Tuesday, October 28, 2008

New Sentencing Guideline Amendments effective Nov. 1, 2008:

The only good news in the amendments is a suggestion in USSG § 2L1.2 that a downward departure may be appropriate when a defendant receives a 16-level enhancement but the conviction is not an aggravated felony. Otherwise, under § 2L1.2: an upward departure is suggested when the drug trafficking guideline does not apply but the controlled substance quantity is inconsistent with personal use; drug trafficking now includes "an offer to sell"; "forcible sex offense" includes assented-to conduct when consent is invalid.

In the introductory section, the new guidelines acknowledge Booker but stress how important the guidelines still are.

Pursuant to the Court Security Improvement Act, offenses involving 2 or more false liens or encumbrances are added to the two level enhancements for making threats. § 2A6.1(b)(2). And the guideline encourages upward departure for significant numbers of threats and false encumbrances.

Michael Vick amendments add animal fighting to the gambling guideline, § 2E3.1, with an alternative base offense level of 10 for animal fighting and upward departure encouragement for extraordinary cruelty.

An 8 level increase is provided for eavesdropping or unauthorized disclosure of confidential material when the offense involves certain protected people and a 2 level increase if a computer is involved. § 2H3.1.

And the Commission added extra punishment for Food, Drug and Cosmetics Act violators for a prior FDCA conviction and risks of bodily injury.

10th Circuit decisions

U.S. v. Williams, 2008 WL 4636724 (10/21/08) (unpub'd) & U.S. v. Leroy, 2008 WL 4636725 (10/21/08) (unpub'd) - Two cases with identical language from two different panels with a total of six different judges calling into question the chances of applying Booker to § 3582(c)(2) cases. In both cases, the pro se defendants didn't qualify for a retroactive crack reduction because they were sentenced as career offenders. But in rejecting the defendants' reliance on Booker, the panels, after referring to § 1B1.10's requirement that all non-retroactive guideline calculations remain the same, state: "Thus, § 3582(c)(2) permits the court to consider only whether Mr. [Williams/Leroy] is entitled to a two-level offense reduction under Amendment 706 [the crack cocaine amendment], not to reevaluate his sentence under the Guidelines."

Garrison v. Ortiz, 2008 WL 4636723 (10/21/08) (unpub'd) - An example of where Crawford is not good for defendants. Crawford did not govern the admission of pre-death statements [it would be quite a scoop if they were post-death] by murder victim to work colleague that "a friend from California was coming to kill me." The statements were not "testimonial" because they were not made formally to prove past events potentially relevant to later criminal prosecution. The statements need not pass the pre-Crawford reliability test.

U.S. v. Robertson, 2008 WL 4648277 (10/22/08) (unpub'd) - Affirmance of admission under 404(b) of prior firearm and drug trafficking possession convictions without any discussion of the underlying facts of the convictions where the defendant asserted he was just at the wrong place at the wrong time [in a hotel room with drugs and guns] [placing his state of mind in issue]. In determining whether one conviction was too remote, the court subtracted the time the defendant spent incarcerated between the prior offense and the current offense. Six years was not too long ago, even though the 10th had said in U.S. v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000), that six years was too long a time span for a prior drug offense to be relevant.

On the good news side, the prosecutor's calling on the jury to help the government in the process of holding the defendants accountable, i.e., suggesting the jury had a civic duty to convict, was improper. But not harmful enough to satisfy the plain error reversal test.

Beckett-Crabtree v. Hair, 2008 WL 4672305 (10/23/08) (unpub'd) - The officer did not violate the constitution when he shot at several times and killed a man armed with a flashlight from as much as 21 feet away. The officer had had a knock-down, drag-out fight with the man who had reached for, but failed to get, the officer's gun and speculation that the officer might have overreacted is insufficient to establish excessive force in violation of the 4th Amendment.

