Friday, August 28, 2020

Court affirms conviction based on co-conspirator's brandishing of firearm

United States v. Bailey, No. 19-5069, 2020 WL 5083329 (10th Cir. Aug. 28, 2020) (OK) Mr. Bailey committed a series of robberies at Walgreens. For the robbery at issue in this appeal, he coached a kid through the robbery, gave him a firearm and mask, and acted as a getaway driver. He was ultimately convicted of Hobbs Act conspiracy, Hobbs Act robbery and brandishing. Mr. Bailey argued for the first time on appeal that there wasn’t sufficient evidence for the brandishing because the evidence showed that the kid/accomplice did the actual brandishing and the indictment never specifically charged Mr. Bailey as an aider/abettor under 18 USC § 2. The Tenth flushes on the first prong of plain error review (i.e. they found no error occurred at all) while noting that the issue is better framed as a constructive amendment argument than a sufficiency one. See United States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005) (explaining an indictment is constructively amended if the evidence presented at trial, together with the jury instructions, raises the possibility that a defendant was convicted of an offense other than the one charged). Mr. Bailey conceded that he aided and abetted his accomplice’s brandishing and the jury was properly instructed under Rosemond. See Rosemond v. United States, 572 U.S. 65, 67 (2014) (establishing aider and abettor liability in 18 USC §924(c) cases). The Court says it is of no consequence that the indictment failed to charge Mr. Bailey as an aider and abettor because aiding and abetting is not an independent crime—all it does is remove any distinction between principal and accessory.

Tuesday, August 18, 2020

Enhancement for leader/organizer affirmed

United States of America v. Gehrmann, 2020 WL 4280673 (10th Cir. July 28, 2020) (published): Dr. Gehrmann appealed the two-level adjustment under U.S.S.G. § 3B1.1(c) for his aggravating role in a conspiracy to defraud the United States. He and his codefendant, Dr. Carlson, owned and operated a chiropractic center. They were indicted on four felony charges each: one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and three counts of filing false tax returns in violation of 26 U.S.C. § 7206(1). A month later, a cooperator, Dr. Davis pleaded guilty to willfully delivering a false tax return to the Internal Revenue Service in violation of 26 U.S.C. § 7207, a misdemeanor. Dr. Carlson later pleaded guilty to a felony count of filing a false tax return in violation of 26 U.S.C. § 7206(1). After a trial, Dr. Gehrmann was convicted on all four counts. At sentencing, the court applied a total offense level 18 and a criminal history category I, resulting in a Guidelines range of 27–33 months. The Court then varied to a 24-month sentence. On appeal, Dr. Gehrmann raised two issues: 1) the adequacy of the court’s explanation for the two-level enhancement and 2) the evidentiary support for it. At sentencing, Dr. Gehrmann never objected to the adequacy of the court’s explanation of its sentencing decision, so the appellate court reviewed for plain error. It found the district court’s explanation – a conclusory statement that the doctor was “at a minimum, a leader or organizer” -- was not a sufficient explanation, but that Dr. Gehrmann could not show a reasonable probability of a different sentencing outcome on a remand. The enhancement for leader/organizer was supported by the sentencing court’s findings, undisputed findings in the presentence report and the facts in Dr. Gehrmann’s appellate briefs. Dr. Gehrmann had organized the conspiracy with Dr. Carlson and then the two of them had recruited Dr. Davis. Moreover, he oversaw the implementation of the conspiracy. For these same reasons, sufficient evidence supported the enhancement. Judge Lucero dissented. He agreed that the sentencing court failed to make sufficient findings. However, he accused the majority of improperly making its own findings and failing to consider Dr. Gehrmann’s role relative to the other members of the conspiracy.

Monday, August 17, 2020

Federal Conviction of Assault with a Dangerous Weapon Is A Crime of Violence, Tenth Circuit Holds

United States v. Muskett, No. 17-2123, 2020 WL 4726020 (10th Cir. Aug. 14, 2020) (N.M.) 2255 appeal seeking to vacate a conviction for brandishing in furtherance of a crime of violence post-Davis. The predicate felony was assault with a dangerous weapon, 18 U.S.C. 113(a)(3). The government argued that even though Davis rendered the residual clause unconstitutional, the predicate satisfied the elements clause in 18 U.S.C. 924(c), rendering any problem harmless. The Tenth goes through the analysis that they’ve been going through lately, effectively rendering the Curtis Johnson Ievel of force (i.e. violent force) a nullity by applying Castleman and Ontiveros (both containing more expansive definitions of “physical force.”) Armed with this logic, the Court holds that 113(a)(3) crimes satisfy the elements clause reasoning “if one has attempted or threatened to inflict injury upon another person (thereby committing federal criminal assault), he has attempted or threatened physical force capable of causing physical pain or injury.” The Tenth also denies a due process/fair notice/ex post facto/retroactivity challenge. On this point, Bacharach dissented. He acknowledged that in 2013, when Muskett committed the crime, the Tenth’s precedent (Perez-Vargas, later overruled by Ontiveros) prevented the Court from treating 18 U.S.C. 113(a)(3) crimes as “crimes of violence” because they did not necessarily involve the direct use of physical force. Bacharach concluded that applying Ontiveros retroactively denied Mr. Muskett due process because that holding caused a sea change that was unforeseeable in 2013. Ed. note: In Borden v. U.S., No. 19-5410, the Supreme Court will address "Whether the 'use of force' clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness."