Tuesday, November 19, 2019

Capital Habeas Petitioner's Cause Remanded for Evidentiary Hearing on Intellectual Disability

Harris v. Sharp, 2019 WL 5541416 (10th Cir. October 29, 2019) (OK published): In this capital habeas appeal, the panel remands to the district court for an evidentiary hearing on Harris’ claim that his counsel was ineffective for not requesting pretrial hearing on whether he was intellectually disabled.

At the time of Harris’ retrial, Oklahoma law permitted pretrial evidentiary hearings before a judge or jury on whether he suffered from an intellectual disability. If either the judge or jury found an intellectual disability, Harris was no longer eligible for the death penalty. If the jury found no intellectual disability, he could ask the judge to revisit the issue after trial. Here, the defense would have lost nothing if the judge or jury found no intellectual disability. But, importantly, The panel concluded that Harris’ counsel thus had a risk-free opportunity to avoid the death penalty. Bypassing this opportunity constituted deficient representation, because "evidence of an intellectual disability was ready-made." Harris had IQ scores under the 70-point threshold necessary for a determination of intellectual disability under Oklahoma law.

The court noted that counsel’s strategic decisions generally draw considerable deference when the attorney has thoroughly investigated the law, the facts, and the plausible alternatives. But merely calling something a strategy does not prevent meaningful scrutiny by a court. Here, "any defense attorney" would have sought a pretrial hearing on the existence of an intellectual disability, especially when ABA Death Penalty Guidelines require that "[c]ounsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." ABA Guidelines § 10.11(L).

The panel also found that Harris alleged a theory of prejudice that, if true, could justify habeas relief. Because the parties disagreed on the facts showing prejudice, the panel was unable to decide the issue. Instead, it said Harris was entitled to an evidentiary hearing as to prejudice. At that hearing, the parties would be allowed to present expert testimony on whether Harris satisfied Oklahoma’s test for an intellectual disability.

Police Report Insufficiently Reliable to Support Sentencing Enhancement

United States v. Padilla, 2019 WL 5692530 (10th Cir. November 4, 2019) (OK): The panel reverses an offense level enhancement for relevant conduct because a police report is an inherently unreliable document, and limits resentencing to the record as it was on appeal.

The district court relied on a police report not in evidence to establish that Padilla possessed methamphetamine and a gun. He objected in writing and at the sentencing hearing, arguing that the government had not presented any pertinent evidence to show the report was sufficiently reliable. The panel agreed. A district court must find that the "specific document at issue contains sufficient indicia of reliability to support the probable accuracy of the information it is being offered to establish." This finding can only be made if the document is in evidence. And only when it is part of the record can the district court "assess factors bearing on the document’s veracity such as the level of detail, internal consistency, and overall quality of that document." The document’s admission also is necessary for an appellate court to "properly evaluate the court’s determination of whether the document bears sufficient indicia of reliability for use at sentencing." Here, the panel concluded that the district court clearly erred in finding that Padilla possessed methamphetamine and a firearm by merely relying on the contents of a police report that had not been entered into evidence.

The panel also ordered that Padilla’s resentencing be based on the record as it now stands. Padilla alerted the government that its proof was deficient and the government did not introduce any evidence to corroborate the allegations. Thus, the panel reasoned, the government must be denied a second opportunity to make the record it failed to make the first time.

Wednesday, November 13, 2019

Appellant waived procedural challenge to sentence by withdrawing objection to facts in PSR

United States v. Carter, 2019 WL 5541357 (10th Cir. October 28, 2019) (WY - published): The panel finds that by withdrawing his factual objections to the PSR in the district court, Carter waived his procedural reasonableness challenge to the district court’s sentence on appeal. His sentencing issue therefore, is not subject to appellate review. Waiver, the panel explained, is the intentional relinquishment or abandonment of a known right. By comparison, forfeiture, is the failure to make a timely assertion of a right. Generally, waived issues will not be reviewed on appeal but forfeited issues can be under the plain error standard.

Carter pleaded guilty to being a felon in possession of a firearm and manufacturing counterfeit notes. The Presentence Report (PSR) cross-referenced to the drug guidelines under USSG § 2K2.1 based on information from an informant. Carter objected to the cross-reference. He argued the informant’s proffer was insufficient to support a finding by a preponderance that he was responsible for trading guns for methamphetamine because the proffer was uncorroborated and not given under oath in a judicial proceeding. The court ordered an evidentiary hearing to address the informant’s credibility. However, before the hearing defense counsel was given information that supported the informant’s credibility. Carter then withdrew his objections to the PSR. The court adopted the PSR’s findings and offense level calculations and sentenced Carter to a prison term of 84 months.

On appeal Carter reiterated the arguments made in district court. He said the only evidence supporting the cross-reference was the informant’s proffer. The panel found that Carter waived his procedural challenge to the factual basis for the cross-reference. It also noted that generally, it will not review a challenge to the district court’s factually dependent sentencing determinations if that challenge was either waived (affirmatively withdrawn/rejected), as it was here, or simply forfeited (not raised). The panel reasoned that such actions by the accused deprive it of "any meaningful opportunity to evaluate the accuracy of the district court’s factual determinations."

Monday, November 04, 2019

Tenth Circuit Reverses Restitution Order

U.S. v. Anthony, 2019 WL 5655235, 18-6047, 5:15-CR-00126-C-5 (Oct. 31, 2019) (W. D. Okla. published). A jury convicted Anthony of child-sex trafficking and conspiracy to commit child-sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c) and 1594(c). The district court sentenced Anthony to the statutory mandatory-minimum 10 years of imprisonment and ordered that he pay restitution to the two child victims—R.W. and M.M—in the amount of $327,013.50 and $308,233.50, respectively. On appeal, Anthony contended these amounts exceeded the actual losses resulting from his two offenses of conviction. He raised two issues with the restitution order: (1) it impermissibly compensated for harms that R.W. suffered from an earlier, unrelated sex-trafficking criminal enterprise run by a different person; and (2) as to the conspiracy count, it compensated R.W.’s and M.M.’s harms beyond a smaller conspiracy proved at trial, which was a subset of the broader conspiracy charged. The Tenth Circuit agreed with Anthony on both issues, but disagreed he established plain error on the second issue. Thus, the Court affirmed the district court’s restitution order as covering the broader charged conspiracy, but vacated the order and remanded for a recalculation of losses to ensure that no restitution was awarded for harms that R.W. suffered during the earlier sex-trafficking offense. Anthony teaches two important concepts when measuring restitution in a case involving child sex-trafficking. First, under both the Mandatory Victims Restitution Act and the Trafficking Victims Protection Reauthorization Act, the defendant’s conduct must be the but-for cause and the proximate cause of the victim's harm. This is true notwithstanding Paroline, which interpreted a different Act. Second, the scope of the client's conspiracy is determinative: “restitution liability for a conspiracy with a non-fatal variance is measured by the scope of the smaller conspiracy proved at trial rather than the conspiracy charged in the indictment.”