Monday, October 27, 2008

Interstate Use of Cell Phone to Arrange Murder-For-Hire is Use of an Interstate Communications Facility

US v. Means, No. 07-7112, 10/24/08 - Defendant and his girlfriend conspired to murder her husband and sought out a hit man. The person defendant solicited for the job ratted him out and the FBI got involved. It recorded meetings and cellphone conversations. Everything happened in Oklahoma. Defendant was prosecuted for, and pled guilty to, conspiring to use an interstate communications facility (the cellphone network) in a murder-for-hire scheme, in violation of 18 USC Sec. 1958(a) and 18 USC Sec. 371. He took no direct appeal. He did, however, timely file a Sec. 2255 motion based on his claim that, at the time of the offense, his actions did not violate Sec. 1958(a) because all activity was intrastate, and he therefore committed no crime merely by using his cellphone. Reversing the district court, the 10th held that he could raise this claim in spite of his guilty plea because his claim was that he had "the right not to be haled into court at all upon the felony charge," rather an a challenge to the sufficiency of the evidence establishing an essential element of the crime charged, which was how the district court saw it.

Nevertheless, the 10th rejected defendant's substantive argument, holding that Congress intended to criminalize purely intrastate use of interstate communications facilities in murder-for-hire cases. The issue came up at all because of some inconsistent language in the statute, which Congress cleaned up in December 2004 (after defendant's activities were completed) with an amendment to the statute.The inconsistent language had caused some confusion as to the scope of the statute in the purely intrastate activity area, with one circuit agreeing with defendant's position. The 10th joined the majority of circuits in rejecting that approach, and viewed the amendment as mere housekeeping to eliminate the confusion.

Wednesday, October 22, 2008

Within-Guidelines Sentence Affirmed in Reentry Case

United States v. Martinez-Barragan, ___ F.3d ___, 2008 WL 4632806 (10th Cir. 2008)
Sentence for reentry after aggravated felony is procedurally (PR) and substantively reasonable (SR).

PR: COA ducks whether to review under plain error standard because it found there was no error, but signals that the “unforeseeable error” doctrine that avoids PE review might no longer be viable. “Heartland” is a term that applies to both guideline and 18 USC § 3553 analyses, so district court determination that case was not outside the heartland did not signify it was mandatorily applying the GL. COA says that GL and variance analyses are distinct and must not be confused but a judge does not commit reversible error by consolidating the two discussions (thus freeing district courts even further from having to be thorough and clear). Because the district court discussed §3553, it did not erroneously confine itself to just a GL heartland consideration. It explained the reasons for its sentence. Good Stuff: dicta-ish language gives the parsimony argument some weight. Sentence was PR.

SR: signaling what a non-starter a substantive unreasonableness of a within-GL- sentence claim is, the COA devotes all of two pages to it. Without any serious discussion of failure to rebut the presumption of reasonableness, the COA finds that based on the violence of D’s predicate felony and his general criminal history, in spite of the mitigating reason for his return to the US, the district court did not abuse its discretion in sentencing him to the low end of the GL range.

Reversal of SJ in Civil Rights Case

Weigle v. Cox, ___ F.3d ___, 2008 WL 4631920 (10th Cir. 2008)
COA reverses summary judgment in favor of cops because there are questions of fact on issue of qualified immunity in § 1983 excessive force claim. Cops' restraint of decedent–one sat on dead guy’s back as he was face down, restrained and prone on the ground, causing a heart attack–was arguably unreasonable and excessive in light of cops’ training that such placement of weight on a restrained person can cause a heart attack, and because it lasted longer than necessary.

Tuesday, October 21, 2008

2254 Petition Dismissed for Failure to Pay Fee

Abram v. Milyard, 2008 WL 4417206 (10/1/08) (unpub'd) - It was okay to dismiss a § 2254 petition for failure to pay the $ 5 filing fee where the petitioner had $ 6.15 in his account at one time. The 10th didn't care that the petitioner might have needed to spend the $6.12 for hygiene items. "The reasons for Abram's spending do not change the fact he had sufficient resources to pay the required fee."

Estranged Wife Lacked Authority to Consent to Search of Husband's Motel Room

U.S. v. Arrington, 2008 WL 4561465 (10/14/08) (unpub'd) - A suppression victory with the government's concession. The 10th reverses suppression denial on actual authority to consent grounds. Estranged couple rented hotel room to discuss differences. The defendant brought in several pieces of luggage. His wife brought in her purse and cell phone. The wife left the room carrying her belongings after the defendant threatened to shoot himself if she left. Not following through on his threat, the defendant shortly thereafter asked the hotel clerk to remove his wife's name from the guest registry. The police later that day arrested the defendant on stalking charges after he went outside. Officers eventually convinced the hotel desk clerk to let the wife have access to the hotel room so that they could search it for any firearms, after the trusty clerk initially adamantly refused to give the wife the room key.

The 10th concluded the wife did not have actual authority to consent to a search of the room. First, she did not have mutual use of the room because she only spent 20 minutes in the room, she did not have a key, she did not leave any personal belongings and the clerk refused to let her enter until officers intervened. Second, the wife didn't have "control for most purposes." The presumption of control raised by a husband-wife relationship was rebutted where the couple was estranged and the defendant requested that his wife's name be taken off the registry. Their relationship was not close enough to allow the presumption.

Monday, October 20, 2008

Max Fine for Tax Evader Affirmed

US v. Green, No. 08-5031, 10/16/08 - Defendant was convicted of one count of income tax evasion (to the tune of more than $2 million) and one count of making a false tax declaration. Imposition of statutory maximum fine of $250,000 per count, for a total of $500,000, which was well above the recommended guideline range fine, affirmed.The fine was reasonable under the circumstances, which included defendant's prior criminal history, refusal to provide a sworn financial affidavit, the amount of tax avoided, and having more than half a million dollars stashed in a hidden account.

No Crack Reduction for Career Offenders

US v. Olden, No. 08-5060, 10/15/08 - Another crack sentence reduction motion denied, and affirmed, because the defendant was sentenced as a career offender.

Evidentiary Hearing on IAC Claim Denied


Boyle v. McCune, No. 06-3025, 10/16/08 - State habeas petitioner was not entitled to an evidentiary hearing on his claims of ineffective assistance by both trial and appellate counsel because his claims of deficient performance, even if true, did not establish a reasonable probability that, but for the alleged deficiencies, he would have prevailed at trial.

Thursday, October 09, 2008

Circuit Snippets

A Virginia statute that criminalizes falsifying routing data in spam e-mail violates the First Amendment right to engage in anonymous speech, the Virginia Supreme Court held. Jaynes v. Commonwealth, No. 062388 (Va. S.Ct. 9/12/08) on rehearing 657 SE2d 478.

A fraud defendant's Sixth Amendment rights under Bruton were violated when the court admitted a codefendant's affidavit that included references to companies that were largely controlled by the defendant, the 11th Cir. held. After hearing all the evidence about how the defendant controlled the companies, jurors would not have been able to resist inferring a connection between the statements about the companies and the defendant himself. US v. Schwartz, No. 05-11715 (11th Cir. 9/5/08)

Disagreeing with, among others, the Tenth Circuit, the Third Circuit held that a defendant does not have to separately object to the adequacy of the sentencing court's explanation of the sentence to preserve an appellate claim that the court failed to properly consider statutory sentencing factors. US v. Sevilla, No. 07-1105 (3d Cir. 9/4/08)

The Second Circuit reversed the defendant's conviction for using a computer to send internet messages to entice someone he believed to be an underage girl to engage in illegal sex, contrary to 18 USC 2422(b) because the district court incorrectly instructed the jury that "the government only needs to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing." The "more appealing" part of the instruction was erroneous because it authorized a conviction even if the defendant did not intend to entice "Julie" into engaging in sex. US v. Joseph, No. 06-5911-cr (2d Cir. 9/9/08)

A cop's testimony concerning his "impressions" of "code words" in intercepted telephone conversations among drug conspirators was admissible as lay opinion testimony under FRE 701, the 7th Cir. held. US v. Rollins, No. 07-2649 (7th Cir. 9/15/08)

A capital defendant's Sixth Amendment rights under Crawford were not violated by the admission of maps to the victims' bodies that had been drawn by his codefendant girlfriend. She drew them at the suggestion of a fellow jail inmate who tricked her into thinking he would arrange for someone else to take the rap but he needed evidence to back up the "lifer's" claims. Although the inmate probably expected the maps would be used against the defendant, the girlfriend did not draw the maps for the purpose of proving some fact against the defendant and thus were more like a "casual remark to an acquaintance." US v. Honken, No. 05-3871 (8th Cir. 9/12/08)

The federal statute that criminalizes murder while engaging in drug-related offenses, 21 USC 848(e)(1)(A), applies to a defendant who committed murders at the behest of a Colombian drug boss but who did not himself engage in drug trafficking. The statute does not require that the defendant be actively engaged in drug trafficking, but only involved in a conspiracy to do so. US v. Santos, No. 06-0833-cr (2d Cir. 9/2/08)

