretion to consider the fast-track argument.
The Court concludes that it was not clear that the district court recognized its discretion to vary categorically from the guidelines based on fast-track disparities. The district court's remarks could be read to suggest the court did not believe it had discretion b/c of prior 6th Cir. precedent.
Camacho-Arellano discredits the argument that fast-track disparity "should not be disturbed because it reflect[s] congressional policy." And the Court will not turn a blind eye to the context in which a district court's statements are made. Even if the district court decision was ambiguous, the Court viewed it in light of the government's urging of an impermissible conclusion (that the court could not depart on the basis of fast-track disparity).
The record suggested that the district court did not believe it could vary based on unwarranted disparity created by fast-track sentencing in other districts. The sentence was procedurally unreasonable and remand necessary.
Thursday, December 22, 2011
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