Unpublished decisions

U.S. v. Bell, 2017 WL 2333090 (5/30/17) (Okl.) (unpub'd) - Mr. Bell can't get § 2255 relief even though the California felonies that were the basis for his sentence enhancement under 21 U.S.C. § 841 were reduced to misdemeanors under California's Proposition 47. The 10th says he can't get a certificate of appealability necessary for 10th jurisdiction because his claim was based on statutory, not constitutional, grounds. A constitutional ground is the only basis for an appealability certificate. The 10th rejects Mr. Bell's contention that his sentence violates due process and equal protection under yet another Johnson v. U.S. case, 544 U.S. 295, 303 (2005). In Johnson, the Court held a federal defendant could reopen a sentence where the defendant has successfully obtained the vacation of a prior conviction. In this case, Mr. Bell only got the conviction reduced to a misdemeanor, the 10th points out.

U.S. v. Schubert, 2017 WL 2333588 (5/30/17) (Okl.) (unpub'd) - The 10th rejects Mr. Schubert's argument that the complexity of the categorical approach renders the entirety of the ACCA's "violent felony" definition unconstitutionally vague. A lot of us could get on board with that argument. But the 10th says there could not be unconstitutional vagueness because the Supreme Court has applied the categorical approach for more than a quarter century. Of course, courts applied the residual clause for that long and it's no longer with us.

Another 18 U.S.C. § 3582(c)(2) Defense Victory

U.S. v. Mowery, 2017 WL 2297390 (5/25/17) (N.M.) (unpub'd) - Mr. Mowery pleaded guilty to a meth offense. He committed that offense while on supervised release for a prior drug conviction. His guideline range ended up being 168 to 210 months after he received a three-level enhancement under USSG § 3C1.3 and 18 U.S.C. § 3147(1) for committing the offense while on release. The district court imposed a 168-month prison term. Under 18 U.S.C. § 3147(1), the district court had to impose a sentence consecutive to the underlying offense. So the judge gave Mr. Mowery 121 months for the meth offense and 47 months under § 3147(1) for a total of 168 months. Despite government support for Mr. Mowery's subsequent § 3582(c)(2) motion based on Amendment 782, the district court denied the motion on the ground that the new guideline range of 135 to 168 months was higher than Mr. Mowery's 121 month sentence for his meth offense. So § 1B1.10 prevented any sentence reduction. With the government conceding error on appeal, the 10th rules that the 168-month sentence was really the total sentence for the meth offense, even though portions of it had to be credited to § 3147(1).. The § 3147(1) violation was not a separate offense. It just required a sentence enhancement for the meth offense. Since Mr. Mowery's drug sentence was really 168 months, he was eligible for a sentence reduction to 135 months.

70-day Term of Imprisonment for Kidnapping Defendant Affirmed

United States v. DeRusse, 2017WL2641051 (June 20, 2017) (KS): The panel affirms a 70-day imprisonment term for kidnaping and rejects the government’s challenge that the sentence was substantively unreasonable. Using a BB gun, DeRusse took his ex-girlfriend from her parents home in Texas and hoped to convince her to marry him. He drove several hundred miles before he was arrested in Kansas. The forensic psychologist that evaluated DeRusse diagnosed him with major depressive disorder and obsessive-compulsive disorder. The district court and in turn, the panel, were impressed by the following facts; the offense fell far outside the heartland, it was not motivated by any evil or ill intentions, it was aberrational behavior from a first time offender suffering from a severe, then-undiagnosed mental illness and there was no reason to believe he would commit a similar crime again. The panel said the district court meaningfully discussed the statutory sentencing factors in the context of these facts and its decision to add a five year term of supervised release to the time served jail term did not exceed the bounds of permissible choice. The government’s appeal, commented the panel, amounted to a disagreement with the way in which the district court weighed the statutory sentencing factors. J. Baldock dissented. According to him, the “heinous nature” of the offense demanded more exacting punishment.

Court Affirms that Defendant Loses Benefit of Criminal History Departure At 3582(c)(2) Resentencing

United States v. Gutierrez, 2017WL2641063 (June 20, 2017) (NM): In his 18 U.S.C. § 3582(c)(2) motion, Gutierrez asked that he again be sentenced in criminal history category III. At the initial sentencing hearing, the court had departed from criminal history category IV to III and reduced the offense level from 35 to 34 to account for disparity with other defendants. Post-conviction, the district court reduced Gutierrez’s offense level after the sentencing commission promulgated Amendment 782 to the guidelines. The district court said it wanted to resentence in Category III, but USSG § 1B1.10, as modified by Amendment 759, allowed departures only for cooperating with the government.

On appeal Gutierrez argued, (1) the departure was not prohibited by § 1B1.10 because, as modified by Amendment 759, it exceeded or conflicted with the commission’s statutory authority and violated the separation-of-powers doctrine, or alternatively, (2) the district court was required by the one-book rule to calculate his amended guidelines range based on category III. The panel rejected the first argument because the commission’s authority to promulgate a revised § 1B1.10 comes from an express delegation by Congress and Congress “enjoys the power to curtail the judiciary’s discretion over sentencing.” Additionally, Congress gave the commission statutory discretion to determine which rules may further the purposes of sentencing. When the commission decided to limit reductions below the amended Guidelines range in all circumstances except where a defendant provided substantial assistance to the government, it was properly making use of that discretion. The panel also was unpersuaded by Gutierrez’s one book rule argument. Section 1B1.11(b)(2) requires that a single guidelines manual govern an accused’s sentencing calculation in its entirety. Gutierrez said, that by calculating his offense level using the post-amendment 782 version of § 2D1.1 now in effect, while calculating his criminal history category using the pre-Amendment 742 version of § 4A1.1 in effect at the time of his original sentencing, the district court violated the one-book rule’s prohibition against applying different sections from different editions of the Guidelines. Had the district court accounted for amendment 742’s elimination of recency points in calculating his criminal history score, he would fall within criminal history category III, rather than IV. The panel chose not to resolve this conundrum. Instead it said, whatever role the commission may have envisioned for the one-book rule in § 3582(c)(2) proceedings, if any, that role does not include mandating the retroactive application of amendments excluded from § 1B1.10(d) . And, to the extent that provisions of § 1B1.10 and § 1B1.11 conflict, § 1B1.10 controls because it provides more specific guidance.