Parties to a plea bargain can stipulate to a higher standard of proof at sentencing than that required by law, the 7th Cir. held. In this case, the plea agreement required the government to prove drug quantity beyond a reasonable doubt. Nonetheless, the court remanded because it could not determine how the sentencing court had determined the quantity. US v. Hernandez, No. 07-1134 (7th Cir. 9/12/08)

The BOP's regulations that allow a prisoner to be transferred to a halfway house only at the end of the prisoner's sentence conflict with statutory standards and are therefore invalid, the 9th Cir. held. Rodriguez v. Smith, No. 07-16014 (9th Cir. 9/4/08)

A court can order restitution based on a conspiracy conviction if the underlying conspiracy involves one of the enumerated offenses, the 5th Cir. held. It affirmed the district court's order of restitution based on injuries to a couple who were injured in a car accident caused by the defendant as he fled drug enforcement agents. US v. Gutierrez-Avascal, No. 07-40779 (5th Cir. 9/9/08)

Under the Fourth Amendment, officers executing a valid search warrant can search anyone who comes within a 50-foot "safety perimeter", even if the person doesn't step onto the property. US v. Jennings, No. 07-1818 (7th Cir. 9/15/08)

Using a telephone to facilitate a drug distribution conspiracy, 21 USC 843(b), is a drug trafficking offense for purposes of the reentry guideline, USSG 2L1.2, the 5th Cir. held. US v. Pillado-Chaparro, No. 08-30192 (5th Cir. 9/17/08)

The 7th Cir. held that the statute that criminalizes taking or attempting to take money from a bank "by force and violence, or by intimidation, 18 USC 2113(a), requires that a defendant charged with attempt have engaged in an actual act of intimidation. This position agrees with the Fifth Circuit and disagrees with the 2d, 4th, 6th and 9th Circuits. US v. Thornton, No. 07-2839 (7th Cir. 8/26/08)

Wednesday, October 08, 2008

No Crack Amendment Relief for Career Offender

United States v. Sharkey, ___ F.3d ___, 2008 WL 4482893 (10th Cir. 2008)
Retroactive amendments to crack guidelines do not apply to career offender sentence in this case because according to the COA the amendment did not have the effect of lowering the guideline range for career offender guidelines and therefore a reduction was not authorized under 18 USC § 3582(c)(2) and the sentencing commission policy statements. Although the district court did not reach D’s argument that it separately had the authority under Booker to reduce his sentence through consideration of the § 3553(a) factors , the COA rejects the argument saying that § 3582(c)(2) gives jurisdiction to reduce only when the sentencing commission, not the Supreme Court, has lowered sentencing ranges.

Friday, October 03, 2008

False Statement Convictions for Lawyer, Wife Affirmed; Convictions for Forging Entry Documents Reversed

US v. Phillips, --- F.3d ----, 2008 WL 4416526 (10th Cir. Oct. 1, 2008): partial affirmance and reversal of the defendants' convictions of 8 counts of making a false statement to a federal agency and 8 counts of immigration fraud. The defendants, a lawyer, and his wife (who was also his secretary) appealed the denial of their motions for acquittal or for new trial, raising evidentiary and sufficiency issues.

The Tenth held that the admission of an incomplete document into evidence did not violate the rule of completeness. FRE 106 does not prohibit admission of an incomplete document; it merely allows the other party to introduce the rest into evidence without further foundation.

A copy of an asylum application was admissible. The trial court had found there was no real question regarding authenticity, under FRE 1003, that two exceptions to FRE1002 (the best evidence rule) applied: the original could not be obtained by any available judicial process or procedure, FRE 1004(1), and it was an official record under FRE 1005. On appeal, the defendant challenged the authenticity of the document, but the Tenth found the government had adequately established it.

Copies of applications for alien employment certifications were admissible; the district court did not abuse its discretion or clearly err in concluding that the originals were lost or not reasonably obtainable.

The Defendants's convictions for violating 18 USC 1546(a) were reversed. The Court held that allegedly forged asylum and certification applications did not qualify as "other documents" within the meaning the criminal statute prohibiting uttering false or forged documents for entry into the US. The statute's plain language does not apply to documents that are prerequisites for obtaining entry documents (visas, border crossing cards, and alien registration receipt cards).

However, there was sufficient evidence to support the convictions for willingly making a false statement to a federal agency. Accordingly, the convictions were affirmed in part and reversed in part.

Extensive Discussion of Plain Error Review of Downward Variance

US v. Mendoza, 2008 WL 4416524 (10th Cir. Oct. 1 2008) (published): The government appealed the sentence given to Mr. Mendoza after the district court granted a variance from the 324-month advisory guideline range for his drug conviction and imposed a 240-month sentence. The Tenth reviewed for plain error and affirmed the sentence. The government contended the court's statement of reasons was procedurally insufficient. Even though the government had substantively objected to the variance, it made these objections before the court's explanation and thus did not address procedural deficiency. Thus, plain error applied. The Court acknowledged that if a party doesn't have an opportunity to object, the absence of an objection does not later prejudice the party, but in this case the court asked counsel for further comments and the government had said, "Nothing."

The Tenth goes into some detail about what it requires for an explanation of a variance. The district court's explanation for its downward variance was error because it was generalized and not specifically about the defendant. Additionally the error was plain under Tenth Circuit jurisprudence. In contrast to when a variance is granted, the district court doesn't have to provide a "particularized analysis" when imposing a within-guidelines sentence. However, in the absence of any indication the court would have imposed a higher sentence if the procedural error had been brought to its attention, the government had failed to show its substantial rights were affected.

Court Addresses Meaning of Fear for Purposes of USSG 2A3.1

US v. Fish, 08-6007, 2008 WL ---- (10th Cir. Oct. 2, 2008) (unpublished): Strangely unpublished, since it seems to address an issue of first impression in this circuit -- the meaning of "fear" under 18 USC 2242. The Tenth affirms 111-month sentence (including 24-month upward variance) for defendant who pled guilty to knowingly transporting a minor in interstate commerce with the intent to engage in unlawful sexual activity, contrary to 18 U.S.C. 2423(a). Defendant, a truck driver, took his nephew with him on a trip and sexually abused him. He threatened the boy with leaving him on the side of the road if he didn't submit and told the boy he would kill his family if he told anyone what had happened. Three years later, the boy reported the incidents. The defendant did not deny the events but claimed they were consensual.

The defendant objected to the district court applying USSG 2A3.1, which applies to criminal sexual abuse as defined in 18 USC 2241 and 2242. The Tenth held that the district court did not clearly err when it relied on the 16-year-old's testimony regarding three-year-old events, despite some inconsistencies to support the cross-reference. Additionally, 2A3.1 did not require that the defendant place the victim specifically in fear of bodily injury; "18 USC 2242(1) requires only 'fear' in general" and threats to leave the boy on the side of the road thousands of miles from home "would certainly induce significant fear in a 13-year-old boy."

The sentence imposed was also procedurally and substantively reasonable. It was ok for the district court to rely in part on circumstances inherent in the charged offense in imposing the upward variance: "Mr. Fish is correct that some of these circumstances—such as the cross-country nature of the trip and the victim’s age—are inherent in the charged offense (interstate transportation) or the guidelines calculation (offense-level increase based on victim’s age). But the district court need not distinguish the defendant from the ordinary offender contemplated by the Guidelines in order to impose an upward variance. '[D]strict courts are now allowed to contextually evaluate each § 3553(a) factor, including those factors the relevant guideline(s) already purport to take into account, even if the facts of the case are less than extraordinary.'"

Five-month Variance Affirmed

US v. Duarte-Hurtado, No. 08-2021, 2008 WL 4417197 (10th Cir. 10/1/08)(unpublished): Clearly this was a hard-fought case at every level, but, rejecting the defendant's arguments that a lower sentence was warranted, the Tenth affirms the five-month variance to 36 months (from 41) for a reentry defendant. The district court did not commit procedural error because the court thoroughly discussed the requested bases for downward departure (mental capacity and family circumstances) and weighed the 3553(a) factors. It was ok for the district court to address the issue of fast-track disparity and conclude that to impose a sentence at the same level as a defendant who accepted a fast-track plea would be inappropriate because it would fail to distinguish between those who took the deal and those who didn't. Some disparity as the result of such programs was acceptable. Additionally, nothing showed that the district court abused its discretion in granting a 5-month variance rather than a larger one.

Thursday, October 02, 2008

Materials on Sentencing Issues in Reentry Cases Available

Some training materials, a paper called "Less = Success" and an accompanying case list, with information on the reentry guideline, sentencing strategies and helpful cases for defending reentry clients are available at the Association of Federal Defenders website.